Insights For In-house Counsel - Spring 2023

Our regular round-up of recent and forthcoming developments in law and practice for in-house counsel.

Listen to an editorial overview from Technology & Commercial Transactions Partner, Richard Brown.

WHAT'S NEW

Launch of YCNBOT - Safer use of ChatGPT

OpenAI's ChatGPT is very sophisticated but there are concerns around security and compliance. At this early stage, it's important to be able to learn about the capabilities of ChatGPT but also to protect your business from these risks.

As a response, our Tech team has built a training tool called YCNBot (Your Company Name Bot):

• Simple chat bot interface to prompt and receive responses from ChatGPT.
• Designed to connect to OpenAI or Microsoft's enterprise ChatGPT models via your own API key.
• Present your own clear and explicit guidance on the correct and safe use of the tool.
• Capture prompts and encourage people to rate the responses.
• Block access to consumer ChatGPT internally and point to YCNBot instead.

We've made YCNBot available as an open source project and we'd be very happy to talk to you about how to get it up and running (and how to block access to the consumer ChatGPT).

Market Trends in Private Equity

We recently issued the 10^th edition of our annual Private Equity Market Insights series. Each year, we use our unique position in the market as adviser on private equity M&A transactions to analyse the key features of private markets deals, identify current market trends, and assess potential developments on deal terms. If you are interested in receiving a copy, please get in touch.

Junior In-House Lawyers' Academy

Our Junior In-House Lawyers' Academy is primarily aimed at lawyers who are 0-5 years PQE and aims to cover a range of topics from various technical matters to several soft skills.

In March, we hosted the first of our Academy series. The session, titled 'Contract Hotspots in Challenging Times', covered topics including termination, liability, contract pricing and payment provisions, followed by networking drinks - a great opportunity for attendees to catch-up and build connections with other in-house lawyers.

Please do get in touch if you would like to know more about the Academy or to find out more about future events in this series.

BEYOND BREXIT/REGULATORY REFORM

Northern Ireland: Windsor Framework Agreed

The UK Government and the EU have reached an agreement on changes to the post-Brexit arrangements for Northern Ireland. Here are the key points:

• Wider impact: For businesses which do not have any activities in Northern Ireland, the deal has a number of wider ramifications which are broadly positive. Read this briefing for further explanation.
• Goods trade: For businesses based in the mainland UK which supply goods to Northern Ireland, the Windsor Framework will not deliver frictionless trade, but it does represent a significant improvement on the existing Northern Ireland Protocol.
• Subsidies: The state aid position is broadly unchanged; this means that EU law will still need to be considered when assessing the legality of subsidies and other forms of state support offered by the UK.
• Democratic accountability: Although the "Stormont Brake" is hedged around with numerous conditions, experience of similar mechanisms under the EEA Agreement suggest that it may have value as a "political safety valve".

For further detail and discussion, read our briefing The Windsor Framework: is it a good deal for business?

Beyond Brexit: guidance on the ongoing business impact of Brexit

As the level of debate surrounding the Windsor Framework demonstrates, the fallout from Brexit is not just a political issue and continues to be a live issue for business, despite the UK having entered into a new, all be it more distant trading relationship with the EU. For more guidance and information, see our Beyond Brexit client portal.

Retained EU Law: Where are we now?

The Retained EU Law (Revocation and Reform) Bill envisages that a large proportion of retained EU legislation will be revoked by the end of 2023, unless expressly preserved by Ministers. This presents the risk of another Brexit-related cliff-edge for business, as it may not be clear which measures are being allowed to expire until close to the deadline. The Bill remains controversial and is currently before the House of Lords which is expected to amend it fairly substantially.

Will the Bill be watered down?

The Bill has drawn very widespread criticism, not just from the business community but also from groups ranging from the National Trust to the Chartered Trading Standards Institute, worried about the loss of EU-derived protections and standards. There has been speculation that the Government may be open to rowing back on elements of the Bill, but at the time of writing, it was unclear exactly how it proposes to amend it. As a result, it remains difficult to predict how the final version of the Bill will look. Although some predictions of the Bill's impact may be overdone, we do not think it is scaremongering to suggest that, as it stands, the Bill risks causing serious damage to the UK's reputation for regulatory stability. We will be looking in more detail at the potential impact of the Bill on particular sectors and areas of regulation in a forthcoming briefing - watch this space!

Post-Brexit enforcement of judgments between the UK and EU

Following Brexit, there is no longer a comprehensive, overarching framework governing the reciprocal recognition and enforcement of civil court judgments between the UK and the EU. However, there are signs that this state of flux may ultimately be resolved. The 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters 2019 (the 2019 Hague Judgments Convention) provides a relatively full framework for the recognition and enforcement of civil and commercial judgments between contracting states.

The 2019 Hague Judgments Convention will come into effect between the EU (except Denmark) and Ukraine on 1 September 2023. At the time of writing, it has also been signed (but not ratified) by Costa Rica, Israel, Russia, the United States and Uruguay.

Meanwhile, the UK Government launched a consultation on whether the UK should join the 2019 Hague Judgments Convention. If the UK does join (as most practitioners hope will be the case) then it will apply as between the EU and the UK and provide greater certainty in this area than presently exists.

For an explanation of the current position on recognition and enforcement of civil court judgments following Brexit, see:

• Beyond Brexit: Dispute Resolution
• A 5-minute video guide to Post-Brexit Dispute Resolution

Importing EU goods into the UK: more change on the way (and more disruption?)

Following repeated postponements, the UK Government has finally published its plans to introduce full border controls on imports of goods from the EU. The key points for businesses reliant on imports from the EU are that this may mean further disruption and that it will be important to ensure that EU trading partners are fully prepared for the changes (which they may not all be aware of). Our briefing explains the changes in more detail and what businesses need to do to prepare. It also includes a useful timeline of the expected changes.

