This document summarizes key topics covered in a legal training forum, including recent developments in employment law, corporate law, commercial law, public law, consumer law, and competition law. In employment law, recent court cases have addressed who owns contacts stored on a LinkedIn account. In corporate law, changes now allow private companies more flexibility when conducting share buybacks and establishing employee shareholder schemes. The commercial law section discusses cases related to contract formation, termination rights, and last-minute contract checks. Consumer law changes implementing EU directives and a new bill are aimed to strengthen consumer rights. Finally, upcoming structural reforms to the UK's competition authorities are noted.

1. Birmingham Exeter London Manchester Nottingham
0121 237 3900 01392 458 800 020 7337 1000 0161 300 8100 0115 976 6000
www.brownejacobson.com
I hope that you enjoyed the forum? Your feedback suggests we got most things right!
This note summarises the key issues that we covered, to let you report on these to your internal clients.
Please do let us have any requests for future training – as we said – this is built around you, so we’ll try to
accommodate your requests. Some of those points that you have already asked for will be covered at the
next session.
What does this note cover?
It covers the lessons to take away from the six areas of law that we covered – i.e.
 Employment law – who owns your employees’ ‘LinkedIn’ contacts? What can you do as an employer?
 Corporate law – employee shareholder schemes and company buy backs – what’s changed?
 Commercial law – seven cases to bear in mind when responding to competitive bids, terminating a
contract or when given a contract to ‘check’ in the few minutes before signature
 Public law – the effect of the changes to the public procurement rules
 Consumer law – the effect of the changes to consumer law under the consumer rights bill and related
legislation, taking effect this year
 Competition law – the effect of the removal of the OFT and new powers and scope, including an offence
where dishonesty is no longer required.
On the last page you’ll also find the dates of the next seminars. Contact details for each of the speakers are
provided throughout this note.
I look forward to seeing you at another forum later this year, if not before.
Kind regards
Richard Nicholas | 0121 237 3992 | richard.nicholas@brownejacobson.com

2. Employment law update
Your LinkedIn account – who owns it?
LinkedIn is a marketing tool with a very wide reach. There are over 200 million users worldwide, with 11
million of those being in the UK. Not many employers currently have social media policies which deal with
the ownership of material on LinkedIn. However, the following cases demonstrate the issues which have
been debated so far. We are expecting more cases to follow in 2014.
LinkedIn User Agreement
 Your profile will become part of LinkedIn
 It is owned by LinkedIn
 Between you and others, your account belongs to you.
Issues: who are ‘others – this will presumably include your employer. And what constitutes ‘your account’?
What if your account contains information which is confidential to your employer? Who owns that
information?
The cases to date
PennWell Publishing (UK) Limited v Ornstein (2007)
Whilst not involving a LinkedIn account, this case is useful background. A list of contacts was created and
which was stored on the employer’s Outlook email system and server. This list contained the employee’s
contacts before he commenced employment with the employer. The court held that the list belonged to the
employer. The situation might be different had the employee kept a separate personal list of long term
contacts which he was not intending to use in order to compete with his employer.
Hays Specialist Recruitment Holdings Limited v Ions (2008)
This case specifically involved LinkedIn. Contact details from the employer’s database were uploaded onto
LinkedIn before leaving employment. A number of these contacts were asked to connect with Mr Ions. It was
argued that the information was not confidential to Hays because when any invitation was accepted, it lost
its confidential status because it was available to a much wider audience. The court decided that what was
relevant was whether he was acting for the furtherance of his own interests, or acting in accordance with his
employee duties to Hays. Mr Ions was ordered to disclose his LinkedIn business contacts requested by Hays
and all emails sent to or received by his LinkedIn account from Hays' computer network.
He was also ordered to disclose all documents, including invoices and emails, evidencing his use of the
LinkedIn contacts and any business obtained from his activities.

3. Whitmar Publications Ltd v Gamage and Ors (2013)
In this case, employees set up a competing business before leaving Whitmar. One individual was responsible
for managing four LinkedIn accounts on behalf of Whitmar. It was not accepted that these were her personal
accounts because they were set up on behalf of and managed on behalf of Whitmar. The court ordered log in
details to be provided to the employer (these details had previously been denied to Whitmar when
requested). The employee was unable to say that the account was personal to her on that basis.
Practical considerations
The LinkedIn user agreement suggests that the contacts on an employee’s LinkedIn account will be their own
property, but there are a number of facts which are likely to be taken into account by the courts which
include:
 what information relating to the employer is contained on the LinkedIn site
 whether the account was set up in the course of employment
 what the account was designed to do – was it genuinely for networking purposes in line with the
employee’s duty of good faith, or was it being used for another purpose, such as to compete with their
employer
 what was the origin of the information – an employee’s own private list, or an employer’s database such
as Outlook?
Steps which might be taken to protect your position include:
 dealing with ownership of information in your social media policy/contracts of employment
 reviewing your post termination restrictions to prevent competition when the employee has gone and to
protect your confidential information
 limiting access to your confidential information to those who need it
 clarifying what you consider to be confidential information instead of having to rely on the complex
case law
 disabling disc drives/USB ports to prevent mass downloading of your confidential information.
James Tait | 0121 237 3999 | james.tait@brownejacobson.com

