As a matter of policy, the law does not allow parties to penalise each other for a breach of contract: penalty clauses are unenforceable. Instead, clauses governing the remedies available as a result of a breach should be remedial i.e. fair compensation. In recent years, the test frequently applied by the courts to identify penalties was whether or not the level of damages agreed was a “genuine pre-estimate of the loss” which would be suffered by the innocent party as a result of a breach by the other party. If not, it was an unenforceable penalty.
Following in the footsteps south of the border, the Scottish Sentencing Council has been officially established today and its members announced. Lord Carloway, the Lord Justice Clerk and one of Scotland’s most senior judges, is to chair the newly created Council. The other eleven members include five other judicial office holders, three legal members, a police officer, a victims’ representative and another non-judicial member.
As the new series of Downton heralds many changes for the Lords, Ladies and Gentlemen of that stately pile, so 22 September 2015 brought very significant changes for the Lords Ordinary in Scotland’s higher civil court and the cast of thousands involved in civil litigation in Scotland.
So what would M’Lud Grantham select as his personal highlights worthy of a Christmas special? Here are two key ones:
When you hear the phrase “intellectual property” or “intellectual property rights” trade marks and patents may spring to mind but perhaps not trade secrets. When it comes to intellectual property rights there is no doubt that trade secrets are the poor relations having been overlooked by legislators who favour more attractive or well known members of the IP family. But it appears that now is the time for trade secrets to step out into the limelight and become, perhaps, less secretive.
Nothing has quite caught the public imagination on Bribery and Corruption lately like the allegations flying around at the top of “the beautiful game” – FIFA. The high international drama makes our domestic MPs expenses scandal and comedians’ tax wheezes look mild in comparison. The US Department of Justice has indicted fourteen former and current FIFA officials and associates on charges of “rampant, systemic and deep rooted [corruption] both abroad and here in the United States”.
Just two years after Transworld abandons the publication in the United Kingdom of Lawrence Wright’s novel ‘Going Clear: Scientology, Hollywood and the Prison of Belief’, Sky Atlantic is now withholding the broadcast of a new television documentary based on the book, amidst concerns over potential defamation claims in Northern Ireland.
With one huge judicial blow the English Court of Appeal last week reduced a sub-sea engineering contractor’s liability from €26.25 million to just £10, showing that if you want to impose a ‘fitness for purpose’ liability in your contract you must be upfront and crystal clear in your wording.
Katy Perry’s half-time show at this year’s Super Bowl was made especially memorable for the comedy value of her backing dancer now known as “Left Shark” who appeared to have forgotten his dance moves. However, few of the 118 million viewers will have immediately been alert to the global brand protection issues which would arise for the performer.
A transformation of the Scottish civil justice system is expected this year as the Courts Reform (Scotland) Act 2014 comes into force. The first provisions came into effect on 1 April 2015 and the next tranche will be effective from September 2015. Here we take a look at a couple of ways in which this new legislation will impact on how product liability actions are taken forward in Scotland.