Retail & Consumer

In King Crude Carriers SA & Others v Ridgebury November LLC & Others [2025] UKSC 39, the Supreme Court confirmed that the doctrine of ‘Deemed Fulfilment’ does not constitute a part of English law. The doctrine stipulates that where a party prevents the fulfilment of a condition precedent to a debt obligation to which they are to be subject in breach of the contract, the condition is deemed fulfilled and the debt crystallises. Disagreeing, the Supreme Court ruled that a claim for damages and not debt is appropriate in such a case. An aggrieved party can only therefore claim damages to the extent that they have suffered loss and taken steps to also minimise such loss. This is contrary to possessing a debt claim, which stands regardless of whether the claimant has experienced any loss at all, potentially increasing their anticipated recovery.

This is an important ruling in a real estate context where conditional contracts remain popular. For example, where an agreement for lease (“AFL“) is conditional on certain requirements and a tenant does not cooperate with the landlord in helping fulfil them, the landlord cannot claim that it is owed any rents should the tenant’s lack of cooperation bleed into the lease period. Instead, the landlord may have to expend further resources in finding another suitable tenant and on the whole only be entitled to nominal damages. It is therefore prudent when negotiating AFLs and other conditional contracts to consider the use of liquidated damages, deemed fulfilment clauses and other mechanisms to ensure that non-cooperation risks are appropriately accounted for.

The UK Government has introduced reforms to the business rates regime which are set to take effect in April 2026. Business rates are taxes levied on certain types of commercial property that are calculated by multiplying the rateable value of a property (i.e., the rent chargeable for such a property if it were to be let for a certain period) and a given multiplier. Properties are revalued every three years for this purpose, with new valuations being introduced in April 2026. Considering that the current valuations were undertaken during COVID when property values were depressed, rateable values next year are expected to increase, thus impacting business rates. This is one of the primary drivers behind the Government’s reforms.

Prior to this year’s Autumn Budget, there only used to be two tiers of multipliers which would apply based on the rateable value of the relevant property. Residential, hospitality and leisure (“RHL“) properties would also be granted relief on the business rates payable. Under the new regime, there are now five tiers of multipliers stretching across those applying to small business, standard and higher value properties. Higher multipliers will generally apply for properties with higher rateable values, with properties of a rateable value of £500,000 having a considerably larger multiplier. The RHL relief has also now been replaced with specific discounted multipliers for small business and standard RHL properties. In addition, the Government is introducing a transitional cap on business rates increases ranging between 5 to 30% for the period between 2026 and 2027 depending on the rateable value of the property and the type of business.

The Renters’ Rights Act 2025 represents a substantial regulatory shift in the landscape of residential lettings, and this can have a significant impact on mixed use units (e.g. flats above shops or mixed use developments).  The key dates are as follows:

January 2026 (expected) – the government is expected to publish statutory instruments regarding the written statement of terms that need to be given before a tenancy starts.

March 2026 (expected) – government will publish an “Information Sheet” that will need to be provided by landlords to tenants by 31 May 2026, explaining the changes made by the RRA to tenants. Local authority can impost a civil penalty of up to £7,000 if they fail to do this.

30 April 2026 – this is the final day that a section 21 eviction notice can be served, or an Assured Shorthold Tenancy can be entered into under the old regime.

1 May 2026 – this is the commencement date of the new regime under the Renters’ Rights Act 2025. From this date ASTs and no-fault evictions are abolished and no-fault evictions are abolished and replaced by assured periodic tenancies, and the new grounds for claiming possession on a property come into force.

In this case the court is considering whether a term should be implied in two facility agreements relating to the lender’s right to refuse consent to a proposed granting of security or disposal of assets by the borrower. The facility agreements contained covenants which prohibited the borrower disposing of its assets, subject to certain exceptions or receiving the lender’s written consent. Negative pledges subject to the same qualifications were also included in the agreements. The borrower claimed that the refusal of consent was a breach of an implied term of the facility agreements, and that it had suffered loss as a result. The borrower asserted that a term should be implied in the agreements, on the basis of Braganza v BP Shipping Ltd [2015] UKSC 17 – to the effect that the lender, in deciding whether to consent, had to act in good faith and should not act capriciously.

The court concluded that a term should be implied, the lender was not entitled to refuse its consent “for a reason or reasons unconnected with what it perceived to be its own commercial best interests or … when no reasonable entity in the position of [the lender] could have refused consent”.

Orchard and another v Dhillon [2025] EWHC 834 (Ch): The High Court held that, where an unauthorised person entered into a regulated sale and rent back agreement, the other party’s right to recover the property (under section 26, Financial Services and Markets Act 2000) was a “mere equity” under the Land Registration Act 2002. As the other party was in actual occupation, their right to have the property reconveyed amounted to an overriding interest, binding on the unauthorised person’s successor to the freehold title.

Kaushal Corporation v Maria Carmel O’Connor (By her son and Litigation Friend Justin Marciano) [2023] EWHC 618 (KB): The judge found that litigation costs do not fall within the service charge clause under a commercial lease, and that in situations where the construction of a clause would expand a tenant or guarantor’s liability considerably, this should be construed narrowly. So, costs relating to an application for approval or consent could be recovered but the costs of litigation could not.

B&M Retail Limited v HSBC Bank Pension Trust (UK) Limited [2023] EWHC 2495 (Ch): The court held that the new lease should contain a rolling redevelopment break clause which can be immediately exercised with six months’ notice. This gives significant weight to landlords looking to redevelop and need to obtain possession from tenants who have protection under LTA 1954.

Sara & Hossein Asset Holdings Ltd v Blacks Outdoor Retail Ltd [2023] UKSC 2: The Supreme Court held that the service charge under the lease was payable upon presentation of the service charge certificate but it did not prevent the tenant from challenging the amount. This decision marks the ability for tenants to “pay now, argue later”.

This brought redevelopment ground F under the microscope, conveniently at a time where the Law Commission is reviewing the Landlord and Tenant Act 1954 (LTA). The decision discusses a new strategy for tenants when their landlord uses section 30(1)(f) LTA (or ‘Ground F’) to oppose a new tenancy on the grounds of redevelopment. The tenant, Sainsbury’s, vacated part of its demised premises before trial, so it could argue that works proposed by the landlord, Medley, were not to the “holding”.  Medley’s opposition on Ground F failed. Two key points arising from this case are a reminder that the landlord must demonstrate a settled and unconditional intention to carry out their proposed works, which Medley in this case failed to show, and secondly that it is possible for the tenant to reduce their ‘holding’, or the part of the demised premises that they are actually using, before trial so as to defeat the landlord’s opposition based on Ground F.

