Whilst you’ve been distracted with Brexit and what that means for your business, you’ve probably missed some significant changes in the law. In our March forum we covered: - contract changes (what they mean to your supply chain, customers and suppliers) - data protection (the challenges of becoming a 'third country') - legal privilege and internal investigations (practical tips following SFO V ENRC) - employment law (changes to employment law you need to be aware of) - banking - your banking covenants (what to be aware of - particularly in the event of a downturn ahead) - property (end of lease issues for business owners). For further training and resources visit our webpage - https://www.brownejacobson.com/sectors-and-services/sectors/in-house-legal

1. In house lawyers
forum
March 2019

2. March 2019
Helen Simm
Privilege

3. I’ll cover
— The importance of privilege
— The different types of privilege
— Key focus - internal investigations
— Key case - SFO v ENRC
— Emerging themes - in-house settlement discussions – WH
Holding Ltd v E20
— Practical take-aways

4. The importance of privilege
— An absolute right to withhold
documents that could contain risk
analysis, acknowledged case
weaknesses and tactics from
production to a third party or the
court
— Obligation to disclose adverse
documents
— Disclosure outside litigation – e.g.
subject access requests

5. The different types of privilege

6. Legal advice privilege –v- litigation privilege
— Legal advice privilege
– Only between solicitor and client
– Can apply whether or not litigation is reasonably in
prospect or in progress
— Litigation privilege (wider)
– Litigation must be in progress or reasonably in prospect
– Can apply outside of the solicitor-client relationship
provided document produced for the dominant purpose of
litigation

7. Internal investigations
— Internal investigations – necessary
— Risks of disclosure – internal investigation
can provide a route map for external
regulators and others
— Conflicting considerations; accountability
and transparency v proper desire to take
confidential legal advice
— Self reporting

8. SFO v ENRC - the background
— ENRC – large mining company
— Email in December 2010 from whistle-blower containing allegations
of fraud, bribery and corruption
— Internal investigation:
– External lawyers interviewing employees/third parties
– Accountants “books and records review”
– Reports presented to board
— SFO investigation formally opened in in April 2013 and disclosure of a
range of documents compelled
— ENRC withheld four categories of documents on the basis of privilege

9. Category
Legal
advice
privilege?
Litigation
privilege?
Judgment
Lawyers’ notes of meetings with
employees (past and present),
third parties etc.
Yes Yes Not privileged
Material generated by forensic
accountants during review
Yes Not privileged
Documents prepared by lawyers
to update senior personnel
within ENRC
Yes Yes Legal advice privilege only
Documents referred to in an
external lawyers’ letter to the
SFO
Yes Not privileged
The four categories and privilege claimed

10. High Court judgment – the rationale
— Litigation privilege did not apply as:
– Litigation was not in reasonable contemplation
– Dominant purpose not established
– Distinction: conducting litigation and avoiding litigation
— Legal advice privilege attaches to some documents prepared
by lawyers but only between lawyers and authorised
individuals within the client entity

11. Court of Appeal – a different view
— Litigation privilege
– Purpose of heading off, avoiding or settling reasonable
contemplated proceedings is within scope of privilege
– Uncertainty about legal proceedings doesn’t equate to no
contemplation
– Reasonable contemplation can occur before regulator contact
– Fact specific
— Legal advice privilege
– No determination
– Three Rivers approach criticised

12. West Ham and board room settlement
discussions
— WH Holding Ltd v E20 Stadium
– Scope of litigation privilege
– Dominant purpose
– Disentangling legal advice from pure commercial
discussions
– Will the court inspect the relevant documents?