4. Corporate law update
We looked at two recent changes in respect of:
 share buybacks by private companies; and
 employee shareholder schemes.
Changes designed to encourage employee ownership, which is seen to have many social and economic
benefits such as improved business performance, increased economic resilience and enhanced employee
wellbeing.
Share buybacks
Legislation: The Companies Act 2006, as amended by The Companies Act 2006 (Amendment of Part 18)
Regulations 2013.
Aim of the Regulations: to simplify the procedure private companies must follow when buying back shares,
by removing restrictions on companies’ ability to:
 obtain shareholders’ approval
 finance buybacks; and
 hold repurchased shares in treasury.
Key changes
Shareholders’ approval
 Contracts for an off-market purchase of own shares may now be approved by ordinary resolution as
opposed to special resolution.
 Where the purchase is for the purposes of or pursuant to an employees' share scheme:
- a private company can forgo the requirement to obtain an auditor's report and statutory declaration,
relying instead on a special resolution supported by a solvency statement
- shareholders can provide a standing authority (rather than authorising each individual buyback
contract) specifying:
 the maximum number of shares authorised to be acquired
 the maximum and minimum price to be paid

5.  the date on which the authority will expire (not to be more than five years after the date the
resolution is passed).
Financing buybacks
 Payment can be made out of cash (if authorised in the Articles) for an amount not exceeding the lower
of £15,000 or 5% of the company’s share capital in any financial year.
 Where the buyback is for the purposes of an employees’ share scheme, the company can pay in
instalments, rather than in full on completion.
Holding repurchased shares in treasury
 Shares purchased by the company can be held as treasury shares (if authorised by the Articles).
Employee Shareholder Schemes (from a corporate perspective)
Legislation: section 205A of the Employment Rights Act 1996.
Overview: Individuals receive at least £2,000 worth of shares in their employer (or parent company) in return
for giving up certain employment rights.
Company law matters to be considered before issuing shares to employee shareholders:
Payment for the shares
 The shares issued to an employee shareholder must:
- be fully paid up
- have a market value of at least £2,000; and
- be issued in consideration for the employee entering into the employee shareholder agreement.
 No additional consideration can be provided.
 Options for allotment:
- a capitalisation of distributable reserves followed by an issue of fully paid up bonus shares
- a transfer of treasury shares (which are already fully paid up)
- a contribution of capital by a third party (such as an EBT).
Check the Articles
 Bonus issue: Most company’s Articles will only allow an issue of fully paid up bonus shares, to its
members.
 Allotment:
- no authority required for an allotment made under an employees' share scheme.

6. - directors must comply with any express restrictions or conditions affecting allotment that are
contained in the company's Articles.
 Pre-emption rights:
- statutory pre-emption rights will not apply to an allotment of shares pursuant to an employees' share
scheme, or to a transfer of treasury shares.
- however, statutory pre-emption rights are often excluded and bespoke provisions written in, which
will need to be waived.
Tina Robinson | 0121 237 3969 | tina.robinson@brownejacobson.com

7. Commercial law update
I looked at seven cases from recent case law, in three areas we’re likely to come across quite often:
1. When does an ‘agreement to agre’ become a binding contract:
Proton Energy v Orlen 2013 CFI
Reminder – there’s no need for a written contract to be signed a simple “confirmed” in response to the key
terms is enough. The mere fact that a written legal document has since been drawn up, negotiated, and
rejected is irrelevant, as the contract is formed on acceptance, not signature.
MRI Trading v Erdenet Mining Corp 2013 CA
Where terms of an agreement are stated “to be agreed”, this could mean that the agreement is still binding
(with details to be agreed at a later date) or that the the agreement is conditional upon these terms being
agreed. The courts will not determine a contract void for uncertainty if the items to be agreed can be
determined and it appears to the court that the parties intended to be legally bound.
Newbury v Sun Microsystems 2013 CFI
Where the terms of an agreement were “to be recorded in an appropriately worded document”, the failure
to agree such a document was not fatal to the contract.
… so what?
When involved in a competitive tender, where a contract is very onerous (most public sector frameworks?) it
is tempting to avoid making obvious changes to an agreement and to use pacifiers such as “we will need to
agree this at some later stage”. Sales people in particular like this because it looks like you’re saying “Yes”,
even when your intention is to negotiate for a “No”. The case law is clear however that ambiguous language
such as this will not prevent a contract being formed. If you want to object to contract terms, its worth
using words such as “conditional upon agreement upon the following points” rather than the “Shall be
agreed” wording such as that used in MRI v Erdenet.
2. Termination rights (can I get out?)
Hamsard v Boots 2013 CFI
Where the agreement is silent on termination 9 months may be “reasonable notice” where there are
external justifications for that period at the point of termination. The relevant perspective is at the time
that notice is given (not when the contract was entered into).
Ampurius v Telford Homes 2013 CA