M&S submitted a planning application to demolish their store on Oxford Street and replace it with a new 9-storey mixed use office and retail store to include a restaurant and a gym. Despite the proposal being approved by the Planning Inspector, Secretary of State (SoS) Michael Gove rejected it. In their challenge, M&S argued that the SoS had misinterpreted the National Planning Policy Framework and had made incorrect conclusions about the impact of refusing this planning application. The Court agreed with M&S and emphasised the importance of providing clear reasons for departing from an inspector’s recommendations.

Re-Cine-UK Ltd and others [2024], shed light on the fact that it is not appropriate for landlords to protect themselves from restructuring plans by simply relying on contractual exclusions or injunctions, but instead by challenging the plan itself, by reference to caselaw and insolvency principles. The High Court held that the rights of the objectors (the landlords) were capable of being compromised by the restructuring plans. The ‘pari passu’ principle stood at the forefront of discussion, and ensured that ‘fairness’ was taken into account when assessing how the losses should fall on the creditors in question. The High Court’s decision shed light on the importance of the passage of time since undertakings were given, and the subsequent state of the companies finances. Landlords and other creditors will now likely be far more wary, and conscious that undertakings to exclude them from future restructuring will not always be enforceable by law.

Where Landlords re-negotiate with a distressed counterparty, they do so at their own risk. This is a reminder that the insolvency court’s powers are wide ranging, and the principle of ‘fairness’ often dictates and overrides even express contractual protections.

In Kwik-Fit Properties Ltd v Resham Ltd (2024) EWCC 4, the court looked at the terms of a lease renewal under the Landlord and Tenant Act 1954. Kwik-Fit had a 25-year lease on the property located in Tyne and Wear, initially at £35,000 per year. Crucially, provisions for rent reviews in the lease had never been exercised. After the lease expired in April 2021, Kwik-Fit remained in occupation while negotiating a renewal with the landlord. Three points were in dispute: namely (1) the request for a tenant break clause every 5 years (2) a proposed cap on the tenant’s contribution to repair costs for a shared accessway and (3) the amount of rent to be paid for the renewal term.

The court declined Kwik-Fit’s request for a five-year break clause. The court found there to be no compelling evidence that Kwik-Fit’s business strategy needed such flexibility, nor was such flexibility the standard case within the auto maintenance industry. The court also rejected Kwik-Fit’s request for a cap on how much it contributed to accessway repairs. This is because the lease already accounted for any adjustment to the contribution percentage being fair and reasonable (allowing for both increases and decreases). Lastly, the court increased the rent to £39,300, noting that prior reviews had not been carried out because the landlord would not have achieved a higher rent during the review periods specified in the lease.

In John Anthony Turnbridge v The London Borough of Islington, the court considered the implications of letting a property where the energy efficiency rating fails to meet the standard set by the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 (also known as MEES Regulations). Here, a landlord received an EPC rating of G for a property in 2014 and let the property out. The same property was let out through the transition period of 1 April 2023. Under the MEES Regulations, April 1 2023 was the date for when landlords who continued to let out properties below a set threshold (which is E as of the date of publication) would be liable.

The property eventually received a higher EPC rating of D by January 2024, placing it above the required standard under the MEES Regulations. However, the court found that as the property continued to be let with a rating of G past 1 April 2023, the fact that the property had achieved a compliant EPC rating of D by January 2024 was immaterial. The landlord in this case received a fine of £500 for the breach.

John Anthony Turnbridge v The London Borough of Islington raises the crucial point that obtaining a new EPC rating at or above the current threshold will not ‘fix’ any prior contraventions of the MEES regulations.

The NIS2 (Network and Information Security) Directive is the EU’s latest policy that aims to improve the collective cybersecurity of member states, and relevant organisations offering services in the EU, including digital service providers and those which serve an essential function in society were expected to comply with the new requirements by October 2024. The UK has published a Bill making similar changes to the original NIS Regulations, introduced by the UK government when it was part of the EU (see below).

The EU’s Data Act took effect on 12 September 2025. It gives users stronger rights over data generated by their connected devices like cars, smart appliances, and industrial machines.

It requires manufacturers of physically connected products which collect or generate data concerning their use and suppliers of related digital services and software to make this data easily accessible, free, secure and in a machine-readable format. The act also forces cloud providers to remove technical, contractual, and organisational barriers to switching services, reducing vendor lock in. The Act also bans unfair contract terms that disadvantage smaller businesses in data-sharing deals.

Under the Act public sector bodies may also access non-personal data from private firms in emergencies, but with safeguards for trade secrets.

Given that the Act applies in the EU/EEA it does not directly impact UK retailers and consumers. However, retail business can fall within the acts scope if they:

• sell connected products to customers located in the EU;
• provide related digital services used by customers in the EU; and
• operate cloud or data-processing services used by EU clients.

If you, as UK retailer fall within the acts scope you should consider:

• ensuring connected products allow users to access the data they generate, in real time and in a machine-readable form;
• update customer terms and privacy information to outline data-access rights and sharing options;
• review manufacturer and supplier contracts to ensure data-sharing obligations can be fulfilled;
• support “switching” requirements if offering cloud or data-processing services linked to retail products;
• implement processes for sharing data with third parties when consumers request it; and
• adopt interoperable interfaces so device data can move between services.

Additionally, although the Data Act will not directly apply to the UK as a result of Brexit, organisations should continue to pay heed to their content regulation obligations in overlapping policy initiatives and legislation, including the Online Safety Act 2023.

In January 2025, the Information Commissioner’s Office (ICO) launched a new cookies enforcement strategy in the UK – see here. In addition, the Data (Use and Access) Act 2025 (DUAA) has increase fines for cookies non-compliance, and landmark fines are being imposed for cookies non-compliance around Europe (see here). Common issues include:

• Loading non-essential cookies before consent.
• No clear “Reject All” option.
• Pre-ticked boxes or implied consent.
• Making it difficult (or impossible) for users to withdraw consent.

Businesses should ensure they review their website compliance to avoid costly penalties.

For more information see our article on this here.

On 21 May 2024 the Council of the EU formally adopted the AI Act laying down harmonised rules on artificial intelligence. Throughout the course of 2024, 2025 and 2026 the provisions of the act will be implemented.

To help organisations find information about the EU AI Act and understand their compliance obligations, in October 2025 the EU launched the AI Act Service Desk and the Single Information Platform.