Spotlight on Better Regulation series

Take a look at Spotlight on Better Regulation, a new series of briefings looking at the opportunities and challenges for the UK as it looks to reform its regulatory framework following Brexit. So far, the series includes briefings on:

• the Government's better regulation principles
• its approach to environmental, energy and infrastructure regulation against the background of its plans to stimulate growth in the economy
• whether tougher enforcement powers (in the Digital Markets, Competition and Consumer Bill) can be expected to enhance competition and growth
• the pros and cons of divergence from the EU in the context of cybersecurity laws
• transparency in the real estate sector - do the benefits outweigh the costs?

COMPANY LAW AND M&A

UK Takeover Code: "acting in concert" changes

The Takeover Panel has amended the Takeover Code definition of "acting in concert". Effective from February 2023, these changes are likely to affect investors in, and bidders for, UK public companies.

The concept of "acting in concert" is relevant under the Takeover Code as it extends certain rules which apply to a bidder, to other persons who are (or are deemed to be) acting together to obtain or consolidate control of a company, or to frustrate a bid.

Threshold for deemed control

Previously, the Takeover Panel's presumption that companies under common control were "acting in concert" was based upon a threshold for deemed control of 20%. This is replaced by two new presumptions as follows:

1. Any company (including other entities such as limited partnerships, trusts and individuals) will be presumed to be "acting in concert" with any other company which controls, is controlled by, or is under the same control as "Control" now means an interest in shares carrying 30% of the voting rights in a company, or a majority of its equity share capital.

2. Companies will be "acting in concert" if either of them has a direct or indirect interest in 30% of the equity share capital of the other, together with any other company that controls, is controlled by or is under the same control as either of them.

Outside of an offer, the principal consequence of parties "acting in concert" is that if acquisitions of shares by any of them contribute to a joint holding of 30% or more in a public company, then any of them may be subject to the requirement to make a mandatory offer for that company. In the context of an offer, concert parties will be subject to certain disclosure requirements and dealing restrictions, and dealings by them may affect the amount and nature of consideration which must be offered by the bidder.

Impact on private equity-backed bids

The increase in the control threshold is largely welcome. However, certain other changes could prove challenging, particularly to the private equity community, including:

• the treatment of investment in funds similarly to investment in companies, such that limited partners in a fund investing in a bidding entity may now potentially be deemed "acting in concert" with a bidder if they have a sufficient stake; and
• the discontinuation of the Takeover Panel's practice of accepting confirmation letters from private equity funds, whereby the presumption of "acting in concert" could be rebutted in respect of minority-held portfolio companies.

Investors in UK public companies should be aware of these changes, and financial bidders should consider a concert party analysis ahead of making any takeover approach.

Tackling crime through corporate compliance

As we reported in the Autumn 2022 edition of Insights, The Economic Crime and Corporate Transparency Bill (ECCT Bill) is set to reform the role of Registrar of Companies from a passive repository of information to an active gatekeeper, responsible for policing the integrity of the register under the Companies Act 2006.

The ECCT Bill grants the Registrar expanded powers to query and reject filings and to require further information. There are further provisions requiring verification of identity for company directors, persons with significant control and subscribers to new companies. The ECCT Bill also sets out new rules intended to improve the quality and usefulness of financial information on the register, and various other changes which aim to "prevent organised criminals and kleptocrats from abusing our open economy". Read our briefing for a step-by-step guide to the proposed reforms. The ECCT Bill is now with the House of Lords for review and expected to come into force later this year.

Transparency, the Register of Overseas Entities and reporting discrepancies

The ECCT Bill also imposes increased registration and transparency requirements on limited partnerships and makes changes to the Register of Overseas Entities (ROE) regime which was introduced under the Economic Crime (Transparency and Enforcement) Act 2022. For more on this, see this article in our Real Estate section.

From 1 April 2023, the approach that regulated entities need to take on reporting discrepancies in clients' PSC registers, and now the ROE, changed. Previously, any discrepancies between information recorded at Companies House and that obtained by an entity as part of a client due diligence process, had to be reported to Companies House before the establishment of a business relationship. Under the Money Laundering and Terrorist Financing (Amendment) (No.2) Regulations 2022 (2022 Regulations) reporting discrepancies is now an ongoing requirement throughout the course of a business relationship with a client.

Under the 2022 Regulations, only 'Material Discrepancies' need to be reported. These must be either, by their nature, and having regard to all the circumstances, reasonably considered (a) to be linked to money laundering or terrorist financing; or (b) to conceal details of the business of the customer.

The Government is creating a new failure to prevent fraud offence for large companies, not-for-profit organisations, and partnerships. As this factsheet explains, an organisation will be liable where a specified fraud offence is committed by an employee or agent, for the organisation's benefit, and the organisation does not have reasonable fraud prevention procedures in place. It does not need to be demonstrated that the employer knew about the fraud. If convicted, an organisation can receive an unlimited fine.

Organisations should review internal policies and procedures to ensure that they are fit for purpose and implement an effective strategy for monitoring and communicating potential risks. The Government is expected to publish guidance on reasonable fraud prevention procedures, once the ECCT Bill receives Royal Assent.

