Dispute resolution & litigation

Salone del Mobile: Protecting the IP in design inspiration

Thu, 23 Apr 2026 00:00:00 +0100

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:883de93c-81c2-4145-89e2-38bebf36035a/as/ART-US00103.avif?assetname=ART-US00103.jpg

Brand interchange | 4 min read

Salone del Mobile: Protecting the IP in design inspiration

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

This week marks Salone del Mobile, when the global design world gathers in Milan for the annual design and furniture fair.

Published: 23 April 2026
Authors: Rob Sandercombe

/content/dam/shoosmiths/lawyers/rob-sandercombe/profile

false

style

single-column-text

Salone is a celebration of design, creativity and manufacturing, showcasing some exciting collaborations. The main Fiera encompasses more than 1,900 exhibitors from 32 countries, while the wider city hosts an array of different events, exhibitions and presentations from global brands and independent designers alike. In this article, we consider what intellectual property protection is available to designers and brands and discuss some of the issues they should consider when entering into collaborations.

What should designers and brands protect — and how?

For designers and brands in the UK, the following intellectual property protection (which sits across four overlapping regimes) may be relevant:

unregistered design rights (UK): which arise automatically, do not require registration, and post-Brexit, fall into 2 main categories:
- UK Unregistered Design Rights (UDRs): are created under the Copyright, Designs and Patents Act 1988 (CDPA 1988) and protect the shape and configuration of 3D articles (including internal or structural features), but do not protect surface decoration or ornamentation. Protection lasts for the earlier of 10 years from first marketing or 15 years from creation. Importantly though, whichever term applies, in the final five years the right becomes subject to a “licence of right”, meaning the owner must allow licences on fair and reasonable terms; and
- Supplementary Unregistered Designs (SUDs): protect the appearance of all or part of a product, including lines, contours, colours, shape, texture, materials and ornamentation (in both 2D and 3D). Protection lasts for three years but is established only by first disclosure in the UK (which, as discussed below, can prove problematic if the first unveiling of a design takes place at Salone).
registered design rights (UK): protect the appearance of the whole or part of a product, resulting from its lines, contours, colours, shape, texture, materials or ornamentation. To qualify for registration, a design must be new and have individual character. An application must generally be made within a 12‑month grace period following first disclosure, regardless of where the first disclosure takes place (so a first unveiling at Salone can still be followed by a UK application within 12 months). Protection lasts for five years from registration and can be renewed every five years, up to a maximum term of 25 years. In practice, registered designs are typically stronger and easier to enforce than unregistered rights and are therefore recommended as a front-line protection for brands and designers when a design has long‑term commercial potential.

copyright: where a design is determined to be a work of artistic craftsmanship, it may qualify for copyright protection lasting 70 years after the author or designer’s death. However, because copyright is not a registrable right, its existence is ultimately determined by the courts based on the specific facts of the case. A notable example where copyright was recognised is the Eames DSW chair, following the CJEU’s decision in Kwantum v Vitra (24 October 2024). By contrast, the WaterRower decision (WaterRower Ltd v Liking Ltd (t/a Topiom) [2024] EWHC 2806 (IPEC)) illustrates the limits of copyright in design where, despite its aesthetic appeal, the WaterRower was held to not qualify as a work of artistic craftsmanship and therefore did not benefit from copyright protection under UK law.

patents: protect technical inventions (how something works, rather than how it looks) and can offer protection for up to 20 years from filing, subject to annual renewal fees. Because patent applications generally must be filed before first disclosure, they require planning well in advance of any public launch. Notable examples where patent protection has played a role include Anglepoise, whose original spring‑balance mechanism was protected by patents, and Achille and Pier Giacomo Castiglioni’s Arco lamp, which was initially protected by patents before later being recognised as capable of benefiting from copyright protection following Flos v Semeraro (CJEU, 2011).

Designers should also consider registering their name, or studio name, as a trade mark. This is commonplace in the fashion industry but perhaps less well appreciated in the design community. A designer’s name, or studio name, is their brand, and registration protects their position. It also provides designers with a clear legal footing when entering into collaborations, as well as offering certainty to brands.

Collaborations

Eagerly anticipated collaborations this Salone include the launch of The Eames Pavilion System developed by the Eames Office in collaboration with Kettal and exhibited at Triennale Milano from 20 April to 10 May; the Radical Home by Italian Radical Design, which combines reissues from Gufram and Memphis with new designs by Faye Toogood and Objects of Common Interest for Meritalia; and Philippe Malouin’s reimagining of Alessi’s iconic moka coffee maker.

The best collaborations are greater than the sum of their parts, enabling brands to benefit from cutting‑edge designs and the creative direction and positioning of star designers, while designers benefit from the prestige of working with globally recognised brands, access to specialist materials and production expertise, and a platform to present their creations to a global audience.

However, each collaboration raises a familiar, but often under-examined, set of questions: what each party brings to the table (their “background IP”); who owns any intellectual property created through the collaboration (the “foreground IP”); how the designer is credited; who can use what, where and for how long; and how the commercial value of the collaboration is shared between the parties.

From the designer’s perspective, it is essential that their pre-existing design language, aesthetic approach and underlying design know-how are protected, and that they are adequately paid, not only for the initial work, but also for the promotion and commercialisation of the collaborative designs. This is where the agreement should strike an optimal balance of upfront fees and ongoing royalties, as part of a long‑term strategy to consolidate and accumulate value across a broader portfolio of work.

From the brand’s perspective, it is equally important that its brand identity, brand codes, iconic styles, logos, emblems and colourways are protected, and that it secures the rights necessary to market the collaborative creation for a sufficient term, territory and scope of use to support a sustainable long-term business model.

Working positively together, designers and brands can focus and invest in a smaller number of partnerships that offer greater creative and strategic alignment and create more long-term value as a result. However, this requires planning and foresight, not only to identify the right partners, but also to ensure that commercial terms and IP ownership are agreed at the outset, and that the contract is signed before work commences. This is particularly important as, absent an agreement to the contrary, copyright law provides that commissioned work will vest in the designer rather than the commissioning brand, which could run contrary to the commercial assumptions on which the collaboration is based.

Conclusion

Salone offers designers and brands a unique opportunity to showcase their designs to a growing worldwide audience. However, to make the most of this opportunity, we recommend considering the following key points:

create evidence packs for designs so that you can demonstrate when a design existed and what it comprised
consider first disclosure. SUD protection requires first disclosure in the UK, so designers and brands should consider coordinating UK-first press releases or a simultaneous UK presentation to ensure that novelty is preserved
where designs have long-term commercial potential, consider registered designs as early as possible, and in any event within the 12-month grace period following first disclosure
where designs incorporate technical innovation, consider whether patent protection may be available, remembering that patent applications generally must be filed before first disclosure
for legacy designs approaching the end of their 25-year registered design term, it may be worth assessing whether copyright could offer longer-term protection, depending on the nature of the design and how it has been created and commercialised
where product shapes or features have become so well known that they function as a badge of origin, consider whether registration as a trademark may offer an opportunity for long‑term protection, potentially lasting in perpetuity through successive, renewable 10‑year terms
ensure that agreements are in place that cover all key aspects of collaborations before the design work begins.

By addressing these questions as early as possible in the design process, designers and brands can make IP a fundamental part of their design strategy, helping them to identify complementary creative and strategic partners, reach agreements which are mutually beneficial, protect their respective intellectual property and maximise its value, and in doing so turn Salone from a once-a-year moment of exposure into a key part of a long‑term design legacy.

style

single-column-text

Latest perspectives from brand interchange

Read the latest perspectives from Shoosmiths' brand lawyers

Explore all perspectives

/content/shoosmiths/perspectives

/content/cq:tags/shoosmiths/topics/brand-interchange

TAQA appeal ruling: Why directors must rethink intra-group deals

Wed, 22 Apr 2026 00:00:00 +0100

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:e1709fc0-52ee-490a-85c0-80a90ab89e6d/as/ART-US00092-(6).avif?assetname=ART-US00092+%286%29.jpg

Article | 3 min read

TAQA appeal ruling

Why directors must rethink intra-group deals

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

The Court of Appeal’s recent judgment in TAQA Bratani Limited [2025] EWCA Civ 1669 (“TAQA”) has reshaped the risk landscape for directors operating within corporate group structures, particularly complex ones.