Given that the EU AI Act has extra-territorial scope, meaning retailers operating in the UK can be caught if they use any AI which have ‘output’ in the EU, retailers in the UK should be aware of the EU AI Act’s impact on them. The tools recently commissioned by the EU should help with this.

The UK has yet to introduced AI legislation impacting retail businesses in the UK. Despite the re-introduction of the Artificial Intelligence (Regulation) Private Members’ Bill into the House of Lords it is unlikely that the UK will see similar legislation in the near future. It is rare for private members bills to be passed into law. Instead, they are often intended to provide constructive policy recommendations or apply legislative pressure.

The EU Commission has said it continues to assess UK data protection standards as being “essentially equivalent” to those in force in the EU. It has proposed to renew its UK adequacy decisions for a period of six years enabling the continuing free flow of personal data between the EEA and the UK.

Without the adequacy decisions being in place between the EU & UK, retailers that transfer personal data from the EU to the UK would face much greater compliance costs as additional transfer mechanisms would need to be implemented.

It is positive news that the adequacy decisions are likely to be renewed since personal data can continue to flow freely from the EEA to the UK without additional safeguards.

The EU Commission now must also seek approval from a committee of representatives of the EU member states with the European Parliament and Council having a right of scrutiny over the adequacy decisions.

On 12 November 2025, the Bill was published following its first reading in the House of Commons. It will now proceed to a second reading, which will provide the first opportunity for MPs to debate the general principles and themes of the Bill.

The Bill is expected to:

1. Broaden regulatory reach by bringing managed service providers (MSPs), data centres, and other digital infrastructure operators within its scope.
2. Enhance regulators supply chain oversight allowing them to impose obligations on both suppliers and customers within key supply chains.
3. Grant regulators wider and stronger powers to conduct audits, request information, and issue enforcement directions.
4. Make incident reporting stricter, with firms needing to notify regulators and the NCSC within 24 hours of a serious incident and provide a report after 72 hours.

To prepare for the Bill retailers should: (1) assess whether they fall within the scope of the Bill, (2) review and strengthen incident-response plans for the 24 / 72 hour reporting, (3) update supplier contracts to include cyber duties, (4) align internal security policies with recognised standards such as ISO 27001 or the NCSC Cyber Assessment Framework.

In this case, the Court of Appeal made several landmark rulings:

• Claimants do not need to prove that their personal data was disclosed to a third party to bring a GDPR claim – mere “processing” (like printing and mailing) is enough.
• There is no “threshold of seriousness” for data protection claims under English Law

In principle, a claimant can recover compensation for fear of the consequences of an infringement of their rights under the Data Protection Act 2018 (DPA 2018). The harm does not have to be material. However, such fears must be objectively well-founded rather than purely hypothetical or speculative.

All new developments, whether they are residential or commercial or an energy project, require a connection to the grid to be able to import electricity (and where there is on-site generation) export electricity to the grid. Whether a development is connecting to the distribution system or the transmission system, it will be affected to some extent by the Grid Connection Reform that National Grid has instigated.

The Grid Connection Reform is a process by which applications for new connections are submitted, assessed and managed is significantly amended. Additionally, the existing queue for projects connecting to the transmission system is going to be rearranged.

The first phase of the Grid Connection Reform, being the submission of evidence as part of the Gate 2 process, has now been completed and developers of clean energy projects will be notified in the w/c 1 December 2025, whether they have been successful in securing a Gate 2 Offer (with a guaranteed date of connection and point of connection) for their projects.

There is currently no indication from NESO as to when the next Gated Application Window will be. This is bound to create further uncertainty in the energy sector and cause delays in the delivery of clean energy projects.

For those operating in the Retail Sector, who are looking to procure their energy through a renewable energy source, the delays resulting from the Grid Connection Reform, could have a direct impact on their energy procurement strategy.

Grid connection reform: The big shake-up | Foot Anstey

NESO moves the goalposts on connections’ reform | Foot Anstey

The Labour government intends to introduce a carbon border adjustment mechanism (CBAM), initially proposed by the former Conservative government, which applies a carbon price (CBAM rate) to imported goods. The rate will reflect the carbon emitted in the production of the goods plus any disparity between the carbon price from the country of origin and the UK carbon price.

In the November 2025 budget, the government announced that it will introduce the CBAM in Finance Bill 2025-26, which will bring it into force from 1 January 2027. The government has already indicated that indirect emissions will be exempted until 2029 at the earliest.

Once legislation is laid for Finance Bill 2025-26, HMRC will share draft secondary legislation in order to undertake a technical consultation in early 2026. Detailed guidance will then be published ahead of the change going live on 1 January 2027.

M&S applied to demolish and install two mixed use retail developments on Oxford Street. In 2023, the Secretary of State for Levelling Up, Housing and Communities (Michael Gove) refused permission on ground of heritage and carbon impact, stating that the site should be refurbished instead. M&S brought a legal challenge to the decision arguing that the minister had made errors of judgment in his decision. The company has as of 1 March been successful on 4 of the 6 grounds it brought. The High Court considered that whilst the planning policy encouraged the re-use of buildings, this was not to be interpreted as a presumption for retrofitting.  The decision is now remitted back to the SoS to be redetermined.

For retail and consumer sector clients, the decision suggests that although retailers should consider whether retrofitting is appropriate – as central government is clearly encouraging – the outcome of the case suggests that planning law will not be interpreted to favour re-use and refurbishment in all circumstances. The decision also highlights the need for clear guidance to address conflicts between the arguments for demolishing compared with redeveloping property more generally.

On 1 August 2025, the Supreme Court delivered its long-awaited judgment in three related cases: (1) Johnson v Firstrand Bank Ltd, (2) Wrench v Firstrand Bank Ltd, and (3) Hopcraft v Close Brothers Limited. The Court allowed the lenders’ appeal, with the exception of Mr. Johnson’s claim under section 140A of the Consumer Credit Act 1974. The ruling clarified that the dealers were not fiduciaries and that the commissions paid by the lenders to the dealers did not constitute bribery.

If you would like a more detailed breakdown of the background of the case, and insights into the Supreme Court’s reasoning for each of the issues please follow this link to our latest article.

On 14 July 2025, the government legislated that Deferred Payment Credit (DPC) lending fell within the Financial Conduct Authority’s (FCA’s) regulation. Accordingly, from 15 July 2026 the FCA’s regulations will apply to DPC agreements provided by third-party lenders, which means they will fall within the ambit of regulated credit agreements. The FCA is currently consulting on rules and guidance for the DPC sector, which provides us with a useful opening to get retailers up to speed with changing regulations and requirements.

