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Lawyers Covered - March 2021

Published on 24 Mar 2021.

Welcome to the latest edition of our Lawyers Liability & Regulatory Update, in which we look back over the last month at key developments affecting lawyers and the professional risks they face.

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Going Green – staying on the right side of competition law

Published on 15 May 2023. By Melanie Musgrave, Of Counsel and Leonia Chesterfield, Of Counsel

Environmental issues are high on the agenda for many consumers and businesses alike. They are also increasingly an area of focus for competition authorities around the world, including the Competition and Markets Authority (CMA), who are keen to ensure that competition law concerns do not unnecessarily prevent businesses from collaborating legitimately on environmental sustainability initiatives.

Profile

Kim Wright

Senior Associate

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Ransoms and Sanctions and Fines (oh my!)

Published on 04 Sep 2023. By Richard Breavington, Partner and Helen Monachan, Associate

Ransomware attacks are happening all the time. Just the other month, the Cl0p ransomware gang claimed responsibility for the exploitation of a zero-day vulnerability in the MOVEit Transfer tool.

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Ransoms and Sanctions and Fines (oh my!)

Published on 04 Sep 2023. By Richard Breavington, Partner and Helen Monachan, Associate

Ransomware attacks are happening all the time. Just the other month, the Cl0p ransomware gang claimed responsibility for the exploitation of a zero-day vulnerability in the MOVEit Transfer tool.

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The CAT's new approach: I can't afford a carriage (dispute)

Published on 02 Jun 2023. By Chris Ross, Partner and Leonia Chesterfield, Of Counsel

Since the collective proceedings regime in the UK's Competition Appeal Tribunal (CAT) kicked off, a number of carriage disputes have arisen. So-called 'carriage disputes' arise when there are two or more competing proposed class representatives (PCRs) seeking certification (and therefore 'carriage') of overlapping class actions.

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The Terminator: A Tale of Two Insurance Claims

Published on 19 Dec 2023. By Peter Mansfield, Partner

It is 2029, and the Machines are losing their war with Humanity. What to do?

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Project Angel Bidco v AXIS - what are the key takeaways for warranty and indemnity insurers?

Published on 30 Nov 2023. By James Wickes, Partner and Matthew Wood, Senior Associate and Matt Ward, Trainee Solicitor

On 31 October 2023, the London Circuit Commercial Court gave judgment in Project Angel Bidco Limited (in administration) v Axis Managing Agency Limited & Ors (2023) EWHC 2649.

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Wordings do matter

Published on 06 Nov 2023. By Tamsin Hyland, Partner

Contract drafting has been brass tacks for lawyers since the dawn of time. In its broadest terms, it involves putting the scope of a bargain reached between parties into clear and effective language.

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Storm Babet, flooding and the insurance implications

Published on 24 Oct 2023. By Victoria Sherratt, Partner and Andrew Roper, Partner and Aimee Talbot, Knowledge Lawyer

Subtropical cyclone Storm Babet is currently responsible for over 350 flood warnings in the UK, with more flood warnings expected later this week.

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Getting to know Global Access Lawyers

Published on 09 Oct 2023. By Carmel Green, Partner and Simon Laird, Global Head of Insurance

Global Access Lawyers brings together some of the worlds leading insurance law practices. In the following pages get to know the different law firms that make up Global Access, who we are, where we operate and the kind of work we do. We hope you find this useful to understand the international reach of Global Access.

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Court of Appeal finds in favour of FSCS on scope of the Policyholder Protection Rules (PRR)

Published on 14 Sep 2023. By Tamsin Hyland, Partner

Tamsin Hyland explores the recent judgment of JR (On the application of Manchikalapati v FSCS [2023] EWCA Civ 1006) and its relevance to insurance policy wording.

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What does the FRC's proposed corporate governance overhaul mean for D&O exposures?

Published on 04 Jul 2023. By James Wickes, Partner and Aimee Talbot, Knowledge Lawyer

The Financial Reporting Council (FRC) has now published the draft new UK Corporate Governance Code following the Government's requirements that it incorporate more robust internal control and prudent and effective risk management requirements. The deadline for responses to the FRC's consultation is 13 September 2023.

