In these dark days of January, thoughts tend to drift longingly to sunnier climes, and in Olaf’s words “a drink in my hand, Prob'ly getting gorgeously tanned in summer”. In Scotland, one particular appeal is those long summer evenings when a game of golf after hours becomes a prospect. So a case about just such a setting grabbed my attention. And when it also involves a claim under the Consumer Protection Act (CPA), of which they are remarkably few in Scotland, it is likely to be seized upon by product liability practitioners north – and maybe south - of the border.
Think of this scenario. You are a landlord (or acting for a landlord) and you send a notice to a tenant to trigger a rent review procedure. You get the company name roughly correct, but ultimately wrong. However, the notice ends up in the hands of the right party – a director of the tenant company – and the notice clearly identifies the property. You might think everything would be okay...but it won’t be...
A recent decision from Lord Glennie sitting in the Intellectual Property Court of the Court of Session seems to suggest a different approach to establishing director liability for trade mark infringement than in the rest of the UK. If so, that would present real difficulties in getting to the true perpetrators of IP infringement, if hiding behind the corporate veil.
Today’s Inner House decision in @SIPP Pension Trustees v Insight Travel Services Limited has realigned the law in Scotland on contractual interpretation, particularly in dilapidations disputes relating to commercial leases.
Power is given back to the expert drafters and enforcers, to draft and enforce for the gain of their client.
This is because simply applying the wording of a lease clause is back with increasing force. This is in line with the recent English UK Supreme Court case of Arnold v Britton.
M&S are famous for their impressive ad breaks, but it is landlords who will be pleased to see the outcome of their high profile “break” with BNP Paribas. Yesterday the UK Supreme Court confirmed that, in the absence of an express term in the contract, a tenant is not entitled to a refund of rent paid for a period after a break date.
As a matter of policy, the law does not allow parties to penalise each other for a breach of contract: penalty clauses are unenforceable. Instead, clauses governing the remedies available as a result of a breach should be remedial i.e. fair compensation. In recent years, the test frequently applied by the courts to identify penalties was whether or not the level of damages agreed was a “genuine pre-estimate of the loss” which would be suffered by the innocent party as a result of a breach by the other party. If not, it was an unenforceable penalty.
Following in the footsteps south of the border, the Scottish Sentencing Council has been officially established today and its members announced. Lord Carloway, the Lord Justice Clerk and one of Scotland’s most senior judges, is to chair the newly created Council. The other eleven members include five other judicial office holders, three legal members, a police officer, a victims’ representative and another non-judicial member.
As the new series of Downton heralds many changes for the Lords, Ladies and Gentlemen of that stately pile, so 22 September 2015 brought very significant changes for the Lords Ordinary in Scotland’s higher civil court and the cast of thousands involved in civil litigation in Scotland.
So what would M’Lud Grantham select as his personal highlights worthy of a Christmas special? Here are two key ones:
When you hear the phrase “intellectual property” or “intellectual property rights” trade marks and patents may spring to mind but perhaps not trade secrets. When it comes to intellectual property rights there is no doubt that trade secrets are the poor relations having been overlooked by legislators who favour more attractive or well known members of the IP family. But it appears that now is the time for trade secrets to step out into the limelight and become, perhaps, less secretive.