One year into the pandemic and the global economy remains uncertain. New virus mutations and rising infection rates in some of the world’s BRIC economies are causing uncertainty. Recovery rates are fluctuating across countries and sectors, reflecting the variations in disruptions.
As Britain’s economy hopefully nears an end to the mandatory restrictions, please join Jeavon Lolay - Head of Economics & Strategy at Lloyds Bank Commercial Banking for a timely economic update.
Jeavon will share his insights on:
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19 Jan
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With Matthew Sutton, Partner
Thursday 22 October 2020
Businesses need to act now and prepare themselves for when the UK’s Brexit transition period ends on 31 December 2020.
Those that trade between the UK and EU, and GB and Northern Ireland, can expect to see several changes and the knock-on effects are yet to be understood in full. Regardless of a deal or no deal, all businesses need to be thinking ahead about their commercial contracts and supply chains come January 1.
This webinar covers:
- The current status of the UK-EU trade negotiations
- The potential impact on business supply chains and commercial contracts
- Key predictions for businesses involved in UK-EU trade and GB-NI trade and what to do next
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11 Mar
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How Can Potential Employers Navigate Unsubstantiated Claims When Hiring For Positions Of Trust?
8 Mar
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21 Apr
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24 Apr
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With Stewart Argo, Associate – Commercial
In this webinar, we will give some background to the reasons behind notices, assignment and variation clauses and key considerations when drafting these into a contract.
Please do let us know of future topics that you are interested in, or for more information about our webinars please contact us and you can view past webinars at SHMA®ON DEMAND.
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19 Jan
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21 Apr
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24 Apr
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With Stewart Argo, Associate – Commercial
In this webinar, we will give some background to the reasons behind force majeure, severance and waiver clauses and key considerations when drafting these into a contract.
Please do let us know of future topics that you are interested in, or for more information about our webinars please contact us and you can view past webinars at SHMA®ON DEMAND.
Our thoughts
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19 Jan
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21 Jul
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SHMA® ON DEMAND
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21 Apr
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We are proud to once again be sponsoring the Shakespeare Marathon and Half Marathon […]
24 Apr
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Employment law is constantly on the move and HR professionals and in-house employment lawyers […]
Webinar transcript
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How can we help?
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With Stewart Argo, Associate – Commercial
The purpose of an entire agreement clause is to identify the express contract terms and exclude any terms not expressly contained in the contract, and which often contain terms limiting liability for misrepresentation. In this webinar, we will give some background to the reasons behind the clauses and key considerations when drafting third party rights clauses into a contract.
Please do let us know of future topics that you are interested in, or for more information about our webinars please contact us and you can view past webinars at SHMA®ON DEMAND.
Our thoughts
All the latest views and insights.
19 Jan
Commercial
The New Procurement Act Principles
On 26 October, the Procurement Bill completed its passage through the UK parliament and […]
21 Jul
Corporate & Commercial
Philipp v Barclays Bank UK plc – a step too far! The Supreme Court reinforces the prevailing scope of the Quincecare duty
The landmark case of Philipp v Barclays Bank UK plc [2023] UKSC 25 sought […]
SHMA® ON DEMAND
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21 Apr
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We are proud to once again be sponsoring the Shakespeare Marathon and Half Marathon […]
24 Apr
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Employment law is constantly on the move and HR professionals and in-house employment lawyers […]
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With Andrew Hartshorn, Partner – Commercial
In this webinar, we’ll look at what a software licence is, it’s purpose and benefits, and the points that you should look for from a legal and technical perspective.
Please do let us know of future topics that you are interested in, or for more information about our webinars please contact us and you can view past webinars at SHMA® ON DEMAND.
Our thoughts
All the latest views and insights.
19 Jan
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21 Jul
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The landmark case of Philipp v Barclays Bank UK plc [2023] UKSC 25 sought […]
SHMA® ON DEMAND
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21 Apr
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We are proud to once again be sponsoring the Shakespeare Marathon and Half Marathon […]
24 Apr
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Employment law is constantly on the move and HR professionals and in-house employment lawyers […]
Webinar transcript
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With Matthew Sutton, Partner – Commercial
In this webinar, we talk about indemnity in business to business contracts, and particularly why you might want to include indemnity in your commercial contracts, some of the controls which may apply to indemnity clauses, and other key considerations to have in mind when drafting indemnities.
Please do let us know of future topics that you are interested in, or for more information about our webinars please contact us and you can view past webinars at SHMA®ON DEMAND.
Our thoughts
All the latest views and insights.
19 Jan
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On 26 October, the Procurement Bill completed its passage through the UK parliament and […]
21 Jul
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Philipp v Barclays Bank UK plc – a step too far! The Supreme Court reinforces the prevailing scope of the Quincecare duty
The landmark case of Philipp v Barclays Bank UK plc [2023] UKSC 25 sought […]
SHMA® ON DEMAND
All the latest on-demand content.