Published: 22 April 2026
Authors: Lauren Moroney

/content/dam/shoosmiths/lawyers/lauren-moroney/profile

/content/dam/shoosmiths/lawyers/hannah-field/profile

false

/content/dam/shoosmiths/lawyers/hayley-capani/profile

false

style

single-column-text

The Court of Appeal’s recent judgment in TAQA Bratani Limited [2025] EWCA Civ 1669 (“TAQA”) has reshaped the risk landscape for directors operating within corporate group structures, particularly complex ones. While the case arose in the context of transactions at an undervalue, governed by s.238 of the Insolvency Act 1986 (“IA 1986”), the implications of the judgment stretch far beyond distressed companies.

For directors, particularly of large corporates, and especially those who also act as nominee directors for group subsidiaries, TAQA should prompt a re-assessment of the approach to intra-group transactions.

The 238(5) defence

Under Section 238(5) IA 1986, if company directors can satisfy the court that they entered into a transaction at an undervalue a) in good faith and for the purpose of carrying on business, and b) that at the time of the transaction there were reasonable grounds for believing the transaction would benefit the company, then they will avoid an order against them.

The TAQA judgment has narrowed the operation of the s.238(5) defence. The Court of Appeal made it clear that generalised reference to and reliance on, for example, wider group strategy, commercial purpose, or overall deal rationale, will no longer satisfy the test.

Instead, directors must show that each step was for the benefit of the company itself, not merely advantageous to the parent company or the group as a whole. This significantly reduces the room for manoeuvre when defending value movements within a corporate structure.

Single steps can be the “transaction”

TAQA confirmed that, for the purposes of s.238, a single step within a multi‑stage matter can itself comprise the relevant “transaction”. Even if a transfer or restructuring move is embedded within a much larger commercial deal, that broader context will not necessarily save an individual component that strips value from a company.

In essence: every step matters. Directors must be able to justify that each discrete stage of a deal benefits the company on a standalone basis. If one step disadvantages a company, directors can no longer rely on the fact that it sits within an otherwise coherent or beneficial wider transaction. TAQA represents a significant tightening of the analytical lens applied to intra‑group arrangements.

Particular steps directors should be mindful of include, among other things: intra‑group transfers of assets, assumption of liabilities for group benefit, dividend payments supporting deal execution, and steps taken as part of broader restructurings.

Why TAQA matters for directors of large corporates

In reality, most major corporates are unlikely to suffer an insolvency event. However, that is not the real point here. Many large corporations have extensive subsidiary networks, including dormant entities, special‑purpose subsidiaries and newly acquired businesses. It is entirely foreseeable that one of these smaller, sometimes insufficiently monitored, subsidiaries could slip into financial difficulty long before the parent company ever would, and this is precisely where the risk emerges.

If you are a director of a major corporate and you also act as a nominee director on its subsidiaries, following the TAQA ruling, you must ensure particular care is taken and the subsidiary in question is the focus of your decision-making.

Nominee directors often find themselves slightly detached from day‑to‑day operations of smaller subsidiaries, and therefore easily slip into the mindset of assuming that any value transfers within the group are innocuous because it benefits the parent company or is part of a wider deal – post TAQA, that mindset is no longer safe.

The danger zone for nominee directors

The TAQA judgment provides a clear warning: directors cannot take their eyes off the ball simply because an entity is small or non‑core. If a subsidiary becomes insolvent, office‑holders (and the court, should matters proceed to litigation) will examine historic transactions at an undervalue with renewed strictness in light of TAQA.

If one discrete step left the subsidiary worse off, the fact that it advanced a broader corporate strategy is no longer a viable defence, and directors who authorised any such step will face far greater scrutiny of their decision‑making.

A renewed governance focus

For large corporates with extensive group structures, TAQA should prompt a renewed governance focus. The safest path should involve:

documenting the entity‑specific benefit of each step and maintaining careful records evidencing independent judgment at subsidiary level
ensuring nominee directors genuinely understand what is happening within their subsidiaries (and that it is happening for the benefit of the subsidiary)
avoiding reliance on implicit group benefit or assumed alignment of interests.

The key takeaway is that TAQA reinforces that each company is its own legal person and must be treated as such by directors – especially when value flows across the corporate structure.

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-disputes-risk-and-compliance/ddcc-dispute-resolution-and-litigation

]]>

Competition litigation funding: More, but more complicated

Thu, 16 Apr 2026 00:00:00 +0100

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:dccb4de4-4407-4eb2-8a37-e7630eaf9182/as/ART-US00099.avif?assetname=ART-US00099.jpg

Article | 1 min read

Competition litigation funding: More, but more complicated

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Recent UK court rulings and government reforms have brought major changes to litigation funding, addressing challenges after the July 2023 PACCAR judgment.

Published: 16 April 2026
Authors: Kiran Desai

/content/dam/shoosmiths/lawyers/kiran-desai/profile

false

style

single-column-text

The PACCAR judgment was a significant issue for funders, with one funder identifying that for arbitration matters the company ‘no longer [names] London as an arbitral seat’, with alternatives apparently being Singapore, Paris and New York. However, pragmatic judicial decisions seem to have calmed the waters and the dominant response by funders to the government’s announcement in December 2025 was one of relief.

For funders, the proposed legislative changes have not only restored confidence but also opened new avenues for growth and investment. Statutory clarity offers increased security for those underwriting litigation, making the UK market particularly attractive for institutional capital. This development is likely to encourage funders to expand their portfolios and consider new strategies within the sector.

One legal market commentary identifies that ‘the "Market Heating" effect is immediate. The 2026 legislation doesn't just return the market to 2023; it supercharges it. By providing statutory clarity, the government has essentially de-risked the asset class for institutional investors and pension funds’.

For the full description of these and other judicial developments affecting litigation funding, a description of the government’s announcement, and a commentary on the current and prospective situation for litigation funders, see the article published in the latest edition of European Competition and Regulatory Review, published by Lexxion.

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-disputes-risk-and-compliance/ddcc-dispute-resolution-and-litigation

]]>

Supreme Court confirms no limitation period for unfair prejudice petitions

Fri, 10 Apr 2026 00:00:00 +0100

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:a9508723-118b-4b46-9180-18dd35ffed30/as/ART-u2114277519_Create_images_that_reflect_a_global_outlook._They_fc8a6def-de81-4eff-953d-3ceb1c1234df_3.avif?assetname=ART-u2114277519_Create_images_that_reflect_a_global_outlook._They_fc8a6def-de81-4eff-953d-3ceb1c1234df_3.jpg

Article | 6 min read

Supreme Court: No time limit for unfair prejudice claims

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

The Supreme Court has confirmed that no statutory limitation period applies to unfair prejudice petitions under section 994 of the Companies Act 2006. Delay in presenting a petition will however remain a significant factor in the exercise of the Court’s discretion as to whether to grant relief.

Published: 10 April 2026
Authors: Hannah Field

/content/dam/shoosmiths/lawyers/hannah-field/profile

/content/dam/shoosmiths/lawyers/fiona-thornton/profile

false

/content/dam/shoosmiths/lawyers/claire-kershaw/profile

false

true

style

single-column-text

In THG Plc v Zedra Trust Company (Jersey) Limited, the Court (by a 4-1 majority) held that unfair prejudice petitions are not subject to the limitation periods contained in the Limitation Act 1980. The decision overturns the Court of Appeal’s 2024 ruling and reflects what had long been the received wisdom among practitioners (albeit without any earlier binding appellate authority to that effect).

The judgment is significant for shareholders, directors and companies alike. It confirms that historic conduct may still be challenged through an unfair prejudice petition, even where the events in question took place many years earlier.

The decision also has potential implications for the limitation analysis in other types of claim similarly brought pursuant to a statute, but where the statute itself does not create or impose an obligation which the claimant is seeking to enforce.

The background

The appeal arose from an unfair prejudice petition presented in 2019 by a minority shareholder. The petitioner later sought to amend its case to include allegations arising out of a 2016 bonus share issue from which it said it had been wrongly excluded.

The respondent company argued that the new complaint was time-barred under the Limitation Act 1980, either:

as an “action upon a speciality” subject to a 12-year limitation period under section 8; or
as an “action to recover a sum recoverable by virtue of an enactment” subject to a six-year limitation period under section 9.

At first instance the High Court rejected both arguments, relying on the 2022 Court of Appeal decision in Cherry Hill Skip Hire (where the point was common ground and so not fully argued). The Court of Appeal subsequently reversed the High Court decision, finding that petitions fall in principle within both sections 8 and 9 of the 1980 Act, so are subject to a limitation period of 12 years unless a monetary order is sought in which case the six-year period applies.

The Supreme Court has now overturned the Court of Appeal’s decision, finding that neither section 8 nor 9 of the 1980 Act apply.