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FOS complaints and hindsight – categorical statement from the Chief Ombudsman

Published on 11 May 2020. By Rachael Healey, Partner

The FCA has been producing a range of temporary measures with the aim of ensuring that firms can work at pace during the pandemic for the benefit of customers. However, where procedures are bypassed or corners cut what will FOS do in response? The response from FOS to that questions raises another – the use of hindsight when coming to its decisions.

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Accountants, auditors and actuaries beware: the FRC continues to show its teeth, as its future stands in the balance

Published on 18 Jul 2018. By Rachel Ford, Partner

In widely publicised news, the Financial Reporting Council (FRC) continues to levy record high fines and has cast criticism on a number of firms. What appears to be an unforgiving stance taken by the regulator seems to come in the wake of the review into whether or not it should be disbanded, or folded into another regulatory organisation.

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The future of SIPPs – FCA responds to the Work and Pensions Committee

Published on 05 Jul 2018. By Rachael Healey, Partner

A couple of weeks ago we reported on 5 pointed questions raised by the Work and Pensions Committee of the FCA in relation to the SIPP market. Those questions included whether or not the FCA was considering banning non-standard investments in SIPPs. The FCA has now responded. The response includes the FCA's views on the due diligence it expects of SIPP providers when it comes to non-standard investments.

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The November 2023 AI safety summit and the UK's direction of travel

Published on 29 Aug 2023. By Helen Armstrong, Partner and Charles Buckworth, Partner and Joshy Thomas, Knowledge Lawyer

The government has confirmed that the UK AI safety summit will be held at Bletchley Park on 1 and 2 November 2023.

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Telecoms supply agreement excludes "loss of profit" claim under "anticipated profits" liability exclusion (EE v Virgin Mobile)

Published on 25 Aug 2023. By Helen Armstrong, Partner and Ben Harris, Associate and Joshy Thomas, Knowledge Lawyer

In line with a number of recent cases, in EE Limited v Virgin Mobile Telecoms Limited [2023] EWHC 1989 (TCC) the courts have shown that parties generally cannot avoid clear wording contained in exclusion clauses in order to recover losses that have been expressly excluded (in this case, loss of profits).

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Rolls-Royce entitled to hit the brakes in dispute over termination of a software services agreement (Topalsson v Rolls-Royce)

Published on 14 Aug 2023. By Helen Armstrong, Partner and Ben Harris, Associate and Joshy Thomas, Knowledge Lawyer

In Topalsson GmbH v Rolls-Royce Motor Cars Limited [2023] EWHC 1765 (TCC), the High Court has provided useful guidance on how to determine whether a software implementation timeline agreed by the parties is binding, when implementation is considered complete and in what circumstances failing to complete implementation by the contractual deadlines entitles the customer to terminate the contract.

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A narrow escape – software services provider entitled to rely on single aggregate liability cap (Drax v Wipro)

Published on 25 Jul 2023. By Helen Armstrong, Partner and Ben Harris, Associate and Joshy Thomas, Knowledge Lawyer

When it comes to bespoke software development projects, a lot can go wrong. There's risk for the customer such as project delays, software defects, functionality issues and a lack of meeting of minds in terms of project requirements.

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SRA fining powers – putting the SDT out of business?

Published on 29 Aug 2023. By Graham Reid, Partner and Tom Wild, Senior Associate

The SRA is on a mission to increase its powers to levy financial penalties. The last 12 months have seen a substantial increase in its fining powers, and a grant of unlimited fining powers in matters relating to financial crime and SLAPPs is imminent. The SRA has now dramatically upped the ante, seeking the power to levy unlimited fines in all cases of serious misconduct. With the Legal Services Board appearing supportive, the proposal has the potential profoundly to affect the enforcement of professional discipline within the profession.

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Enhanced Regulatory Supervision of Asset Managers in Europe – Greenwashing Risks

Published on 12 Jul 2023. By James Wickes, Partner and Nick Cumming, Associate

A common methodology has been developed by ESMA to allow national European regulators to share knowledge and experiences to facilitate convergence in how they supervise sustainability related disclosures.

