Retail & Consumer

The Terrorism (Protection of Premises Bill) 2024, widely known as Martyn’s Law, passed the committee stage on 29 October 2024 and is set to enter the report stage. Martyn’s Law imposes strict obligations regarding security on both freeholders of premises (including commercial properties, such as hotels and shopping centres) and tenants in occupation. The responsible party for compliance with Martyn’s Law, if it does receive royal assent, is the party who controls the premises in regard to its use.

Obligations imposed are based on the number of individuals reasonably expected to be on the premises at once: larger premises expected to host over 800 attendees at once are enhanced duty premises, whereas smaller premises expected to hold between 200 and 799 attendees are standard duty premises. Relative to standard duty premises, enhanced duty premises have a stricter threshold for adequate measures to be reasonably in place to protect the public in the event of a terrorist attack.

In light of the continued exposure of the public to terrorism risk, property owners and occupiers will be led by Martyn’s Law to implement measures to improve protection. Those responsible for premises should keep an eye on developments to be aware of duties should they come into force.

The Local Authorities (Rental Auctions) (England) and Town and Country Planning (General Permitted Development) (Amendment) Regulations 2024 (SI 2024/1139) have been made to provide detail on the process for compulsory high street rental auctions under Part 10 of the Levelling-up and Regeneration Act 2023 (LURA 2023). LURA 2023 allows LA’s to conduct compulsory rental auctions of vacant premises in designated high streets or town centres. The new regulations (which come into force on 2 December 2024) provide much needed detail, to fill in the questions/holes in the legislation. The regulations include (among other things): 1. Provision for the LA to charge the successful bidder with the costs associated with the process, including surveyors’ fees and costs of drafting tenancy documents. 2. A weekly timetable for the auction process which covers giving notice to the landlord of the intended auction, producing an auction pack, marketing the property and concluding the auction. Similarly, the ‘Levelling-up and Regeneration Act 2023 (Commencement No 6) Regulations 2024’ have been made, which bring into force the remaining sections of Part 10 from 2 December 2024.

This new power for local authorities could change the face of the high street as we know it. Landlords with vacant high street property should take advise on the application of the powers and how it could effect their portfolios.

In the recent 2024 Autumn Budget, lower business rates multipliers (from 2026-2027) and 40% relief for business rates (subject to a cap of £110,000 per business) have been made available to retail, hospitality and leisure properties. In addition, the small business multiplier will also be frozen for 2025-2026. Business rates have been a contentious issue for some time, being blamed in part for the growing vacancies on the high street. This change could open up options for retailers to retain or create new presence on the high street.

New regulations for the LFRA came into force on the 31 October 2024. These regulations brought into force certain sections of the LFRA 2024 that amend Part 5 of the Building and Safety Act 2022. The affected provisions are as follows: Section 114 (remediation of defects), Section 115 (remediation orders), Section 116 (remediation contribution orders), and Section 120 (interpretation of references to other Acts). This broadening of the scope for remediation orders and remediation contribution orders will need to be considered by landlords of relevant buildings under the BSA 2022, in order to fully understand their responsibilities and potential liabilities.

The Law Commission is to review the current framework for renewing business tenancies under the Landlord and Tenant Act 1954. The Law Commission comments that the almost 70-year-old, 1954 Act is increasingly misaligned with modern commercial needs, with existing provisions being unclear and sometimes stopping the speedy occupation of properties. The Law Commission’s review will focus primarily on how the 1954 Act can be made more accessible to deal with the phenomenon of most tenancies being contracted out of instead of being widely applied into contracts. The consultation paper from the Law Commission is set to release on 19 November 2024.

The provisions of the Landlord and Tenant Act 1954 are embedded into the everyday actions and behaviours of landlords, across all sectors. This review could result in major changes to legal fundamentals for property and is being keenly watched by the market. We will continue to update clients as the consultation progresses.

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.

On 10 October 2024 the UK Government published a joint statement with the US government on online safety and established a joint children’s online safety group to create more cross-border collaboration on the issue which, once established, will take steps to understand the potential harms and risks posed by the digital world. A key consideration is the impact of social media and new technologies like generative AI on young people. Focus will be on promoting transparency from platforms and improving access to privacy-preserving data for researchers.