Why the Limitation Act does not apply

Section 8 - “Action upon a speciality”

The majority held that an action upon a speciality is essentially an action to enforce an obligation created by a deed or statute.

Sections 994 to 996 of the Companies Act 2006 do not impose obligations on directors or shareholders. Instead, they give the court the power to grant relief where a company’s affairs have been conducted in a way that is unfairly prejudicial to the interests of its shareholders.

The statute creates a remedy rather than an enforceable obligation; therefore, an unfair prejudice petition is not an action upon a speciality. The same reasoning may arguably apply to claims brought pursuant to certain other statutes.

Section 9 - Recovery of a statutory sum

The Court also rejected the argument that a six-year limitation period should apply where the petitioner seeks monetary relief.

Under section 996, the court has very broad discretion to grant “such order as it thinks fit” to remedy unfair prejudice. This could include ordering the purchase of shares, regulating the company’s affairs or requiring the payment of compensation.

Even where monetary relief is sought, any obligation to pay arises only because of the court’s discretionary order, not directly by virtue of the statute itself. For that reason, an unfair prejudice petition is not an action to recover a sum “recoverable by virtue of an enactment”.

The majority also considered it unprincipled and impracticable for limitation to depend on the form of relief ultimately granted.

Delay still matters

The absence of a statutory limitation period does not mean claims can be brought without consequence after long periods of inactivity.

The Supreme Court emphasised that delay remains highly relevant. Courts can take into account factors such as:

whether the petitioner knew of the conduct complained of but delayed in acting;
whether the delay has caused evidential, commercial or third-party prejudice; and
whether granting relief would be inequitable in the circumstances.

In other words, while there is no statutory time bar, delay remains a powerful discretionary factor.

Why the decision matters

The ruling reinforces the unique nature of unfair prejudice petitions, which are designed to provide flexible relief in shareholder disputes rather than enforce a defined statutory right.

For companies and majority shareholders, the practical message is clear: historic acts can still be scrutinised, particularly where they form part of a wider pattern of conduct, although any delay will still be relevant to the Court’s decision of whether (and if so how) to grant relief.

At the same time, the Supreme Court noted that the Law Commission previously recommended introducing a limitation period, suggesting a three-year period running from when the claimant knew (or ought to have known) of the relevant conduct. Whether Parliament revisits that recommendation remains to be seen.

Broader practical implications

Unfair prejudice petitions remain one of the most powerful tools available to minority shareholders. Section 994 of the Companies Act 2006 is not intended to draw hard and fast lines, and the range of conduct which can amount to unfair prejudice, if the circumstances warrant it, is extremely broad.

Disputes are often fact intensive and years of allegations and parallel accusations of wrongdoing or fraud can lead to costly and protracted trials. The most common remedy is an order requiring the majority to purchase the petitioner’s shares at a court-determined price, which can carry significant financial consequences.

For directors, the risks are particularly acute. Directors can face personal liability as, with very limited exceptions, directors are not permitted to use company funds or assets to defend an unfair prejudice petition. In fact, doing so could in itself constitute unfair prejudice.

Failing to act swiftly on being served with a petition risks default judgment being entered, while the financial and reputational impact of an active claim can harm a company’s governance and relationships with stakeholders. To safeguard your business and reputation, ensure unfair prejudice claims are a risk you remain cognisant of in day-to-day decision making and governance.

If you are concerned about potential claims or are facing allegations of unfair prejudice, seeking expert legal advice is essential. At Shoosmiths, we work proactively with businesses to help them navigate shareholder disputes, clarify their obligations, and mitigate risks. For tailored guidance on unfair prejudice claims or to discuss your specific circumstances, please contact our Disputes team at Shoosmiths.

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-disputes-risk-and-compliance/ddcc-dispute-resolution-and-litigation

]]>

From Kitchen to Cask: Why TV chef James Martin’s trade mark bid fell flat

Mon, 30 Mar 2026 00:00:00 +0100

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:dee78961-8713-4ab5-9b02-9ecec5ed3efa/as/ART-u2114277519_Interesting_angles_and_close-up_views_enable_the__9e637f8d-d182-44d3-80f9-adb685ea77c6_0.avif?assetname=ART-u2114277519_Interesting_angles_and_close-up_views_enable_the__9e637f8d-d182-44d3-80f9-adb685ea77c6_0.jpg

Brand interchange | 4 min read

Why James Martin’s trade mark bid failed

A look at the TV chef’s attempt to protect the ‘From Kitchen to Cask’ brand, and the key legal reasons his trade mark application was rejected.

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Decision: Macdonald & Muir Limited v James Martin (Series of Two) (BL O/1200/25) Court: UK Intellectual Property Office (Trade marks)
Hearing officer: L. Nicholas
Decision link: https://www.ipo.gov.uk/t-challenge-decision-results/o120025.pdf
Key issues: Identity of marks, likelihood of confusion, distinctiveness of earlier mark, evidence of genuine use and specification clarity

Contested marks

JAMES MARTIN

JAMES MARTIN'S

(SERIES OF 2)

Earlier marks

(The first earlier registration)

JAMES MARTIN's
(The second earlier registration)

JAMES MARTIN

Published: 30 March 2026
Authors: Anastasia Fowle

/content/dam/shoosmiths/lawyers/anastasia-fowle/profile

false

style

single-column-text

Introduction

Celebrity chef James Martin tried to expand his brand from TV and cookbooks into the drinks market. To do that, he applied to trade mark the names “James Martin” and “James Martin’s” for a range of alcoholic and non alcoholic beverages. This made commercial sense given his existing wine ventures, but it placed him directly against an established whisky brand that had been using “James Martin’s” for well over a century.

That brand belongs to Macdonald & Muir, the company behind Glenmorangie and Ardbeg. Not only does their “James Martin’s” whisky date back to the 19th century, but they also hold registered trade mark rights dating from 1998 and were able to show that the whisky is still very much in ongoing commercial use.

Why was the application opposed?

Macdonald & Muir argued that:

They already owned the mark “James Martin’s” for whisky.
The chef’s proposed marks were identical to theirs.
Allowing his trade marks would confuse consumers, especially because both parties operate in the drinks sector.
Their brand still has a real presence in the market which was shown through detailed bottling records, invoices and export evidence confirming more than 11,000 bottles produced and sold between 2017 and 2022.

In short, they showed that this wasn’t just a “historic” brand but an actively used one.

What the IPO decided

After a full hearing in January 2025, the UK IPO ruled in favour of Macdonald & Muir.

The decision came down to a few key findings:

1. the marks were identical (word for word).

2. the earlier whisky brand had inherent distinctiveness, strengthened by its long commercial history.

3. even though James Martin had applied for a wider range of drinks, many were similar enough to whisky to matter.

4. because the marks were identical, the likelihood of confusion was high and consumers could very easily assume that James Martin’s drinks came from or were related to the whisky brand.

As a result, the IPO refused the chef’s application and ordered him to pay £1,900 towards the opponent’s legal costs.

Why heritage matters in the drinks industry

One important element of the ruling was the strength of Macdonald & Muir’s legacy brand. Although whisky production often involves small batch releases and long ageing periods, the IPO accepted that lower volumes do not undermine continued commercial activity. What matters is whether the brand remains present in the market and recognisable to consumers.

This case illustrates a broader point: heritage spirits brands carry significant legal protection, even when production levels are modest.

Why broad specifications can backfire

In this case, the applicant’s specification covered a very wide range of beverages which included alcoholic, non alcoholic, low alcohol, spirits, beers, wines, and cocktails. Because the list was so broad, the Hearing Officer was required to:

compare the applicant’s long list of goods against the opponent’s single item (“whisky”);
find similarity even where it was low, simply because the goods fell within the wider drinks market.
conclude that identical marks even low similarity was enough to refuse registration.

A wide, catch all specification increases the chance of overlap with earlier rights which includes overlap that may only be “low similarity” but still sufficient to cause refusal. Had the specification been narrower, more commercially focused, and properly delimited, the conflict with the opponent’s whisky mark might have been reduced or avoided.

How this compares with Jo Malone and Elizabeth Emanuel

The outcome in James Martin’s case sits interestingly beside disputes involving designers such as Jo Malone and Elizabeth Emanuel, both of which turn on the commercialisation of personal names.

In those cases, the courts looked at what happens when a brand that uses someone’s name has been sold or transferred, and whether the original creator is still allowed to use their own name without infringing the brand they once helped to build.