COMPETITION AND CONSUMER PROTECTION

Reform of UK competition and consumer law

The long-awaited Digital Markets, Competition and Consumers Bill was published on 25 April 2023. Please watch out for our detailed briefing. Whilst we dissect the detail, here are the headline points:

• Digital Markets
• • New powers for the CMA's Digital Markets Unit to specify firms as having 'Strategic Market Status' - subject to turnover (£25bn globally, £1bn in the UK) and market power/strategic significance tests.
  • SMS firms may be subject to conduct requirements, pro-competition interventions and merger reporting obligations.
  • Breaches risk fines of up to 10% of global turnover (and 5% of daily turnover). Individual nominated officers may also be personally fined (£30,000 fixed, plus £15,000 daily) and director disqualification may apply.
• Merger Control
• • Increased jurisdictional thresholds (£70m turnover threshold increasing to £100m). The UK's current, flexible, 25% share of supply test to be retained, but subject to a party having UK turnover of at least £10m.
  • An additional set of thresholds enabling the CMA to review so-called 'killer acquisitions' (which can be met by one party alone having UK turnover of £350m and a share of supply of 33%).
  • Enhanced 'fast track' procedures giving the CMA discretion to refer mergers straight to Phase 2 where the parties request.
• Competition Law
• • New duties to preserve evidence and strengthened CMA investigation powers (including increased powers to compel interviews).
  • Increased penalties for failure to comply with CMA investigative measures, in line with European Commission levels.
  • Agreements no longer need to be implemented in the UK in order to breach the UK's Chapter 1 prohibition: it will be enough for an agreement to affect trade within the UK.
• Consumer law
• • CMA powers to enforce consumer law directly (as well as through the courts) and to impose fines of up to 10% of turnover.
  • New measures to curb fake reviews and subscription "traps".

Take a look what recent CMA activity tells us about the rationale for the new legislation once it is in force, and how it has highlighted a desire for key reforms to the UK competition law regime.

Online sales: Do countdown timers break consumer law?

The CMA is investigating whether online mattress and bed seller Emma Sleep has breached consumer law by making misleading claims about urgency, including the use of countdown timers for discounted deals. This investigation may be the start of a wider crackdown by the CMA on potentially harmful online selling practices. It also highlights the CMA's interest in using behavioural science to shape its approach to this area. For more detail, see our briefing.

CMA warns online B2C businesses against misleading urgency and pricing claims

The Competition and Markets Authority (CMA) has published an open letter to online B2C businesses, highlighting certain practices that may mislead consumers. The focus is on claims relating to the need to act urgently (such as countdown timers) and price reductions. As we explain in our briefing, enforcement action is already being taken over these issues - and with plans to allow the CMA to impose substantial fines for breaches of consumer law, the risks of non-compliance are poised to escalate.

Mid-contract price rises in consumer contracts: to advertise fairly

In late 2022, the Advertising Standards Authority consulted on guidance that would require mid-contract price rises in consumer contracts to be more prominently stated in telecoms advertising. As we explain in our briefing, this may also be of interest to other B2C businesses outside the telecoms sector - particularly those which operate a subscription model.

CONTRACT LAW

Spotlight on pricing and payment

Against the background of high inflation and challenging economic conditions, we have launched a series of briefings about pricing and payment issues in commercial contracts. So far, our briefings cover:

• Price review clauses: when can suppliers force through an increase?
• Linking prices to inflation: a short guide to indexation clauses
• Late payment clauses: time for a review?
• Payment terms: what to watch out for

You can sign up to be notified of more content here.

Contract law round-up

• Novation by conduct: In Musst Holdings Ltd v Astra Asset Management UK Ltd & Anor (2023), the Court of Appeal confirmed that it is possible for a novation to take place by conduct. The case looks at a fairly common commercial scenario where the novation was never formally documented, but the parties acted as if a novation had taken place.
• Certification clauses: In Sara & Hossein Asset Holdings Ltd v Blacks Outdoor Retail Ltd (2023), the Supreme Court considered the meaning of a certification clause in a lease relating to the service charge. Such clauses are often found in other contexts, for example as part of indemnity wording. The clause stated that the landlord could issue a certificate setting out the total cost and the amount payable and that (in the absence of manifest error or fraud) this certificate would be "conclusive". Did this mean that the tenant couldn't dispute the amount, as found by the Court of Appeal? The Supreme Court disagreed. It concluded that the certificate was conclusive on the amount which the tenant had to pay (meaning it was not entitled to withhold payment), but that the tenant could still dispute the amount if it could show there was manifest error or fraud.
• Agency commission/pricing: In Barton v Gwynn-Jones (2023), the Supreme Court ruled that an agent was not entitled to any commission where he failed to achieve the target sale price for the relevant property, which was £6.5 million (it was sold for £6 million). The contract was agreed orally, and the majority took the view that the bargain struck here was an "all or nothing" deal. If the agent did not achieve the target, he would not be remunerated at all, whereas if he did meet it, he would receive a "bumper" commission of £1.2 million (more than double the norm for this type of work). The minority agreed with the Court of Appeal that, as the parties did not appear to have turned their minds to what should happen if the target was not met, it was not appropriate to conclude that it was an "all or nothing" deal. Instead, a term should be implied (under the Supply of Goods and Services Act 1982) allowing the agent to claim reasonable remuneration for the services provided, based on the usual level of commission charged (equating to about £435,000).
• Force majeure: In MUR Shipping BV v RTI Ltd (2022), the Court of Appeal ruled that a force majeure clause did not apply because the party unable to comply with its obligations had offered suitable alternative performance (as envisaged by the clause, which included a reasonable endeavours obligation). In doing so, it reversed the decision at first instance, where the court ruled that the shipowners were entitled to insist on being paid in US dollars, not euros, as required by the contract. The case highlights the difficulties in relying on force majeure clauses, even where (as here) the contract is affected by US sanctions. See our detailed briefing.
• Good faith: In Re Compound Photonics Ltd (2022), the Court of Appeal provided some useful guidance on the meaning of good faith in a shareholder's agreement. See our detailed briefing.
• Construction of settlement agreements: In Maranello Rosso v Lohomij [2022], the Court of Appeal confirmed that, where the natural meaning of the wording of a settlement agreement and its factual matrix indicate that it is objectively intended to cover claims of fraud or dishonesty, that agreement will be given effect, even where these is no express reference to such claims in the relevant clause. Although a court will not readily conclude that a release includes claims for fraud and dishonesty without express wording, there is no rule of law to that effect. A useful reminder to carefully consider what claims you are releasing in a settlement agreement and to take care in the claims asserted in pre-action correspondence.

For more, read our March 2023 Dispute Resolution Round-up.

