Commercial Review – December 2013
Print newsletter18/12/2013

Our team in 2013
2013 has been an exciting year for the Walker Morris Commercial Team. In January we […]
2013 has been an exciting year for the Walker Morris Commercial Team.
In January we welcomed Trudy Feaster-Gee as the Head of our Competition practice. Trudy is a barrister with over 20 years’ experience of all aspects of EU and UK competition law across a wide range of sectors (including regulated utilities and financial services). In addition to her time in private practice, in 2010-11 Trudy supported the Chairman and Director of Policy at the Competition Commission on external affairs and policy matters. Due to that experience, she was approached by Lloyds Banking Group to act as their Head of Competition External Engagement for a year during 2012.
Finally, in September, we welcomed Lee Crook to the team as a solicitor.

Six key developments in 2013
In this article we consider six of the most important developments in English commercial law […]
In this article we consider six of the most important developments in English commercial law to have occurred in 2013.
Exclusion clauses
Probably the most significant case in the perennially troublesome area of exclusion clauses was Kudos Catering (UK) Limited v Manchester Central Convention Complex Limited, in which a party sought to rely upon an exclusion clause to exclude its liability for loss of profits in relation to a repudiatory breach of contract. We examine the case and its implications here.
Late payment of invoices
New legislation governing the late payment of invoices came into force earlier in the year. In an earlier briefing we summarised the new legislation and advised what businesses should be doing to take advantage of it.
Social media
The growth of social media continues to present challenges for the law, particularly in the areas of employment law and intellectual property law. One issue that has come to the fore in the last few months is who owns social media contacts. We discuss this increasingly important issue here.
Good faith
2013 has been a roller coaster year for the concept of good faith in commercial contracts with a surprising number of (sometimes apparently contradictory) cases exploring the extent to which parties to a contract owe a duty of good faith to one another. We consider the issue here.
Consumers
Businesses that deal with consumers need to start getting ready for the Consumer Rights Bill next year by reviewing their standard wording on, for instance, cancellation rights and refunds and returns. Businesses should also check that they are compliant with the legislation on excessive surcharges, which came into force on 6 April 2013 and which we examined here.
Legal professional privilege
In January the Supreme Court considered whether legal professional privilege – which protects the advice given to lawyers by their clients from disclosure – applies to other professions. In a decision which has important ramifications for all those instructing professional advisers, the Court answered the question in the negative. Further analysis is provided here

What to look out for in 2014 – Commercial
Consumer law reform The Government is currently undertaking the most extensive reform of consumer law […]
Consumer law reform
The Government is currently undertaking the most extensive reform of consumer law in years. The reforms fall into five key categories:
- implementation of the Consumer Rights Directive into UK law
- introduction of the Consumer Rights Bill
- addressing misleading and aggressive practices
- structural reform of consumer law enforcement institutions
- empowering consumers.
The deadline for the Consumer Rights Directive to be incorporated into national law is December 2013, with the provisions coming into force in June 2014. The Consumer Rights Bill is intended to implement parts of the Consumer Rights Directive (although the bulk of this will be implemented in secondary legislation). The Bill, if introduced in its current form, would consolidate a number of existing consumer rights laws into one single legal framework and increase the rights and remedies available to consumers. It would also clarify the powers of enforcers to investigate potential breaches of consumer law; introduce enhanced measures for consumers to achieve redress and facilitate challenges by consumers and businesses to anti-competitive practices. The draft Bill also proposes the introduction of specific rights and remedies for consumers buying digital content.
Common European Sales Law
In October 2012, the European Parliament Committee backed the introduction of a uniform, Common European Sales Law (CESL), to apply where there is a cross-border element to a transaction. The CESL, if it goes ahead, will be optional with EU businesses and consumers free to decide whether or not to use it in their cross-border contracts. The CESL would be a code of contract law that would co-exist with, rather than replace, national laws.
To date, the reaction in the UK to these proposals has been largely negative with the Government maintaining that there is insufficient evidence of the need for the CESL as currently drafted, which would apply to business-to-consumer and business-to-business transactions where one of the businesses is a small or medium-sized enterprise. Despite this, the European Parliament professes confidence that all the issues will be resolved, and that the CESL will proceed and it is worth keeping an eye on developments in 2014.
New technology transfer block exemption
The current regulation block exempting certain categories of technology licensing agreement from the competition rules on anti-competitive agreements is due to expire on 30 April 2014. The European Commission has been consulting on the form of the new block exemption regulation which is to take its place. Walker Morris responded to the consultation and we have written previously on certain details of the Commission proposals.
Review of the Bribery Act 2010
The Government is due to review the Bribery Act 2010 with a view to potentially relaxing its requirements to reduce the burden on small and medium-sized enterprises as part of the “red tape challenge”. The Act introduced a very tough anti-bribery regime and brought with it some uncertainties, for instance, the extent to which corporate hospitality could fall foul of the Act. Businesses that have been struggling to implement anti-bribery policies and practices will watch with interest for possible developments.
Privately funded healthcare services
The Office of Fair Trading made a market investigation to the Competition Commission in respect of the supply or acquisition of privately funded healthcare services in the UK in April 2012. The OFT is empowered to make a market investigation reference where it has reasonable grounds for suspecting that the market at issue involves features which “prevent, restrict or distort competition”. The OFT identified a number of such features, including the lack of easily comparable information available to patients, GPs or insurance providers as to quality and costs or private healthcare services; high levels of concentration at both national and local level, and significant barriers to entry. Those findings were endorsed by the Competition Commission’s provisional findings.
The Competition Commission has been consulting on possible remedies, which include requiring certain private hospital providers to divest hospitals in certain local areas. Other possibilities include a prohibition on incentive schemes for consultants, a prohibition on expansion in certain local areas, measures to prevent bundling or tying; and measures to improve the quality of information available to patients.
The Competition Commission’s final report is due in April 2014.
Competition & Markets Authority
The Competition & Markets Authority (CMA) is scheduled to begin operation in 1 April 2014. The CMA, which is being formed from a merger of the Office of Fair Trading and the Competition Commission, will have responsibility for enforcing competition law and protecting consumers.
The legislation providing for the formation of the CMA – the Enterprise and Regulatory Reform Act 2013 – also introduces various technical changes to the competition regime and particularly the cartel offence.