Jo Malone was prevented from using “Jo Malone” for new fragrance ventures after selling her business to Estée Lauder, because the name had become a trade mark owned by the purchaser. This issue has raised its head again in only the last few days as it appears that Estee Lauder has issued proceedings against Ms Malone for use of her name;
Elizabeth Emanuel, the designer behind Princess Diana’s wedding dress, similarly lost the ability to trade under “Elizabeth Emanuel” once the brand and goodwill were sold.

These cases highlight a principle: personal names can become commercial assets entirely separate from the individual.

By contrast, James Martin’s dispute arose at the registration stage, not following a sale of goodwill. Jo Malone and Emanuel often appear as defences to infringement raised by individuals seeking to justify continued use of their own name. They are not typically deployed as a basis for obtaining a new registration.

Here, the obstacle was more fundamental: Macdonald & Muir already owned “James Martin’s” as a longstanding whisky brand. The chef’s mark was legally identical to an earlier right, leaving no room for successful registration.

Key lessons for brand owners

1. A famous name isn’t a free pass

Even celebrities cannot override pre-existing rights. Earlier trade marks in particular historic ones will always carry significant weight.

2. Evidence is everything

Invoices, bottling records, export logs and photographs were central to Macdonald & Muir’s success. In trade mark disputes, good evidence wins cases.

3. Confusion is assessed holistically

Where marks are identical, the threshold for similarity of goods is lower. Distinctiveness and legacy strengthen the opponent’s position.

4. Draft carefully and completely

Missing schedules or vague specifications can undermine an otherwise strong application.

Conclusion

James Martin’s failed bid to trade mark his name serves as a clear reminder that heritage brands carry serious legal weight, especially in sectors built on long standing identity and consumer recognition.

For any business expanding into a new market:

carry out thorough clearance searches,
gather strong evidence of use where relevant, and
ensure trade mark specifications are drafted with absolute clarity.

In industries driven by history and reputation, a brand’s past isn’t just part of its story, it’s a major legal advantage.

style

single-column-text

Latest perspectives from brand interchange

Read the latest perspectives from Shoosmiths' brand lawyers

Explore all perspectives

/content/shoosmiths/perspectives

/content/cq:tags/shoosmiths/topics/brand-interchange

]]>

Clarks v Trek: The co‑existence agreement that went off‑road

Mon, 30 Mar 2026 00:00:00 +0100

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:63e5c79e-b820-465e-9ff6-a425ee0a11a0/as/ART-u2114277519_create_high_end_photography_showing_cinematic_aer_89f71a3e-f88e-4dfb-9e64-65301c66e3dd_1.avif?assetname=ART-u2114277519_create_high_end_photography_showing_cinematic_aer_89f71a3e-f88e-4dfb-9e64-65301c66e3dd_1.jpg

Brand interchange | 4 min read

Clarks v Trek: The co‑existence agreement that went off‑road

The High Court has considered the scope & effect of a long standing trade mark co-existence agreement

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Decision: C. & J. Clark International Ltd v Trek Bicycle Corp[2026] EWHC 659 (ChD) Court: High Court, Intellectual Property List
Judge: Ian Karet OBE
Decision: Here
Issue: Registered Trade Mark Co-Existence Agreements

Published: 13 April 2026
Authors: Eloise Ryan

/content/dam/shoosmiths/lawyers/eloise-ryan/profile

false

style

single-column-text

Introduction

In C. & J. Clark International Ltd v Trek Bicycle Corp, the High Court has considered the scope and effect of a long‑standing trade mark co-existence agreement and its interaction with claims for trade mark infringement, invalidity and non‑use, in the context of the parties’ evolving commercial activities in footwear and sports goods. The case provides detailed guidance on contractual construction in trade mark co-existence agreements.

Background

Clarks is a well‑known UK footwear manufacturer, having sold shoes under its TREK mark, including DESERT TREK, for over fifty years. Trek is best known for bicycles and cycling equipment, having used its TREK mark in relation to cycling clothing for decades.

The dispute centred on a global co-existence agreement entered into in 2001. The agreement was intended to preserve the status quo between the parties, its key features including:

Trek was permitted to use TREK for cycling‑related clothing, “but not including footwear” (clause 6 of the agreement)
Clarks was permitted to use and register TREK for footwear, clothing and headgear, provided it did not use the mark on goods” adapted for wear when cycling, commemorating cycling events or participating in sports or fitness’” (clause 3 of the agreement)
each party agreed that the agreement should “bind and shall inure to the benefit of the respective affiliates, licencees, assigns and successors in business of the parties hereto” (clause 14)
each party agreed not to challenge the other’s registrations within the agreed fields (clauses 1, 2, 4 and 5 of the agreement)
the agreement was worldwide, unlimited in time, and binding on affiliates and licensees (clauses 11 and 14 of the agreement)

Issues

Since the agreement was concluded, each party had gradually encroached into the other’s field. By trial, the court identified the following principal issues to be determined:

whether Trek breached clause 6 of the agreement and infringed Clarks’ registered trade marks under sections 10(1), 10(2) and 10(3) Trade Marks Act (“TMA”) by selling TREK‑branded cycling shoes and insoles
whether Clarks breached clause 3 of the agreement by selling TREK‑branded footwear adapted for sports or fitness
whether Clarks consented to or waived its rights in relation to Trek’s conduct in discussions between the parties in 2018
whether Trek was in breach of clause 6 of the agreement as a result of Lidl’s sale of LIDL-TREK shoes
whether Trek’s UK trade marks covering footwear were invalid under sections 47 TMA
whether Clarks’ TREK registrations should be partially revoked for non‑use under section 46 TMA

Decision

Applying Wood v Capita [2017] UKSC 24 and Sara & Hossein Holdings v Blacks Outdoor [2023] UKSC 2, the judge emphasised that co-existence agreements must be interpreted objectively and as a whole. The purpose of the agreement was to preserve a clear commercial divide between the parties’ footwear and cycling businesses. Addressing each of the issues above:

the court rejected Trek’s argument that the phrase “but not including footwear” did not prohibit sales of shoes. “Footwear” was given its ordinary meaning, covering shoes and boots, including specialist cycling shoes. The agreement did not distinguish between different categories of shoes. It followed that the court held that Trek infringed Clarks’ registered TREK marks by selling cycling shoes under section 10(1) and 10(2) TMA. On section 10(3), although Clarks’ marks were found to have a reputation, the court held there was no unfair advantage, dilution or tarnishment. Trek was developing its own cycling brand rather than riding on Clarks’ coat‑tails
the court held that the phrase “adapted for wear when cycling, commemorating cycling events or participating in sports or fitness” in clause 3 of the agreement meant “suitable for”, without requiring specialist technical adaptations. Whether footwear fell within that description depended on factors such as marketing, design briefs, materials, appearance and consumer messaging
as to consent or waiver, Trek argued that a 2018 meeting amounted to Clarks consenting to Trek’s use of TREK on cycling shoes. The court rejected this: at most Clarks’ representative had suggested that the issue “should not be a problem”, which fell short of clear consent, particularly in light of the contract’s formality and global scope
with regard to Lidl’s sale of “Lidl‑Trek” trainers and slippers (in connection with the professional cycling team it sponsored with Trek), although Trek argued these were third‑party acts, the court held that Lidl was a licensee for the purposes of the agreement. As clause 14 of the agreement rendered Trek responsible for licensees’ acts, sales of Lidl‑Trek footwear therefore breached the agreement
turning to Trek’s allegation that Clarks breached the agreement by expanding the TREK brand into sports and fitness footwear, while the court conducted that legacy outdoor shoes such as Wave Trek were permitted, several newer “ATL TREK” models were found to be adapted for sports or fitness and therefore in breach. The court placed significant weight on Clarks’ internal product documents, marketing language and categorisation of shoes as “sports” or “sport active”
on validity and revocation of the trade marks, Trek’s counterclaim for partial revocation of Clarks’ TREK marks for non‑use failed. Clarks’ use on a wide range of footwear, including sports and fitness‑suitable shoes, was sufficient. Several Trek registrations covering footwear were declared invalid under section 47 TMA due to conflict with Clarks’ earlier marks. However, bad faith allegations against Trek were rejected. Filing applications covering footwear was not inconsistent with the agreement and did not fall within recognised categories of bad faith
Defences of consent, honest concurrent use and statutory acquiescence failed

Conclusion

Overall, the court concluded that:

