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TRG UPDATE - June 2020


Welcome to the latest issue of the TRG Update. The circumstances of recent weeks have certainly put things in perspective. One can only hope that some positives come out of this and that the impact on the health and wellbeing of family and friends is minimised. Hopefully, things get back to some semblance of ‘normality’ as soon as possible without putting lives in danger. It would be good if the inevitable disputes which will arise out of the emergency can be resolved constructively with limited need to resort to formal litigation as we are sure that funds are probably much better directed elsewhere rather than paying expensive litigation lawyers!

Our annual ‘Commercial Contracts – Hot Topics 2020’ seminar organised in conjunction with the IACCM was held recently – although it now seems like an age ago. The seminar, which always features all new content covering the very latest developments, was extremely popular and feedback from the event was incredibly positive.

  • 100% of respondents agreed that following the seminar they could begin applying what they had learned in the course of their work;
  • 94% said they would recommend the course to colleagues.

Specific comments included: -

  • Excellent seminar. Paul covers an array of commercial topics in an easy to understand format which have some great take-aways for use at work;
  • List of topics represents perfectly what I meet in my day to day work and I got plenty of food for thought;
  • Excellent seminar full of valuable content.

If there is sufficient demand we are always happy to organise another session and we can organise in-house versions of the seminar. Please get in touch if that would be of interest.

In this edition we have quite deliberately not featured an analysis of ‘force majeure’ and its current application. There has, not surprisingly, been a blizzard of legal bulletins on this in recent weeks such that any summary by us is probably redundant. However, if anybody would like help on specific provisions please get in touch. Instead, we feature cases on:

  • The last word on vicarious liability for data security breaches
  • Wrongful termination for ‘substantial’ breach
  • Issues of ‘consequential’ loss and force majeure
  • Entire agreement’ clauses and implied terms

An archive of previous cases featured in our Updates is available here.

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Company not vicariously liable for acts of employee

Morrison Supermarkets v Various Claimants (Supreme Court) [2020]

The Supreme Court has handed down a very important judgment for all data controllers and processors who were concerned that they could be strictly liable in damages for data security breaches even where the acts of the employee in question were done very deliberately to damage the employer... More>>>

Wrongful termination for ‘substantial breach’

PBS Energo v Bester (High Court) [2020]

If a contracting party wrongly purports to terminate a contract when they do not have sufficient grounds for doing so, there is a clear danger that they will themselves be committing what is known as a ‘repudiatory breach’. Such a breach will entitle the other contracting party to ‘accept’ that repudiation and terminate themselves, thereby completely turning the tables. This could render the party who originally purported to terminate liable for damages as well as substantially reducing or even eliminating any claim for damages that they might have had relating to the breach(es) which formed the basis of the original purported termination. Termination is therefore a very high-risk option unless you are on very firm ground ... More>>>

Another look at concepts of ‘consequential’ loss and ‘force majeure’

2 Entertain v Sony (High Court) [2020]

‘Consequential loss’ is a legal phrase that has perplexed and mystified lawyers and their clients for many years. Several cases have analysed the meaning of the phrase in order to ascertain whether an entitlement to damages is either restricted or even excluded altogether. This case is the latest example.

The case also looked at the topical principle of ‘force majeure’ in the context of a riot and a resulting fire ... More>>>

Entire Agreement clauses and contract interpretation

NHS v Vasant (Court of Appeal) [2019]

So called ‘entire agreement’ clauses are a familiar part of contractual ‘boilerplate’. As their name would suggest, they are intended to make clear that the executed written document is the entire agreement between the parties... More>>>

This email is intended as general information only and not as legal advice. If you require any advice, please contact us.

© TRG Law Limited 2020

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TRG Updates contain practical summaries of important legal developments in commercial contract law, including information technology and related areas.

TRG BRIEFings are brief ‘alerts’ to key contract, technology and intellectual property related legal issues and developments.

TRG law specialises exclusively in the drafting, negotiation and interpretation of technology, outsourcing and commercial contracts.

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Paul Golding

Tracey Tarrant