21 Apr
The Shakespeare Marathon and Half Marathon
We are proud to once again be sponsoring the Shakespeare Marathon and Half Marathon […]
24 Apr
Ewan Carr, Legal Director | Helen Dyke, Legal Director
Making sure you’re compliant
Employment law is constantly on the move and HR professionals and in-house employment lawyers […]
Webinar transcript
(Please note this is auto-generated and un-edited)
How can we help?
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With Matthew Sutton, Partner – Commercial
In this webinar, we look at drafting limits on liability in business to business contracts, focussing on a few key considerations to have in mind when drafting or reviewing a clause which limits or excludes liability.
Please do let us know of future topics that you are interested in, or for more information about our webinars please contact us and you can view past webinars at SHMA®ON DEMAND.
Our thoughts
All the latest views and insights.
19 Jan
Commercial
The New Procurement Act Principles
On 26 October, the Procurement Bill completed its passage through the UK parliament and […]
21 Jul
Corporate & Commercial
Philipp v Barclays Bank UK plc – a step too far! The Supreme Court reinforces the prevailing scope of the Quincecare duty
The landmark case of Philipp v Barclays Bank UK plc [2023] UKSC 25 sought […]
SHMA® ON DEMAND
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21 Apr
The Shakespeare Marathon and Half Marathon
We are proud to once again be sponsoring the Shakespeare Marathon and Half Marathon […]
24 Apr
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Making sure you’re compliant
Employment law is constantly on the move and HR professionals and in-house employment lawyers […]
Webinar transcript
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Webinar
Contractual issues for charities
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In the webinar designed especially for the charities sector, we look at the practicalities for managing contractual relationships, avoiding disputes, and looking to the future and what can be done to protect your relationships?
You can view past webinars at SHMA®ON DEMAND or read the latest news and views from us.
Please do let us know of future topics that you are interested in, or for more information about our webinars please contact us.
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24 Jan
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21 Apr
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We are proud to once again be sponsoring the Shakespeare Marathon and Half Marathon […]
24 Apr
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Making sure you’re compliant
Employment law is constantly on the move and HR professionals and in-house employment lawyers […]
Webinar transcript
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Webinar
Redundancy: when and how to collectively consult - Live
Redundancy: when and how to collectively consult - Live
Despite the government’s extension of furlough to October, the longer term considerations businesses are taking to remain afloat are more serious than ever. Where collective redundancies (for 20 or more employees) is the only option left, the correct process needs to be followed to avoid appeals and claims in the future.
In this webinar, we discuss the criteria, process and timelines for collective redundancies. There will also be an opportunity for questions which you can forward to us in advance at events@shma.co.uk, or ask live on the day.
Please do let us know of future topics that you are interested in, or for more information about our webinars please contact us and you can view past webinars at SHMA®ON DEMAND.
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We are proud to once again be sponsoring the Shakespeare Marathon and Half Marathon […]
24 Apr
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Making sure you’re compliant
Employment law is constantly on the move and HR professionals and in-house employment lawyers […]
Webinar transcript
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Webinar
Furlough: latest position and forthcoming changes - Live Q & A
Furlough: latest position and forthcoming changes - Live catch up Q & A
With an extension of the Furlough scheme to the end of October 2020 now having been confirmed, what changes can we expect with the next announcement from Rishi Sunak, expected later this month?
It is likely that this will result in increased flexibility being introduced to the scheme with effect from August onwards, where employers will be able to have staff returning to work on a part-time basis, while still being able to claim some contribution towards the wage costs for staff through the Job Retention Scheme.
In this live catch up webinar, we discuss the practicalities of the scheme in further detail, and host a live Q&A session.
You can view past webinars at SHMA®ON DEMAND or read the latest news and views from us.
Please do let us know of future topics that you are interested in, or for more information about our webinars please contact us.
Our thoughts
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24 Jan
Rent Disputes - Tenants
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Fixed-Fee Service Home workspace loans | Future of flexible working Get in touch Home workspace loans for […]
SHMA® ON DEMAND
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21 Apr
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We are proud to once again be sponsoring the Shakespeare Marathon and Half Marathon […]
24 Apr
Ewan Carr, Legal Director | Helen Dyke, Legal Director
Making sure you’re compliant
Employment law is constantly on the move and HR professionals and in-house employment lawyers […]
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Webinar
Copyright protection
Copyright protection
Do the statutory limitations on copyright protection for utilitarian designs have any place in UK law following the Court of Justice’s decision in Cofemel?
In this webinar, we’ll explore the impact of this Court of Justice of the European Union’s decision and how it may be applied by rights holders to expand the scope of future claims.
