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In association with Iain Larkins from , we bring you updates across Corporate & Commercial, Data Security, Employment, Consumer and Competition law.

We focus on the commercial aspects and look at the practical steps for you to consider.

This month, we cover the following...

Corporate & Commercial

An unreasonable restraint of trade

It’s established law that any contract that restricts another party’s freedom to trade must be limited to what’s reasonable.

The Court has ruled in a recent case that a sports management contract that tied a racing driver in for 18 years whilst allowing the management company a one-month exit at any-time and that effectively excluded any other meaningful input into the development of his career – was not reasonable and was therefore an unlawful restraint of trade.  The argument that it was the norm in the industry did not persuade the Court – the fact that others have signed unreasonable contracts did not make this one reasonable. 

See News Analysis:

When can a party claim negotiating damages?

It can be difficult to value a claim that relates to the breach of a restriction.  One solution is to value the claim by the hypothetical additional value that would have been payable for the contract without the restriction.  This is known as ‘negotiating damages’.   In a recent case concerning the sale of a ship on the condition that the buyer would only use it for scrap metal, the seller claimed ‘negotiating damages’ when the buyer breached that condition.  The Court allowed an injunction to stop further breaches but refused ‘negotiating damages’ for the past breaches and, instead, only awarded nominal compensation. The Court said that negotiating damages will only be available where there has been a breach of contract and that breach results in the loss of the asset that’s protected by the contractual right (such as a breach of a confidentiality clause).   This was not the case here.  The ship had already been sold and therefore the trading of that ship did not involve the buyer taking or using something in which the seller had an interest.

See News Analysis:

Unjust enrichment

The case of AMP Advisory (‘AMP’) and Force India Formula One Team (FI) concerned AMP’s claim that FI had breached an unsigned contract to pay introductory commission on a sponsorship deal. AMP’s claim failed because the correspondence showed that AMP had continually, but unsuccessfully, insisted that FI sign its contract.  It was then difficult for AMP to argue that the lack of a signed contract did not matter.

AMP was however partly successful in its claim for unjust enrichment by proving it had been involved, albeit in a limited way, for the successful conclusion of the sponsorship and that without some payment to AMP, FI would be unjustly enriched.  The Court decided that AMP should be paid £150,000– significantly less than the £9m commission that AMP had been seeking.  It is worth noting that if AMP been able to prove that it was wholly responsible for the introduction of the sponsorship the unjust enrichment claim is likely to have been significantly higher.

See News Analysis:

Payment reporting

For more than two years now, large businesses have been legally obliged to . Fines can be imposed on companies and their directors. The recent Business Confidence Monitor report has however noted that there has been a rise of 25% in late payments since the previous year.

RPI to be aligned

The government has announced that RPI will be changed to match CPIH on a date between 2025 and 2030. CPIH is the Consumer Price Index including owner occupier’s housing costs. It is about 1% lower than RPI.  Businesses should therefore start to consider the impact of these changes on any RPI linked contracts.  

See LNB News:

Electronic signatures

The Law Commission’s published in September has confirmed that e-signatures are an acceptable way of completing contracts, including deeds and land contracts, but where there is a requirement to have a witness, the witness must be physically present with the signatory contracting parties can still agree to only use particular forms of signature; there are still some, very limited, legislative requirements that arguably still require wet ink signatures.

The Commission has recommended that there are new laws to provide more clarity on e-signatures and that there is a review of deeds generally to consider whether the requirement for a witness is now outdated.

Interestingly, within days of the Law Commission’s report the Court ruled that a property contract contained in a series of emails had been held been validly signed by a solicitor.

See News Analysis:

Barclays pays $6m to end US SEC's foreign bribery claims

Barclays PLC has agreed to pay $6m for allowing the hire of more than 100 friends and relatives of government officials in Asia, the US Securities and Exchange Commission has said.

It’s reported that Barclays lacked adequate internal controls to keep employees from using hires as bribes and it’s understood that a senior regional compliance executive admitted that he never read the anti-bribery and corruption policy.

See News Analysis: .