13. Practical take-aways
— Think carefully before creating
unnecessary (and potentially non-
privileged) documents
— Clear distinction between legal
communications and
executive/business/administrative
communications

14. Practical take-aways (cont.)
— Internal investigations:
– Clear purpose and scope
– Understand issue and options
– Strategy for interviews
– Regulatory or civil?
– Media and communications

15. Practical take-aways (cont.)
— Clear people strategy:
– Agree system for reporting
and sharing information
– Minimum circulation list -
senior personnel
– Clarity re client and type of
privilege

16. Practical take-aways (cont.)
— Clear document strategy:
– Labelling and identification
– Comments on advice/
recommendations/analysis to be
kept separate
– Guard against inadvertent
disclosure

17. Thank you
Helen Simm
Partner
t: 0330 045 2652
e: helen.simm@brownejacobson.com

18. Employment law update
March 2019

19. Today’s Session
1. Employment status
2. Immigration update
3. Discrimination update
4. Whistleblowing update
5. Employment Tribunal fees
6. Looking forward …

20. Employment status

21. Cases
— Pimlico Plumbers Ltd – Gary Smith 2018
— Uber BV v Aslam & ors – Uber drivers

22. So what?
— Clarity?
— Rise in claims?
— Less flexibility/increased pressure on employers?

23. Immigration update

24. Leaving the EU - the impact on migrant
workers
— What is the EU Settlement Scheme?
— What will happen to EU workers in
the event of a no deal?
— What will happen to migration after
we leave the EU?
— What can we be doing now?

25. EU Settlement Scheme
— To enable EU citizens and “close family” to live and work
permanently in the UK after Brexit
— Settled status
— Pre-settled status

26. What if there is a no deal?
— Policy Paper published December
2018
— Commitment to the EU
Settlement Scheme but with
some important changes
— What’s next?

27. Immigration post-leaving the EU
— White Paper - published December 2018
— Outlines proposals for a new immigration system following the
Implementation Period
— End of free movement
— Applies to all migrants irrespective of nationality

28. The White Paper – key elements
– Sponsorship of highly skilled and skilled workers under Tier 2 General
– Scrapping current cap on skilled workers coming to the UK
– Consultation on minimum salary thresholds
– Scrapping the Resident Labour Market Test

29. The White Paper – key elements
— Maintaining and reviewing Immigration Skills Charge
— Introducing temporary short term visa
— Pilot scheme for agricultural workers
— Review of burdens for Sponsors

30. White Paper – key elements
— Expanding Youth Mobility Scheme
— Review of permitted activities for business visitors
— Students
— Wider reforms

31. What employers should do now
— Look at recruitment and training
strategy
— Communicate with employees
— Apply for a Sponsor Licence?
— Update right to work checks

32. Discrimination update

33. Unfavourable Treatment
Awan v ICTS UK Ltd EAT 0087/18

34. Perceived disabilities & discrimination
Chief Constable of Norfolk v Coffey EAT 0260/16

35. Whistleblowing update

36. Who is liable for post-dismissal losses?
Timis and another v Osipov

37. So what?
— If not listened to internally people will make their voice heard
externally…so investigate and respond
— Review your own policies
— Train your staff
— Make it easy to raise concerns
— Have your internal/external ‘go to’ investigators and keep
delay to a minimum

38. Employment Tribunal fees

39. Employment Tribunal fees
— Last year the Unison ruling abolished employment tribunal fees
— Since then, the following statistics have been reported:
– Period April to June 2018, number of single ET claims had
increased by 165%
– Outstanding case load has increased by 130%
— Law Commission consultation on Employment Law Hearing
Structures

40. So what?
— Fee re-introduction?
— “Proportionate and Progressive”?
— Watch this Space!

41. Looking forward …

42. Pay Gap Reporting

43. Gender Pay Gap Reporting
— Upcoming deadlines for this year are:
– 30 March 2019 Gender Pay Gap Reports (Public Sector)
– 04 April 2019 Gender Pay Gap Reports (Private and Voluntary
Sectors)
— What does/will your report say this year?