We will also answer some commonly asked questions on copyright issues.
You can view past webinars at SHMA®ON DEMAND or read the latest news and views from us.
Please do let us know of future topics that you are interested in, or for more information about our webinars please contact us.
Our thoughts
All the latest views and insights.
24 Jan
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Now that the government’s moratorium on action against commercial tenants with rent arrears from […]
16 Jul
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Fixed-Fee Service Home workspace loans | Future of flexible working Get in touch Home workspace loans for […]
SHMA® ON DEMAND
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21 Apr
The Shakespeare Marathon and Half Marathon
We are proud to once again be sponsoring the Shakespeare Marathon and Half Marathon […]
24 Apr
Ewan Carr, Legal Director | Helen Dyke, Legal Director
Making sure you’re compliant
Employment law is constantly on the move and HR professionals and in-house employment lawyers […]
Webinar transcript
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Webinar
COVID 19 | Is coronavirus affecting your banking arrangements?
COVID 19 | Is coronavirus affecting your banking arrangements?
Does your businesses need to consider its current banking arrangements? Working capital, cash flow and additional stock, overdraft facilities and covenants are all subjects that need careful management – even more so with the current coronavirus having such an impact on businesses.
We’ll take a look at what you should do, how you should plan and what steps you can take to protect your business in these challenging and changing times.
Further information on how to manage the impact of coronavirus can also be found on our coronavirus resource hub and you can view past webinars at SHMA®ON DEMAND.
Please do let us know of future topics that you are interested in, or for more information about our webinars please contact us.
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Our thoughts
All the latest views and insights.
24 Jan
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Now that the government’s moratorium on action against commercial tenants with rent arrears from […]
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Fixed-Fee Service Home workspace loans | Future of flexible working Get in touch Home workspace loans for […]
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21 Apr
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We are proud to once again be sponsoring the Shakespeare Marathon and Half Marathon […]
24 Apr
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Making sure you’re compliant
Employment law is constantly on the move and HR professionals and in-house employment lawyers […]
Webinar transcript
(Please note this is auto-generated and un-edited)
0:32
Good afternoon. My name is Christopher von Strandmann, and I'm a banking partner here at Shakespeare meatineau and welcome to today's webinar on coronavirus and the impact that it will have on your banking facilities.
0:45
The implications of covid-19 are fast evolving and we have seen a number of Institutions becoming increasingly concerned about the impact that it will have on their business in the UK. And the rest of the world. There are health concerns disruptions to work as abilities to come into the office supply chains in terms of both products and goods being delivered on time as well as services. So for example, valuations been done or Auditors been able to sign off and accounts. We also have the General market conditions in relation to the ftse that we've seen.
1:15
And earlier this week the bank of England further reduced interest rates and the government announced the raft of new measures to help businesses going forward more information on which we hope to have as quickly as possible each of these issues when taken together as a whole will have an impact on company's existing banking arrangements as well as their ability for them to put in place new ones as they look to either refinance or make Acquisitions.
1:41
The purpose of this webinar today is to discuss on a very high level some of the the issues and themes that borrowers may need to consider over the next few weeks and months noting. Of course that each loan agreement is specific and will have been negotiated with specific contractual wording. So as the government moves to quite understandably try to prevent further contagion where possible we saw the chancellor and prime minister statements yesterday and business of all shapes and sizes will already be feeling the economic pressures pressures of the crisis business as usual has been the overriding message.
2:15
But with recent school closures and pubs and clubs being shut down the government has been trying to provide certainty and assistance to companies.
2:25
In order for business as usual to become a true reality though contingency plans needs to be put in place rather than trying to be too exact about finer details at the moment a thorough plan should be considered by a number of for a number of possible scenarios along with company impact analyses, which can Flex depending on the changing economic and social landscape.
2:48
all organizations even those with the generous generous cash reserves would be wise to open up lines of communication with their Banks sooner rather than later as funding is going to be critical for the coming months particularly when it comes to cash flow the requirement for unexpected investment in extra stock to prevent supply shortages should come as no surprise in this situation is essential to speak to lenders about overdraft facilities and potentially opening new light revolving lines of credit, especially if Supply As up the chain also behind on payments due to cash flow pressures the nature and the spread of the covid-19 means that an increasing number of workers are going to be self isolating if they became if they begin to demonstrate symptoms. And even now we see people are being told to work from home in an attempt to spread attempt to stem the spread of the virus. However for businesses the impacts could be severe if a large proportion of the workforce Workforce are unable to work new regulations.