Here at Foot Anstey, we are releasing a podcast episode in early October which will delve into the different options for retailers who wish to offer credit to their customers. We will also consider possible takeaways from BNPL schemes and touch on how retailers can use these beneficially as well as using FS to gain a competitive advantage. Watch out for our new Retail Matters podcast series on our website.

In the meantime, our quarterly Trading Bulletin provides essential updates for retailers that cover Data Protection updates, Health and Safety compliance points, Marketing updates and Financial Services news. Our latest article can be found here.

On 2 June 2025, the CJC released its final report on Litigation Funding. Key proposals concerned statutory regulation, enhanced consumer protections and transparency requirements. Notably for consumers, the CJC has called for stronger protections, including a duty of care, mandatory independent legal advice, and safeguards around capital adequacy and conflicts of interest.

This final report is a culmination of an interim report and a four-month public consultation period which closed on 3 March 2025.

The final report can be found on the CJC’s website here.

Effective from 1 September 2025, the Economic Crime and Corporate Transparency Act 2023 introduced a strict liability offence for large organisations failing to prevent fraud by “associated persons” (employees, agents, subsidiaries, and in some cases suppliers). Fraud must be intended to benefit the organisation or its clients, even indirectly. Large organisations are defined as meeting two of: turnover over £36m, assets over £18m, or more than 250 employees. Unlike previous law, intent by senior management is not required; the sole defence is having “reasonable procedures” to prevent fraud. Government guidance recommends top-level commitment, proportionate procedures, risk assessments, due diligence, training, and ongoing monitoring. Offences include false representation, failure to disclose, false accounting, and fraudulent business practices. Liability can result in unlimited fines. See our article here for further information.

The Privy Council has abolished the long-standing “Shareholder Rule”, which previously permitted shareholders to seek disclosure of a company’s legal advice in litigation. In Jardine Strategic Holdings v Oasis [2025], the Court said that the Rule had no valid justification and confirmed that courts in England and Wales should treat it as abolished.

A company can now have more confidence in its ability to obtain legal advice without fear of that advice being disclosed to shareholders in the context of litigation. The decision therefore strengthens the rules around legal privilege for companies and limits shareholders’ access to information in litigation.

The ruling also adds to the growing challenges for investor claims—especially actions under FSMA s.90A/Schedule 10A, which require proof of misleading statements, knowledge or recklessness by senior managers, and investor “reliance”. Courts have recently taken a strict view of reliance, making claims by passive investors more difficult.

Overall, the decision makes shareholder activism via litigation harder and may limit the appetite of litigation funders to support such claims. Please follow this link to our latest article.

A major change is coming on 28 January 2026. The UK Sanctions List (UKSL) will become the only official list of UK sanctions and the OFSI Consolidated List will no longer be updated.

Because breaches of sanctions can lead to criminal prosecution or civil penalties, businesses should ensure their compliance processes are ready for the change. If your systems currently use the OFSI Consolidated List, they must be updated to pull from the UK Sanctions List instead. If you use third-party screening providers, check that they will switch to the UKSL in time.

The government advises making these updates well before January 2026—don’t leave it to the last minute. Find more details here.

In September 2025, the Law Commission launched its Fourteenth Programme of Law Reform, unveiling 10 new projects, including a review of liability for defective products. This initiative examines the current regime, with a focus on AI, aiming to give businesses greater legal certainty in the digital age. A public consultation is planned for the second half of 2026.

In light for the recently enacted UK Product Regulation and Metrology Act which gave the government the power to adopt select aspects of EU product regulatory framework where it is considered to be in the best interests of UK businesses and consumers, the suggestions seem to be that UK compliance is becoming proactive, tech-focused, and demanding supply chain transparency.

Those who invest early in digital compliance tools, traceability, and cross-border alignment will not only mitigate risk but also create opportunities to shape and thrive under the next generation of product safety and liability rules. This is the moment for forward‑thinking companies to position themselves as industry leaders.

Churchill v Merthyr Tydfil County Borough Council – Court has the power to stay proceedings to allow, or can actually order, parties to engage in non-court ADR.

Gordiy v Dorofejeva and another – The Court warned legal practitioners that claims valued under £1 million should not be commenced in the Commercial Court. The Judge commented that the commencement and/or continuation of proceedings in the correct court is equally the responsibility of all parties.

James Churchill v Methyr Tydfil Borough Council [2023] EWCA Civ 1416 – held that the court could stay proceedings or order parties to “engage in a non-court- based dispute resolution process”.

ASA ruling on HSBC UK Bank plc – HSBC UK Bank plc – ASA | CAP – the basis of environmental claims must be clear and that unqualified claims could mislead if they omit significant information.

Professor Carolyn Roberts v (1) Severn Trent Water Limited and (2) Severn Trent PLC – collective action taken against Severn Trent Water for alleged overcharged water services and abuse of market dominance to under-report pollution incidents.

Wood v Commercial First Business Ltd – The leading case law concerning Secret Commissions.

CCP Graduate School Ltd v National Westminster Bank Plc and Santander UK Plc[2] – court considered the possibility of a so-called “Retrieval Duty” on the part of a payment service provider to track and retrieve misappropriated funds.

The High Court considered an application by the administrator of a deceased person’s estate for an order under section 284 of the Insolvency Act 1986 to validate the payment of future litigation costs. The court held that where there is a risk of insolvency it is required to balance the interests of both the beneficiaries and creditors of a deceased’s potentially insolvent estate.

Johnson v Firstrand Bank Ltd & Others – leading case law concerning ‘secret’ commission. The full judgment can be found here.

PI-Design AG v Shein – Awaiting judgment for this case which will shed light on the evolving landscape of copyright law and will likely further emphasise the contrasting approaches between taken by Courts in the European Union and the United Kingdom.

The Court of Appeal set aside permission for Playtech to serve trade secrets and copyright claims on Latvian defendants outside the jurisdiction. All alleged misuse occurred in Latvia, and UK losses were only indirect, so the claim failed Gateway 21 and was governed by Latvian law under Rome II. England was also not the proper forum for the copyright claim. The Court clarified that, unlike Celgard, headquarters or revenue location is insufficient—direct damage in the UK must be proven. Applicable law and forum depend on where harm is directly sustained, not where economic effects are felt.

On 6 November 2024 guidance to organisations was published providing advice on the new corporate criminal offence of ‘failure to prevent fraud’ introduced by the Economic Crime and Corporate Transparency Act 2023.