44. Executive Pay Gap Reporting
— Who does it cover?
— Where must it be published?
— Non Compliance?
— What to do now?

45. Sexual Harassment Code of Practice

46. Sexual Harassment Code of Practice
— The Women and Equalities Committee published Sexual harassment in
the workplace
— Government published response
– ‘Employers should take their preventative responsibilities more seriously’
– Statutory Code of Practice should be introduced
– Government to consult on how to strengthen law to protect individuals
from third party harassment
– Better regulation surrounding the use of NDAs

47. Thank you
Kerren Daly
Partner
t: 0330 045 2115
e: kerren.daly@brownejacobson.com
James Tait
Partner
t: 0121 237 3999
e:james.tait@brownejacobson.com
Ray Silverstein
Partner
t: 020 7337 1021
e: ray.silverstein@brownejacobson.com

48. Richard Nicholas
March 2019
Commercial

49. Today
— Oral Contracts
— More surprising Supreme Court Decisions
– Variations
– Implied Terms
— Limiting liability

50. Quick advert …
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— Free second opinion/expert view/check a point
— Approx 20 minutes on the telephone
— Equivalent to seeing a specialist at their desk
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51. Oral Contracts?
— Mike Ashley v Blue (2017) CFI
– (Pub?) Impossible to perform
— Dacy v IDM (2018) CFI
– (Bus Shelter?) Implausible
— Rosalina v new Balance Athletic Shoes (2018) CFI
– Amendment not variation, Signing significant to both

52. So What?
Doesn’t matter where the contract is formed, how informal
the setting is
It does matter:
- What formality is referred to
- How plausible the “story” is (does it make sense)
- How possible the obligation is

53. Supreme court surprises
Last time
“No variations unless [in writing] [signed]”
— Rock v MBW (2018) Supreme Court

54. Implied Terms
— Bon Simon v BGC (CA)
– Pay back amount once become a partner (didn’t become
partner). Required to pay back the Loan?...
— Al Jaber v Al Ibrahim (CA)
– Loan of £30M. Forgot interest (of £32M). Payable?...
— Wells v Devani (SC)
– Commission payment not included in agreement….

55. So What?
Normal rule was that terms would only be implied where
essential for the contract to make sense
If it’s out – you miss out
If it was deleted – assume negotiated out
But since the latest case – is it worth a punt?....

56. Liability
— Mototrak v FCA Australia
Marketing services excluded “loss of profits”
— Goodlife Foods v Hall Foods
Fire system £7,000, didn’t work
Excluded virtually all liability
Alternative – additional insurance

57. So What?
– Oral Contracts – can be made anywhere
Is it plausible/ possible? What formality was discussed?
– Implied Terms – try your luck!
– Liability – limits can be effective, especially
– Loss of profits
– When insurance is offered

58. So What?
Next time you come across a question you’d like to run past
somebody….

59. Thank you
Richard Nicholas
Partner
t: 0121 237 3992
e: richard.nicholas@brownejacobson.com

60. Coffee break

61. March 2019
That was the year that was…
Case law update

62. Themes
— Subject access requests: practical issues and enforcement
— Data sharing
— Youtube and the journalism exemption
— Compensation in DP/misuse/privacy claims
— S170 offence

63. Subject access
requests

64. Holyoake v Candy 2017
— H sought order to compel response to SARs. Litigation was ongoing between the parties
— H convinced that C had investigated him and had him put under surveillance
— Held: fact intended to use information disclosed in litigation not a defence to non-
response
— Searches: obligation is limited to what is reasonable and proportionate. C not required
to make a particular enquiry or search private email accounts unless there was sufficient
reason to suspect they contained H’s personal data
— No confidence or privilege in iniquity: must be “strong prima facie case” of
iniquity/criminality/fraud to displace LPP. Privacy was a fundamental right but so was
LPP
— Court would only inspect privileged materials as a last resort and with good reason

65. Prosecution: SAR breach
— Magnacrest Ltd fined £300 plus c£1,200 costs for failing to
comply with an enforcement notice issued by the ICO
requiring them to comply with a subject access request
— Relatively fine v cost of compliance… plus still not ordered to
respond to SAR – risk worth taking?