DATA PROTECTION, IP AND TECHNOLOGY

UK data protection reform: let's try again

The Government introduced the Data Protection and Digital Information (no. 2) Bill to Parliament on 8 March 2023 (DPDI No.2), withdrawing its previous Data Protection and Digital Information Bill (DPDI No.1).

Promoted as "a truly bespoke, British system of data protection", as it transpires, DPDI No.2 is a modest uplift to DPDI No.1 and, overall, the package of reforms is not a dramatic departure from the UK GDPR, the framework of which is retained. Our briefing looks at the recent changes.

Strengthening cybersecurity laws: changes to the EU's and UK's NIS regimes

Improving cybersecurity for essential services and infrastructure is high on the agenda for the UK's and the EU's legislators, in response to the ever-evolving threat landscape. While the UK's and the EU's respective network and information systems or "NIS" regimes are to be strengthened (including bringing managed service providers into scope), the two regimes also look to be diverging.

Some fear that this may lead to inconsistent cybersecurity standards. In-scope organisations operating in both the UK and EU will need to monitor developments in relation to each regime and their suppliers should prepare for increased due diligence. This briefing looks at some of the potential differences and their likely impact in practice.

For more information about handling cybersecurity threats originating from within an organisation or its supply chain, see our 'Mitigating a Data Breach ' podcast series.

Regulating online content: where are we now?

The EU and the UK are each determined to regulate online content and protect users from online harms. The EU got there first. Its Digital Services Act (DSA) impacts all online intermediaries operating in the EU at varying levels and is already in force.

17 February 2023 marked the DSA's first milestone, the deadline for online platforms and search engines to publish average active user figures. This is a precursor to the European Commission identifying the very largest online platforms and search engines, which will face the most stringent controls and responsibilities.

Meanwhile, the journey of the UK's Online Safety Bill, which has seen four Prime Ministers since its inception as the Online Harms White Paper, has been a troubled one. Our briefing looks at the obligations on online intermediaries under the DSA and the key similarities and differences compared with the Online Safety Bill.

Are online platforms liable where third parties advertise counterfeit goods?

The Court of Justice of the European Union has ruled that Amazon could be held liable for trade mark infringement in relation to advertisements for 'fake' Christian Louboutin shoes placed on its website by a third party.

This preliminary ruling, a departure from previous case law and the Advocate General's opinion in the case, is good news for brand owners (particularly for luxury products) and may cause online platforms, offering both their own and third party products for sale, to rethink their website design. Our briefing looks at the implications for brand owners and platforms both in the EU and the UK.

Revised UK guidance for overseas transfers of personal data

The Information Commissioner's Office (ICO) has revised its guidance on international transfers of personal data and has introduced a new tool to undertake transfer risk assessments (TRA). A TRA is required where there is a restricted transfer of data outside the UK (not covered by UK "adequacy regulations") that relies upon an "appropriate safeguards" mechanism in Article 46 of the UK GDPR, such as standard contractual clauses.

The ICO's proportionate, risk-based approach to TRAs is welcome, and organisations, particularly those with an exclusively UK focus, may now choose to follow the ICO's approach over that of the European Data Protection Board. For more detail, see our briefing.

UK Government proposes a new "pro-innovation" approach to the regulation of AI

The UK Government recently published its White Paper on how it proposes to regulate AI. Designed to encourage investment in AI in the UK, it aims to reduce the regulatory burden on businesses and follow a pro-innovation approach, relying on existing regulators and regulatory structures, rather than establishing broadly applicable AI-specific regulations or a dedicated AI regulator. Regulators will apply five overarching principles to AI use-cases that fall within their sector(s) based on: (i) safety, security and robustness, (ii) transparency and explainability, (iii) fairness, (iv) accountability and governance and (v) contestability and redress. The intention is that regulation should be "context-specific", regulating the use of the AI, rather than imposing rules or risk levels for entire sectors or technologies. The Government acknowledges that, for the framework to be successful, there will need to be regulatory co-ordination, as well as central support from government.

The UK is choosing to take a very different approach from the EU (as set out in the EU's draft AI Act), which is far more prescriptive, although the Government recognises the need for interoperability between its framework and the regulatory approach in other jurisdictions. With the consultation closing at the end of June, we can expect to see more guidance from key regulators (with joint regulatory guidance also encouraged) in the next 6-12 months.

DEBT FINANCE

Defaulting lenders

The recent intervention by the Bank of England to transfer ownership of Silicon Valley Bank UK Limited to a private sector purchaser, HSBC UK Bank Plc, highlights the risk that a corporate borrower might be faced with a non-performing lender.

In our briefing What happens when a lender fails to fund?, we explore the risk that a lender might renege (voluntarily or involuntarily) on its funding commitments. Touching upon the different types of lender entities in the market, we examine why there are often varied reasons behind such a failure to fund.

We also revisit market standard provisions designed to mitigate the risk posed by so-called "defaulting lenders" and explore the options for a borrower faced with a lender that is unable to honour its lending commitments.

Calling time on LIBOR

The Financial Conduct Authority recently announced that the 3-month synthetic sterling LIBOR setting (which is the last remaining tenor) will cease at end-March 2024. This means that there will be no sterling rate quoted after this date. Most companies have already worked with their lenders to remove any remaining LIBOR-related exposures in their loans.

What about other contracts that reference LIBOR?

Companies need to identify any remaining contracts (not just financial instruments) which reference LIBOR and engage with counterparties to amend affected provisions. Read our updated commentary on the consequences for commercial contracts which reference LIBOR (for instance in late payment clauses). We also discuss alternative rates such as central bank rates, Term SONIA (for sterling) and Term SOFR (for dollars).

Floating charges

We are increasingly seeing requests from borrowers to carve out assets from the scope of a lender's otherwise "all asset" English security package. Whilst there may be commercially sensible reasons for this request, in our experience lenders will be keen to ensure that this does not impact on their enforcement rights. Whatever your perspective, our recent note (Excluding assets from a floating charge - what else might you be excluding?) explains how express exclusions from a floating charge can impact on lender enforcement options and how this might be viewed through the lens of a lender's credit analysis.

