June - 2020

William Kanaan

Jun 30, 2020

Service of Papers During Lockdown

A solicitor acting for a claimant served particulars of claim on 25 March (i.e. two days after lockdown) at an empty and closed office knowing that the defendant had to acknowledge service by 9 April. The High Court judge granted the defendant relief from sanctions and overturned a decision to grant judgment against the defendant in default, giving permission to the defendant to file and serve an acknowledgement of service and defence within 14 days. The judge criticized the

William Kanaan

Jun 26, 2020

Employer’s Duty to Conduct a COVID-19 risk assessment

Can an employer force an employee to return to the office? Pre-COVID 19, the short answer would be (in most cases) yes. If an employee refused, it would be a breach of their employment contract, and possible dismissal would follow. However, employers have a duty of care towards their employees and that means both their physical and mental health. They have to comply with health and safety requirements, which these days may include deep cleaning, social distancing measures, pr

William Kanaan

Jun 26, 2020

COVID-19: IPO announces date for end of "interrupted period"

The Intellectual Property Office declared 24 March 2020, and all subsequent days until further notice, “interrupted days”. This means that the normal course of business at the IPO is not possible. The effect is that most deadlines that fall on an interrupted day for patents, supplementary protection certificates, trade marks and designs, and applications for those rights have been automatically extended. The IPO has now announced that the interrupted period will come to an en

William Kanaan

Jun 22, 2020

Changes to Coronavirus Job Retention Scheme 1 July 2020

From 1 July 2020, the UK Government's Coronavirus Job Retention Scheme will be changing significantly. From that date, employees who have been furloughed will be able to be brought back to work by their employers on a part time. The employer is able to decide the hours and shift patterns that they can work to match the requirements of their business. Looking slightly further ahead, as of 1 August 2020, employers will have to contribute towards their employee’s wages costs. Co

William Kanaan

Jun 22, 2020

Privilege – referring to the effect but not content of legal advice may constitute waiver

The High Court has determined that privilege had been waived by repeated references to the involvement of lawyers, even though the content of that advice had not been laid out. The judgment dealt in some detail with the law of privilege and the notion that "quite apart from reliance, waiver cannot arise if the reference is to the 'effect' of the legal advice as opposed to its 'contents'". It came to the conclusion that the law of privilege is highly nuanced and rulings depend

William Kanaan

Jun 16, 2020

COVID-19 and frustration of contract

The common-law doctrine of frustration of a contract applies where an unforeseen event occurs that is neither party’s fault but that makes the performance of the contract impossible or radically changes the original nature of the contract. If a contract doesn’t have a force majeure provision, or one that deals with the event in question, then an affected party should consider of frustration. Delay caused by the Covid-19 pandemic could in principle be a frustrating event, depe

William Kanaan

Jun 16, 2020

COVID-19 and force majeure clauses

Commonly found in contracts, force majeure clauses can alter obligations and/or liabilities when an extraordinary event or circumstance beyond the control of the parties (e.g. acts of God, flood, terrorism, pandemics and so on) prevents one or all of them from carrying out those obligations. Depending on their precise wording, their effect can be to excuse the affected party from performing the contract in whole or in part; excusing that party from delay in performance, entit

William Kanaan

Jun 15, 2020

Vicarious liability and data protection - Morrisons

The Supreme Court has ruled that Morrisons, the supermarket company, was not vicariously liable for the actions of an employee who unlawfully published employee payroll data on the internet. The employee had been given payroll data as part of his job as a senior auditor. Bearing a grudge, he published the data to harm his employer. He was convicted of, amongst other things, securing unauthorised access to computer material, disclosing personal data and fraud, and was given an

William Kanaan

Jun 12, 2020

Reputation and distinctiveness of opponent's mark not relevant to assessment of similarity

The ECJ has annulled the General Court's decision that an opposition to the registration of a figurative mark, based on an earlier EU trade mark, was well founded. When identifying the dominant element of the earlier mark, EUIPO and the General Court had taken into account the reputation and degree of distinctive characters of that mark. The ECJ said this test was relevant when assessing the likelihood of confusion but it was not relevant to the step that must first be taken

William Kanaan

Jun 12, 2020

Charitable incorporated organisation members' duty to act in good faith is subjective

In a case involving a dispute between two parties in a church, which was being re-structured as a charitable incorporated organisation (CIO), the High Court confirmed that a member of a CIO is to exercise their powers subjectively. The Court referred to the case of The Children's Investment Foundation Fund (UK) v Attorney General[2019] Ch 139 where the Court of Appeal held that members of a charitable company owed a duty corresponding to that specifically imposed on members o

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