Key items on the agenda for in-house lawyers this month include digesting the second tranche of no deal Brexit technical notices, the launch of a consultation on electronically executed documents, and a key decision on litigation privilege in internal investigations.
No deal Brexit technical notices
On 17 September 2018, the government published the second tranche of technical notices giving guidance to UK businesses on how to prepare for a no deal Brexit. These included notes on:
The first tranche of 25 technical notes were published in August 2018.
Consultation on electronically executed documents
The Law Commission is consulting on its provisional conclusions regarding the legal uncertainties concerning electronically executed documents. The consultation explores the idea that, under current law, an electronic signature is capable of meeting a statutory requirement for signature provided an authenticating intention is demonstrated, and therefore a legislative statement to confirm this position is unnecessary.
The consultation closes on 23 November 2018.
Litigation privilege in internal investigations
In-house lawyers will welcome the Court of Appeal overturning a High Court decision concerning the extent to which litigation privilege could be applied in internal investigations. The appellant, ENRC, successfully argued that documents prepared during an internal investigation, both by its lawyers and a firm of forensic accountants, were protected by litigation privilege. The judgment recognises that it is in the public interest for companies to be allowed to investigate internally prior to going to a prosecutor without losing the protection of legal professional privilege.
Practical Law has published an article on the case by Hogan Lovells International LLP, who acted for ENRC.
Further corporate governance reforms
BEIS has recently published the government’s response to its consultation on proposals to improve the corporate governance of firms that are in or approaching insolvency. The government plans to take forward several specific actions, including strengthening transparency requirements around group structures, and bringing forward proposals to improve board effectiveness and strengthen directors’ training and guidance. These measures will be set out in further detail later in the autumn.
Practical Law has published an overview of the 2018 UK Corporate Governance Code and an annotated version of the 2018 Code, which sets out the full text of the individual sections of the 2018 Code, annotated with links to and summaries of the FRC Guidance on Board Effectiveness and relevant institutional investor guidance.
ICO regulatory sandbox consultation
The Information Commissioner’s Office (ICO) has launched a consultation on the establishment of a regulatory sandbox. The consultation seeks input on several aspects of the potential sandbox scheme, including the:
- Barriers and challenges to innovation, in particular posed by the General Data Protection Regulation.
- Scope of the sandbox, in terms of sectors and technologies covered.
- Managing demand in what is likely to be a very popular service.
The consultation closes on 12 October 2018.
Preparing for the Disclosure Pilot Scheme
A Mandatory Disclosure Pilot Scheme will run for two years in the Business and Property Courts from January 2019. During the countdown to January 2019, Practical Law will be publishing a range of new materials on the scheme, starting with Practice note, Disclosure Pilot Scheme: key procedural steps up to the first case management conference.
GC100 is hosting an event on the 13 December 2018 to mark the introduction of the new scheme and to discuss how companies and their advisers can most effectively embrace what will be quite a significant change in the culture of litigation.
Dates for the diary
1 October 2018
The Shorter and Flexible trials pilot schemes will become permanent in the Business and Property Courts from this date.
2 October 2018
The European Commission consultation on the EU Intellectual Property Office’s enforcement role closes.
4 October 2018
- Deadline for responding to the European Commission’s consultation on draft guidelines for national courts on how to estimate the share of cartel overcharges passed on to indirect purchasers.
- The current childcare voucher scheme will close to new entrants.
5 October 2018
- Closing date for the Women and Equalities Committee’s inquiry into enforcement of the Equality Act 2010.
- Deadline for responses to the Law Commission consultation on the anti-money laundering SARS regime.
9 October 2018
Various Claimants v WM Morrison Plc is set to be heard by the Court of Appeal. The High court had held Morrisons vicariously liable for employee’s disclosure of personal data of co-workers on the internet.
16 October 2018
Closing date for the BEIS consultation on the National security and infrastructure investment review White Paper.
31 October 2018
The Court of Appeal is expected to hear Uber B.V v Aslam. Uber is appealing against an Employment Appeal Tribunal decision that its drivers were workers.