Trek infringed Clarks’ trade marks under sections 10(1) and 10(2) TMA by selling TREK‑branded cycling shoes and insoles, but not section 10(3) as there was no unfair advantage, dilution or tarnishment
Trek breached the co-existence agreement both by selling TREK‑branded cycling shoes and through Lidl’s sales of team‑branded footwear
Clarks also breached the agreement by selling certain TREK shoes adapted for sports or fitness
Trek’s UK registrations covering footwear were invalid, while Clarks’ trade marks remained intact

Comment

The judgment provides three practical takeaways for those drafting co‑existence agreements:

define your “no‑go zone” precisely. “Sports,” “fitness,” and “footwear” sound obvious until the market evolves and athleisure makes everything “multi‑purpose.”
put variations in writing. If your position is “we agreed it over coffee in 2018,” expect the court to ask for the document trail.
don’t forget about licensees. If the agreement binds affiliates/licensees, your partner’s promotions can become your problem.

style

single-column-text

Latest perspectives from brand interchange

Read the latest perspectives from Shoosmiths' brand lawyers

Explore all perspectives

/content/shoosmiths/perspectives

/content/cq:tags/shoosmiths/topics/brand-interchange

]]>

Why fraud is reshaping resilience in financial services

Fri, 27 Mar 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:05f18c1a-e0e9-432e-842a-7ee8c01e0275/as/fintech.avif?assetname=fintech.jpg

Article | 4 min read

Why fraud is reshaping resilience in financial services

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Fraud has become the defining operational and regulatory risk for financial services. With authorised push payment scams surging, mandatory reimbursement tightening pressure, and Consumer Duty raising expectations, firms face a pivotal moment. Those who invest early in smarter monitoring, clearer communication and faster interventions won’t just reduce losses – they’ll strengthen trust.

Published: 27 March 2026
Authors: Daren Allen

/content/dam/shoosmiths/lawyers/daren-allen/profile

false

style

single-column-text

According to our annual Litigation Report, general counsel (GC) in financial services faced almost twice as many fraud related disputes (47%) as any other sector in the past year. And the risk isn’t easing. When GCs look three years ahead, fraud tops the list of expected disputes (63%), eclipsing even major concerns like tax and IP. It’s a clear warning: FS businesses are entering an era where fraud isn’t a peripheral threat. Instead, it’s the central battleground shaping regulatory scrutiny, operational resilience and customer trust.

Operational risk redefined

But what is driving the focus on fraud? Authorised push payment (APP) fraud now accounts for hundreds of millions in losses each year, with banks absorbing most of the cost upfront under the mandatory reimbursement regime. These scams don’t rely on complex system breaches. They rely on people. Criminals manipulate customers into sending money themselves, often convinced they’re responding to a trusted request or chasing a legitimate investment. The surge in cases has pushed APP fraud into the spotlight, drawing scrutiny from regulators, the media and the public. It is now firmly recognised as a core operational and regulatory risk for banks and payment providers, not just a criminal issue.

The stakes have grown even higher with the introduction of the mandatory reimbursement scheme. Banks must now repay most APP fraud victims at speed, with only narrow exceptions such as clear cases of gross negligence. The financial impact is significant, with losses mounting into the hundreds of millions. The operational pressure is equally intense: firms must assess and settle claims within extremely tight timelines, with a target for most cases to be resolved within five business days. This is a challenge that hits smaller institutions hardest as they race to match the capabilities of larger banks with established fraud infrastructure. The risk of system abuse adds another layer of complexity.

Regulation steps up

Perhaps unsurprisingly, regulators have responded decisively. The Financial Conduct Authority’s 2025-2030 strategy has made APP fraud a priority within its broader approach to financial crime, emphasising the need for robust systems, proactive monitoring and stronger customer protections. Its Consumer Duty raises the bar even further for how firms respond. It expects proactive protection – spotting unusual activity early, stepping in fast, and supporting customers with clarity and empathy throughout the process. It pushes firms to move beyond quick payment processing and towards behaviour that genuinely prevents harm: asking questions, offering warnings, and helping the moment fraud is suspected. In short, Consumer Duty makes active monitoring, timely intervention and meaningful support a regulatory expectation, not a nice to have.

A strategic opportunity

The message for financial services is clear: the firms that will thrive in this new landscape are the ones that treat fraud as a frontline strategic risk, not just a cost of doing business. APP fraud is exposing weaknesses in systems, culture and customer journeys, and regulators are watching. But this moment also creates opportunity. Firms that invest early in smarter monitoring, clearer customer communication and more joined up operational processes won’t just meet regulatory expectations, they’ll rebuild trust at a time when it’s under strain.

In an era where fraud is accelerating faster than defences, the winners will be those bold enough to rethink their approach now, before the next wave hits.

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-disputes-risk-and-compliance/ddcc-dispute-resolution-and-litigation

]]>

Lease & desist: Landlords in the dock for counterfeit stock

Mon, 16 Mar 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:34019ad2-7239-498f-b965-0c3beeead691/as/ART-US00073.avif?assetname=ART-US00073.jpg

Brand interchange | 4 min read

Lease & desist: Landlords in the dock for counterfeit stock

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

While the shift towards online selling is undeniable, it is important to recognise that traditional brick-and-mortar shops continue to play a valuable role in retail. Ten years on we look at the important decision in Tommy Hilfiger Licensing LLC and Others v Delta Center a.s. (C 494/15) and its implications for landlords of tenants who infringe intellectual property.

Published: 16 March 2026
Authors: Eloise Di Pasqua & Shojibur Rahman

/content/dam/shoosmiths/lawyers/eloise-di-pasqua/profile

/content/dam/shoosmiths/lawyers/shojibur-rahman/profile

false

style

single-column-text

Decision: Tommy Hilfiger Licensing LLC and Others v Delta Center a.s. (C 494/15)
Court: Court of Justice of the European Union
Judgment Date: 7 July 2016
Decision: Here
Key Issues: Intermediary liability, trade mark enforcement, counterfeit goods, scope of injunctions, responsibility of marketplace operators

Background

The dispute focused on the Pražská tržnice market in Prague, where independent traders were repeatedly caught selling counterfeit branded goods. The landlord, Delta Center, managed the market by leasing stall spaces, but did not participate directly in the sale of any goods.

Luxury brands such as Tommy Hilfiger, Lacoste, and Burberry made the bold decision to target the landlord of the sprawling Prague market. Their intent was to challenge whether a landlord facilitating trading could be compelled to help prevent ongoing trade mark violations. In doing so, they challenged the status quo of intellectual property enforcement, raising a question that remains highly relevant: can landlords be held responsible when their premises are used for the sale of counterfeit goods?

The issue ultimately came before the Court of Justice of the European Union, which was asked to decide if a landlord of a physical market could be subject to injunctions requiring them to help prevent trade mark infringement by their tenants. In particular, could a landlord providing the infrastructure for infringement be classified as an ‘intermediary’ under EU intellectual property law?

Why was the landlord challenged?

The brand owners chose to focus on the landlord, not the individual traders, for several reasons:

counterfeit goods were being sold repeatedly within the marketplace;
the landlord was providing the commercial infrastructure that enabled these sales;
enforcement against individual traders was largely ineffective, as sellers could easily vanish or return under new identities.

The argument was that landlords were in a unique position to implement reasonable, proportionate safeguards, such as enhanced contractual controls or oversight, to curb the sale of counterfeit goods. The crucial legal question was whether a landlord, even without directly selling infringing products, could be required to act when their marketplace was repeatedly used for trade mark infringement.

Decision

The Court of Justice delivered a landmark ruling: operators of physical marketplaces can indeed be treated as intermediaries if their facilities are used by others to infringe intellectual property rights. This decision established that the same enforcement principles applying to online platforms also apply to traditional markets.

The ruling was based on several key findings:

leasing trading space is a commercial service enabling sales to the public;
intermediaries may be subject to injunctions requiring them to help prevent infringements;
physical and online marketplaces are treated alike for enforcement purposes;
crucially, the Court stressed that injunctions must be proportionate, and landlords cannot be obliged to constantly monitor all traders.

Commentary

This judgment aligned physical marketplace landlords with the established doctrine of intermediary liability, previously focused on online platforms. By confirming landlords as intermediaries, the Court expanded the options for brand owners seeking effective action against persistent counterfeiting.

Landlords are required to take proportionate, reasonable steps once they become aware of infringement, striking a balance between protecting trade marks and recognising market operators’ practical limits.

For landlords and market organisers, this serves as a lasting reminder: providing commercial space is not a neutral act when it is used for illegal trade. Awareness and inaction can trigger court-ordered obligations, even if the landlord is not directly involved in selling infringing goods.