DISPUTE RESOLUTION

SRA issues warning on SLAPPs

Late last year the SRA warned practitioners on the use of Strategic Lawsuits Against Public Participation (SLAPPs), with a particular focus on pre-action letters.

What is a SLAPP?

There is currently no legal or statutory definition of a SLAPP, but the term is most often used to describe a form of retaliatory litigation intended to deter freedom of expression. This type of litigation tends to be brought by powerful entities such as lobby groups, corporations, and state organs to target acts of public participation which are of social importance, all with a view to preventing information which is in the public interest from being published. SLAPPs are most routinely deployed against watchdogs, journalists, human rights defenders, and civil society organisations who have an active role in the protection of democracy and the rule of law. Their purpose is to censor, intimidate and silence critics by burdening them with the pressure and costs of litigation.

The SRA expects practitioners to identify when a proposed cause of action could be a SLAPP and, if such a situation is identified, to "decline to act in this way". The SRA also suggests several "red flags" which although "might not by themselves be evidence of misconduct" may aid practitioners in identifying when this may be the case:

• identifying the target of the suit (e.g. a journalist or academic)
• the nature of the instructions (e.g. if the instructions only relate to "public relations")
• the nature of the strategy (e.g. if a client requests that a cause of action target individuals in circumstances where a corporate entity is the more appropriate defendant)

The scope for interpretation will mean that reaching an assessment of whether a proposed action is indeed a SLAPP will not always be straightforward (although in practical terms it often will be), and practitioners await further guidance with interest.

March 2023 Dispute Resolution round-up

Read our March 2023 Dispute Resolution Round-up for more about developments in the dispute resolution sphere over the last three months. This edition considers a number of cases on contractual construction - from force majeure and good faith to valid notification of potential warranty claims. We also spotlight the recent increase in creative collective proceedings applications before the Competition Appeal Tribunal and the European Parliament's proposals on the regulation of litigation funding in the EU.

EMPLOYMENT LAW

Fire and rehire

The Government recently consulted on a draft statutory Code of Practice on the use of "fire and rehire" to change terms of employment. "Fire and rehire" is a tactic used to implement changes when employees do not agree to them - the employer dismisses the employee and then offers re-employment on a new contract with the revised terms.

The draft Code emphasises that "fire and rehire" should only be used as a last resort, after the employer has engaged in meaningful consultation and explored all alternatives. Where an employer unreasonably fails to follow the Code, the Employment Tribunal will have the power to increase compensation awarded for any relevant claim by up to 25%.

Workplace sexual harassment

The Government plans to introduce a new positive duty on employers to take reasonable steps to prevent workplace sexual harassment. The duty will be enforceable by the Equality and Human Rights Commission, under its existing powers, and will be backed up with a statutory code of practice detailing the steps employers should take. Employers who fail to take reasonable steps to prevent sexual harassment could also face an uplift in compensation if an employee brings a successful claim. The duty is contained in draft legislation, which is currently progressing through Parliament. However, there is no date for implementation, and concerns have been raised about the legislation being delayed due to several amendments being tabled in the House of Lords.

Third party harassment

In addition to the new duty to prevent sexual harassment, a proposed new law will impose on employers a new duty to prevent all forms of harassment of staff by third parties. Employers will be liable if they fail to take reasonable steps to prevent any form of harassment of staff by someone outside the organisation, such as a customer, client, supplier, or contractor. As with existing harassment laws, a single incident will be enough, and the employee does not need to be the target of the harassment.

The new law will affect all employers but will have a particular impact on the service sector such as hospitality and retail, where employees could be harassed by simply overhearing offensive conversations between customers. There is no date yet for implementation, and the legislation could face the same delay as the new duty relating to sexual harassment (see above).

Zero hours, casuals and short-term workers

Following a June 2022 report showing that 3.7 million workers in the UK were in insecure employment, to improve job security for individuals labelled as casual and zero hour workers, the Government is now introducing a new right for certain workers to request a more predictable working pattern.

Applicable to workers with at least 26 weeks' service, where there is lack certainty in terms of the hours, days, or times of work, or if they are on a fixed contract of 12 months or less, the worker could make an application to their employer to vary their terms and conditions to provide more certainty. Employers would have to follow a set procedure when considering such requests and only reject a request on specified business grounds (similar to a flexible working request).

In practice, the new right will capture many casuals and zero hours workers, as well as agency workers and those on short fixed-term contracts. The proposal is contained in the Workers (Predictable Terms and Conditions) Bill, which is currently making its way through Parliament, but there is no date for implementation yet.

Keeping you on track with regulatory change

Catch-up on the latest news with this podcast from our Employment Law Bitesize Series.

Our In the Pipeline timeline guides you through forthcoming developments in UK employment law and business immigration.

EQUITY CAPITAL MARKETS

Reforming the UK prospectus regime - update

As part of the wider set of reforms aimed at making London a more attractive place to list, HM Treasury's Illustrative Statutory Instrument (Financial Services and Markets Act 2000 (Public Offers and Admission to Trading) Regulations 2023) (published in December 2022) sets out proposed changes to the existing prospectus and public offers regime.

As the name suggests, the Illustrative Statutory Instrument, which follows the proposals put forward last year, is not final and is therefore subject to change before becoming law. It should therefore be seen as more of a glimpse of the new regime, although we expect that the main themes will remain substantially the same. For further details and the key features of the new listing, prospectus and secondary fundraising regimes please see our client briefing.