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Costs recovered in the Small Claims Track from an unreasonable Litigant in Person

Published on 24 Jan 2023. By Rhian Howell, Partner & Head of Office, Bristol and Daniel Charity, Associate

Most (if not all) litigators will be familiar with the challenge of being on the other side of a claim brought by a litigant in person ("LiP"). The courts expect practitioners to be sensitive to their opponent's lack of legal expertise and familiarity with court rules, but judges have also been clear that they expect all parties – including LiPs – to follow the rules regardless of their legal representation.

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SRA issues Warning Notice on solicitors' involvement in SLAPPs

Published on 20 Dec 2022. By Graham Reid, Partner

SLAPPs (aka 'Strategic Lawsuits Against Public Participation') is a term coined in the USA. They are becoming the object of increasing concern over here too.

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Hong Kong – Claim pleading duty of care against auditor struck out for "putting the cart before the horse"

Published on 28 Oct 2022. By Antony Sassi, Managing Partner, Asia and David Smyth, Senior Consultant and Anson Lo, Associate

In Chan Kam Cheung v Ronnie K W Choi & Anor [2022] HKCFI 3028, a judge upheld a master's (judicial officer's) decision to strike out the plaintiff shareholder's action against the former auditors of the company.

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Solicitors Entitled to Insurance Cover for Liability for Fees: Royal Sun Alliance Insurance Limited & Others v Tughans (a firm)

Published on 27 Oct 2022. By Nick Bird, Partner and Cheryl Laird, Senior Associate (Scottish Qualified)

In a recent judgment, Foxton J held that a claim for damages against a firm of solicitors for fees which it was contractually entitled to was covered under the firm's professional indemnity insurance. He held that it did not matter if the fees were obtained through the solicitor's fraudulent misrepresentation provided that the solicitor had done what was required under the contract to earn the fees. The decision will not be welcomed by insurers.

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Shorter time limit for Third Parties (Rights Against Insurers) Act 2010 claims

Published on 08 Sep 2022. By Robert Morris, Partner

A recent judgment has reduced the limitation period for third parties to make direct claims against insurers under the Third Parties (Rights Against Insurers) Act 2010 when compared to claims under the predecessor 1930 Act. The decision will make it easier for insurers to defend such claims on limitation grounds.

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Risky Business: what to do when former clients ask further questions

Published on 22 Aug 2022. By Anna Murley, Senior Associate and Claire Revell, Partner

In Spire Property Development LLP & Anor v Withers LLP [2022] EWCA Civ 970, the Court of Appeal considered the scope of a solicitor's duty when a former client posed questions to a solicitor concerning a transaction after the retainer had ended. The judgment will be of interest to solicitors who are asked for advice in circumstances where no retainer exists.

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The Professional Negligence Law Review, Edition 5

Published on 29 Jul 2022. By Nick Bird, Partner

The Professional Negligence Law Review provides an indispensable global overview of the law and practice of professional liability and regulation. It covers the fundamental principles of professional negligence law in each jurisdiction, including obligations, fora, dispute resolution mechanisms, remedies and time bars. The authors then review factors specific to the main professions and conclude with an outline of recent developments and issues to look out for in the year ahead.

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Double warning for legal professionals: do not cut corners with disclosure

Published on 26 Jul 2022.

Further to a recent decision made by the Bar Tribunals and Adjudication Service, the Bar Standards Board has suspended a "top criminal silk" from practice on grounds of professional misconduct in respect of his failure to disclose material evidence during criminal proceedings in 2007. The decision, and the judgment made by the Court of Appeal in those proceedings, reiterates the importance of the ongoing obligation on legal professionals to give disclosure and comply with their duties to the court.

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Post COVID-19 UK: What Will the Professional Negligence Claims Landscape Look Like?

Published on 28 Jun 2022. By Cheryl Laird, Senior Associate (Scottish Qualified) and Will Sefton, Partner and Head of Professional and Financial Risks

The cost of living is at an all-time high, with interest rates increasing and inflation currently sitting at around 9%. The chances of a recession in the UK over the next two years have increased. It will come as no surprise that we expect the number of claims against law firms to rise as the economic downturn takes hold, as was the case in 2008 and recessions before it.