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 are expected to comply with the new requirements by October 18, 2024. The UK is in the process of considering similar changes to the original NIS Regulations, introduced by the UK government when it was part of the EU. Whilst there is no action to take at the moment, the UK’s NIS 2 Regulation is one to keep an eye on as it may require businesses caught by the existing NIS Regulation to make changes to its business practices (although any such changes are not expected to be as far reaching as those imposed by the EU).

The ICO has published a new data protection audit framework to help organisations improve their compliance with data protection laws, accessible here.

As part of the ICO’s ongoing monitoring of the wider AI ecosystem, the ICO recently carried out consensual audit engagements with developers and providers of AI powered sourcing, screening, and selection tools used in recruitment. It is recognised that the use of AI tools in recruitment processes can offer benefits to employers, but their use can also lead to risks for people and their privacy and information rights. The ICO published various recommendations to improve compliance ranging from fairness, transparency and explainability, data minimisation and purpose limitation etc.

This bill put forward by the House of Lords has three core objectives: to grow the economy, improve public services and make people’s lives easier. Suggested measures include paving the way for the ‘smart data’ model to be used in more sectors, establishing a trust framework for digital verification services and placing the national underground asset register on a statutory footing.

It is due to have its second reading in the House of Lords on 19 November 2024. The Bill in large part replicates what had been found in a similar piece of legislation introduced by the previous government but which ran out of time before the last UK election.

The legislation covers a wide range of data related topics including some amendments to the UK’s privacy regime under UKGDPR differentiating it a little further from the EU regime. For example, it would create a new lawful ground for processing personal data of “recognised legitimate interests” and expand the lawful base for the use of solely automated decision-making. The bill would change the governance model of the Information Commissioner’s Office (ICO).

The potentially most significant aspect of the Bill (which is rather under reported) are the “smart data” or “open data” provisions. The aspiration here is to create a replica of the “open banking” / Payment Systems Directive II environment but for “consumer data” more generally.

Anyone familiar with open banking / PSD II will know that the implementation of this regulation was very beneficial for “customers” of data in the fintech sector. However, preparing for implementation was very onerous for the supply side both in practical terms – cleaning and structuring the data to make it sharable and navigating both the “open data” legal requirements and the (sometimes contradictory) data security / privacy requirements.

The devil will be in the detail of the regulation made under the primary legislation (the legislation provides broad powers for government to make regulation) so at present it is difficult to see how wide ranging these provisions will be, but it has potential to be a very significant regulatory intervention and worth following for its potential impact on anyone processing “consumer data”.

The new government announced its intention to introduce a Cyber Security and Resilience Bill in the Kings Speech, which is likely to introduce long awaited updates to the Network and Information Security Regulations (NIS). This bill is expected to focus on expanding cybersecurity measures, especially in sectors managing sensitive data or critical services. We can expect:

• Support for a more proactive approach by the regulator
• Expanded reporting requirements (such as need to report on ransomware attacks)
• Cost recovery measures
• Expansion of scope to include managed service providers such as IT outsourcing services
• Power for the government to expand the scope of regulation to other services as it sees necessary

UK Cybersecurity Regulation: what’s next? | Foot Anstey

The 3Million v Secretary of State for The Home Department: The UK Government’s second attempt in amending the Data Protection Act 2018 which disapplied UK GDPR data subject rights for activities relating to immigration control was held as unlawful. Following the decision, the Government is required to address how vulnerable individuals within the immigration system can access their personal data, within three months of the decision (ruled on 11 December 2023).

Clearview AI Inc v. Information Commissioner [2023] UKFTT 819 (GRC): The American facial recognition company Clearview AI successfully appealed a £7.5m UK data-scraping fine and enforcement order issued by the ICO in 2022 for breach of data protection regulation – it was held that the AI company’s data processing was outside the territorial scope of the data protection regulations, and the ICO had no jurisdiction to issue the notices. The ICO has sought permission to appeal the ruling and awaits the Tribunal’s decision.

Over £200 million is being assigned to increase access to EV charging points, with an additional £120 million for grants supporting electric vans and accessible EVs. The extension of these tax incentives and allowances for EVs aims to make electric transport more accessible and affordable.

For retailers, increased access to charging points and financial support for electric vans lowers the cost and logistical challenges of transitioning to electric delivery fleets. This shift can reduce operational costs over time, particularly in last-mile delivery, where EVs offer fuel savings and potential tax benefits. Additionally, improved EV accessibility can enhance retailers’ sustainability credentials, aligning with consumer demand for environmentally friendly practices.