The Court’s decision confirmed that enforcement can focus on the landlord who enables infringement, broadening the toolkit for trade mark owners. This significantly strengthened practical enforcement options for trade mark owners.

Key lessons for landlords

This ten-year-old ruling still sends a clear message to businesses providing commercial infrastructure:

you may be required to act even if you are not the infringer. Leasing stalls to traders who use them for counterfeit sales can trigger court-ordered obligations;
passivity is risky. Repeated problems demand reasonable, proportionate steps, such as improved trader vetting or clearer contracts;
physical markets are aligned with online platforms so that the same principles apply to both;
landlords are not automatically liable for damages, but they cannot remain passive when their premises are used for illegal trade.

Key lessons for brand owners

intermediaries are integral to enforcement. Platforms and market operators may face obligations when their services enable infringement;
physical and digital markets are treated alike. The same enforcement principles apply in both environments;
injunctions are effective tools and the courts can require intermediaries to take proportionate preventative steps;
targeting landlords can be more efficient. Acting against the landlord is often more practical than pursuing individual sellers.

Conclusion

Ten years on, Tommy Hilfiger Licensing LLC and Others v Delta Center a.s. stands as a reminder: landlords cannot avoid responsibility merely because they do not personally sell counterfeit goods. If their services enable infringement, courts can require them to act.

For brand owners, this strengthened enforcement tools. For operators, it highlights that providing commercial space carries legal responsibilities. As the distinction between online and physical marketplaces continues to blur, the law treats them consistently - a lesson that remains as relevant as ever.

style

single-column-text

Latest perspectives from brand interchange

Read the latest perspectives from Shoosmiths' brand lawyers

Explore all perspectives

/content/shoosmiths/perspectives

/content/cq:tags/shoosmiths/topics/brand-interchange

]]>

From COVID to conflict: The evolving face of force majeure in 2026

Mon, 16 Mar 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:71893375-48b7-4947-baa7-41f751ce0af3/as/ART-u2114277519_Close-up_product_shoot_of_deep_grey_heavy_bolt_co_b5572e30-be3f-411b-be68-6daca87f275e_3.avif?assetname=ART-u2114277519_Close-up_product_shoot_of_deep_grey_heavy_bolt_co_b5572e30-be3f-411b-be68-6daca87f275e_3.jpg

Article | 5 min read

From COVID to conflict

The evolving face of force majeure in 2026

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Disruption in the Middle East is exposing how well (or poorly) force majeure clauses have been drafted. Modern supply chains demand precision: clear thresholds, workable alternatives, and evidence backed mitigation. Businesses that act now, refreshing clauses and tightening operational playbooks, will stay resilient while others stall. In this article we outline what businesses should do next.

Published: 16 March 2026
Authors: Michelle Craven-Faulkner

/content/dam/shoosmiths/lawyers/michelle-craven-faulkner/profile

/content/dam/shoosmiths/lawyers/ben-gardner/profile

false

/content/dam/shoosmiths/lawyers/jonathan-smart/profile

false

style

single-column-text

Changing pressures, unchanged principles

Force majeure (FM) is not a one‑size‑fits‑all safety valve. Whether disruption from the current conflict in the Middle East (including spill‑over effects such as shipping diversions, port closures, sanctions/export controls, insurance limitations and energy price spikes) excuses non‑performance turns on the exact drafting, causation, mitigation, notice, and the relief the clause actually grants. These are the same fundamentals we highlighted during and after COVID, as well as the Ukraine conflict, in our podcast series and subsequent commentary. However, it should be noted that:

drafting has moved on since COVID. Parties now expect clearer event lists, calibrated thresholds (‘prevent’, ‘hinder’ or ‘delay’), explicit mitigation duties, suspension vs. termination mechanics, and carve‑outs (e.g., price changes). Our ‘Journey Through a Contract’ and 2024 supply‑chain series track this shift and show why FM must sit within a wider disruption and resilience toolkit, not act as a stand‑alone remedy; and
case law has evolved. In 2024, the Supreme Court in RTI v MUR Shipping clarified how FM interacts with reasonable work‑arounds, reinforcing the need to draft obligations to ‘overcome’ impediments (or expressly disclaim that).

1) What the present conflict changes—and what it doesn’t

What it changes:

risk profile and frequency of disruptions: route closures/diversions, inability to call at certain ports, crew safety constraints, cargo insurance restrictions, and delay costs are more common and less predictable than in steady‑state trading. Our 2022 FM specials anticipated this multi‑factor volatility when we discussed COVID/Brexit/Ukraine as overlapping shocks
regulatory overlay: sanctions/export controls and reputational restrictions may intervene even where physical performance remains technically possible; contracts now more often include sanctions and export‑compliance FM‑style triggers and termination rights – but we have to recognise, in the current situation at least, that sanctions can be relaxed and or amended with very little notice.
What it doesn’t change:
FM remains a contractual (not statutory) tool under English law; relief lives or dies by the clause. Drafting is therefore key
after RTI v MUR, any ‘we can’t perform’ argument must be tested against reasonable alternatives and the exact drafting on mitigation/overcoming impediments.

2) Immediate actions for live contracts which have the potential to be impacted by the current Middle East situation (next 7–14 days)

Locate and map all FM (and related) provisions across your critical supplier and customer contracts: FM clause; change in law; hardship/price review; logistics and routing flexibility; sanctions/export clauses; step‑in; termination; business continuity. Create a tracker capturing triggering events, identifying threshold verbs (‘prevent’/‘hinder’/‘delay’), notice requirements, relief, termination long‑stop, and mitigation duty.

Gather contemporaneous evidence that links the conflict to the specific failure or delay (carrier advisories, port notices, insurer correspondence). In most clauses there will be a requirement to demonstrate that causal link.

Serve contract‑compliant notices (compliant in terms of form, recipient, timing, content). Late or informal notices are a common reason FM, and many other contractual claims, fail.

Document all reasonable work‑arounds (re‑routing, alternative ports, modal shifts, substitute suppliers) and who pays, conscious of the RTI v MUR approach to alternatives.

Engage counterparties as soon as possible to discuss: (a) temporary adjustments (lead times, INCOTERMS, split deliveries); (b) cost‑sharing mechanisms; (c) short‑term price review; (d) interim inventory buffers. Collaboration is key.

3) Drafting a playbook for new or renegotiated contracts (next 30–60 days)

A. Define events precisely—and tailor to the corridor

Include conflict‑specific triggers where appropriate: war/armed conflict in named regions, closure of designated sea lanes/ports, maritime security advisories at specified levels, sanctions/export‑control changes.

B. Choose the right threshold verb

‘Prevent’ (high threshold) vs ‘hinder’/‘delay’ (lower). Align with risk appetite and industry norms; ensure consistency with service levels and LDs.

C. Hard‑wire mitigation and alternatives

Define ‘reasonable endeavours’ in context (e.g., re‑route via specified ports if commercially reasonable). Clarify who bears incremental cost and how additional time is measured.

D. Sanctions and compliance co‑ordination

Add a sanctions FM limb (suspension/termination where performance would breach sanctions/export rules), with notification and co‑operation mechanics.

E. Relief mechanics and long‑stops

Provide clear suspension, time relief, and a termination long‑stop after a defined continuous FM period; consider partial FM for divisible obligations; keep price review/hardship separate from FM.

F. Post FM

Ensure drafting clearly specifies what should happen when the FM has ceased to impact the contract. Consider whether it is reasonable and or achievable to recommence operations immediately and in full. Is a lead in period required to kick start operations? If the FM ceases to apply to one party but not the other what should the position be?

G. Carve‑outs

Exclude payment obligations and pure cost increases from FM unless agreed; handle margin pressure via indexation, surcharges or hardship clauses. Suspension and waiver of performance regimes will also be key.

4) Commercial levers beyond FM (consider using these first)

Flexible scope and routing clauses (alternative ports, trans‑shipment rights) to avoid tripping FM prematurely.

Inventory and forecasting (safety stocks, vendor managed inventory, revised minimum order quantities) with shared cost protocols temporary price review/surcharges tied to observable indices (e.g., bunker adjustment factors), combined with time relief.

Step‑in/dual sourcing where regulation allows, particularly in regulated sectors and critical infrastructure supply chains.

5) Typical scenarios and how the clause responds

Carrier avoids conflict zone → extended transit via alternative route: If FM requires ‘prevention’, a mere delay may not qualify; rely on routing flexibility or time‑relief mechanics unless the clause captures ‘delay’ or ‘hinder’.