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Lawyers Covered - April 2022

Published on 28 Apr 2022.

Welcome to the latest edition of our Lawyers Liability & Regulatory Update, in which we look back over the last month at key developments affecting lawyers and the professional risks they face.

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Important Court of Appeal clarity on the operation of s1(4) of the Civil Liability (Contribution) Act 1978

Published on 12 Apr 2022. By Rhian Howell, Partner & Head of Office, Bristol and Sam Kneebone, Senior Associate

A recent Court of Appeal decision (in which RPC acted for the successful barrister Appellant) provides important clarification on the operation of section 1(4) of the Civil Liability (Contribution) Act 1978 (“the Act”). Although the matter concerned a contribution claim by a solicitor against a barrister brought pursuant to the Act, the decision is of wider relevance/application for litigation practitioners and the Insurance market.

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The X-Client Files: who owns a solicitor's file

Published on 23 Feb 2022. By Claire Revell, Partner

It's a perennial headache for solicitors: what exactly am I supposed to do when a client asks me for 'their file'?

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Good faith does not go both ways

Published on 31 Jan 2022.

It is common knowledge that solicitors owe fiduciary duties to their clients but what about the other way around? Do clients owe a duty of good faith to their solicitors (as an implied term of the retainer)?

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FOS proposals to clear the back-log - attractive or not?

Published on 18 Oct 2021. By Cory Gilbert-Haworth, Associate and Rachael Healey, Partner

The Financial Ombudsman Service (FOS) has proposed a temporary approach to the classification of certain complaints in an attempt to alleviate their complaints backlog exacerbated during the COVID-19 pandemic. The approach could see firms looking to pro-actively resolve complaints before a defined cut off date before FOS reaches a decision so that the complaint is recorded separately and not as a "change in outcome" (i.e. where a complaint has been rejected by a business and upheld by FOS). The consultation was open for a short two-week period between 4 and 18 October 2021.

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The Professional Negligence Law Review, Edition 4

Published on 13 Aug 2021. By Nick Bird, Partner

This fourth edition of The Professional Negligence Law Review provides an indispensable overview of the law and practice of professional liability and regulation in 15 jurisdictions. The Professional Negligence Law Review contains information that is invaluable to the large number of firms, insurers, practitioners and other stakeholders who are concerned with the liability and regulatory issues of professionals across the globe. The variation in law and practice across the different jurisdictions is very noticeable and underlines the usefulness of a guide such as this.

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Aggregation under the solicitors' minimum terms: are primary layer insurers ready for potentially limitless liability?

Published on 13 Aug 2021. By Laura Stocks, Partner and George Barratt, Senior Associate

In Baines v Dixon Coles & Gill the Court of Appeal has substantially limited the extent to which claims against solicitors can aggregate.

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It's Cocoa, Jim, but not as we know it: Court's modern interpretation of underwriters' and brokers' duties #4 - getting the witness evidence right and new rules

Published on 12 May 2021. By Tim Bull, Partner and Matthew Wood, Senior Associate and Elizabeth Singleton, Senior Associate (Australian Qualified)

This is the fourth and final article in our series following the decision in ABN Amro Bank N.V. v Royal Sun Alliance Insurance plc and 13 Underwriters and Edge Brokers (London) Limited, in which RPC acted for Edge.

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It's Cocoa, Jim, but not as we know it: Court's modern interpretation of underwriters' and brokers' duties #2 – The underwriters defence

Published on 09 Apr 2021. By Tim Bull, Partner and Matthew Wood, Senior Associate and Elizabeth Singleton, Senior Associate (Australian Qualified)

A modern show of the historic defence strategy at its worst, or should that be best? We'll let you decide.