The National Wealth Fund Bill was announced in the King’s Speech on 17 July 2024. This Bill will establish the National Wealth Fund, which will combine public and private investment funds to promote development in key sectors, such as green hydrogen, green steel, gigafactories, ports and industrial decarbonisation. Funding will be issued through the UK Infrastructure Bank, which will provide a proposed £7.3billion to catalyse private investment and aims to generate £3 of private sector investment for every £1 of public investment. The policy paper was released on 14 October 2024 but further steps to mobilise the bill are not likely to occur until the new year.

The Bill is likely to impact the retail sector by promoting infrastructure and technology investments that drive down costs in green energy and logistics. Retailers could see lowered costs in transitioning to sustainable supply chains, while the potential increase in green infrastructure (like ports and hydrogen-powered transport) could improve logistics efficiency and reduce carbon footprints.

The Public Charge Point Regulations 2023 (the “Regulations”) were implemented on 24 November 2023, however key obligations under the Regulations are expected to become effective from 24 November 2024. The obligations are set to impact council run services along with retail-based services such as car parks, service stations and forecourts.

The obligations include:

• All new public charge points over 8kw and all public charge points over 50kw must offer contactless payments.
• Charge Point Operators (“CPOs”) must offer a free to use 24/7 telephone helpline at all charge points.
• CPOs must hold accurate data about their public charge points and use the Open Charge Point Interface to hold and open their data, which must be accessible by distribution network operators (“DNOs”), transmission owners and electricity system operators.
• CPOs must maintain 99% availability for charge points over 50kw and must publish information on reliability compliance on their websites submit an annual reliability report to the Secretary of State and the Office for Product Safety and Standards.

For more information, please see: New Public Charge Point Regulations in force from 24 November 2024: How will they impact the Energy sector? | Foot Anstey

Please also see our previous article on how the Regulations are expected to impact the retail sector.

In previous years, companies have been essentially prohibited from developing windfarm projects onshore in the UK due to a myriad of planning restrictions.

However, the Labour government have removed a nine-year moratorium on new onshore windfarms meaning planning applications now face the same planning thresholds as other development proposals under the National Planning Policy Framework. However, there is likely to be a lag before we see the benefits of these restrictions being lifted as a pipeline of interest needs to grow on an industry-wide scale first.

Nine offshore wind farm contracts have already been awarded by the government in the latest Contracts for Difference (CfD) auction (September 2024), providing a capacity of 4.9GW, after last year’s auction failed to attract any bidders at all.

Find out more in our recent article on Clean Energy predictions: The year ahead – a 2024 Clean Energy preview | Foot Anstey.

The previous Government conducted a consultation on the UK Low Carbon Hydrogen Certification Scheme which sought to introduce a UK-wide, voluntary certification scheme in 2025 to verify hydrogen producers’ compliance with the Low Carbon Hydrogen Standard. While the previous government committed to launching the hydrogen certification scheme in 2025 as part of the British Energy Security Strategy, it remains to be seen if the new Labour government will move forward with these plans.

The UK Low Carbon Hydrogen Certification Scheme, if it is adopted by the current Government, may encourage adoption in retail logistics and operations. While there may be initial cost, the certification will enable retailers to credibly expand their green efforts, diversify energy sources, and potentially reduce long-term emissions.

From April 2025, drivers of electric and low emission cars, vans and motorcycles will need to pay vehicle tax in the same way as petrol and diesel vehicles. Most electric vans will move to the standard annual rate for light goods vehicles, marking the end of the honeymoon period EVs have enjoyed.

While this policy will help to level the playing field for all vehicle types, it will likely lead to higher operating costs for retailers, influencing logistics strategies, consumer pricing, and potentially the pace of EV adoption within retail.

For corporation tax purposes, the 100% First Year Allowance (FYA) available to businesses installing EV charging points is to be extended to 31 March 2025. While this extension is shorter in duration than previous announcements, it remains a useful incentive for businesses to invest in vehicle charging infrastructure.

On 24 October 2024, the draft Producer Responsibility Obligations (Packaging and Packaging Waste) Regulations 2024 were laid in Parliament. The new Regulations will require Extended Producer Responsibility (“EPR”) for packaging in the UK. The Regulations will relate to producers being responsible for the costs of collecting and managing household packaging waste. Many obligations will be on the brand owners, subject to certain thresholds (but can include other classes of producers such as importers, distributors, and online marketplaces).