Pre-emption rights - new thresholds for listed companies

In November 2022, the Pre-Emption Group published a revised Statement of Principles for the disapplication of pre-emption rights (Statement), together with new template resolutions. The Statement is effective immediately and key changes include:

• Increase in the limit of the authority that can be sought for non-pre-emptive issues to a maximum of:
• 1. 10% of issued ordinary share capital for disapplications for any purpose; and
  2. an additional 10% of issued ordinary share capital for acquisitions or specified capital investments announced contemporaneously with the issue or in the last 12 months (increased from six months).
• These thresholds represent a return, on a permanent basis, to the flexibility which companies were temporarily allowed during the COVID pandemic. In each case, companies are also allowed to seek a further authority of up to 2% of issued ordinary share capital, to be used for a "follow-on" offer, which is subject to certain limits.
• Concept of "capital hungry companies": companies that need to raise larger amounts of capital more frequently. Such companies may be able to seek additional or longer disapplication authority.
• New reporting requirement: companies will need make a "post-transaction report" in a prescribed format. The report should be announced via a regulatory information service, as well as being submitted to the Pre-Emption Group for inclusion in its Pre-Emption Database. This information should also be included in the company's annual report following the issue.

Listed companies may want to include the new thresholds in their AGM notices. For further details of the approach companies have taken so far and other relevant issues relevant to the 2023 AGM season, please see our AGMs and reporting client briefing.

For further detail on the new pre-emption regime, please see our client briefing.

ESG

Updated ESG timeline: helping you steer your ESG agenda

Earlier this year, we published a full update to our interactive ESG timeline, designed to help businesses navigate the rapidly evolving UK and EU regulatory landscape. Setting out recent and expected UK and EU legal and regulatory developments relating to ESG and wider sustainable business topics, the timeline can be filtered according to your business type or by ESG theme.

UK labelling regime for investment products

Labelling investment products is a tricky business. It is important to make the labels clear and meaningful to investors, and to guarantee some minimum standards so that even unsophisticated investors know what they are getting. At the same time, too much prescription will limit investor choice and narrow the range of products in the market. If done badly, labels can also distort investment and capital allocation decisions in ways that undermine policy objectives and increase investor risk. However, if done well, fund labels can increase investor confidence and, with sustainability-focused products, curb "greenwashing". For more, read or listen to the latest episode in our Sustainability Insights series.

Changes in diversity reporting for listed companies

The Listing Rules and Disclosure Guidance and Transparency Rules were updated last year to include new requirements for reporting on diversity, including a new standardised table format for disclosures. Please see our Listed Company Update for further details. The new rules are in force for reporting periods beginning on or after 1 April 2022 so the first set of annual financial reports containing the mandatory disclosures will be published from April 2023, although the FCA has encouraged early compliance and some companies have already included the new disclosures. The FCA has published guidance in its recent newsletter on its expectations and guidance for companies who are preparing for the disclosures.

Climate change litigation round-up

The principal aim behind many climate change claims may not be to "win" but to draw attention to activities that cause and contribute to climate change, litigation being just one tool in an activist's toolbox. In this briefing, we look at several high-profile climate change claims over the past few years and look at how the litigation has, in fact, developed. While more attention may be given to successful claims (or even pending claims) than unsuccessful ones, there may be some benefits in giving attention to "failed" claims as well as successful ones.

The future for UK environmental initiatives

In line with its public commitment to promote environmental sustainability and help accelerate the transition to a net zero economy, the UK Competition and Markets Authority (CMA) recently published its draft Guidance on the application of the Chapter 1 prohibition to environmental sustainability agreements. If implemented, the Guidance will provide business with greater comfort in assessing the legality and risk profile of their environmentally focussed agreements - at least in the UK.

Following consultation, the final version of the Guidance is keenly awaited: however, given the numerous steps that the CMA has already engaged in, significant changes are not expected. Meanwhile, the European Commission will soon publish its final, revised horizontal guidelines. Both the UK and EU guidance are expected to come into force on 1 July 2023, when current rules expire.

Under the current drafts, the UK and EU positions are broadly consistent. However, important differences have emerged, for example in the CMA's explicitly more permissive approach to 'climate change agreements', similar to the additional flexibility shown by the Dutch competition law authority. The scope of the UK and EU guidance also differ: with the Commission covering the concept of sustainability to include not only environmental/'net zero' goals, but also other activities that support social development (including labour and human rights). By contrast, the CMA's focus is specifically on environmental agreements. In our briefing we explore the CMA's proposals in more detail.

UK 2023 Green Finance Strategy

The Government has published its 2023 Green Finance Strategy setting out its proposals for mobilising green finance and investment in the UK. With five key objectives:

• UK financial services growth and competitiveness;
• enhancing investment in the green economy;
• ensuring financial stability to manage risks from climate change and nature loss;
• incorporation of nature and climate adaptation; and
• aligning global financial flows with climate and nature objectives,

the Strategy includes a number of proposals and future actions, which this briefing explores.

Taking stock: Pensions climate governance and disclosure

The Pensions Regulator has recently published a review of the industry's first wave of pension scheme climate change disclosure reports, revealing some interesting examples of good practice as well as potential areas for improvement in the industry.

In this insight, we provide a brief reminder of the pensions climate change governance and disclosure requirements, and highlight the key action points for the next reporting cycle.

PENSIONS

Defined benefit pension scheme funding

The Pensions Regulator has consulted on its draft funding code of practice and proposed regulatory approach. These follow earlier consultations on framework principles for the code and on draft regulations (still awaited). As previously reported, defined benefit pension schemes will need to have a "funding and investment strategy" and produce a "statement of strategy" which ensures that benefits can be provided over the long term, whether by buy-out, consolidation or run-off. The strategy will need to aim for a position of low funding dependency on the employer and a low-risk investment allocation by the time the scheme has reached a certain level of maturity (and thereafter). The draft regulations and draft code seek to fill in detail about what this means and what schemes will need to do, in practice, to achieve it.

The new regime was expected to take effect in respect of scheme valuations with effective dates after 1 October 2023, but this has been pushed back to April 2024. For more, read What's Happening in Pensions issue 99.