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It's Cocoa, Jim, but not as we know it: Court's modern interpretation of underwriters' and brokers' duties #1 - An overview of the case

Published on 30 Mar 2021. By Tim Bull, Partner and Matthew Wood, Senior Associate and Elizabeth Singleton, Senior Associate (Australian Qualified)

In this series of articles we take a look at the decision in ABN Amro Bank N.V. v Royal & Sun Alliance plc and 13 Underwriters and Edge Brokers (London) Limited. In this article we give an overview of the case. The remaining articles will focus on particular areas of the case, these will be: 1. Underwriters' duties 2. Brokers' duties 3.Witness evidence

Profile

David Healey

Associate

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Ginfringement: Success for M&S in the Court of Appeal in registered design spat with Aldi

Published on 15 Mar 2024. By Rory Graham, Associate and Georgia Davis, Of Counsel

M&S and Aldi's gin bottle battle over design rights has reached a conclusion (for now) as the Court of Appeal has unanimously upheld the IPEC's decision that Aldi's bottle infringed M&S' design.

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Clear as gin: M&S and Aldi take liquor bottle battle to the Court of Appeal

Published on 26 Jan 2024. By Rory Graham, Associate and Georgia Davis, Of Counsel

Intellectual property enthusiasts' favourite supermarket adversaries were back at loggerheads this week as M&S and Aldi appear before the Court of Appeal. The pair sought to thrash out a first instance decision handed down in the Intellectual Property Enterprise Court (IPEC) regarding alleged infringement of M&S' registered design rights in a gin bottle.

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M&S v Aldi – lookalike claims lit up by design rights

Published on 24 Mar 2023. By Ciara Cullen, Partner and Harpreet Kaur, Associate

As lookalike products rise in prominence, the Intellectual Property Enterprise Court's (IPEC) recent ruling that the sale and advertisement of Aldi's 'Infusionist' range of favoured gins infringed M&S's UK registered designs protecting the light-up bottles containing its 'Snow Globe' gin range (Marks and Spencer PLC v Aldi Stores Limited [2023] EWHC 178) highlights the utility of registered design rights in circumstances where other intellectual property rights (IPR) are often less able to provide protection.

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Lookalikes and passing off—bottle design get-up claim (Au Vodka)

Published on 07 Nov 2022. By Ciara Cullen, Partner and Sarah Mountain, Partner and Samuel Coppard, Senior Associate

Currently there's significant activity in the lookalikes space. The Au Vodka claim (Au Vodka v NE10 Vodka [2022] EWHC 2371), which focuses on bottle design 'get-up', arrived in the courts for an interim injunction hearing in September 2022. Au Vodka's application was dismissed. The judgment shows that passing off—get-up claims based on shape can be challenging to bring, particularly at the interim stage, and prompts the question of whether it's possible to bring Cofemel and copyright into the lookalikes arena.

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Weighty issues for diet app developers

Published on 04 Jan 2022. By Dorothy Flower, Partner

2022 is set to be the year of the diet app. The distinction between what is a mere lifestyle app and what should in fact be a regulated medical product or service can be difficult to assess.

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William Grant & Sons v Lidl: where to be-gin?

Published on 16 Jun 2021. By Ciara Cullen, Partner and Ben Mark, Partner and Sarah Mountain, Partner

On 25 May 2021, the Scottish Court of Session (SCOS) granted an interim interdict (akin to an interim injunction), which prevents Lidl from selling its own brand 'Hampstead gin' in Scottish stores, pending the outcome of the matter at trial.

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Stay on top of Intellectual Property

Published on 20 Apr 2021. By Ciara Cullen, Partner and Ben Mark, Partner and Sarah Mountain, Partner

Whether you’re just starting out or launching a new product, there are a wealth of intellectual property issues to consider in the world of distilling. Here, Ciara Cullen, Ben Mark and Sarah Mountain outline those do’s and don’ts, the changing landscape and how to thrive in 2021 and beyond.

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A shifting landscape? The outlook for data regulation in 2023

Published on 09 Jun 2023. By Jon Bartley, Partner and Amy Blackburn, Senior Associate

With a relatively new Information Commissioner in the UK and a renewed focus on getting post-Brexit data protection laws through Parliament, attention is turning to the ICO’s priorities and how they fit into this new landscape.