Destination port closed / war‑risk not covered by insurer: FM more likely to bite if ‘war’, ‘blockade’, ‘port closure’, or ‘unavailability of insurance’ appear in the event list; check mitigation (alternate port delivery) and risk/cost split.

Sanctions tighten mid‑contract (supplier or end‑market): Treat under the sanctions clause first (suspension/termination); FM as back‑up. Notice and evidence remain critical.

Energy shock / rolling blackouts at supplier plant: May support FM if framed as government action/utility failure; otherwise, lean on BCP commitments and service credits/time relief.

6) Dispute posture and negotiation strategy

Identify issues as they arise: assemble factual chronologies, notices, logs of attempted alternatives, and decision notes

Collaboration frameworks: short‑term time relief + shared incremental logistics + re‑routing to avoid termination

Leverage RTI v MUR carefully: if seeking FM, show why suggested alternatives are not ‘reasonable’ under the clause; if resisting FM, evidence workable alternatives.

7) Shoosmiths references since COVID (authored or hosted)

Podcast – Journey Through a Contract (Special): Force majeure (24 Mar 2022)
Podcast – Force Majeure: What to do if the lights go out? (27 Oct 2022)
Podcast series – Supply chain & manufacturing (May 2024): Supply chain issues & disruption’
Podcast series – Supply chain & manufacturing (May 2024): Ep.3 ‘New tech solutions and digitalisation’
Article – Supreme Court sheds light on force majeure: What you need to know (June 2024)
Rail Talk with Shoosmiths – Episode 10: Support for UK Rail’s supply chain (17 Aug 2023)

8) What we recommend you do now

run a 10‑day FM & disruption audit across your top 20 supplier and customer contracts using the tracker headings in section 2.
pre‑agree routing and port flexibility (including cost‑sharing rules) for vulnerable lanes connected to the Middle East and adjacent corridors.
refresh your template suite: conflict‑specific event lists; calibrated threshold verbs; sanctions limb; explicit mitigation and cost allocation; suspension/time relief; termination long‑stops; hardship/price review separate from FM.
stand up a rapid FM notice protocol and internal playbook (legal + logistics + procurement) so notices are timely and compliant.
capture the story as you go: contemporaneous evidence of why an alternative was/was not reasonable under the contract—critical post‑RTI v MUR.

Closing

FM remains a useful tool, but in the current environment the winning strategy is contractual flexibility plus evidence‑backed mitigation, with FM as the back‑stop. If helpful, we can deliver a rapid contract audit, refresh your template clauses, and facilitate a supplier workshop to agree practical routing/price‑review protocols consistent with your risk appetite—approaches we have road‑tested with clients since COVID and shared in our podcast series above.

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-sectors/ddcc-mobility-logistics-and-manufacturing-perspectives

]]>

Geopolitics, cyber risk & the future of energy disputes

Thu, 12 Mar 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:516d4f9e-20c9-45e9-9f10-e17dd1074f3b/as/ART-u2114277519_create_high_end_photography_showing_detail_of_cle_06f14ebf-b486-4593-9b68-b1971b1b9780_0.avif?assetname=ART-u2114277519_create_high_end_photography_showing_detail_of_cle_06f14ebf-b486-4593-9b68-b1971b1b9780_0.jpg

Article | 2 min read

Geopolitics, cyber risk & the future of energy disputes

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Energy businesses are facing a sharper, faster‑moving risk landscape. Geopolitical tension, cyber disruption and supply chain fragility are no longer background noise – they’re active drivers of disputes and strategic pressure. Forward‑thinking organisations are already adapting, embedding resilience from day one and treating dispute‑readiness as commercial strength, not cost.

Published: 12 March 2026
Authors: Stuart Clubb

/content/dam/shoosmiths/lawyers/stuart-clubb/profile

false

style

single-column-text

Our annual litigation report shows just how sharply geopolitics is reshaping risk for energy businesses. In the past 12 months, 62% of GCs and senior lawyers said the rising use of sanctions and export controls has increased litigation risk for their organisations. And leaders aren’t standing still: 66% have already proactively engaged with trade and government bodies to navigate these fast‑moving pressures. It’s a sector waking up to the reality that geopolitics is no longer a backdrop — it’s a direct driver of disputes, strategy and future‑proofing.

Geopolitics reshapes risk

Global energy and infrastructure supply chains are feeling the strain of geopolitical instability. Conflict‑affected shipping lanes can halt progress overnight, particularly where projects rely on specialist transport. Offshore wind is a clear example: components are vast, vessels are limited, and rerouting around conflict zones increases cost, delay and sanctions exposure. These pressures ripple through every tier of the supply chain, heightening the risk of disputes as timelines slip and insurers tighten their stance.

Cyber risk accelerates disputes

Cyber security is no longer a peripheral concern, either – it’s becoming a defining factor in project resilience. Highly connected systems and digital‑first operations mean a single breach can shut down entire sites, trigger contractual penalties and raise regulatory scrutiny. These incidents increasingly intersect with geopolitical tensions, amplifying exposure. While cyberattacks are not yet the dominant source of disputes for the sector, their velocity and impact are growing fast. It’s something that respondents to our survey are aware of, with 73% saying they have added greater resilience to cyber security as a result of geopolitical events. Those investing early in digital risk mapping, and embedding clear responsibilities throughout the supply chain, will be better placed to prevent future escalation.

Arbitration meets reality

When cross‑border energy and infrastructure disputes do hit, arbitration still leads the way as the preferred forum for resolution. Its neutrality, confidentiality and global enforceability under the New York Convention, remain unmatched. But the idea of arbitration as the “default” is shifting. Commercial teams want outcomes that protect working relationships and minimise spend. Mediation can often deliver that faster, at lower cost, and without the adversarial tone that can derail long‑term partnerships. It’s no surprise that escalation clauses requiring negotiation and, increasingly, mediation before arbitration are becoming standard across major energy contracts.

Drafting to avoid disruption

Dispute resolution clauses can too often be an afterthought, yet they are the framework that governs risk when pressure hits. Thoughtful drafting can prevent months of delay, cost and uncertainty. Clear escalation stages, practical response timelines and obligations that reflect how parties operate can make disputes easier to navigate and faster to resolve.

Conclusion

As the energy landscape becomes more entangled with global politics and digital threat, one thing is clear: resilience can no longer be retrofitted. It must be designed in from day one. The projects that succeed will be those built on clarity – clear contracts, clear responsibilities, clear routes to resolution.

The sector is entering a new era of pressure and possibility, and the organisations that stay ahead will be the ones that treat dispute readiness as strategic strength, not defensive planning.

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-sectors/ddcc-energy-and-infrastructure-perspectives

]]>

FCA signals further change to proposed motor finance redress scheme

Thu, 5 Mar 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:7eee73ba-0960-4b28-add0-0306172dd1dd/as/ART-lucas-van-oort-gYPSX8zHVNA-unsplash.avif?assetname=ART-lucas-van-oort-gYPSX8zHVNA-unsplash.jpg

Article | 2 min read

FCA signals further change to proposed motor finance redress scheme

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

The Financial Conduct Authority (FCA) has issued a further update on its proposed motor finance redress scheme.

Published: 5 March 2026
Authors: Mahesh Vara

/content/dam/shoosmiths/lawyers/mahesh-vara/profile

/content/dam/shoosmiths/lawyers/wayne-gibbard/profile

false

/content/dam/shoosmiths/lawyers/peter-richards-gaskin/profile

/content/dam/shoosmiths/lawyers/suzanne-taylor/profile

false

style

single-column-text

The wait for the final rules continues. However, the FCA has now indicated that the final rules are expected in late March, providing some short-term clarity and welcome relief for anyone with plans over this weekend!

Notably, the FCA has acknowledged that there are likely to be changes to any proposed Scheme. This follows an exceptionally high level of engagement with the consultation process, with more than 1,000 responses submitted. Such a volume of feedback, together with significant industry concern, has clearly prompted the FCA to reconsider certain aspects of the Scheme’s design and implementation.

Among the most significant anticipated changes is the introduction of a more structured implementation timetable. The FCA has indicated that firms may be given an implementation window of approximately three months, with an extended period of up to five months for older agreements. This adjustment appears aimed at recognising the operational complexity involved and providing firms with a more realistic timeframe in which to build compliant processes and systems.

Pragmatism enters the process

There are also signs of greater pragmatism in some of the proposed operational requirements. In particular, the FCA has suggested it may remove the obligation to write to customers by recorded delivery, a requirement that attracted criticism for being costly, impractical, and disproportionate. In addition, consumers who receive a redress offer may be permitted to accept it immediately, rather than being required to wait for a final determination. This change would streamline the customer journey and could reduce administrative burden for firms.

