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Vertical agreements block exemption (Updated)

The retained Vertical Block Exemption Regulation, (retained VBER) expired on 31 May 2022. It has been replaced in the UK by the Competition Act 1998 (Vertical Agreements Block Exemption) Order 2022, (the UK VABEO) in force from 1 June 2022 and which provides the framework for the assessment of vertical agreements.

To track the progress of the UK VABEO, see Practice Note: UK block exemptions revision—tracker—Retained vertical block exemption regulation—revision.

Unjust enrichment and contract drafting

(Unchanged)

Barton v Gwyn-Jones

The Court of Appeal addressed whether the so-called ‘Costello principle’ precluded a claim in unjust enrichment by an agent for an introduction fee where an oral contract governed the arrangement. The court’s analysis turned on the precise interpretation of the remuneration terms and provides a valuable lesson on the failure of parties to cover all possible outcomes by way of express agreement.

See News Analysis: Contractual silence—a gateway for unjust enrichment (Barton v Gwyn-Jones).

Permission to appeal to the Supreme Court granted on 25 February 2021.

Supreme Court hearing awaited.

New powers for CMA

(Unchanged)

The government is proposing changes to enhance the CMA’s powers and ability to tackle breaches of competition and consumer law, and empower its new Digital Markets Unit.
The changes would see the CMA given power to declare companies in breach of consumer law, without taking them to court first, and levy fines accordingly. The proposals would also enhance the CMA’s competition powers, increasing their speed and effectiveness.

See: .

TBC

Small Business Commissioner and Late Payments etc Bill 2019–21

(Unchanged)

A Bill to:
—amend the statutory limits for payment of invoices

—make provision for a statutory time limit for resolving payment disputes

—amend interest for late payments and penalties for persistent late payments and non-compliance

—prohibit specified payment practices, on-boarding and pay-to-stay

—require payments becoming due under public sector construction projects to be held in project bank accounts

—provide for a duty on auditors to publish late payment data; and for connected purposes

See: .

First reading took place 21 January 2020. Second reading—the general debate on all aspects of the Bill—is yet to be scheduled.

Dividends

(Unchanged)

The Supreme Court considered whether payment of a lawful dividend may amount to a transaction defrauding creditors contrary to of the Insolvency Act 1986 ().

In BTI 2014 LLC v Sequana SA , the Court of Appeal clarified when remedial relief under may be granted and when directors’ duties to have regard to the interests of creditors (the creditors’ interests duty) may apply.

See News Analysis: Challenging lawful dividend payment as a transaction defrauding creditors and for breach of directors’ duties (BTI 2014 LLC v Sequana SA and others; BAT Industries plc v Sequana SA).

Hearing 4–5 May 2021. Judgment awaited.

Gender diversity

(Unchanged)

The FTSE Women Leaders Review (published February 2022) includes the following recommendations:

—an increased voluntary target for FTSE 350 Boards, and for FTSE 350 leadership teams to have a minimum of 40% women, by the end of 2025

—FTSE 350 companies to have at least one woman in the chair or senior independent director role on the board, and/or one woman in the CEO or finance director role in the company, by the end of 2025

See , News Analysis: FTSE Women Leaders Review report: what did 2021 bring and what lies ahead? and Practice Note: Diversity in the boardroom.

Future reports are to be published annually. The next report will review the 2022 data on female representation on the boards of, and in the leadership of, the companies in the FTSE 100 and the FTSE 250.

Ethnic diversity (Updated)

The Parker Review found that directors from a minority ethnic group are vastly under-represented on the boards of the UK’s leading companies. The review committee recommended that each FTSE 100 company should have at least one director from a minority ethnic group by 2021.

See Practice Note: Diversity in the boardroom.

The Review recommended that each FTSE 250 company should have at least one director from a minority ethnic group by 2024.

On 18 July 2022, the government published the . The Bill is intended to update and simplify the UK’s data protection framework with a view to reducing burdens on organisations while maintaining high data protection standards.

See: .

In late March 2022, the EU and US announced an agreement in principle on a new Trans-Atlantic Data Privacy Framework. The new Framework will replace the discredited Privacy Shield, to allow for cross-border data flows between the EU and US.

See: and .

The ICO is looking to update its employment practices guidance, in particular to address new ways of working. A was published on 12 August 2021. The consultation closed on 21 October 2021.

See: .

On 4 June 2021, the European Commission adopted for international transfers.

See News Analysis: The new EU GDPR standard contractual clauses for international transfers.

On 28 January 2022, the Secretary of State laid before Parliament (i) the IDTA, (ii) international data transfer addendum to the EU’s SCCs, and (iii) transitional provisions.

See News Analysis: New UK standard contractual clauses for personal data transfers and MLex analysis: Comment—UK international data transfer tool enters with a whimper.

See also Precedents: UK GDPR—2022 standard contractual clauses (SCCs) for the transfer of personal data outside the UK—International Data Transfer Agreement (IDTA) and UK GDPR—2022 standard contractual clauses (SCCs) for the transfer of personal data outside the UK—Addendum to 2021 EU SCCs.

The ICO is working on a project to develop further guidance on anonymisation, pseudonymisation and privacy enhancing technologies and has launched a in four parts.

Part 1 (Introduction to anonymisation) was published for consultation in May 2021 and part 2 (How do we ensure anonymisation is effective) was published in October 2021. Part 3 (Pseudonymisation) was published for consultation in February 2022 and the final part (Accountability and governance) was published in March 2022.