March Online Service Updates

What’s new in our plethora of law online services? Steve Savory summarises the highlights.

  • The new edition of Mark Anderson and Victor Warner’s A-Z Guide to Boilerplate and Commercial Clauses was recently added to the Company and Commercial service. For readers unfamiliar with this title, it takes an A-Z approach to the subject starting with Acknowledgments, Affiliates and Agency and ending with VAT, Waivers and Warranties. For each one of those topics (and there’s more than 70) of them, the authors cover: the purpose of the clause; drafting issues; location in the agreement; linkage and use. This example from the notes on the purpose of breach clauses is an example of the kind of sleeves-rolled-up, practical guidance these authors specialise in:

“The advantage of using words such as ‘substantial’ and ‘material’ permits the parties to set a (rough) standard as to the level of breach that entitles a party to terminate, although, in the event of dispute, a court will need to interpret the precise meaning against the circumstances of the case (see Dalkia Utilities Services plc v Celtech International Ltd [2006] EWHC 63 (Comm) and Case analysis below).”


  • In an age in which secret activities, breaches of privacy and covert surveillance seem to be daily occurrences in both the national news and elsewhere, it is refreshing to read Sir James Munby’s analysis of the topic in the case Re B (a child) which was recently reported in Family Court Reports ([2018] 1 FCR 226):

“The courts have had to grapple with the legal and procedural issues generated by the stool-pigeon, the eavesdropper and the concealed observer since time immemorial. Since the second half of the nineteenth century the courts have had to grapple, and keep up, with the legal and procedural issues generated by the invention of technologies for the audio or visual recording of events. On one level there is nothing very new about this. Thus, the covert filming or video-recording of personal injury or benefits claimants suspected of fraud has been an established and acceptable practice for many years. But in the family courts the issue has become much more pressing in recent years […] That said, it needs to be accepted, with honesty and candour, that there have been in recent years in the family courts shocking examples of professional malpractice which have been established only because of the covert recording of the relevant individual.”


  • The latest issue of The Journal of Professional Negligence contains a stimulating and provocative article by Jo Bridgeman on the Charlie Gard case, “Innovative therapy and the law: the novel issues raised by the case of Charlie Gard”. In that case Charlie’s parents argued that the actions of Great Ormond Street Hospital had removed their parental rights:

“Whilst Charlie's parents deployed the discourse of parental rights rather than responsibilities, their claim was one which reflects the position in law, which is that the primary responsibility for children rests with their parents rather than the state. Parents do have legal obligations; for example, to ensure the child receives an appropriate education and to seek medical treatment for a sick child. Yet, the law gives parents ‘a large measure of autonomy in the way in which they discharge their parental responsibilities’ from routine day-to-day matters to important decisions which will have major consequences for the child's life. This is why the Children Act 1989 imposes a threshold before the court can consider whether it is in the welfare of the child for public law care orders to be made. The threshold, set out in s 31(2), is that the child is suffering, or is likely to suffer, significant harm attributable to ‘(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the child's being beyond parental control.’ So whilst the primary responsibility for the care of children rests with their parents and parents have a large degree of freedom as to how they raise their children, limits are placed upon parental discharge of their responsibilities in the interests of child protection and welfare.”


  • In the February issue of the Bloomsbury IP/IT Law Briefing, James Nurton provides a detailed analysis of the pregabalin patent case, Warner-Lambert Company LLP v Generics (UK) Ltd t/a Mylan and another, (UKSC 2017/0069):

“Warner-Lambert was represented at the four-day hearing by Tom Mitcheson QC and Lord Pannick QC; Generics (UK) by Adrian Speck QC and Pushpinder Saini QC, and the Secretary of State for Health by Michael Silverleaf QC. The judges were Lord Mance, Lord Sumption, Lord Reed, Lord Hodge and Lord Briggs. Arguing the invalidity aspect of the case, Mitcheson challenged the lower courts’ view that certain claims of the patent were insufficient because they were not plausible across their breadth, and argued that the courts had been wrong to reject later filed evidence. He said plausibility should be an ‘evidential tool’ not a ‘threshold test’, adding: ‘Plausibility only arises if the skilled person is left in some doubt as to whether the patent would work.’”

PRECEDENT OF THE MONTH: having mentioned the A-Z Guide to Boilerplate and Commercial Clauses earlier, what better choice for precedent of the month than the complete boilerplate commercial agreement which is included with that title:

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