3:48
Nations which came into Force last week state that employees who show covid-19 symptoms and self isolate in accordance with published guidance and now entitled to claim statutory sick pay from day one despite promises that the government will refund these payments the time frame remains unclear and the lag for reimbursement could put even more pressure on cash flow. Especially if temporary workers needs to be recruited to provide cover and this is why we are recommending businesses to pick up the phone and arrange new revolver.
4:18
In credit lines an overdraft facilities as quickly as possible. Should they feel the need to employee base is moving to work from home aside from throwing up operational challenges could require businesses to unexpectedly Source Capital to provide suitable it equipment such as laptops and mobile phones. All of this will be necessary to keep businesses wheels turning but this investment has to come from somewhere and if cash reserves don't look like they will stretch far enough talking to Banks.
4:48
Banks about potential short-term funding options would be a wise move now cash flow for expenditure aside and many businesses will have several funding agreements in place with different banking institutions attached to these could be different covenants, which could be breached depending on the evolving consequences of the covid-19 crisis. For example, some agreements will often contain clean down conditions which require businesses to keep accounts and credit for a set number of days each month.
5:18
Other covenants which could cause issues may be around leverage and debt servicing ability. If a business is a we're ahead of time that a breach is likely then a proactive stance could be taken to mitigate against mitigate against this however any business owner who is unsure should ask the advice of their banking advisor and relationship manager sooner rather than later.
5:43
The UK banks will be doing their bit for the business Community. The sector recently came out with a list of emergency measures including suspending loan payments and fee-free Emergency Loans to help businesses already facing challenges, its early days still and support amongst the banking Community is only likely to increase this alongside the government's apparent willingness to try and help businesses in the short-term should come as a positive. However, no matter how great the support on offer is Banks hate.
6:13
Says they won't know what they don't get told so for our Bora Bora clients with saying open a dialogue at an early stage and lay your cards on the table at this is far more likely to result in a workable support support support. Then the bearing your heads in the sand. Also, it's important for businesses to realize they're not alone when asking for assistance. This will become a common theme across the whole of the UK in the next few months.
6:42
Commercial ad on certain times like this is having a place in plan which can Flex as circumstances change around the country Business Leaders who feel like the pressure of decision-making rests solely on their shoulders should aim to involve other employees and employee groups extraordinary times call for Extraordinary approaches and faced with uncertainty. That's no bad idea. No one is under the illusion that in the coming weeks and months. It will be easy for UK businesses and their communities. However, financial support will be out there.
7:12
And it's essential that lines of communication between organizations and their funders are kept open to ensure that wherever possible UK business weathers the storm and comes back fighting.
7:23
So going into a bit more detail on facility Arrangements more. Generally. I'm going to look at a few Provisions actually seen come out recently as well as responding to a few questions over the last 24 hours. Number one interest rates the bank of England cut interest rates last week and then further cut them to not point one percent yesterday. So this means that borrowers are floating rates who are paid to base rates should see a reduction in their monthly and quarterly outgoings.
7:53
Committed funding certain funds transaction transactions are either required for regulatory reasons usually due to take take over laws or because the vendor of particular asset wants to bank back certainty on new purchases ability to close the transaction and thus will not allow a financing condition in its sell and purchase agreement in a certain funds transaction in the m&a market.
8:15
There are generally very limited conditions which will allow financing parties to withdraw their commitment committed funding from the transaction and say, Covid-19 should not have an impact on existing committed funding arrangements and so a bill its purchases ability to draw down and close should not be negatively impacted. However, whilst existing Arrangements should not be of an issue.
8:38
The requirements provider committed funding line met in the short term but some funders off looking at New Deals as they look at market conditions and the possibility of a recession as well as the ability to Syndicate while the Coronavirus so action develops material adverse change is also a point which borrows needs to look at. There are generally three limbs to a material adverse change clause in the business of the borrower payment ability and a more General market one. It's relatively rare to include Mac Clauses in an acquisition financing as a doorstop, but they can be included under circumstances.
9:18
Looking at the three limbs of a material adverse change provision will have got business first. So most facilities will have a business Mac it typically relates to an adverse effect on some of some or all of the business condition operations performance assets or prospects of the borrower given where the UK is on the curve of the outbreak is difficult to say what the impact will actually be and how or when it will affect any particular business.
9:45
However, to extend that the existing circumstances subsist for a significant period of time particularly as businesses report on q1 2020 was Financial results. We expect then the lenders to monitor these Provisions more closely. You have the payment material adverse change which relates to the borrower's ability to pay to make its payment obligations under a finance document payment obligations are fairly straightforward to determine and traditionally focus on a 1 to 6 month time frame accordingly to trigger this.
10:15
The relevant lenders would need to probably establish that the issue that the borrower will be unable to make its payment obligations over the such a time frame. This can be difficult for lenders to prove.
