DMLondon – Duane Morris London

September 9, 2026September 9, 2026 by Duane Morris

“Unforeseeable” Does Not Mean Unimaginable: The High Court Draws a Line on Force Majeure

By Kian Mellett

A dispute arose from the sale of Ukrainian corn after the sellers invoked force majeure when Black Sea Grain Initiative inspections were suspended during the shipment period. The High Court, on appeal under section 69 of the Arbitration Act 1996, considered whether the force majeure event was “unforeseeable,” whether timely notice was a condition precedent to relying on the clause, and how the force majeure and shipment extension provisions interact.

September 4, 2026September 4, 2026 by Duane Morris

Walking Away From a Deal Doesn’t Mean Walking Away From Your Losses – UK Supreme Court

By Kian Mellett

If you cancel a contract because the other side has let you down, can you still claim compensation for what you’ve lost? Even if their failure wasn’t catastrophic enough to destroy the entire deal?

Most people would assume the answer is no. After all, you made the choice to walk away. Surely that’s on you?

The UK Supreme Court has now said: think again.

June 13, 2023 by Nic Hart

Avoid Getting Stuck in Employment Tribunal’s Backlog by Resolving Cases Early

With public services seeking to catch up on waiting lists, it seemed timely to provide an update regarding the ongoing backlog of employment tribunal cases.

A statistical data set published on 13 February 2023 by the HM Courts & Tribunals Service reported that there are more than 50,000 live cases awaiting a hearing or decision. This figure is a 7 percent increase from the December 2021 figure of 47,041.

For context, it was reported in 2019 that the number of outstanding employment tribunal cases had reached 23,700, which at the time was the highest level recorded since the abolition of tribunal fees in 2017.

It is clear that the number of cases issued in the employment tribunal continues to increase rapidly and consistently. However, with current wait times of between 12 and 24 months from claims being filed, processed and then heard, it is evident that the tribunals do not have the structural capabilities to support the existing caseload, let alone any further increase to these numbers.

On a positive note, the Employment Lawyers Association’s (ELA) ‘Bringing down the backlog’ report showed that in 2022-23, 74 percent of cases were resolved without the need for a hearing at the Employment Tribunal, either through Acas early conciliation or resolution between the parties. There are also steps organisations can take within their operations to assist in reducing the backlog:

•Increase attempts by the HR department to resolve disputes within the early conciliation window. This can be achieved by working closely with occupational health and trade unions.

• Increase the ‘conflict confidence’ and capability among line managers in dealing with employment issues as they arise. The ELA also stated in their report that this lack of conflict confidence and capability among line managers acts as one of the key barriers to early and successful resolutions.

• Increase line management training to instil confidence in dealing with workplace conflict.

• Update handbooks with clear policies and procedures that are followed and applied correctly and consistently.

If you have any questions or queries on this topic or any other matter, do please get in touch. Our London Employment Law team provides assistance with review of existing policies and procedures or training programmes for line managers and are happy to discuss these at any time.

August 30, 2020September 24, 2020 by Duane Morris London

UK Government Consultation on the Promotion of Cryptoassets

By Sam Pearse

30.08.2020

The UK Government has launched a Consultation regarding cryptoassets, focussing on whether unregulated cryptoassets should fall within the financial promotions regime, thereby affording protection for consumers. There is no immediate impact on cryptoasset businesses, but the regulatory landscape is changing.

Background

The UK Financial Services and Markets Act 2000 sets out restrictions on the communication of invitations or inducements to engage in investment activity, such as investing in securities. In brief terms, only those persons who are authorised by the Financial Conduct Authority (FCA) may make such communications, or persons who are making a communication which as been authorised by an authorised person. Incidentally, the ‘approved communications’ exemption is also being reviewed by HM Treasury and our article about that can be found here.

At its core, the restriction on financial promotion is intended to protect consumers from being mis sold products, whether by virtue of being provided with insufficient information or by fraudulent activity or investing in immature or inadequate market infrastructures. Continue reading “UK Government Consultation on the Promotion of Cryptoassets”

August 17, 2020August 17, 2020 by Duane Morris London

HM Treasury Consultation on the regulatory framework for the approval of financial promotions

By Natalie Stewart & Drew Salvest

HM Treasury has opened a consultation regarding a regulatory gateway for authorised firms approving the financial promotions of unauthorised firms. Responses to the consultation are sought by 25 October 2020 and the government is particularly interested in responses from authorised firms currently approving the promotions of unauthorised persons, retail consumers and unauthorised persons which communicate financial promotions. Unauthorised firms who rely on authorised persons to enable them to market products in the UK should consider approaching their usual approving firms to ensure any implementation of this consultation does not inhibit market access.

Regulatory Background

Financial promotions (“Promotions”) are restricted under Section 21 of the Financial Services and Markets Act 2000 (“FSMA”), pursuant to which a person must not, in the course of business, communicate an invitation or inducement to engage in investment activity unless the Promotion has been made or approved by an authorised person or it is exempt. Unauthorised firms often use authorised firms which are authorised to carry on a regulated financial services activity to approve their Promotions in order to comply with the regulations (the “Authorised Persons Approval Route”).