8. A delay of several months completing the construction of homes was not a ‘repudiatory breach’ taken in the
context of a 999 year lease, but could adequately be remedied with damages. For long term outsourcing
contracts it is therefore worth bearing in mind the possibility of delay and its consequences.
… so what?
When terminating an agreement it’s worth bearing in mind what perspective the court will take:
If the contract is silent and you’re looking to terminate (therefore obliged to give “reasonable” notice) it’s
the perspective of the parties at the time notice is given (rather than when the contract is formed) that
counts – so look at the facts now, not what was considered at the time or in the past.
If you are looking to terminate for repudiatory breach for delay, you’d better take account of the overall
length of the contract and the term of the benefit you would have received. In the context of a 999 year
lease a delay of a few months may not be significant. Similarly for long term outsourcing deals – if you’re
likely to want to terminate if there’s a short delay you’d better make it explicit as the court may not do that
for you.
3. Last minute checks (what should I check in the 10 minutes before signature?)
Harris v Francis Bradshaw 2013 CA
If there is no clear mistake as to the names of the parties, the court will not assume that the party written
on the contract is wrong or that the trading name in fact to relates to one or other of two legal entities. It is
therefore worth ensuring that the parties are correct, as these won’t necessarily be substitutable at some
later date.
RWE v Bentley 2013 CFI
Where the deliverables in one schedule of a contract are more stringent than those set out in another
schedule, the mere fact of a precedence clause will not exclude the schedule that does not have precedence
(unless there is a clear conflict between the two), but rather one may be used to give sense to the other.
… so what?
In previous in house lawyers forums we’ve looked at some checks that its worth doing in the few minutes
before a contract is signed. Checking formatting and spelling at this point won’t add much value!
I suggested:
 redundant definitions (making sure that there aren’t any defined terms listed that aren’t used in the
document) since these can have an impact on the interpretation of the contract

9.  square brackets (making sure that there aren’t any points in the agreement that haven’t been completed
– a simple search for square brackets can be quick and easy and avoid issues such as that in Temloc v Errol
(where a clause setting liquidated damages at [Nil] was upheld).
This time we added two more checks:
 checking that the right parties have been referred to – Harris v Francis (as the court won’t necessarily
change them if not)
 checking that deliverables are described consistently throughout the agreement (since you can’t
necessarily rely upon the order of precedence clause where there is no actual conflict between terms) This is
particularly relevant to agreements in several parts, where the same deliverables may be described more
comprehensively in one part of the agreement than in other sections.
Richard Nicholas | 0121 237 3992 | richard.nicholas@brownejacobson.com

10. Consumer law update
There are five ‘pillars’ of consumer law change in the UK, which are reflected in the following legislative
changes:
1. Completion of the implementation the Consumer Rights Directive by the 13 June 2014 implementation
of the Consumer Rights Act 2013.
2. Introduction of Consumer Rights Bill (likely to be implemented in late 2015).
3. The addressing of Misleading or Aggressive Practices in the Consumer Protection from Unfair Trading
(Amendment) Regulations 2013.
4. Power to the consumer – non-legislative initiative (i.e. the ‘midata’ initiative).
5. Structural reform (removal of the OFT and creation of the Competition and Markets Authority).
I have covered the first four below, with Matthew Woodford covering the fifth pillar in the Competition
section.
1. Consumer Contracts Regulations – an imminent change
The Consumer Contracts Regulations will come into force on 13 June 2014 and apply to all relevant consumer
contracts entered into on or after that date. Key changes will include:
 cooling off period’ under distance selling contracts will be extended to 14 calendar days
 traders to provide of a ‘model cancellation form’ in their terms and conditions
 one year cancellation period if trader gets it wrong
 goods to be delivered within 30 days of order
 extended list of pre-contract information
 prohibition on use of premium rate phone numbers
 trader rights to deduct an amount for diminished value of goods
 trader can withhold a refund until goods returned
 online retailers to clarify when obligation to pay
 consent for additional charges (no pre-ticked payment boxes)
 new concept of digital content and new rules on the cancellation of contracts not on a tangible
medium.
2. Consumer Rights Bill - traders, goods, consumers and digital content… so what’s new?
 new definitions

