Litigation Update | July 2018

Written on 30 Jul 2018

Welcome to the latest edition of Osborne Clarke's Litigation Update.

In this edition, we report on two cases that Osborne Clarke's dispute resolution team have acted on in recent weeks: a landmark Supreme Court appeal on Re Ellenborough Park recreational property rights (on which judgment is still awaited), and a successful claim for premium activewear brand LNDR against Nike, in a case that went from claim form to judgment (via the Court of Appeal) in just six months.

In two articles that highlight the importance of clear, written terms, we discuss a Supreme Court case on "no oral modification" clauses, and two recent Court of Appeal cases in which the Court took a restrictive approach to the implication of contractual terms.

With risk and compliance high on the corporate agenda, we look at two issues that can be problematic for groups, particularly those with a global footprint. A recent case examines the circumstances in parent companies can be liable in relation to activities carried out by far-flung subsidiaries. And where potential wrong-doing is discovered in the business, we discuss how to ensure that your internal investigation complies with the stringent new data protection regime under the GDPR.

Finally, as jurisdictions vie to be the dispute resolution forum of choice, we also report on a Court of Appeal case that will encourage businesses with competition "follow-on" claims to bring those claims in England.

Osborne Clarke acts for lead appellant in landmark Supreme Court "recreational rights" appeal

Gary Lawrenson (Partner), Carl Roche (Associate Director) and Sian Edmonds (Associate) from Osborne Clarke’s Real Estate Litigation team acted for Summit Developments Limited, the lead appellant in a landmark appeal to the Supreme Court. The Supreme Court’s decision is expected to bring long-overdue clarity to the correct application of the test for determining when a "recreational right" can qualify as an easement.

The appeal will require the Supreme Court to consider for the first time the correctness of the decision of the Court Of Appeal in the 1956 Re Ellenborough Park case, which until now has been the leading case on recreational property rights.

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From Claim Form to Judgment in 6 months | Osborne Clarke successfully acts for premium activewear brand LNDR in expedited trade mark battle against Nike

Arty Rajendra (Partner), Nick Kempton (Associate) and Charlotte Groom (Trainee Solicitor) from Osborne Clarke's IP Disputes team represented premium activewear brand LNDR in an IP dispute against global sportswear giant Nike, over Nike’s use of ‘LDNR’ in a recent advertising campaign.

The team successfully argued that LNDR was distinctive as a trade mark, and that consumers would be confused into thinking Nike were collaborating with LNDR. The judgment considers how brands use social media to engage with their consumers and is likely to have implications for how social media evidence is used in IP disputes in future, particularly to try to show descriptiveness.

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The sound of silence | courts take restrictive approach to implying contract terms

The approach of the courts in two recent cases illustrates the danger of leaving terms "unsaid": courts will not readily imply a term into a contract, even where that term might appear to make good commercial sense or appear indispensable when looked at in retrospect.

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"Exceptional" appeal overturns law on oral contract variations

A recent Supreme Court decision establishes that, contrary to recent judicial doubt, a ‘no oral modification’ clause can be effective in preventing a contract from being subsequently varied orally.

This judgment answers clearly and unequivocally an issue that has in recent years proven problematic. It will be welcomed by lawyers and businesses, who use such clauses to maintain an element of control over how contracts are operated on the ground.

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Latest ruling on parent company liability provides guidance on managing risks from overseas subsidiaries

In the latest in a series of recent cases on liability in relation to activities carried out by an overseas subsidiary, the Court of Appeal has again found that the parent company did not owe a duty towards those affected by the activities of the subsidiary. The court's reasoning provides useful guidance for multinationals on the difficult balance between managing risk on a group-wide level and maintaining the legal separation between group companies when it comes to any liabilities owed.


GDPR | The practical impact on internal investigations

All businesses will be aware that the GDPR imposes a number of more stringent obligations in relation to the day-to-day processing of personal data. What is less well appreciated is the effect that the GDPR has on the practicalities of conducting internal investigations, which often need to be commenced urgently against a background of significant potential risk for the company.

Complying with the GDPR when undertaking an internal investigation will need careful consideration and planning from the investigation team, in circumstances where getting it wrong could result in fines of up to €20m or 4% of worldwide annual turnover in the preceding financial year (whichever is higher).

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Competition damages | UK Court of Appeal decision in Mastercard litigation favours claimants in follow-on damages claims

The difficulties of different judges reaching different conclusions in competition law cases are all too apparent from the English litigation involving the default "multilateral interchange fees" charged by Mastercard and VISA. The Court of Appeal's judgment seeks to resolve the different approaches taken in two High Court cases and one case before the Competition Appeal Tribunal.

The decision was a victory for the retailers bringing the claims and will be seen as broadly pro-claimant. This judgment will therefore help to cement the English court’s position as a preferred jurisdiction in which to bring competition law claims.

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