Under the offence, a large organisation may be criminally liable where an employee, agent, subsidiary, or other associated person commits a fraud intending to benefit the organisation and the organisation did not have reasonable fraud prevention procedures in place. The organisation may also be found liable where the offence is committed with the intention of benefitting a client of the organisation.

The guidance sets out the aim of the legislation and procedures that organisations can put in place to prevent associated persons from committing fraud offences. The offence will come into effect on 1 September 2025 to allow organisations to develop and implement their fraud prevention procedures.

Link: Economic Crime and Corporate Transparency Act 2023: Guidance to organisations on the offence of failure to prevent fraud (accessible version) – GOV.UK

On 18 November 2025, Companies House introduced a new identity verification process for directors and persons with significant control (“PSCs“). The measure is intended to deter the use of UK companies for illegal purposes by ensuring that individuals who set up, run or control companies are correctly identified. Under the new regime, anyone incorporating a company, being appointed as a director, or registering as a PSC will be required to verify their identity at the point of incorporation or appointment. Existing directors and PSCs will have a 12-month transition period to complete verification, which must be done before the next eligible confirmation statement.

Official guidance on the verification process is available on GOV.UK: Verifying your identity for Companies House.

A new 40% first-year capital allowance will be introduced from 1 January 2026. This allowance is designed to encourage business investment in cases where existing first-year allowances do not apply. Details on eligible assets and qualifying businesses will be set out in the Finance Bill 2025–26. It has been confirmed, however, that the allowance will be available to businesses in the leasing sector and to both incorporated and unincorporated UK businesses. The measure will be particularly beneficial for unincorporated businesses with capital expenditure exceeding the £1 million Annual Investment Allowance cap. The introduction of this relief will coincide with a reduction in the main pool writing-down allowance from 18% to 14%.

The Government has announced a rise in the rate of tax on dividend income from 6 April 2026. Basic rate taxpayers will see the rate increase from 8.75% to 10.75%, while the higher rate will rise from 33.75% to 35.75%. The changes are expected to impact owner managed businesses  in particular, many of whom take a portion of their income through dividends. Investors who rely on dividend-paying shares and funds are also likely to be affected. Commentators have suggested that the measures appear targeted at extracting additional revenue from owner managed businesses who do not structure their shareholdings through tax-efficient savings vehicles.

Official guidance is available on GOV.UK: Changes to tax rates for property, savings & dividend income

The EMI scheme will be expanded from April 2026. The regime, which provides significant tax benefits to employees of qualifying companies, is aimed at helping smaller and early-stage businesses attract and retain talent. At present, the scheme is limited to employers with up to 250 employees, but the Government intends to raise this threshold to 500 and relax certain other eligibility criteria. The reforms will extend EMI access to a broader range of businesses and are expected to support growth within scaling companies.

Veranova BidCo LP v Johnson Matthew PLC and others (2025) EWHC 707 (Comm)

The Commercial Court was asked to consider whether a deceit claim lodged by Veranova Bidco LP (Veranova) against Johnson Matthey PLC (JS) had a reasonable prospect of success as part of an application for summary judgment.

Veranova Bidco LP (Veranova) acquired a company from Johnson Matthey PLC (JS) and a draft disclosure letter was prepared by JS as part of negotiations. In the claim, Veranova alleges JS failed to disclose that the business it was purchasing was reconsidering its position with a key customer (which may impact how much the business was worth). Veranova lodged a claim against JS for breaching its warranties in the SPA and misrepresentation (through deceit or fraud).

JS applied for summary judgment to have Veranova’s claim dismissed on the basis that it had no reasonable prospect of success. However, the court held that JS’s submission that a disclosure letter could not create representations was a question to be considered at trial. Furthermore, the court found that a disclosure letter may contain information that a buyer could reasonably rely on.

WH Holdings Ltd v E20 Stadium LLP

Here, the Commercial Court was asked to consider the meaning of a ‘manifest error’ being made during the course of expert determination.

The case revolved around a concession agreement between E20 Stadium LLP and WH Holding Limited; in the agreement, WH Holding Limited agreed to pay E20 Stadium LLP a sum of money if provisions in the agreement were triggered. Due to a dispute as to whether those provisions were in fact triggered, the expert determination clause within the concession agreement came into operation; this clause stipulated that an expert determination would bind both parties except in instances where a ‘manifest error’ was made by the expert.

The court upheld previous decisions which stipulate that, to identify a manifest error, the error made must be (i) demonstrable without extensive investigation and (ii) be obviously capable of affecting the expert’s determination. The court also held that the exact meaning of a manifest error and how much investigation is required depends on the dispute context and the contract itself. It was found that, in this instance, errors in the expert’s determination fit into both aforementioned categories and therefore could not be final and binding.

The Terrorism (Protection of Premises) Act 2025 has introduced requirements on those responsible for certain publicly accessible premises and events to implement measures to protect against terrorist attacks. It:

• requires certain premises and events to take reasonably practicable actions to mitigate the impact of a terrorist attack and reduce physical harm. Certain larger premises and events in an enhanced tier will also be required to take steps to reduce the vulnerability of the premises to terrorist attacks;
• mandates, for the first time, who is responsible for considering the risk from terrorism and how they would respond to a terrorist attack at certain premises and events; and
• establishes a regulator to support, advise and guide those responsible for premises and events in meeting the legislative requirements (this will be a new function of the existing Security Industry Authority (SIA)).

The new failure to prevent fraud offence came into effect on 1 September 2025, pursuant to s.199 of the Economic Crime and Corporate Transparency Act 2023.

Under the offence, large organisations are liable for unlimited fines where there is a failure to prevent the commission of certain fraud offences by an employee, agent, subsidiary or other “associated person” and there is evidence of an intended benefit from the fraud.

Affected organisations can avail themselves of the defence that reasonable procedures were in place to prevent fraud. As such, organisations should:

• revisit fraud risk assessments;
• review existing fraud and financial crime policies; and
• document board-level oversight and training.

Please see our recent article for more information.

On 10 October, the Department for Education (DfE) has published a policy paper which sets out the preparedness plans that should be in place, as well as the actions that should be taken to comply with the Act, and further confirms that the government will publish further statutory guidance during the Act’s 24-month implementation period. See the full policy paper here.

The CMA announced on 18 November that it has opened investigations into eight businesses over alleged misleading online pricing practices. The CMA’s enforcement guidance indicates that the regulator is looking for “high impact results” which lead to a change in market behaviour.