66. Data sharing

67. Cooper v National Crime Agency
— C formerly employed by the NCA. Sacked after arrested and charged following
disturbance in front of a pub
— Significant exchange of information between the agencies. Disciplinary hearing went
first, informed by evidence obtained by the Police. As NCA would disclose information
arising from the disciplinary proceedings to the Police, C did not participate
— C sought £880k damages in the County Court for breach of DPA
— Held: schedule 3 conditions satisfied (albeit held that disciplinary proceedings were not
legal proceedings for those purposes), allegation that processing was unfair was not
properly argued, allegation of incompatible purpose not made out against SOCA,
disciplinary panel entitled to see and take into account Police material
— Question: unfettered ability to share between public authorities?

68. Youtube and the
journalism provisions

69. Re Buivids (CJEU)
— B filmed an interaction with police officers inside a Latvian
police station and posted them on youtube
— CJEU held that in principle he could rely on the journalism
exemptions in GDPR and the national legislation: sole object
of recording and publication was to inform the public,
irrelevant that B is not a professional journalist
— BUT not all posting on the internet is journalistic activity: sole
purpose must be disclosure to the public of information,
opinion or ideas

70. Implications
— Journalists given wide breadth of discretion due to Article 10 ECHR
(right to freedom of expression) and their perceived role as
watchdogs
— “Free speech includes not only the inoffensive but the irritating,
the contentious, the eccentric, the heretical, the unwelcome and
the provocative…Freedom only to speak inoffensively is not worth
having” (per Sedley LJ in Redmond-Bate v DPP [2000] HLR 249)
— “As for Article 10, everyone has the right to freedom of expression
but the ones with the greatest need for this constitutionally vital
freedom are the organs of the media” (K v News Group Newspapers)

71. Implications (cont’d)
— Must show that Claimant would be likely to succeed in
restraining publication at trial to avoid interim relief (unlike
usual balance of convenience test)
— Bonnard v Perryman: court will not restrain publication even
if defamatory when defendant intends to justify it or make
fair comment on a matter of public interest

72. S26 DPA 2018
— Disapplies significant elements of GDPR in respect of processing for “special
purposes”, including “the purposes of journalism” which is
– Carried out with a view to publication of journalistic material; and
– Controller reasonably believes publication would be in the public interest
— Listed provisions do not apply to extent controller reasonably believes the
application of them would be incompatible with the purposes of journalism
— Publication in public interest: must taken into account special importance of
public interest in freedom of expression and information
— Reasonable belief: controller must have regard to relevant guidelines/codes
of practice (includes BBC Editorial Guidelines)

73. Compensation in
DP/misuse/privacy
claims

74. Misuse/privacy/DP claims
— Misuse: court will approach in 2 stages
– Is the C’s right to a private life engaged? (reasonable
expectation of privacy?)
– If so, should C’s qualified right under Article 8 be displaced
by some competing right?
– Interference must be in accordance with the law, pursue a
legitimate aim and be necessary in a democratic society
(proportionality being one aspect)

75. Cliff Richard v BBC
— Held: use of helicopter clearly disproportionate: that level of
interference not proportionate to discharge the Article 10
element and the public interest
— Sir Cliff had a reasonable expectation of privacy in relation to
the police investigation
— Level of coverage significant
— Awarded £210,000 damages (£190k general, £20k aggravated
for submitting coverage for a TV award). Court identified
factors to take into account when determining quantum

76. Can’t pay we’ll take it away…
— Ali v Channel 5: £10k each for disproportionate and intrusive
coverage of claimants being evicted: naturally distressing,
viewed c10m times, sensationalist
— Quantum subject of appeal: how can they both be right?