10:28
We then go on to the market Mac, which is much wider and a more General provision, which looks at the Mark General market and could relate to currency fluctuations share price and other such matters as we have all seen The Wider stock market has generally reacted negatively to covid-19. And so may this may give lenders the ability to call the default in these circumstances that being said even back in 2008 to 2010. This provision was very rarely used and lenders will often.
10:58
To avoid using this provision as a means of enforcement, but that may nevertheless also have market conditions may have an impact on be able to Syndicate or bringing in New Deals.
11:10
You then obviously have the financial covenants and most loan facilities will have a certain level of these. So for example property-based deals will have an LTV Covenant.
11:20
And they will they will usually be a provision in there which will allow A lender to attain a valuation which when it believes or reasonably believes that an event of default would occur.
11:31
It's going forward borrowers need to be aware of this as banking Banks and lenders may be going to request such valuations ebitda or more corporate based covenants will be based on the annual or quarterly accounts for business and will be certified through the usual compliance certificate read this breach is that we believe will become more likely over the coming months as the end of q1 accounts for 2020 become too we then move on to litigation and creditor processes as businesses start to feel the strain it's likely that litigation or creditors process Provisions will be looked at by lenders especially when other debtors feel that there is a need to take action there is often a provision which allows for discharging such actions within a certain period of time but in the event that a borrower experiences such issues it's vital and it takes sound legal advice and speak to Banks as soon as possible There are also the ongoing reporting requirements. So you have quarterly or monthly reporting which is a general undertaking underfinanced documents and this typically requires audited annual and unaudited quarterly or monthly accounts to be delivered to A lender or agent within a certain specified period of time businesses interrupted by coronavirus May face certain reporting issues such as an inability to obtain accounting information due to facility closures.
12:56
There is generally no provision within a facility document for additional time for filing such information due to external issues. And so again, we would suggest that borrowers pick up the phone to their lenders if they do experience such issues.
13:13
Please do get in contact with anybody at Shakespeare Martineau going forward if you have any queries or questions, and thank you very much for listening. We have had a few questions come in today earlier on today, and I will try to answer those as quickly as possible. Please do keep looking at our LinkedIn page and our website for any further updates. Thank you very much. Bye. Bye.
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Webinar
COVID 19 | Invoking force majeure
COVID 19 | Invoking force majeure
Businesses facing difficulties in meeting their contractual obligations because of disruption caused by the coronavirus should consider invoking the force majeure provisions in their contracts.
We will look at whether force majeure can be invoked and how this might help, the steps that need to be taken to benefit from the protection afforded by a force majeure provision, and whether force majeure offers an opportunity to mitigate business risk arising from the spread of coronavirus and the consequences of invoking this protection.
Further information on how to manage the impact of coronavirus can also be found on our coronavirus resource hub and you can view past webinars at SHMA®ON DEMAND.
Please do let us know of future topics that you are interested in, or for more information about our webinars please contact us.
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24 Jan
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Top tips for commercial tenants in dealing with landlord claims for COVID-related rent arrears
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We are proud to once again be sponsoring the Shakespeare Marathon and Half Marathon […]
24 Apr
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Webinar transcript
(Please note this is auto-generated and un-edited)
1:33
Hi, I'm Matthew Sutton a partner in the commercial team at Shakespeare Martineau. Welcome to today's webinar on the coronavirus and force majeure Clauses in business contracts. You'll see on your screen that you are able to ask me questions. So please do ask questions along the way and I will answer as many as I can at the end.
1:56
Okay. So today as I say I'm going to spend a few minutes talking about force majeure Clauses in business-to-business contracts and how they may assist businesses in attempts to manage the disruption caused by the spread of the coronavirus the background to this as you know, is the continuing Global spread of the coronavirus and the measures which have been introduced by governments across the world to combat the virus.
2:24
The impact of the fire as was first built in China in January as the world's second largest economy and largest manufacturer accounting for 20% of global manufacturing output the disruption of shipments to and from China has already had significant implications for the supply chains of many businesses in the UK causing interruptions and delay the participation continues to deteriorate with governments across the world now introducing quarantine measures and travel restrictions.
2:54
And leaving the global economy facing very uncertain times businesses facing difficulties in meeting their contractual obligations because of disruption caused by the coronavirus outbreak should certainly consider invoking the force majeure Provisions in their contracts. So what is a force majeure provision? Well put simply a force majeure provision is a clause in a contract which typically excuses one or both.
3:24
Of Contracting parties from performance of the contract in some way following the occurrence of events beyond the reasonable control of the party concerned.
3:36
The term force majeure has itself no recognized legal meaning so it's important to remember that whether a business can invoke a force majeure provision in a contract will therefore generally depend upon the wording of the Clause an important. First point to having mind. Therefore is how is force measured defined.
