In Counsel Update – Autumn 2016

20 / 10 / 2016

Welcome to the Autumn edition of our In Counsel update. The UK is continuing to feel the effects of the Brexit vote and there are still more questions than answers as to the future relationship between the UK and the EU. However, as the Government recently announced that Article 50 of the Treaty of the European Union (withdrawal from the EU) would be triggered in March next year, David Golten looks at the constitutional question of whether Article 50 can be triggered by the Government in reliance on the Royal Prerogative or whether an Act of Parliament is required, a question currently before the High Court.

This update also contains, among others, an attempt by Edward Craft to engage with and respond to the House of Commons inquiry into corporate governance, in particular in relation to executive pay and the composition of company boards; tips from Adam Grant and Victoria Middleditch for employers on managing workers with serious medical conditions; guidance by Edward Starling and Emma Davies on corporate group simplification; and a further update and analysis of the BHS case and its implications on pension law by Clive Weber and Grace Ho. Jonathan Cornthwaite looks at when the unauthorised posting of a hyperlink runs the risk of infringing copyright, and Scarlett Wheeler provides an overview of the first reform of insurance law in over 100 years brought about by the Insurance Act 2015.

We will keep you updated on these and other UK law developments as and when they happen. If you would like to know more about any of the topics covered in this update please get in touch.

Janice Wall, Head of Corporate
Marlies Braun, Editor




  • House of Commons inquiry into corporate governance – The Business, Innovation and Skills Committee of the House of Commons has jumped on the bandwagon and launched an inquiry into corporate governance.  An analysis of governance is drawing interest from a broad spectrum of people including our new Conservative Prime Minister, the Labour chair of the Business, Innovation and Skills Committee and the General Secretary of the Trades Union Congress: each is, with some urgency, seeking to find something to criticise or change and to champion the same. Read full article
  • When should directors consider the interests of creditors – In the recent decision of BTI 2014 LLC v Sequana SA & others, the High Court considered a number of legal aspects around the payment of dividends and the making by directors of a statement of solvency.  Read full article
  • New anti-money laundering regime – Businesses need to prepare themselves now for the implementation of the new EU Anti-Money Laundering Directive. Read full article
  • Company procedure update – In the last few In Counsel updates we have repeatedly raised the changes to company law brought about by the new register of people with significant control which came into force on 6 April 2016. However, the PSC Register regime is not the only change to the Companies Act 2006 brought about by the Small Business, Enterprise and Employment Act 2015. This note summarises two salient points. Read full article
  • Reform of the prospectus regime – The European Parliament recently adopted major amendments to the draft Prospectus Regulation proposed by the European Commission to replace the Prospectus Directive 2003/71/EC as amended. The Regulation constitutes an essential step towards the completion of the Capital Markets Union. Read full article


Insolvency & Restructuring

  • General Counsel adding value by corporate simplification – Simplifying a group structure through closing corporate vehicles can have significant benefits to the balance sheet and the business. It may also help with your work load. This article sets out why corporates should consider simplifying, how they may do so and some of the considerations to bear in mind. Read full article

IP & Commercial

  • Think before you link!: When does unauthorised hyperlinking infringe copyright? – In what circumstances does the unauthorised posting of a hyperlink run the risk of infringing copyright?  The question is an important one, for hyperlinks help the internet to work smoothly; and it is also a topical one, for it was the subject of a recent ruling by the Court of Justice of the European Union – GS Media – that helps to clarify the issue. We review this decision, and also compare and contrast it with two other CJEU rulings in which websites and copyright infringement were considered. Read full article

Pensions & Employee Benefits

Property & Construction

  • Problems with partitioning when exercising a break clause – Break clauses are one of the most frequent causes of disputes between landlords and tenants.  Depending on the specific drafting of the break clause when it was originally negotiated, a tenant could give its break notice expecting that its lease will come to an end automatically on the break date only to find that its break has not worked because it failed to comply with a condition of the break. Read full article
  • Reforming insurance law – Insurance law is an area which has remained unchanged for over 100 years. The Insurance Act 2015 will have a significant impact on non-consumer insurance contracts post 12 August 2016. Read full article