11.  additional implied terms
 goods must match the model seen (unless differences brought to the attention of consumer before
contract entered into)
 ‘cowboy Builders’ being corralled – right to reject poor installation by rejecting goods installed
 introduction of standards for goods with digital content
 beating the ‘cycle of faults’ – tiered remedies (early and final rights to reject)
 information provided (even orally) about the trader or service to be binding
 price reduction for slow services
 transparency on consumer contracts to be enforced.
Rights and remedies for digital content – key points
 trader’s must have the right to provide digital content to the consumer
 no right to reject digital content so whole item (i.e. tablet) can be rejected
 compensation for damage caused to the consumer’s device or to other digital content by faulty
software/digital content
 repair and replacement and the right to a price reduction (up to the full amount of the price) in respect
of digital content as with goods.
3. Additional management of aggressive and misleading practices
 Consumer Protection from Unfair Trading (Amendment) Regulations 2013 (‘CPUT’)
 new direct civil right of redress for consumers against businesses for misleading and aggressive practices
 CPUT will cover misleading and aggressive demands for payment
 rights to claim damages in respect of distress and inconvenience caused by aggressive and misleading
practices
4. Power to the consumer – non-legislative initiatives
 getting businesses on board voluntarily
 ‘midata’ initiative to allow consumers greater access to their usage data (for example with credit,
mobile phone, and energy companies)
Dinah King | 0115 975 6076 | dinah.king@brownejacobson.com

12. Competition law update
The session provided a general overview of the last 12 months but focussed on the reforms to the UK
competition law regime which come into place on 1st April 2014.
 General overview:
- the OFT maintains its focus on consumers and particularly vulnerable consumers with investigations
(including market investigations) into prescription medicines to care homes; mobility scooters;
payday loans; car insurance; and even sports bras
- the UK has been relatively quiet on the competition law front. The reason for this is no doubt due in
part to the OFT and Competition Commission preparing for regime change and dealing with budget
cuts. However, on the merger decision side, it was just a quiet year with a low level of decisions by
the OFT.
 Specific headlines:
- a man has been charged with the criminal cartel offence and appeared before Westminster
Magistrates on the 27th January 2014. The individual is the MD of a relatively small company with a
turnover of £7.3m
- the OFT maintains its focus on the application of competition law to the public sector with a growing
awareness that public bodies are increasingly moving into commercial activities and, therefore, need
to comply with the law
- steps have been taken to facilitate closer working between the OFT and the other regulators that
have concurrent powers to enforce competition law with the establishment of the UK Competition
Network
- the facilitation of private actions continues to be a focus for both the UK and the EU. Changes to the
UK system are being proposed within the Consumer Rights Bill
- EU fines were about average at £1.88 billion. UK fines were very low at only £3.2 million.
 UK competition law regime – general comments
- the changes are driven by the Enterprise and Regulatory reform Act 2013 and take effect from 1st
April 2014
- the OFT and Competition Commission are being abolished and being replaced by a single body called
the Competition and Markets Authority (CMA)
- with the exception of the cartel offence, the substantive laws remain unchanged with the focus of
the changes being on facilitating more cases and quicker decisions by the CMA. This aim is also found
in the Government’s ‘steer’ to the CMA.