This is the first investigation backed by the CMA’s new powers conferred by the DMCCA, which allows the regulator to decide whether consumer law has been broken without having to go to court as well as issue fines of up to 10% of global turnover.

The investigations form part of a wider “major package of action” announced by the CMA, covering online pricing practices, including drip pricing and pressure selling, as part of which the CMA has published new guidance on pricing transparency. The guidance addresses what businesses should include in pricing information, as well as outlining banned practices like drip pricing and partitioned pricing. See the full guidance here.

In addition to the investigations, the CMA has written to 100 businesses across 14 key sectors of customer spending. The advisory letters issued to these businesses address the regulator’s concerns about the use of additional fees and online sales tactics and puts the relevant businesses on to ensure non-compliant behaviour is corrected.

We are expecting to see increased activity in relation to both formal investigations as well as informal action taken by the CMA in relation to pricing practices. An update on the investigations is expected in March 2026.

From 5 January 2026, paid-for online advertisements for less healthy HFSS (high fat, salt, or sugar) products will be banned. The restrictions were due to come into force on 1 October 2025, prior to an amendment of the effective date. Nevertheless, the government expects compliance from 1 October 2025 as originally planned. The government has published accompanying guidance here.

The government has announced the following restrictions:

• A 9pm watershed for advertisements of HFSS products, applicable to television and UK on-demand programmes.
• A prohibition on paid-for advertising of unhealthy food and drink products online.

The rules will apply to businesses with 250 or more employees, including retailers and manufacturers, franchises and symbol groups, online platforms, as well as restaurants, takeaways and others in the out-of-home sector (among others).

The Committee of Advertising Practice (CAP) has yet to issue final guidance on the matter.

On 22 September 2025, the government published new guidance on the Price Marking Order 2004 (PMO) to reflect amendments taking effect on 6 April 2026. See the full guidance here.

The PMO applies in Great Britain to business‑to‑consumer sales of goods (both online and in store) and requires transparent display of the selling price and unit price (where applicable) to facilitate consumers making a like-for-like comparison of products. The changes will require businesses to update their in‑store and online materials (e.g. signage, product labels, loyalty pricing displays and assortment promotions) ahead of 6 April 2026.

The parties contracted for the supply of electricity by URE Energy (URE). Genesis passed a resolution for its amalgamation and duly informed URE of this. Whilst this would have triggered URE’s express right to terminate the contract, URE continued to supply electricity to Genesis and issuing invoices in performance of the contract for a further six months. When URE attempted to terminate, Genesis argued that URE had waived its termination right by way of continued performance. The Court of Appeal rejected the argument that a party is deemed to have knowledge of the express terms of its contract and confirmed that a party cannot waive its contractual right to terminate unless it is actually aware of that right.

The Court of Appeal clarified that a repudiatory breach (a breach going to the core of the contract) is not automatically incapable of remedy under a contractual clause.

The dispute arose from a shareholders’ agreement containing a provision requiring a shareholder to transfer shares if it committed a material breach that was not remedied within ten business days. Gwent committed serious breaches and Kulkarni argued that repudiatory breaches are not remediable. However, the court rejected this notion and decided that remediation is forward-looking (i.e. seeks to fix matters rather than eliminating past harm). In this instance, the breach was remediable by Gwent taking action.

This decision underscores that businesses should draft clauses clearly if they intend certain breaches to be irremediable. The ruling promotes flexibility, allowing parties to correct serious breaches and preserve commercial relationships, while highlighting that breaches may remain remediable unless the contract specifies otherwise.

A new pilot programme aimed at reforming how workers are signed off sick has been announced across fifteen regions. The overriding objective of the programme is to help those with health conditions remain in or return to work as quickly as possible. For employers, this may lead to changes to the content of fit notes received in relation to employees as a shift is proposed from simply declaring employees “not fit for work” to proactive planning and support, such that there may be an increase in fit notes making suggested adjustments designed to support employees back into the workplace. The pilot programme may also include the upskilling of occupational therapists or physiotherapists to also issue fit notes such that fit notes may be received from professionals other than GPs.

It is crucial that employers ensure that they have appropriate processes in place for considering the content of fit notes, remaining mindful of their duties to make reasonable adjustments for employees with disabilities.

The Home Office has launched a nationwide operation targeting illegal working, with a focus on the gig economy. The operation comes against the backdrop of a significant increase in government action against illegal working.

Businesses employing workers without the required right to work may be subject to civil penalties of up to £60,000 per individual, director disqualifications, and potential custodial sentences of up to five years.

This operation is strengthened by the Border Security, Asylum and Immigration Bill which aims to extend right to work checks to cover alternative working arrangements, which would include the gig economy and zero-hour workers. This bill is still subject to amendment, and an implementation date is yet to be confirmed.

Employers should begin reviewing their right to work processes and systems to consider how they will incorporate the proposed changes and plan ahead accordingly.

We will provide updates on the Border Security, Asylum and Immigration Bill as and when they land!

The government has announced recent updates to the collective redundancy reporting requirements, primarily relating to the HR1 form. HR1 forms are used by employers to notify the Secretary of State when they are planning 20 or more redundancies at one establishment within a 90-day period.

Following recent changes to the HR1 form, it will be mandatory from 1 December 2025 to submit it digitally. Paper forms will not be accepted from this date. Other notable changes include:

• Employers no longer needing to provide occupational group breakdowns in the HR1, as this section has been removed from the new digital version.
• The digital form introduces an additional redundancy reason option: “Change in supply chain/loss of supply chain contract,” giving employers a broader set of categories to describe the rationale for redundancies.
• The system will only accept consultation dates that have already started or begin on the date of submission. Future consultation start dates can no longer be entered.

A full list of the HR1 requirements can be found on the Government’s website here.

On 23 October 2025, the Government published its first set of consultation papers under the Employment Rights Bill (ERB). These cover four key areas:

• Enhanced dismissal protections for pregnant women and new mothers (deadline 15 January 2026)
• Bereavement leave (including pregnancy loss) (deadline 15 January 2026)
• Trade Union right of access (deadline 18 December 2025)
• Duty to inform workers about their right to join unions (deadline 15 January 2026)

A more detailed breakdown of the key objectives of the consultations can be found here.

On 19 November 2025, the Government issued a draft Code of Practice for electronic and workplace ballots under the forthcoming Employment Rights Bill. While postal voting remains the default, unions will soon be able to choose electronic, postal, workplace, or hybrid ballots—subject to strict security and data protection standards.

Strict regulations are set to be enforced. E-voting systems must be certified, secure, and verify identity without compromising anonymity. Workplace ballots must occur in neutral locations, free from employer influence. Existing statutory postal ballot rules under the 1992 Act remain unchanged.