77. GDPR
— Recital 146 – data subjects are entitled to “full and effective
compensation” for breach of their rights under the
Regulation, including non-material damage
— Article 82(3): controller or processor must show they were
“not in any way responsible for the event giving rise to the
damage” – significantly harder threshold than having taken
such care as was reasonably required

78. S170 offences

79. New s170 offence
— Offence for a person knowingly or recklessly
– (a) to obtain or disclose personal data without the consent
of the controller
– (b) to procure the disclosure of personal data to another
person without the consent of the controller
– (c) after obtaining personal data, to retain it without the
consent of the person who was the controller in relation to
the personal data when it was obtained

80. New s170 offence (Cont’d)
— Defence to prove –
– Necessary for the prevention or detection of crime
– Required or authorised by an enactment, rule of law or
order of a court or tribunal; or
– In the particular circumstances, was justified as being in
the public interest
Legal burden on defendant to prove the relevant defence on
the balance of probabilities
Purely objective

81. Thank you
Ros Foster
Partner
t: 020 7337 1015
e: ros.foster@brownejacobson.com
Matthew Alderton
Associate
t: 0330 045 2747
e: matthew.alderton@brownejacobson.com

82. March 2019
Likely flexibility required in
your funding documentation to
deal with this brave new world!

83. Introduction
— As BREXIT fast approaches there is a call on UK businesses to
“be flexible and be prepared to adapt” BUT what sort of
flexibility do your funding arrangements offer and how can
you go about getting that flexibility if needed?
— Today we will run through some common areas where
flexibility is likely to be needed and how to approach your
funder to get that flexibility.
— Assumes some third party funding already in place.

84. New facilities to ensure stock piling can
be undertaken/to aid cashflow
1. Identity of funder/provider of new cash e.g. any Accordion
facilities? Shareholder/director loans? New equity/issue of
shares? Invoice finance/ABL?
2. Secured/unsecured.
3. Timing limitations of putting in place new facilities.
4. Likely current funding document restrictions.
5. Subordination/restrictions on cash out likely if not the
current funder.

85. Managing currency risks - hedging
1. Identity of hedge counterparty.
2. Likely current funding document restrictions.

86. Looking for new opportunities outside of
the EU
1. How you go about doing this? E.g.:
– arm’s length customer/supplier/distributor etc. contract;
– incorporating overseas entities; or
– joint ventures.
2. Likely current funding documentation restrictions

87. Financial Covenants – managing
performance
— Lots of uncertainty – could mean business not performing to
plan
— Management of cashflow, and cash forecasts = key
— Requirement to reset the Financial Covenants/re-run the
business plan
— Is now a good time to think about your property portfolio – is
it working hard enough for the business? Could you use
property as security to raise funds to ease any cash flow
issues?

88. “Committed” facilities
— It is key you have the support you need from your funder.
— Are there any “on demand” facilities you might want to
restructure, e.g. overdraft to revolving credit loans?

89. Bringing new people into the business -
whether to deal with compliance or
imports or something else …
— How senior they are? Are they replacing a current senior
member of the team?
— Are you issuing shares or are their payment terms by way of
dividends?
— Likely current funding documentation restrictions? Change of
control/remuneration/dividend restrictions.

90. What to do if need consent under the
funding documentation? (continued)
1. Early approach/honesty is key
2. Trust between funder and borrower must be preserved
3. Periodic review = good practice
4. Timing is key to ensure funder can comply with all internal
processes
5. If a significant issue (non-payment/breach of financial
covenant/regulatory/reputational impact) – assume need
credit sanction

91. What to do if need consent under the
funding documentation? (continued)
6. Consent must be in writing – from someone at the institution
with appropriate authority
7. Consent fee might be payable
8. What if the funder refuses? If it makes good commercial
sense, refusal is unlikely. Could refinance BUT - watch
prepayment/make whole fees and any break costs/hedging
close-out costs. Timing also likely to be an issue