Getting to grips with pensions dashboards

Pension dashboards will fundamentally change the way individuals access information about their pensions, allowing people to see all of their future pension entitlements in one online place. Regulations have now added detail to the framework set out in the Pension Schemes Act 2021, including the staging timetable for pension schemes to connect and provide data and information to the dashboard 'ecosystem'.

However, technical issues have meant that the Government recently paused the programme and new scheme connection dates will be announced in due course. Despite the delay, schemes should continue their preparations, as our '10 actions for getting to grips with pensions dashboards' explains.

Spring Budget 2023 - Pensions announcements

This year's Spring Budget included significant pensions tax announcements.

As widely reported, the lifetime allowance will be abolished, and the annual allowance will be raised from £40,000 to £60,000. There will also be relaxations of the tapered annual allowance (for high earners) and the money purchase annual allowance (for those who have accessed their defined contribution pension pot other than by buying an annuity).

The abolition of the lifetime allowance is in two stages:

• from 6 April 2023 the tax charge has been removed; and
• from 6 April 2024, all of the lifetime allowance and protections legislation will be repealed.

This means that, for now, pension schemes still need to keep records of protections and used lifetime allowance and perform lifetime allowance checks and issue benefit crystallisation event statements. This is for technical reasons mainly concerning tax-free lump sum protections that are in some cases based on the individual's protected lifetime allowance.

Individuals with a lifetime allowance protection who have opted out of a pension scheme to avoid losing it may now be able to join the scheme and many will wish to do so.

In some cases, employment terms or pension scheme rules restrict contributions to the level of the annual allowance or money purchase annual allowance, or even the lifetime allowance. Any such restrictions should now be reviewed. For more on this read this Briefing and see the latest episode of What's Happening in Pensions?

What is on the pensions radar for 2023?

Pensions Radar is a quarterly listing of expected future changes in UK law affecting work-based pensions schemes. Read the last edition here and look out for the next edition which will be published later this month.

REAL ESTATE

Economic Crime (Transparency and Enforcement) Act 2022

The register of overseas entities went live at Companies House on 1 August 2022, and the transitional period expired on 31 January 2023. Following this date, overseas entities which own UK real estate must have registered their beneficial ownership at Companies House. In addition, all of the restrictions on title that have been entered on existing property titles have come into effect and so the Land Registry will only register sales, charges, and leases with terms of more than 7 years if they have evidence of any Overseas Entity ID. For further details, see our briefing.

We understand that there are still a sizeable number of overseas entities that have not registered, even though criminal and financial penalties can apply.

Transparency in the real estate sector: is it worth it?

The last few years have seen the development of several new initiatives designed to increase transparency in the real estate sector. In this briefing, we explain what these are, why they are being pursued and whether the benefits justify the extra compliance burden for business.

MEES Regime: Closing in on existing commercial leases

The Minimum Energy Efficiency Regulations 2015 (MEES) are intended to reduce harmful emissions from the built environment, with a view to achieving net zero by 2050. The MEES regime refers to the rating that a property was given in its energy performance certificate (EPC). Since April 2018, landlords of qualifying commercial properties have been unable to grant a new lease of a property that scores F or G unless exempt.

Some properties do not require an EPC and therefore fall outside the regime.

From 1 April 2023, these rules apply to existing leases of non-domestic private rented property unless there is a legitimate reason permitted by the MEES Regulations and registered on the PRS Exemptions Register. This means that landlords must not continue to let a sub-standard property (i.e. where the EPC rating is F or G) to existing tenants (even where there has been no tenancy renewal, extension, or indeed new tenancy) or grant a lease to new tenants, unless one of the permitted exemptions apply and has been registered. The rules are complex but there is some Government guidance to assist.

Protecting reputation and who picks up the tab?

Landlords and tenants of commercial premises affected (and their respective investors/funders) will be concerned to check the terms of their relevant leases to determine who between them is to pick up the cost of making the necessary improvements. When it comes to altering commercial premises, landlords are increasingly sensitive about the effect of any works on the energy efficiency of their buildings and tenants should expect to provide detailed information on how their fit out, occupation and use of commercial premises affects energy performance.

A lease granted or continued in breach of these rules is still legally valid but the landlord risks enforcement action including fines and "naming and shaming" by means of the publication of the details of the breach.

Living in plain sight: Intrusive viewing can constitute an actionable nuisance

Earlier this year, the Supreme Court decided that the "continual visual intrusion" that the residents of Neo Bankside experience when Tate visitors watch and photograph them in their flats does constitute an actionable nuisance.

Some commentators have suggested that this decision in Fearn & Ors v Board of Trustees of the Tate Gallery [2023] could open the floodgates for nuisance claims against occupiers of schemes which include features such as roof gardens or terraces that overlook neighbouring properties. The judgment also refers to CCTV as a possible means by which one neighbour could impose constant observation on another. However, the Court made it clear that any such visual intrusion would have to be substantial for any similar claim to be successful, and that the intrusion would have to arise from land which was being used in a very particular and exceptional way, such as a viewing platform.

TAXATION - CORPORATE TAXATION

Spring Budget: Corporation tax rate and business expensing

The main corporation tax rate increased from 19% to 25% from 1 April. A small profits rate of 19% will apply to companies with profits up to £50,000, with marginal relief for companies with profits between £50,000 and £250,000. The thresholds are reduced by reference to the number of associated companies.

To mitigate the effect of this rise (and the end of the 130% super deduction on 31 March), the Chancellor announced full expensing of qualifying capital expenditure incurred in the next three years, with the intention of making this permanent afterwards. This means that 100% of any qualifying expenditure on main rate expenditure will be deductible in the year it is occurred, giving immediate relief of 25 pence in the pound (the same rate available under the current super deduction). This is significantly more generous than the UK's previous system of capital allowances, which only allowed 18% of the expenditure to be deducted each year on a reducing balance basis, giving tax relief at 3.4p in the pound in the first year, and lower in following years. For "special rate" expenditure, a 50% first-year allowance will be available, with the balance being deducted at 6% a year on a writing down basis.