The Regulations will mostly come into force 21 days after they are made, but producers will be required to register on or before 1 April 2025.

The Great British Energy Bill, expected to create a publicly owned company named Great British Energy (GBE), is set to reshape the UK’s energy sector, aiming to make the country a leader in renewable energy.  The Bill is currently in the second reading stage in the House of Lords, so we are yet to see when or whether the Bill reaches Royal Assent. In light of the Autumn Budget, £125 million will also be allocated Great British Energy in 2025-26.

For the retail sector, the bill could be expected to foster more domestic renewable energy production and encourage the retail sector to offer more green energy products. The bill also emphasises energy efficiency measures which will include incentives for residential and commercial energy-saving technologies.

The Lithium-Ion Battery Safety Bill is a private member’s bill introduced on 29 July 2024. The bill focusses on the regulation of li-ion batteries in electric scooters and electric bicycles.

The bill will require safe disposal practices, compliance for online sales, and safety assessments for micromobility devices and Battery Energy Storage Systems (“BESS”). It aims to reduce fire risks and promote consumer confidence in battery products, though details on the bill’s interaction with the upcoming Product Safety and Metrology Bill remain pending.

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 8 May 2024, the Payment Systems Regulator announced a consultation proposing that banks and other payment providers (together PSPs) that participate in the CHAPS payments system reimburse customers who become victims of authorised push payment (APP) scams.  Crucially, the PSR intends the CHAPS protections to come into force on 7 October 2024 – this is the same date as the Faster Payment System (FPS) reimbursement policy implementation date we discussed here. The consultation confirms that the approach for CHAPS will be as similar as possible to the approach with FPS, the policy for which was published in June 2023 and offers some obvious benefits in terms of consistency for victims.

On 7 October 2024 the Financial Conduct Authority (“FCA”) published a letter to firms setting out its expectations in relation to (1) the introduction of the new authorised push payment (“APP”) fraud reimbursement rules, (2) the role of the Consumer Duty in this space; and (3) what to expect from the FCA through a data-led approach to monitoring progress. APP fraud occurs when a customer of a bank is deceived into instructing their bank to transfer money into an account controlled by a fraudster. Pursuant to the new reimbursement rules introduced on 7 October 2024, banks and other payment services providers are now required to reimburse eligible customers who fall victim to APP fraud via FPS and CHAPS (subject to certain exclusions).

Follow the link to find out more.

On 25 October 2024, the Court of Appeal handed down its decision in three combined appeal cases, being (1) Johnson v Firstrand Bank Ltd (2) Wrench v Firstrand Bank Ltd and (3) Hopcraft v Close Brothers Limited, in a judgment which offers valuable guidance on managing consumer credit agreements to enhance consumer protection and promote transparency. The decision has prompted significant reaction from the motor finance industry due to the Court’s decision on the nature of duties owed by a dealer, when also acting as a credit broker, and the required duty of disclosure. In this ruling, the Court made it clear that lenders are required to disclose clearly and fairly to consumers the amount of any commission which may be paid and the basis in which it is calculated so that the consumer can make a fully informed decision.

Link: Are the latest decisions on disclosure of commissions today’s equivalent of Lord Denning’s “red hand” principle – Johnson v Firstrand Bank Ltd & Others | Foot Anstey

On 6 November 2024, the Home Office published its guidance (“Guidance”) on the ‘Failure to Prevent Fraud’ offence (“FTP Offence”). Consequently, following the 9-month implementation period, the FTP Offence will come into force on 1 September 2025. From that point, large organisations can be liable for up to an unlimited fine if they benefit (or are intended to benefit) from the fraud of an “associated person”. This brings to an end lingering uncertainty as to the two new fraud offences created by the Economic Crime and Corporate Transparency Act 2023. Further information can be found here.

On 1 August 2024, in response to a question regarding whether the government plans to reintroduce the Litigation Funding Agreements (Enforceability) Bill and other related issues, the Ministry of Justice confirmed that the government “will take a more comprehensive view of any legislation to address issues in the round” once the Civil Justice Council (CJC) concludes its report on third party civil litigation funding (anticipated in summer 2025).The Bill was originally introduced in the last Parliamentary session, but could not be completed before Parliament was prorogued on 24 May 2024 for the General Election. The effect of this legislation would make it easier for the public and consumers to obtain third-party financial support for complex litigation, thus improving access to class action funding. However, the government also want to set up “adequate safeguards” to protect claimants from unfair terms.

