In Counsel Update – Winter 2016/17

07 / 02 / 2017

In this update we will outline the most recent legal developments affecting your business, in particular, the Government’s Green Paper on Corporate Governance Reform, the implied duty of good faith in commercial contracts and its impact on deferred consideration clauses in corporate sale and purchase agreements, and a recent High Court case on the question of whether, under the Duomatic principle, a company’s articles of association could effectively be amended by the holders of 75% of its share capital. We also set out, among others, the new immigration rules requiring employers who sponsor overseas workers in the UK with a Tier 2 status to pay the Immigration Skills Charge starting from April of this year, analyse the recent rulings of British and EU courts on Nestlé’s application to register the shape of its well-known four-fingered KIT-KAT bar as a trade mark, and provide an insight into the latest chapter of the BHS saga.

If you would like to know more about any of the topics covered in this update please get in touch.

Wedlake Bell News

We are pleased to announce that Kim Lalli was elected as the firm’s new Senior Partner and began her four year term on 1st January 2017. Kim’s appointment comes shortly after Managing Partner, Martin Arnold, was re-elected for a second term to lead the firm. Martin has been in the position since 2012 and his new term is effective from April 2017.

Kim Lalli is Head of the India Group and was previously Head of the Real Estate Group. She has been at Wedlake Bell for almost 14 years and is the firm’s first female Senior Partner. Wedlake Bell is committed to promoting the organic growth of talent on merit, and over a third of the firm’s partnership are female, with a total of 96 female fee-earners. In addition, Wedlake Bell is ninth (out of the UK 200) in terms of the percentage of Equity Partners who are female.

We further welcome Julia Jackson as our new Immigration Partner strengthening our Private Wealth, Corporate and Employment practices. Julia joins the firm having spent the past decade heading Julia Jackson Solicitors, a specialist corporate, business and high net worth immigration practice.

Julia specialises in corporate and business related immigration law and has extensive experience advising clients on immigration matters. She predominantly acts for employers, senior business executives and high net worth individuals coming into the UK. Her wide-ranging client base includes oil and gas, investment banking, architecture and IT businesses amongst other sectors.

Janice Wall, Head of Corporate
Marlies Braun, Editor

Contents

Corporate

Employment

IP & Commercial

  • Fingers crossed: Is the shape of the KIT-KAT bar registrable as a trade mark?– It has long been possible to seek the registration of (inter alia) “the shape of goods or of their packaging” as a trade mark both in the UK and in the rest of the European Union.  Manufacturers have made good use of this entitlement over the past two decades to secure the registration of a wide range of three-dimensional marks.  Yet the confectionery industry has struggled to take advantage of this entitlement.  Thus, in the last few years, Mars, Lindt and Storck have all failed in their respective attempts to register the shape of their confectionery as trade marks. Read full article

Pensions & Employee Benefits

  • RPI/CPI: RPI, or new chapter? – Relief for members and disappointment for employers: on 2 November 2016 the Court of Appeal upheld the High Court decision in Buckinghamshire v Barnardo’s, thus precluding the Barnardo’s scheme trustees from any switch from RPI to CPI for pension increases. Read full article
  • BHS: Where are we now? – In the Summer and Autumn 2016 In Counsel updates and the May 2016 Pensions Bulletin, we examined the well-publicised BHS pensions debacle. Since then, a considerable amount of time, effort and money has been spent in trying to reach a solution to the problems left behind after BHS’s collapse, not least the underfunded pensions. As the curtain came down on 2016, were we any closer to an acceptable solution for all stakeholders? Read full article
  • Protecting a bankrupt’s pension: Horton v Henry, Court of Appeal 7/10/2016 – Good news for debtors but disappointing for creditors: the Court of Appeal has decided, in its recent Horton v Henry decision, that a bankrupt individual’s pension rights cannot be exercised by his trustee in bankruptcy. Read full article

Property & Construction 

  • Moving on and ending the relationship – Often HR professionals and those in management roles are lumbered with dealing with property matters for the business. Below is the first of three articles to give you a better understanding of the issues surrounding surplus premises. Read full article