Spring Budget: R&D relief

The Chancellor announced a new enhanced R&D tax credit payable at 14.5% to loss making R&D intensive SMEs. The enhanced rate of relief is available to SMEs whose R&D expenditure makes up at least 40% of their total expenditure for an accounting period. This announcement will go some way to relieving SMEs following the reduction of the SME R&D tax credit to 10% in the Autumn statement.

Changes to R&D relief which would include expenditure on data licences and cloud computing within qualifying expenditure will go ahead as planned for expenditure incurred from 1 April 2023 but that the restrictions limiting R&D relief to UK expenditure will be postponed until 1 April 2024. For more, read our Budget 2023 R&D Relief briefing.

Spring Budget: Changes to QAHC regime

The Government confirmed that it will make welcome amendments to the UK's rules for a qualifying asset holding company (QAHC). Several of the key reforms were announced on "L Day" last July, including proposals to improve access to the regime for corporate funds and where parallel and aggregator funds are used.

The substance of the L Day proposals has been retained, but, following feedback from industry, the Government has helpfully refined its plans for parallel and aggregator funds.

Some further changes to the QAHC regime were also announced in the Spring Budget, the most significant of which is an ability for QAHCs to, in effect, elect out of the "investment strategy condition", but at the cost of foregoing the tax exemption on dividends. For more detail, read our Spring Budget QAHC briefing.

Spring Budget: Multinational top-up tax

As expected, the Government will go ahead with its implementation of OECD BEPS Pillar Two, also known in the UK as "multinational top-up tax". This measure is aimed at large multinational corporates, but there are various exclusions, including for investment funds and pension funds.

The income inclusion rule will be implemented into UK law by the Finance Bill (No.2) 2023 and will take effect in relation to accounting periods commencing on or after 31 December 2023.

The Bill will also implement a domestic top-up tax requiring large groups or standalone entities (groups or entities that meet a ?750m turnover threshold test) to pay a top-up tax where their UK operations have an effective tax rate of less than 15%. Unlike multinational top-up tax, domestic top-up tax will apply to large domestic groups and entities in additional to large multinational groups and entities. This will also take effect in relation to accounting periods commencing on or after 31 December 2023.

For further analysis of BEPS Pillar Two, read this briefing and visit this dedicated page.

TAXATION - INCENTIVES AND PERSONAL TAXATION

Spring Budget 2023

It has been a while since we've seen a Budget that references all the tax-advantaged share plans at the same time so the positive announcements by the Chancellor in relation to Company Share Option Plans (CSOP), Enterprise Management Incentives (EMI), Save-as-you-earn (SAYE) and Share Incentive Plans (SIP) were very welcome.

CSOP limits increased and qualifying share conditions relaxed

As announced in the Autumn Statement, after nearly 30 years without change, the limit on the value of shares an individual can hold under CSOP options at any one time rose to £60,000 from 6 April. The limit is calculated at the time of grant and the increase is particularly good news for employees that have reached the existing £30,000 threshold.

Also, CSOP is now accessible to a wider range of companies because the rules on the shares that can be used for options have been relaxed. Previously, companies with more than one class of ordinary share could only grant CSOP options over the class that either gave employees control of the company or was majority held by non-employees. This restriction was designed to ensure that CSOP options were granted over shares that HMRC considered "worth having", but in fact it prevented many private companies from granting CSOP options altogether. From 6 April, this rule has been removed, meaning that companies can now grant CSOP options over any ordinary class of share for employees, including so called 'growth shares', should they wish to.

Both changes will take effect automatically so companies won't need to amend their plan rules to take advantage of these changes. However, HMRC warns that it will undertake increased compliance activity to ensure CSOP is being used properly, so it is a good idea to make sure your plan rules are up to date and now would also be a good time for a general health-check. Similarly, any employee-facing documents such as guides, or Q&A booklets should be reviewed and up-dated, if required

Improvements to the EMI option grant process

Following the 2021 Call for Evidence, the Government concluded that EMI is working well and does not require any fundamental changes. However, the Government recognises that there is potential to improve the process for granting EMI options. To relieve the administrative burden on companies when granting EMI options, the Government announced three key reforms:

• Removing the requirement to set out share restrictions in option agreements
• Requirement for a signed working time declaration removed
• Date for notification of EMI option grant to be extended

We discuss each of the above in further detail in our Spring Incentives and Remuneration Update. These changes are welcome news for all companies operating an EMI plan and should ease the administrative burden on companies when granting EMI options as well as reducing the uncertainty of how to treat the exercise of EMI options.

Review of SIP and SAYE announced

Having already reviewed the two discretionary tax advantaged employee share plans, the Government has announced that it will now turn its attention to the all-employee plans: SAYE and SIP. The Budget contained a statement that it will be launching a Call for Evidence to consider opportunities to simplify and improve the schemes. It is likely that the Government will be asked to consider increasing the financial limits on individual participation and perhaps reducing the vesting/holding periods for tax relief to be available.

Official rate of interest for employment tax purposes increased to 2.25% from 6 April 2023

Where a company makes a loan to an employee (for example, to fund the purchase of shares) an income tax and NICs charge will arise if the interest charged is less than the "official rate". From 6 April, the official rate increased from 2% to 2.25%, so companies with such arrangements in place should consider the implications this will have.

Tax.Simplified. On air

Listen to our Incentives Team share their thoughts and experience on topical incentives and employment tax issues in our Tax.Simplified podcast series (also available on Spotify and Apple Podcasts). Our latest podcast discusses two recent cases involving intermediaries linked to Gary Lineker and Eamonn Holmes and considers what this might mean for other workers providing their services in this way and their clients.

For more articles please visit Incentives & Remuneration | Travers Smith

Originally published 03 May 2023

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.