3:58
Well some force majeure Provisions May reference specifically pandemics epidemics, or Civil emergencies. However Clauses often simply reference circumstances beyond the reasonable control of a party in the absence of specific wording.
4:18
It will be important to consider the scope of the Clause carefully to determine whether it will include the corona Outbreak The coronavirus outbreak or any related government restrictions. It's important to remember in this context that a party can invoke a force majeure provision. Generally only where it is prevented from performing its contractual obligations. The fact that performance may be more difficult or more costly will typically not be sufficient.
4:46
For example It's a well-established principle under English law that a changing economic or Market circumstances affecting the proverb and profitability of a contract or the ease with which A party's obligations can be performed will not be regarded as a force majeure event in one particular case the high court found that the inability of a company to obtain Finance due to the collapse of the world's financial markets in 2008 did not trigger the force majeure clause in a contract to purchase an aircraft.
5:23
So assuming the scope of the force majeure Clause potentially covers the events taking place currently what steps do we need to take to obtain the benefit of a force majeure provision?
5:37
Well frequently force majeure Provisions can be invoked only when notice is given by the affected party within a specified time of becoming aware of the impact on contractual performance. For example, it may be a contractual requirement that notice is given by a party within 3 business days of it becoming aware of being unable to perform its obligations due to the force majeure event.
6:03
Failure to give notice within a prescribed time inmate potentially means that the benefit of the Clause could be lost where there is no specific notice provision notice should generally be given by a party as soon as it becomes aware that it is unable to perform its obligations due to the force majeure event.
6:25
Force majeure Provisions will also generally require the affected party to show that it is used reasonable Endeavors to prevent or at least mitigate the effects the effects of a force majeure event in this context.
6:39
The court of appeal has held that language in a force majeure clauncher clause which refers to events beyond the control of a party can only be relied on if that party has taken all reasonable steps to avoid the Insert the event or to mitigate its results.
6:59
Okay, so we've taken the steps necessary to invoke out force majeure provision, what are the consequences of of invoking that provision well generally the effect of invoking a force majeure provision is to suspend contractual obligations for the period during which the force majeure event prevents contractual performance once the event has come to an end the obligations of the parties recommence So effectively once a force majeure provision has been invoked the affected parties liability for failure to perform is usually removed for so long as the force measure the event continues. It's important.
7:44
However to remember that force majeure Clauses May often also include a right of termination for either or both parties if the force majeure event continues Beyond a specified period of time It's also important to have in mind that force majeure Provisions may include a right for either or both parties to terminate the contract if the force majeure event continues Beyond a specified period of time so for example a clause my typically say that if a party continues to be unable to perform its obligations for a period of say 14 or 30 days the other party May terminate the contract immediately by giving written notice.
8:27
In those circumstances the party terminated the contract will not be liable to pay any compensation to the party suffering from the event of force majeure.
8:40
So Faith with the possibility of disruption due to the coronavirus outbreak businesses should consider invoking their Force visual Provisions to do this. It's important to have in mind the following actions review your contracts do they contain force majeure Provisions? If so, it's important to understand the scope of the Clause. Does it specifically referred to a pandemic or are you relying on General word?
9:09
I think that refers to events beyond your reasonable control.
9:15
Be aware of any steps that need to be taken to trigger the protection which the Clause May afford. Do you have to give notice within a specified time period if you do you need to comply with that time period otherwise protection may be lost. If there are no specified time periods. Then you should give notice as soon as possible consider what mitigation actions can be taken remember? It is often a condition of claiming the benefit of force majeure.
9:45
That you've acted reasonably to avoid the event concerned or at least to mitigate its consequences.
9:54
Does the business have a contingency plan? Obviously that's important in the context of mitigation has that contingency plan been implemented?
10:04
Be aware of the consequences of invoking a force majeure clause in particular. Does it give rise to a right of contract termination to the other Contracting party?
10:17
In the context of coronavirus, it's important to consider invoking force majeure Clauses in business contracts. And in this context, it is particularly important to act rapidly when analyzing whether this route is potentially available to you. Okay, so thank you for listening to today's webinar on coronavirus and force majeure Clauses in business contracts. I have had a few questions come in so I will answer.
10:46
A cancer a couple now and then send a follow-up to the others along with a recording of the webinar. So the first question I have is what happens if my contract does not contain a force majeure Clause well in those circumstances it is possible that the doctrine of frustration could apply so the doctrine of frustration is an English law concept which provides that if a contract has become impossible.
11:16
Possible to perform all the parties obligations are changed radically by the occurrence of an event after the contract has been agreed. It is possible that the contracts that the Contracting parties can set aside their contractual obligations. It's important to remember though in the context of frustration. That courts are generally reluctant to find that a contract has been frustrated.