Authorised firms are not required to notify the Financial Conduct Authority (the “FCA”) once they have approved an unauthorised firm’s Promotion, nor does the FCA sign off on approved Promotions before they are communicated to consumers. As such, the FCA is only made aware of potential breaches of the relevant regulations. Continue reading “HM Treasury Consultation on the regulatory framework for the approval of financial promotions”

July 2, 2020July 3, 2020 by Duane Morris London

COVID-19: Update To Future Fund Eligibility

By Sam Pearse

02.07.2020

As previously reported (see here), the UK Government launched the Future Fund on 20 May, with the intention of providing financial support to British start-ups. It has proved to be popular, with over £320m of convertible loans to 322 businesses having been approved.

One of the criteria for accessing the Future Fund was that the applicant had to be a UK-incorporated company or a group with a UK ultimate holding company. The UK Treasury has now elected to expand the programme to include certain overseas companies.

It is not uncommon for British start-up businesses to incorporate outside of the UK, or put a non-UK holding company in place, in order to be eligible for local funding programmes. For example, European businesses may incorporate in the US in order to be more attractive to investors in the US and being able to participate in US accelerator programmes. After all, the US seed and venture capital market has much deeper pockets than its European equivalents.

In order to address this, the British Business Bank has announced the expansion of the Future Fund in order to:

“accommodate businesses that contribute significantly to the UK economy, but do not have their parent company based in the UK because they participated in a non-UK based accelerator programme”.

Revised eligibility – overview

Continue reading “COVID-19: Update To Future Fund Eligibility”

July 1, 2020July 1, 2020 by Duane Morris London

COVID-19: UK Gov Flexible Furlough Scheme – 1 July 2020 Update

By Nic Hart & Liam Hutton

01.07.2020

The Flexible Furlough Scheme (FFS) commenced today July 1^st 2020 and you can now submit claims for periods starting on or after 1 July.

GOV.UK published a news story this afternoon announcing this commencement.

As discussed in earlier mail outs the main premise of the FFS is to allow;

“businesses to bring furloughed employees back to work on a part time basis and will be given the flexibility to decide the hours and shift patterns of their employees – with the government continuing to pay 80% of salaries for the hours they do not work.”

The FFS will remain open until the end of October 2020. Continue reading “COVID-19: UK Gov Flexible Furlough Scheme – 1 July 2020 Update”

June 26, 2020February 2, 2021 by Duane Morris London

ECJ Advocate-General Opinion: Disability Discrimination Can Be Found By Comparison With The Treatment Of Other Disabled Employees

By Nic Hart & Liam Hutton

26.06.2020

The Advocate-General of the European Court of Justice has given the opinion in VL (Case C-16/19) that disability discrimination can be found by comparison between the treatment of one group of disabled employees and other disabled employees. Whilst Advocate General Opinions are not binding on the Court, they are commonly regarded as influential, and this Opinion has the potential to create a new basis for comparison in discrimination cases.

The case relates to an employer who paid a monthly allowance to those of its disabled employees who obtained and submitted a disability certificate as evidence of their disability. The issue of discrimination arose because only those who had not already obtained and submitted their certificate were eligible for the allowance.

The employer’s purpose for doing this was that by bringing about an increase in the number of disabled workers employed, the employer would be entitled to a reduction in its contribution to a disability fund.

In the Opinion, the Advocate General addresses whether this could be regarded as discriminatory for the purposes of the Employment Equality Framework Directive, and sheds some light on the applicability of the prohibition of discrimination to the conduct of an employer who treats two groups of disabled individuals differently on the basis of an apparently neutral criterion (in this instance, the date of submission of a disability certificate). Continue reading “ECJ Advocate-General Opinion: Disability Discrimination Can Be Found By Comparison With The Treatment Of Other Disabled Employees”

June 15, 2020February 2, 2021 by Duane Morris London

New Guidance on the UK Gov Flexible Furlough Scheme – 12th June 2020

By Nic Hart

15.06.2020

As advised, the Government Guidance for the new Flexible Furlough Scheme (FFS) was released on Friday evening – June 12^th.

Accessibility to the new Guidance is not the most straightforward as the information is spread across the existing CJRS Guidance and three new pieces of Guidance. The Government has also produced a summary overview of the key changes to the CJRS and the timetable for the same.

The major changes to the existing scheme with effect from July 1^st are:

there will no longer be a minimum three-week period for furlough. Whilst there will not be a required minimum period to furlough employees, any claim made to the CJRS portal must be in respect of a minimum one week period regardless of how many days may have been worked in this one week period.
Employers can no longer put in claims to the portal that cover more than one payroll period. All claims through the portal must start and end within the same calendar month.
An employer cannot furlough any greater number of employees than have been furloughed previously – subject to the provisions of those returning from parental leave.

The key principles of FFS are clear. Continue reading “New Guidance on the UK Gov Flexible Furlough Scheme – 12th June 2020”

June 9, 2020February 2, 2021 by Duane Morris London

UK Corporate Insolvency & Governance Bill: Termination Clauses & Temporary COVID-19 Relief

By Linda Crow

09.06.2020

The new Corporate Insolvency and Governance Bill will introduce new provisions to protect a company from suppliers wishing to terminate supply contracts or invoking more draconian terms when the company is entering into certain insolvency procedures, a CVA, or a new restructuring plan or moratorium (as introduced by the Bill), (each an “Insolvency Procedure”).

The purpose behind the new provisions is to maximise the possibility of a company being rescued or being able to sell its business as a going concern by helping it to trade through an Insolvency Procedure.

Where a company (the customer) becomes subject to an Insolvency Procedure, the supplier will be prohibited from: Continue reading “UK Corporate Insolvency & Governance Bill: Termination Clauses & Temporary COVID-19 Relief”