Deadline for the consultation is 28 January 2026.

If passed, this legislation will place a requirement on employers to take proactive measures to prevent violence and harassment in the workplace and for there to be additional protections for women and girls.

The proposed legislation is currently within its second reading in the House of Commons.

It is proposed that there should be an establishment of an independent office of the whistleblower to protect whistleblowers.  The office would set, monitor and enforce standards for the management of whistleblowing cases,  provide disclosure and advice services, to have powers of investigation and to order redress if found that a whistleblower has suffered some form of detriment.

The proposed legislation is currently within its second reading in the House of Commons.

The Government has confirmed new National Living Wage (NLW) and National Minimum Wage (NMW) rates that will take effect from April 2026. The NLW, applicable to workers aged 21 and over, will increase from £12.21 to £12.71 per hour.

Other notable raises include:

• An increase of 50p (4.1%) to the NLW for those aged 21 and above, bringing the rate to £12.71 per hour.
• An increase of 85p (8.5%) for workers aged 18–20, raising the hourly rate from £10.00 to £10.85.
• An increase of 45p (6%) for 16–17-year-olds and apprentices, moving the rate from £7.55 to £8.00 per hour.

These adjustments are part of the Government’s ongoing commitment to ensure fair pay and align wage levels more closely across age groups.

In response to concerns about tax non-compliance by umbrella companies, legislation is to be introduced in the Finance Act 2026, which will come into force in April 2026. The new legislation will make liability for PAYE deductions – for payments made on or after 6 April 2026 – ‘joint and several’ between the employment agency or (where there is no agency) the end-user client and the umbrella company.  Should a client therefore engage an umbrella company which does not properly account to HMRC, the client may find themselves on the hook with HMRC for any shortfall.

Organisations are therefore advised to audit their supply chains and ensure appropriate contractual protection is in place.

The Government’s phased Implementation Roadmap reflects a measured approach for the introduction of significant worker protections. The first changes we are expecting to see are outlined below:

• Changes are expected for Statutory Sick Pay regulations. There will be a removal of the lower earnings limit and waiting period, ensuring that workers earning a lower salary could be eligible for statutory sick pay.
• The Bill proposes to remove the qualifying service requirements for paternity leave. This will mean that there will be day one rights to paternity leave and unpaid parental leave.
• The Bill proposes to simplify the Trade Union recognition process and to introduce electronic workplace balloting. These amendments will make the recognition process less burdensome and ensure that Trade Unions can organise industrial action more efficiently.
• Under existing law, if an employer fails to consult properly when making collective redundancies, employees may be entitled to a “protective award” (a penalty payment). The Bill proposes doubling the maximum protective award from 90 days’ pay to 180 days’ pay. This change massively increases the financial risk for employers.
• Introduction of a ‘Fair Work Agency’. The main purpose of this new agency would be to enforce labour market rights, support compliance, and potentially monitor or intervene in employment rights matters.
• Extension of whistleblowing protections, to provide a more robust cover from dismissal and detriment for making disclosures.
• Electronic and workplace balloting. The traditional ‘paper only’ method will be overhauled, and explicit provisions for electronic ballots will be introduced.

These changes are set to include:

Amended fire and rehire proposals: This proposal will allow some changes to contracts, so long as they do not impact on pay, working hours, pension, shift times, shift lengths, time off and any other changes to be defined in regulations.

Bringing forward regulations to establish the Fair Pay Agreement Adult Social Care Negotiating Body, which will set minimum pay conditions and higher standards.

New regulations introduced for suppliers to follow a new code preventing a “two-tier workforce,” ensuring that outsourced workers get comparable terms to directly employed staff.

Tightened and more transparent tipping law regulations. This will ensure that 100% of tips and service charge go to workers.

A new duty to be imposed on employers, ensuring that they inform workers of their right to join a trade union.

The strengthening of trade unions’ right of access, ensuring  they can gain improved access to workplaces and speak with and recruit members.

New regulations that will ensure  employers  take “all reasonable steps” to prevent sexual harassment of their employees.

Employers set to be responsible for preventing harassment of staff by customers, clients, or other third parties.

Trade union representatives set to receive stronger protection and support to carry out their duties both efficiently and effectively.

Time limits for bringing certain employment claims are set to be extended, ensuring that workers have more opportunity to pursue cases. The current 3 month deadline for most current claims is expected to increase to 6 months.

Extended protections from detriment (e.g. disciplinary action) for employees lawfully taking part in industrial action.

Commencement of the Mandatory Seafarers Charter – A new charter will set minimum pay and working condition standards for seafarers working on ships regularly docking in UK ports.

On appeal to the Supreme Court, it held that the definitions of “woman”, “man” and “sex” in the Equality Act 2010 refer to biological sex. The definition of “woman” therefore excludes trans women holding a gender recognition certificate (GRC), who remain protected under the protected characteristic of gender reassignment or in relation to their biological sex (or perceived biological sex)

A retired trans judge is reportedly challenging the Supreme Court’s decision in the European Court of Human Rights, alleging an infringement of her Article 6 human rights.

What does “sex” mean under the Equality Act 2010? Previewing the case of For Women Scotland v The Scottish Ministers in the Supreme Court | Foot Anstey

An employment tribunal held that a Christian employee’s beliefs that gender cannot be fluid and that an individual cannot change their biological sex or gender, were worthy of respect in a democratic society and could therefore be protected beliefs under the Equality Act 2010.  However, the employee had not been directly discriminated against or harassed because of those protected beliefs. She had been disciplined and dismissed because of the inflammatory language used in her Facebook posts which could have led readers to believe that she held homophobic and transphobic beliefs.

Mrs Higgs successfully appealed to the Employment Appeal Tribunal (EAT), which found that the school’s decision, based merely on a perception that she held “wholly unacceptable views,” was insufficient. The Tribunal had not properly applied the relevant legal test or carried out the required balancing of rights, so the case was remitted for reconsideration.

Mrs Higgs then appealed to the Court of Appeal, arguing that the EAT should have determined the outcome itself rather than remitting the case. It was accepted that her beliefs were protected under Forstater v CGD Europe. The Court of Appeal (Underhill LJ, Bean LJ and Falk LJ) upheld her appeal, holding that neither the tone of her social-media posts nor the school’s reputational concerns justified her dismissal, given her conduct at work had been non-discriminatory.

In June 2025 the Supreme Court declined to grant Farmor’s School permission to appeal, so the Court of Appeal’s decision stands.