11:43
So it's quite a hard thing to To to achieve before a court again as with force majeure Clauses. It's also important to remember that an event that renders contraction performance more difficult or more costly will not have itself be sufficient to achieve the result of a contract being frustrated. So the contract must be impossible to perform or all the obligations of the parties must have changed.
12:16
radically So second question I have received is a chi rely on a force majeure Clause if there are also other reasons why I cannot perform my contract which had nothing to do with the force majeure event. So in the current situation, they may be nothing to do with the outbreak of the coronavirus all the restrictions that may have been introduced to combat the spread of the virus.
12:45
Well the short answer to that question is No, you can't rely on a force majeure clause in those circumstances. The high court has determined that in order to rely on a force majeure Clause the force majeure event must be the only effective cause of a part in failing to comply with its contractual obligations. So a Contracting party will not be relieved of its contractual liability under a force majeure Clause. So Contracting party will not be relieved of its contractual liability under a force majeure.
13:18
Your claws if it would not have been able to perform its obligations, even if the force majeure event had not occurred.
13:26
Okay, so thanks for the great questions. I'll follow up on these after the session and share them with you the next webinar in our coronavirus series is tomorrow at 12:30 on business leases with Justine all thanks very much for watching for All Our advice and guidance on coronavirus. Please contact a dedicated resource Hub at shma.co.uk or contact me at Matthew.sutton@shma.co.uk, thanks very much.
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Webinar
COVID-19 | Reporting data breaches
COVID-19 | Reporting data breaches
The lockdown has posed new challenges to the way we work, particularly in maintaining security of personal data while working from home.
Cyber criminals are increasing their activity and exploiting the current crisis, requiring businesses to be extra vigilant. This increases the possibility that data breaches will occur and that they will have to be reported to the ICO. While the ICO is currently being flexible and pragmatic in its approach, it cannot suspend or waive the duties imposed by the GDPR and the DPA, which continue to apply.
In this webinar, we highlight what it means to commit a personal data breach and the thresholds for reporting to the ICO and to the victim of the breach.
Further information on how to manage the impact of coronavirus can also be found on our coronavirus resource hub and you can view past webinars at SHMA®ON DEMAND.
Please do let us know of future topics that you are interested in, or for more information about our webinars please contact us.
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Webinar transcript
(Please note this is auto-generated and un-edited)
0:40
Hello, I'm Geraldine Swanton a legal director at Shakespeare Martineau know today's session will provide a very brief overview on the duty to report personal data breaches under the GDP or the GDP are is rooted in the right to privacy, which of course is not an absolute, right?
1:00
And can be interfered with for a legitimate purpose provided its proportionate and so the GDP or seeks to achieve a fair balance between individuals reasonable expectations of privacy and the need for businesses to process personal data people entrust their data to us and some of it is highly sensitive data.
1:23
So it is about honoring that trust and therefore to do that we are Wired to take both technical measures and organizational measures to protect security Now organizational measures refer to you know, firm-wide policies and procedures, but they also include measures we as individuals can take in our day-to-day handling of personal data to ensure that it is secure now the duty to promote security is not absolute.
1:57
It is appropriate that the Sweet take must be appropriate to the risk posed to the individual as a result of a breach. So to sum it up really it's about preventing breaches. But if they do occur it's about detecting them quickly and reacting in a timely manner. Now, one of the big challenges for all of us is knowing when a breach has actually occurred and it might be helpful to enable you to identify breaches by dividing them into three.
2:30
Simple categories the first is a confidentiality breach and that is any unauthorized or accidental disclosure of personal data or unauthorized accidental access to personal data. Now when we think of these breaches, we think of melodramatic cyber attacks, but actually these occur on a routine day-to-day business basis in our ordinary everyday activities.
3:00
For example sending emails to a non intended recipient forwarding very sensitive Health Data to colleagues when they have absolutely no legitimate interest in seeing that Health Data the second type of breach is an Integrity breach and that's any unauthorized or accidental or alteration of personal data. For example, it could mean when data becomes corrupted.
3:29
So we only have a partial record an in inadequate parcel records can have a detrimental impact on individuals. And finally there is an availability breach. That's when there is unauthorized or accidental loss of personal data or destruction of personal data. So it could mean we have encrypted data, but we lose the key. Therefore we can't get access to that data either temporarily.
4:00
Permanently now the duty to report occurs. First of all in relation to the Ico. If there is a risk to the individual, you must only report the breach to the individual where there is a high risk posed to them by the breach now again assessing risk can be quite a difficult activity quite a difficult challenge, but there are various factors we can take into account.
4:29
And when we are assessing risk, and the first is what type of breach has occurred, usually a confidentiality breach will post some risk to an individual but the type of risk will be a very valid consideration and assessing risk next the nature and the sensitivity of the data.