13.  Merger law
- the UK retains a voluntary notification system (unlike almost all other countries in the developed
world). The jurisdictional tests also remain unchanged
- however, the CMA will now have stronger powers to both stop and unwind integration steps by
merged entities during the course of its investigation. These will be backed up with the power to
fine companies that breach a ‘hold separate’ order up to 5% of aggregate worldwide turnover.
This may lead to more precautionary notifications by companies that would previously have
completed quickly and without reference to the OFT in order to realise immediate synergy savings
- where mergers are notified, there is now a mandatory and very detailed form that must be
completed. The CMA will also be subject to a statutory time limit of 40 working days for its first
phase analysis. It is difficult to predict whether this will lead to quicker merger decisions as the CMA
is clear that it expects merging parties to approach it for pre-notification discussions and that it will
‘stop the clock’ where it does not have complete information
- undertakings in lieu of a reference will now be offered after the CMA has made its decision.
 Competition Act investigations:
- the settlement procedure has been formalised with reductions for companies that admit to an
infringement of up to 20% before the CMA issues its statement of objections and up to 10% after the
CMA issues its statement of objections
- in addition to the existing criminal sanctions for obstructing or misleading the CMA, the CMA will now
have the power to impose civil penalties on companies that fail to cooperate with an investigation.
These fines are up to £30,000 fixed or, perhaps more significantly, up to £15,000 per day. It is
expected that the CMA will be keen to make use of this power and means that companies under
investigation must challenge unreasonable requests for information as soon as possible
- the CMA will now have compulsory interview powers which extend to asking an individual about
anything relevant to its investigation. Again, it is expected that the CMA will be keen to make use of
these new powers. An immediate action is for companies to review their dawn raid procedures and
consider the need for separate legal representation being available for individuals that are
interviewed
- the threshold for the imposition of interim measures during the course of an investigation has been
lowered from ‘serious, irreparable damage’ to ‘significant damage’.
 Cartel offence
- the cartel offence has been amended and there is no longer the need to prove dishonesty. The
Government wants to see more criminal convictions and believes that the need to prove dishonesty is
one of the barriers to this aim.
 However, there are exceptions and defences to the offence:

14. - no offence is committed where the agreement is notified to customers or made public (in the
London, Edinburgh or Belfast Gazettes)
- it is a defence to show that there was no intention to conceal the arrangement from customers or
the CMA. It is also a defence to have taken reasonable steps to acquire internal or external legal
advice although, interestingly, there is no actual requirement to have actually received the advice!
Matthew Woodford | 0121 237 3965 | matthew.woodford@brownejacobson.com

15. Public law update
On 17 April 2014 a new public procurement directive will come into force following which the UK will have
24 months to implement the new directive into national legislation. We expect the Cabinet Office to issue
draft regulations for consultation in the next few months. Once in force, these regulations will replace the
existing Public Contracts Regulations 2006.
The main objectives of the new regime are to simplify the rules, introduce greater flexibility and efficiency
and foster innovation in the procurement process. The new regime is also aimed at increasing SME access to
public procurement and enabling sustainability and other societal goals to be incorporated into the
procurement process.
Some of the main changes arising from the directive include:
 clarification of pre-OJEU notice market engagement rules – contracting authorities may engage directly
with suppliers on the market providing appropriate measures are put in place
 abolition of distinction between Part A and Part B services and the introduction of a special ‘light touch’
regime for contracts for social, health and other specified services – wait to see what this new regime
will look like in the regulations!
 revised and new procurement procedures including reduced timescales and the new ‘innovation
partnership’ procedure to be used for developing innovative products, services or works not currently
available on the market
 new rules on evaluation criteria including the introduction of ‘lifecycle costing’ and clarification that
‘experience’ can be taken into account at the award stage providing it relates to assessing the quality
of the tender proposal
 new mandatory and discretionary grounds for exclusion at selection stage (e.g. tax evasion) and self-
cleaning provisions requiring contracting authorities to take mitigating circumstances into account when
deciding whether to exclude a bidder
 mandatory use of electronic procurement (with extended timetable for implementation allowed)
 incorporation of public-public contract exemptions (covering in-house awards and co-operation between
public bodies)
 mutuals exemption allowing the award of certain contracts to be reserved to mutual organisations
satisfying particular criteria
 codification of material change rules clarifying when a contract change triggers a
duty to put the contract back out to competitive tender.
Craig Elder | 0115 976 6089 | craig.elder @brownejacobson.com

16. The next in house lawyers forum dates are:
Birmingham – 14 September 2014
Manchester - 1 October 2014
London - 8 October 2014
Nottingham - 15 October 2014
They’re all in the afternoon (from 2pm onwards) so please book the time in your diary in advance!
Topics will be set nearer the time and will reflect the latest developments in areas of law relevant to in
house lawyers – although if you have any specific requests please let us know!
Some of you at the session also mentioned that you’d be interested in organising training for your sales
teams or contacts (on issues such as the IT law, commercial law, regulatory, employment or contract
training). Please get in touch if you’d be interested in arranging one of these sessions. We have arranged in
house training for a delegate on the back of this last set of sessions and would be glad to do the same for
you.
Don’t forget to also please check out our blog at www.lawlessordinary.com or, indeed our page on linked-in
- at http://www.linkedin.com/company/browne-jacobson-llp, or by all means do ‘link in’ to any of our
speakers for future reference.
Thank you again for coming and we look forward to seeing you again!
Kind regards