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.

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

Alongside the autumn budget, the government published the corporate tax roadmap which sets out its corporate tax plans for next few years with a view to providing stability needed for businesses to confidently make investments in the UK.

It confirmed as promised that the headline rate of corporation tax will remain capped at 25% for the remainder of this parliament, with every intention of monitoring international developments to ensure the UK remains a competitive economy to attract companies to invest and do business.

Link: Corporate Tax Roadmap 2024 – GOV.UK

This Autumn Budget brought along with it a range of changes that are likely to significantly impact the retail and consumer sectors. The main changes of concern relate to the increase of employer’s National Insurance Contributions (NIC) and an increase in the National Living Wage (NLW).

Dealing with NIC first, the Labour Government announced that as of 6 April 2025, the secondary Class 1 NIC threshold for employers will decrease from £9,100 to £5,000 per annum and the main rate of secondary Class 1 NIC will increase from 13.8% to 15%. Although the corresponding allowance has also been increased, these changes mean that many employers will begin to pay NIC on lower earnings and at higher rates. Coupled with an increase to the NLW from £11.44 to £12.21 per hour, these changes are likely to impact budget planning for all kinds of businesses, but especially those in the retail and consumer sector where varying types of employment arrangements tend to be in place.

Businesses will need to be more aware of the risks of phishing, ransomware, and identity fraud as increasing threats from hackers will emerge. The EU’s NIS2 Directive improves and strengthens cybersecurity standards across Europe, meaning that businesses not in compliance may face heavy penalties. EU member states will have to transpose NIS2 into their national legislation by October 17, 2024.

Support for high street and small businesses – introduction of permanently lower business rates multipliers for high street retail, hospitality and leisure properties from 2026–27 and, in the meantime, a freeze for the small business multiplier for high street and small businesses in England. The government also aims to support more small businesses’ digitisation efforts by extending the Small and Medium Enterprise (SME) Digital Adoption Taskforce and the Made Smarter Innovation programme with up to £37m of funding in 2025–26, to support small manufacturing businesses looking to adopt advanced digital technologies.

Investment Zones and Freeports – as part of a regional growth plan the Government has announces steps such as the provision of funding for the Investment Zones and Freeports programmes throughout the UK.

Trade Strategy – the Government intends to publish a Trade Strategy in 2025 to enhance economic security and renew the UK’s commitment to free and open trade, working with the EU to do this.

On 22 October 2024 the European Parliament approved the final texts of nine proposals for new laws. These new laws cover ESG measures ranging from prohibiting products made with forced labour on the EU market, regulation establishing a EU certification framework for permanent carbon removals, carbon farming and carbon storage in products, various acts under the 2023 Maritime Safety Package (covering ship-source pollution, investigation of accidents, port State control, and flag State requirements), EMIR 3 regulation changes, and regulation on the transparency and integrity of Environmental, Social and Governance (ESG) rating activities.

The implementation of the Economic Crime and Corporate Transparency Act 2023 is taking place. One of the biggest changes being introduced is identity verification for all directors, people with significant control (PSCs) and those who file on behalf of companies. Companies House has recently published its outline transition plan on the Act, setting out indicative timescales. Companies House has a dedicated webpage giving a useful overview of the upcoming changes, Changes to UK company law.

The Bill, which was introduced to the House of Commons on 12 September 2024 and has cross-party support, aims to introduce 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.
• 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 Bill has passed the third reading in the House of Commons and was introduced into the House of Lords, receiving its first reading on 10 December 2024 with its second reading scheduled for 7 January 2025.

Thaler v Comptroller of Patents [20 Dec 2023] – The Supreme Court held that the AI “inventor” DABUS was not an inventor for the purposes of the Patents Act 1977 (“PA 1977”) and Dr Thaler therefore did not derive the right to secure the grant of the patents to himself through his ownership of DABUS. As a result, the Comptroller was right to find that the applications were deemed to be withdrawn.

Find out more

From 26 October, employers came under a new duty to take proactive reasonable steps to prevent sexual harassment against their employees.

The EHRC can take enforcement action even where an incident of sexual harassment has not taken place, and employment tribunals can impose a 25% uplift on compensation where the new duty is breached.