4:51
So if it's ID day sir, that's that could pose a risk if it's highly sensitive disability related data, you can assume That will pose some form of risk. But even where the individual days are not particularly sensitive the combination of the data inadvertently destroyed or disclosed could create a risk when considered in the round.
5:15
Then there's the volume of data involved the group The more likely it is that some risk will be posed.
5:24
Then How likely is it that the person can be like it might not be identified by the actual data inadvertently disclosed but they might be identified when that is cross-referenced with other data. Then we have to assess the severity of the impact and the likelihood of the risk materializing now likelihood is again a difficult exercise, but for example, if inadvertent disclosure was made to a trusted.
5:54
And the risk is minimum if it was disclosed to an unknown source, then you can assume there is some likelihood of risk, the severity of the consequences. The severity of the impact is very relevant in assessing risk for example is the person more vulnerable to identity theft or fraud leading to financial loss.
6:19
If for example, we inadvertently release contact details If it means that a person who's estranged violent partner can now locate them are they vulnerable to physical harm distress is a very real consequence particularly. If we disclose very sensitive data humiliation damage to reputation. These are all probable consequences which could result and following the breach then we take into account the special characteristics of the person.
6:54
This data has been breached. So if it is a child or somebody with a learning disability, they may be much more vulnerable to risk.
7:05
The special characteristics of your business will also be relevant. So if you're a prison an educational institution or a medical practice data breaches are much more likely to have adverse consequences that if your business is simply compiling and mailing lists for magazine distribution.
7:28
Also, the number of individuals involved may be irrelevant consideration the greater the number the greater the threat That may be involved now the to recap the juicy to report to the information commissioner arises where there is some risk to the individual and you must report the breach without delay and in any event within 72 hours of becoming aware of the breach. So what does it mean to say when we become aware of the breach?
8:01
Well aware means not that we think maybe possibly but where are you have a reasonable degree of certainty that a data breach has occurred. You must provide reasons to the information commissioner. If you fail to disclose within that time limit and I would say look if you are in doubt about whether the threshold for disclosure has been passed you should report any way. So if in doubt always report now when you report the information commissioner, you really have to have a hand.
8:35
On what has happened? So you've got to explain what the breach was how it happened? What information was concerned the categories and numbers of individuals the categories and numbers of Records.
8:51
The potential consequences the steps you have taken to mitigate risk in the interim in the short term and the steps you're taking to mitigate risk in the future if you have a data protection, An officer you must provide the details of that officer and again to be to be sure to be sure.
9:13
I've include if in doubt do report now reporting to the data subject is required where there is a high risk and you must do that without undue delay and the purpose of revealing your breach to the individual is so that they can take steps to Don't think sounds if there is a vulnerability to Identity fraud then they can tell their bank. They can tell other they can they can take steps to diminish the risks themselves.
9:49
And as a very minimum the report must include again details of the breach the likely consequences the steps you've taken to protect the individual and details of the data Protection Officer if you have one Now you don't have to tell the individual where the information that has been inadvertently disclosed for example is unintelligible to anybody outside of your organization. So for example, if the data disclosed is encrypted, but you haven't disclosed the encryption key, then the risk is minimal and there's no need to tell the individual.
10:32
You don't also have to report if you've taken clear steps to ensure that the risk does not materialize. So remember there has to be a Nexus between reporting and high risk, but if you've taken steps in the interim to mitigate the high risk than there's no need to report now. You don't have to report to the data subject where it would involve disproportionate effort. Now that's a set of circumstances.
11:02
Stances may arise when the breach relates to a large number of individuals and it would you know be impossible or very very very burdensome to do to notify each and every individual but that doesn't mean you can do nothing. You may instead have to put a notice on your website detailing the breach so that those who are affected can protect themselves finally a theme that permeates the entire.
11:32
Rarity of the GDP or is accountability or transparency and that requires amongst other things that you must document all personal data breaches, even if there's no duty to report them to the information commissioner and the record must be pretty comprehensive.
11:51
It must include again the facts the house or what the when the effects any remedial action you've taken in the wake of Reach and in the long term and that record will enable the information commissioner to assess whether as an organization, you're complying with the GDP or if complaints are made and it's also very useful to include in that record any explanation as to why you haven't reported a breach to the information commissioner. It provides a justification in the face of the complaint.
12:29
In summary there for a remember. This is about honoring the trust that individuals have placed in us when they provide us with their personal data. It's about also creating a culture where our staff feel free to report a breach and ultimately it is about preventing greeters. But if they do happen it's about quick detection and prompt reaction.
12:59
Thank you. And please do remember we offer a free legal help line where we provide 20 minutes of free legal guidance. That's the end of this session. Thank you very much for your attention. I hope you found it useful.
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