If interested in the above, please read our detailed article here: Belief and discrimination – key practical takeaways from Higgs v Farmor’s School | Foot Anstey

The EAT ruled that personal liability for whistleblowing detriment cannot be based on combining one person’s motive with another’s act. Managers acting in good faith and independently will not be personally liable, though employers may still face vicarious liability if others act improperly. The case returns to the Tribunal to assess whether the original manager interfered or concealed the true reason for dismissal.

Key Takeaways:

• Independent, transparent processes are critical.
• Use investigators with no prior involvement.
• Document decisions clearly to reduce risk.

In Rice v Wicked Vision Ltd and Barton Turns v Treadwell, the Court of Appeal confirmed that dismissal can amount to a detriment under s47B ERA 1996 where a colleague is involved, meaning employers can be vicariously liable for whistleblowing detriment even if the detriment complained of is dismissal. Both claimants were allowed to pursue detriment claims alongside automatic unfair dismissal claims. The Court acknowledged ongoing uncertainty in this area, which may require Supreme Court clarification or legislative reform.

Key Takeaways:

• Employers may face dual exposure: unfair dismissal and detriment claims based on the same dismissal.
• Senior staff could face personal liability if their actions contribute to detriment.
• Processes should separate roles, include whistleblowing training, and ensure robust safeguards around decision-making.

The final quarter has seen major regulatory and enforcement developments. The EU published its Digital Omnibus proposals, aiming to simplify compliance under the AI Act, GDPR, and Data Act. These proposals extend deadlines for high-risk AI systems to late 2027 or beyond, providing businesses with more time to adapt to complex requirements. For UK businesses operating in the EU, this offers breathing space but also signals the need for long-term compliance planning.

WIPO’s Pulse survey revealed a sharp increase in global IP awareness, particularly in emerging markets, highlighting the growing importance of international brand protection strategies. Meanwhile, enforcement activity around lookalike products continued, with several supermarket disputes settled out of court. These settlements suggest a trend toward negotiated outcomes rather than prolonged litigation, but they also underscore the need for robust trade mark and design registrations to strengthen bargaining positions.

In November 2025, the High Court delivered its judgment in Getty Images (US), Inc. v Stability AI Ltd, the UK’s first ruling on generative AI and intellectual property rights. Getty alleged that Stability AI had used millions of Getty’s copyrighted images to train its AI model without permission. The court held that the model content does not constitute infringing copies under the CDPA, though limited trade mark infringement was found for watermarks appearing in AI outputs. While this decision provides some clarity, it leaves unresolved questions around the legality of dataset use for AI training. These issues are expected to be addressed in the forthcoming Data Use and Access Act, anticipated mid-2026.

Practical implications – AI developers should review data sourcing practices and prepare for opt-out compliance under upcoming legislation.

See here for more information – UK Parliament passes Data (Use and Access) Bill following parliamentary “ping-pong” | Foot Anstey

The UKIPO closed its consultation on design law reform in late 2025, with proposals expected to modernize protection for digital and virtual designs. Anticipated changes include clearer rules for 3D and virtual assets and streamlined enforcement mechanisms, which could significantly impact fashion and consumer goods sectors.

From 1 January 2026, EU use will no longer support cloned UK trade marks created during Brexit transitional arrangements. Businesses must ensure they can evidence genuine UK use or risk revocation.

Find out more here: The Clone Race – The final sprint for EU brand owners to protect their cloned UK trade marks | Foot Anstey

The UK Government’s report on AI copyright consultation is due in March 2026. This report is expected to influence future legislative reform, potentially introducing clearer rules on data scraping and copyright exceptions for AI training.

In April 2026, the UKIPO frees will increase (by approximately 2025). This will impact trade mark and design filings, renewals, and oppositions. Businesses should factor these changes into their IP budgets and filing strategies.

In November 2025, the High Court delivered its judgment in the much-anticipated dispute between Getty Images and Stability AI. Getty alleged that Stability AI had infringes copyright and database rights by using millions of Getty images to train its generative AI model and claimed trade mark infringement where Getty watermarks appeared in AI outputs. The court rejected the copyright and database claims, holding that the content produced during training does infringe copies under UK law. However, the court did find limited trade mark infringement in relation to the appearance of Getty watermarks in generated images, which could mislead consumers and harm brand reputation.

While the ruling provides some clarity, it leaves broader questions around the legality of data scraping for AI training, which are expected to be addressed in forthcoming legislation.

The Supreme Court has now upheld the Court of Appeal’s decision in the dispute between Thatchers and Aldi over Aldi’s TURUS cloudy lemon cider packaging. The court confirmed that Aldi had taken unfair advantage of Thatchers’ reputation under section 10(3) of the Trade Marks Act. Although there was no evidence of direct consumer confusion, the court found that Aldi’s packaging was designed to evoke Thatchers’ distinctive branding and benefit from its goodwill. This decision reinforced the principle that infringement can occur even without confusion at the point of sale and highlights the importance of protecting distinctive packaging through trade mark and design registrations.

The Supreme Court has clarified that post-sale confusion is a relevant factor in trade mark infringement analysis. In this case, Iconix argued that Dream Paris’ footwear branding could mislead consumers after purchase, when products are seen in sue. The court agreed, noting that brand damage can occur even if the initial user is not confused, as third parties may wrongly attribute the origin of the goods. This ruling brings UK law closer to US practice and underscored the need for brand owners to consider how their marks are perceived beyond the point of sale.

This is an important and interesting decision that seemingly contravenes past jurisprudence regarding the extent of a director’s liability in relation to tortious acts. In a trade mark infringement claim, the Court of Appeal held that both a company and its two directors were considered jointly liable for trade mark infringement because of their company’s manufacturing and sale of infringing clothing. As the infringing company was dissolved, the claimant was unable to recover any damages from it. However, the Court of Appeal upheld the trial judge’s decision that while the company’s directors did not have to account for the profits the company made, they should pay 10% of their salaries over the infringing period.

The decision was appealed to the Supreme Court by both the claimant and defendant.

Ultimately the Supreme Court stated that the directors were not jointly liable as accessories to the company’s wrongdoing by procuring the company to commit the infringing acts/acting with a common design. This is because the directors had acted in good faith and without knowledge of the “essential facts” that made the company’s acts wrongful. Further, even if the directors were liable, they could only account for the profits they personally made from the infringements. Therefore the directors were not required to pay profits earnt by the company and neither did they have to pay a proportion of their salaries which appeared to be standard remuneration.