The EHRC has published updated technical guidance on what will amount to reasonable steps including an 8-step guide for employers on sexual harassment in the work place. We have also outlined our recommendations on steps you can be considering here.

From 1 October, the new Tips Act (Employment (Allocation of Tips) Act 2023) came into force to improve transparency and fairness in the allocation of tips. Under the new law, employers need to allocate the total amount of “qualifying” tips between workers fairly. This change is set to benefit more than 2 million UK workers across the hospitality sector. Statutory guidance has been published here.

The Tips Act also requires employers to maintain a written policy on tipping and allocation unless tips are only received occasionally and exceptionally. In these workplaces, employers will also be required to have clear record keeping of tips and allocation.

On Thursday 10 October, the much-anticipated Employment Rights Bill was published. The Bill has been described as the biggest change to employment law in a generation.

The headline changes include day-one unfair dismissal rights, strengthening trade unions rights, restricting hire and re-hire practices, and changing the rules on collective redundancy consultation. The Bill does not ban zero-hours contracts as expected but it does require employers to offer guaranteed hours to certain staff. The proposals are now under consultation, with new rights to be introduced in Autumn 2026.

Our Employment expert, Karen Bates, discusses the new changes and practical steps for employers to take here.

Chancellor Rachel Reeves published Labour’s first budget since sweeping to victory in July’s general election. This confirmed the Government’s plans to increase employer’s National Insurance rates from 13.8% to 15%. Moreover, employers will start paying the rate on salaries of £5,000 per year, down from £9,100.

The Neonatal Care (Leave and Pay) Act 2023 is expected to come into force in April 2025 and means that parents who have babies in neo-natal care within their first 28 days of their life (for seven continuous days or more) are allowed to take neonatal leave and pay for up to 12 weeks. This will be a day one right.

The Act removes the usual 26-week minimum service requirement for paternity leave in this situation, making it a ‘day one’ right. Measures include ensuring leave entitlement if both mother and child die, allowing paternity leave even if shared parental leave was taken and introducing the possibility of KIT days during leave.

The new Labour government are likely to bring this in to force in April 2025.

The Claimant was employed as a support worker and involved in planning and taking part in lawful strike action. After the strikes ended, she was suspended.

The Claimant complained to the Employment Tribunal, that her suspension amounted to a detriment imposed for the sole or main purpose of preventing her from taking part in trade union activities or penalising her for having done so, in breach of section 146 of Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).

On final appeal, the Supreme Court made a declaration that the failure of s. 146 of TULRCA to provide any protection against sanctions short of dismissal for union members taking part in lawful industrial action is incompatible with Article 11 of the ECHR.

We will keep an eye on legislative developments in light of the Supreme Court’s ruling and await action (if any) from Parliament.

On the trade mark front, the UK IPO has issued TPN 1/2024 ‘Restricting specifications of applications and registrations subject to Tribunal proceedings’. The UK IPO issued the TPN following an increasing amount of form TM21Bs being filed with limitations it deems to be unacceptable and also the mistaken attempts of form TM21Bs being used to record geographic limitations or disclaimers.

The TPN provides a helpful reminder on trade mark specifications generally, alongside the key considerations the UK IPO take into account when deciding whether or not to accept proposed specification restrictions.

Restricting specifications of applications and registrations – an update from the UK IPO | Foot Anstey

The Intellectual Property Enterprise Court (“IPEC“) as handed down its awaited judgment in WaterRower v Liking [2024] EWHC 2806 (IPEC) that was hoped to clarify the differing approaches between the UK and EU copyright regimes.

The IPEC held that there was not any copyright in the wooden rowing machine (nor its prototype) as the requirements for a ‘work of artistic craftsmanship’ were not satisfied. Therefore, there was no copyright infringement.

We will be keeping an eye out as to whether the High Court’s decision is appealed and hope that further clarity on the UK/EU law divergence is provided.

SkyKick UK Ltd and another (Appellants) v Sky Ltd and others (Respondents)- bad faith will continue to be on the agenda in 2024. The Supreme Court will have to decide whether filing broad trade mark specifications can amount to bad faith.

Thatchers Cider Company Limited v Aldi Stores Limited [2024] EWHC 88 (IPEC) – Find out more here: Retail Reduced – January 2024 | Foot Anstey

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.