92. Questions

93. Thank you
Emma Hinton
Partner
t: 0121 237 3944
e: emma.hinton@brownejacobson.com
John Swani
Solicitor
t: 0121 296 0689
e: john.swani@brownejacobson.com
James Busby
Solicitor
t: 0115 976 6249
e: james.busby@brownejacobson.com

94. March 2019
Property :
end of lease issues

95. HOW A LEASE COMES TO AN END
— End of Contractual Term – Landlord and Tenant Act 1954
protection or not?
– Within the 54 Act – right to remain within the Property
after the end of the contractual term (subject to certain
circumstances)
– Outside the 54 Act – NO PROTECTION AFTER END OF TERM
– Negotiate position at Heads of Terms stage
— Break Clause – very contentious - always run past the
Property Litigation Team

96. HOW A LEASE COMES TO AN END
CONTINUED
— Frustration - (1) CANARY WHARF (BP4) T1 LTD (2) CANARY
WHARF (BP4) T2 LTD (3) CANARY WHARF MANAGEMENT LTD v
EUROPEAN MEDICINES AGENCY (2019)
— Forfeiture – have you not complied with the lease terms? This
clause needs to be carefully drafted.

97. HANDING THE PROPERTY BACK
— Repair Obligations – Schedule of Condition
– With a Schedule of Condition – extent of repair only to
put the Property back in the state the Tenant found it
– Without a Schedule of Condition – can be extremely
onerous and the Tenant may be required to put the
Property in a better state than they found it
— Yielding Up – what state does the Property need to be handed
back to the Landlord? Do alterations need to be removed?
— REALLY IMPORTANT TO TRY TO NEGOTIATE THIS AT HEADS OF
TERMS STAGE

98. MONEY DUE BACK TO THE TENANT
— Rent Deposits
– Don’t forget!
– Can Landlord withhold? – need a well drafted Rent Deposit
Deed so the position is clear
— Break Clause
– Refund of service charge, rent and insurance rent paid
beyond break date
– Needs to be expressly drafted into the break clause
– Marks & Spencers v BNP Paribas [2015] UKSC 72

99. OTHER CONSIDERATIONS
— Closure of leasehold title if it is a lease term of more than 7
years or a reversionary lease
— Remove notice of lease from landlord’s freehold title
— Lease should be clear on your responsibilities

100. BREAK NOTICES - Service
— One of the most contested areas in property litigation.
— Strict compliance with the clause (‘blue paper test’)
– Siemens Hearing Instruments –v- Friends Life
— Consider:
– The lease terms
– Prescribed form of notice?
– Notice period?
– Service – on whom and how? Deemed service?
– Identity of the party being served

101. BREAK NOTICES - Conditions
— Unconditional vs Conditional breaks
— Failure to comply with the break conditions = INVALID NOTICE
— Conditions:
– Payment of rent – DO NOT apportion the rent (clawback
provision?)
– Vacant possession – third parties, tenants fixtures/fittings?
– Payment of a penalty – timing
– Compliance with covenants – AVOID these types of clauses

102. DILAPIDATIONS
– Schedule of Condition
– Instruct a surveyor to prepare a schedule (or respond to
one)
– Does reinstatement need to be triggered?
– Is repair a condition of the break? (AVOID these clauses!!)
– Vacant possession: make sure any works are carried out
before the end of the term.
– Contractors in premises = no vacant possession

103. Thank you
Dan Insole
Solicitor
t: 0121 296 0702
e: dan.insole@brownejacobson.com
Pavanjeet Kaur Marwaha
Solicitor
t: 0330 045 2227
e:pavanjeet.kaurmarwaha@brownejacobson.com
Bradley Roberts
Solicitor
t: 0121 237 3955
e: bradley.roberts@brownejacobson.com
Natalie Moustache
Solicitor
t: 0330 045 2498
e: natalie.moustache@brownejacobson.com