This week, the European Council and Parliament reached provisional agreement on a new European Union (EU) directive to ’empower consumers for the green transition’.
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Part 36 Offer Containing Term Court Could Not Have Ordered Deemed Valid
In Robert Colicci & Others v. Nora Grinberg & Another, the High Court of England and Wales confirmed that a Part 36 offer containing a term that the court would not have been able to order (in this case, a payment to the defendant in exchange for the transfer of shares) was a valid Part 36 offer.
On the Record: On-Demand Events
Our On the Record Rapid-Fire Series provides insights and analysis on commercial and contractual disputes – and the issues that drive them. The series addresses a range of topics, including class actions, crypto, product litigation, and cross-border, life sciences and technology disputes. To keep up with all the changes in high-value and complex commercial and contractual disputes, subscribe to our updates below.
High Court Refuses to Enforce Arbitration Award Relating to Crypto Consumer Contract
In Payward, Inc. and Others v. Chechetkin, the High Court of England and Wales refused the claimants’ claim for the enforcement of a US arbitration award against a UK-based consumer. The court ruled that enforcement of the award would be contrary to public policy as it contravened key provisions of the Consumer Rights Act 2015 (CRA) and the Financial Services and Markets Act 2000 (FSMA).
Phone War: ‘Charges Unlawfully Avoided’ Claim Held To Be Excluded Loss of Profits Claim
In EE Limited v. Virgin Mobile Telecoms Limited,[1] the High Court found that the claimant’s claim for ‘charges unlawfully avoided’ under a telecommunications supply agreement was in fact a claim for loss of profits, which were excluded by an exclusion clause in the agreement.
EU Adopts Long-Awaited Mandatory ESG Reporting Standards
In January 2023, the European Union adopted the Corporate Sustainability Reporting Directive (CSRD), which requires EU and non-EU companies with activities in the EU to file annual sustainability reports alongside their financial statements. These reports must be prepared in accordance with European Sustainability Reporting Standards (ESRS).
On July 31, 2023, the European Commission adopted the first set of ESRS. The ESRS soon will become law and will apply directly in all 27 EU member states, but not in the UK. Companies will need to report in compliance with these new ESRS as early as the 2024 reporting period.
The standards are notable for their breadth and granularity, going well beyond the reporting requirements in other mandatory and voluntary ESG reporting frameworks. It is clear that companies in scope need to start getting ready to report to these new ESRS now.
United Kingdom: Injunctive Relief Against Persons Unknown – The Ransomware Edition
On 11 July 2023, the English High Court handed down its decision on the claimant’s application in Armstrong Watson LLP v. Persons Unknown, granting judgment in default and final injunctive relief. Specifically, the court granted the claimant permanent injunctive relief against persons unknown – a group of unidentified hackers – for purposes of restraining the use and disclosure of confidential information that had been acquired by the hackers via a ransomware attack and to require deletion or delivery up of that information.
UK Product Safety Review Finally Published
On 2 August 2023, the UK government published its long-awaited proposals for reform of the UK product safety regime. There are 13 wide-ranging proposals, some of which could radically change the UK product safety landscape and/or have a significant impact for stakeholders.
The UK government has launched a public consultation on the reforms, which is open until 24 October 2023.
Economic Crime and Corporate Transparency Bill
There have been extensive discussions on what the Economic Crime and Corporate Transparency Bill could mean for the conduct of business in the UK (for our views, see this 26 April 2023 On the Record blog post). Now, the government intends to use the bill as a vehicle to materially expand the historical trigger for corporate criminal liability – namely, the ‘identification principle’.
UK Supreme Court: Litigation Funding Agreements Are Damages-Based Agreements
On 26 July 2023, the UK Supreme Court handed down a judgment that will cause serious disruption (at least in the short term) to the litigation funding market. In R (on the application of PACCAR Inc and others) v. Competition Appeal Tribunal and others, the Supreme Court held by a majority that litigation funding agreements which entitled the funders to recover a percentage of the damages recovered were damages-based agreements and, as such, were unenforceable, as they did not meet the strict statutory conditions for such agreements.