commerical law update - in house lawyers forum october 2014, richard nicholas
TRANSCRIPT
Commercial law update In house lawyers forum – October 2014
• Consumer Contracts Regulations 2013
• contract update – three cases
• technology developments – toll fraud
In house lawyer ‘checker’ product
• free second opinion/expert view/check
a point
• approx. 20 minutes on the telephone
• equivalent to seeing a specialist at their
desk
• exclusively for in house lawyers
Terms and conditions apply
The Consumer Contracts…
(information, cancellation and additional charges)…
Regulations 2013
CC (information, cancellation and additional charges)… Regs
• information
• cancellation
• additional charges
CC (information, cancellation and additional charges)… Regs
• information
– template cancellation form, compatible
equipment, complaints, ‘pay now’ button
• cancellation
• additional charges
CC (information, cancellation and additional charges)… Regs
• information
– template cancellation form, compatible
equipment, complaints, ‘pay now’ button
• cancellation
– 14 days (or 1 year) cancellation, return &
refund
• additional charges
CC (information, cancellation and additional charges)… Regs
• information
– template cancellation form, compatible
equipment, complaints, ‘pay now’ button
• cancellation
– 14 days (or 1 year) cancellation, return &
refund
• additional charges
– no pre-ticked boxes or premium phone
lines
• ‘good faith’ – BGS v IDC (2014 CFI) -
remember these…
– Compass Group v Mid Essex (2013) CA
– TSG Building Services v South Anglia
(2013) CFI
– Yam Seng v International Trade Corp
(2013) CFI?
• ‘good faith’ – BGS v IDC (2014 CFI)
• here - implied duty of good faith where
there is a ‘relational’ contract requiring
a relationship based upon trust
• for long term agreements – outsourcing,
franchising, agency, distribution –
consider arguments of ‘implied good
faith’
• however…
• agreement with DVLA
• ‘Partners Achieving Change Together
Partnering Agreement’ (!)
• held
– if good faith was intended – should have
been explicit
• if you can’t be sure of a breach but are
seeking damages
– argue that the agreement is ‘relational’
• if the other side make this argument
– focus on the wording of the contract &
previous case law, that it is not
‘necessary’ in order to make sense of the
agreement
• disputes to be resolved first…
• … by ‘friendly negotiations’
• binding?
• if you are faced with an obligation like
this – at least try talking!
• avoid ‘friendly negotiation’ type
wording unless you’re prepared to
commit to it
• Voiceflex v Frip Finishing Ltd (2014 CFI)
• can Voiceflex recover cost of calls made
on Frip’s account?
• Frip to “use all reasonable endeavours
to keep the password confidential”
• toll fraud – check terms
• where facts are hard to prove (3rd party
hacking), consider explicit allocation of
responsibility – and explicit steps for
customer to observe
• practical point worth checking…
• Consumer Contracts (Information,
Cancellation and Additional Charges)
Regulations are now in force
• for ‘relational’ contracts – good faith
may now be implied (but bear in mind
competing case law)
• repeated use of the word ‘partner’
won’t avoid disputes
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