Despite these developments, the position for lenders remains challenging. The need for detailed scenario planning, investment in operational resilience, and preparation for multiple possible outcomes continues unabated. Firms must balance the demands of readiness against the risk of committing resources to processes that may yet be amended.

Legal risks on the horizon

Concerns about the structure and legal basis of the proposed scheme also continue to exist. As a result, absent those concerns being addressed in the final rules, the prospect of judicial challenge remains a realistic possibility. While the FCA has not addressed this explicitly, it would be prudent for firms to incorporate this possible eventuality into their preparations – particularly if they wish to challenge the Scheme.

We continue to work with our clients as they continue to prepare for any Scheme. Should you wish to discuss any aspect of the proposed redress scheme further, then please contact our team.

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-sectors/ddcc-mobility-logistics-and-manufacturing-perspectives

]]>

Retail’s reality check: The Employment Rights Act 2025 (Part 2)

Wed, 4 Mar 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:3753a4b7-df38-4398-88fd-3cd9946f15b9/as/ART-US00062.avif?assetname=ART-US00062.jpg

Article | 4 min read

Retail’s reality check:

The Employment Rights Act 2025 (Part 2)

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

This is the second article in our two‑part series examining the Employment Rights Act 2025 (the Act) and its implications for retailers.

Published: 4 March 2026
Authors: Amy Frost, Simon Fennell & Jonathan Naylor

/content/dam/shoosmiths/lawyers/amy-frost/profile

/content/dam/shoosmiths/lawyers/stuart-lawrenson/profile

false

/content/dam/shoosmiths/lawyers/jonathan-naylor/profile

/content/dam/shoosmiths/lawyers/simon-fennell/profile

false

style

single-column-text

Part 1 explored harassment, unfair dismissal and equality action plans. Part 2 turns to reforms that will have a direct impact on workforce planning, union relations and organisational change across multi‑site retail operations.

Zero / low hours reform

Despite early headlines, there will not be a ban on zero‑hours contracts (exploitative or otherwise), nor does the Act define what ’exploitative‘ would cover. Instead, the Act introduces a new right to be offered guaranteed hours for certain zero and low‑hours workers after a reference period (anticipated around 12 weeks) where actual hours exceed the contractual minimum. ’Low hours‘ is not yet defined and further regulations are required to provide the detail on which workers will be caught by these provisions.

The government intends that contracts should reflect reality, giving both parties more certainty. The reality for retail is the administrative burden could be substantial particularly where hours fluctuate weekly, scheduling is devolved to stores, and seasonal peaks are common.

How the new rights will work in practice will be key and draft regulations setting out the detail can’t come soon enough. Unresolved issues that will concern retailers include:

students and holiday patterns: if a student works 35 hours over the summer on an 8‑hour contract, must the employer offer a guaranteed hours offer of 35 hours in September?
seasonal peaks: if Christmas hours spike, will employers be forced to uplift contractual hours that are unsustainable from January?
redundancy exposure: if employees accept higher guaranteed hours that later exceed business needs, does that create a redundancy risk?

Retail employers can take several practical steps now while waiting for the detailed regulations. This includes stress‑testing workforce planning and forecasting models to understand where guaranteed‑hours offers may be triggered and identifying roles where genuine flexibility remains essential. Scheduling technology should also be reviewed to ensure rostering systems can track contractual versus actual hours and automatically prompt compliant offers at the end of each reference period. Employers may need to simplify their contract structures, ensuring clarity on minimum hours, notice arrangements and temporary uplifts, and establish clear governance over who monitors reference periods, how offers are documented and how any declines are recorded. Finally, setting expectations early with variable‑hours staff about how guaranteed‑hours offers may work will help minimise confusion and reduce the risk of disputes later.

Industrial action reform

Industrial action changes will also impact retailers, particularly those with large, dispersed workforces.

Union relationships in the sector are increasingly a contingent partnership capable of collaboration when the groundwork is good, but sensitive to operational pressure. Employers in the sector should use the upcoming reforms as both a risk and an opportunity to refresh consultation frameworks, scenario‑plan for disruption, upskill leaders on how to negotiate with unions, and engage early with recognised unions.

The right of access to workplaces, both physically and digitally, from October 2026 along with the requirement on employers to inform employees of their right to join a union, both at the start of employment and at regular intervals thereafter, and the simplification of the statutory recognition process, is likely to increase union membership and recognition in workplaces. Employers will not be able to avoid interactions with unions, and need to be prepared for greater collective bargaining. This is particularly so given the changes to the industrial action requirements which will make this a more attractive option for unions and their members to pursue.

Given this fundamental change presents huge opportunities for unions to increase their memberships and influence, it is likely that they will be compiling lists of potential target employers where they feel they have good prospects of gaining recognition. Retailers, particularly those with a high public profile or brand, are likely to feature on such lists.

Employers may wish to consider their strategic approach to this issue ahead of the planned introduction of the reforms. For example, they may consider entering into voluntary recognition agreements with unions perceived as more pragmatic, rather than risk a more aggressive union gaining a foothold in the workplace.

Collective redundancies

From 2027, collective consultation will be triggered where an employer proposes to dismiss 20 or more employees at one establishment, or a further (yet to be confirmed) threshold across multiple establishments within 90 days. The government will consult on the multi‑site threshold later this year, a development of particular importance to retailers operating across stores, distribution centres and concessions.

Additionally, from April 2026, the maximum protective award for failing to collectively consult will double from 90 to 180 days’ gross pay per affected employee, with a potential uplift of up to 25% for breaches of the Statutory Code on Dismissal & Re‑Engagement. This means the total potential penalty could reach 225 days’ gross pay.

For multi‑site retailers, the reforms heighten the need for coordinated oversight. Employers will need to track proposed redundancies across all locations to ensure that aggregated numbers do not inadvertently trigger consultation obligations. The government has confirmed that representatives across different sites do not need to be consulted together or reach identical agreements, offering some flexibility for dispersed workforces.

Retailers should consider whether any planned organisational changes ought to be implemented before the new thresholds and increased penalties take effect. They should also monitor the government’s forthcoming consultation on multi‑establishment thresholds and evaluate whether to submit a sector‑specific response. Finally, multi‑site employers should ensure that their HR systems can track proposed redundancies across all locations so that collective consultation triggers are identified and acted upon in good time.

Strategic outlook for HR leaders

Preparing for these reforms is as much about culture as process. Employers who act early will find compliance easier and gain real benefits in retention, engagement and brand protection. Policies must work in practice not just in head office but on a busy Saturday in peak trading so partner closely with stores, distribution centres and contact centres when designing solutions. The new six month qualifying period for unfair dismissal also heightens the need for strong probation management.

Reliable data will be essential, from scheduling and hours to reported incidents and probation outcomes, enabling systems to automate routine compliance steps such as guaranteed‑hours offers.

With crucial detail still to come, especially on third‑party harassment and guaranteed hours, seeking early advice will help balance compliance with operational practicality and avoid unintended consequences.

In light of the significant legal developments that will take place this year, we are supporting a Future focused thought leadership series by the CIPD. The four-part series will explore how HR across key sectors like retail can stay credible, influential and sustainable amid fast-changing workforce, skills and organisational demands. For more information visit: Future-focused HR.

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-transactional-and-advisory/ddcc-people-and-reward

]]>

Retail’s reality check: The Employment Rights Act 2025 (Part 1)

Wed, 4 Mar 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:be77720c-ead5-4b2c-acfc-77113f9106b3/as/ART-US00024.avif?assetname=ART-US00024.jpg

Article | 4 min read

Retail’s reality check:

The Employment Rights Act 2025 (Part 1)

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Major employment law reforms are coming. For retail and consumer employers already dealing with labour shortages, rising costs and high turnover, the impact will be significant.

Published: 4 March 2026
Author: Amy Frost

/content/dam/shoosmiths/lawyers/amy-frost/profile

/content/dam/shoosmiths/lawyers/stuart-lawrenson/profile

false

style

single-column-text

This article is the first in a two-part series examining the Employment Rights Act 2025 (the Act) and what it means for the retail sector. Part 1 focuses on harassment reform, unfair dismissal changes and equality action plans - three reforms which retailers should have on their radar.

Why these reforms land harder in retail

Retail and consumer businesses continue to face persistent wage pressure and tight labour markets, while digital transformation is reshaping many roles. Physical stores are also shifting towards experience‑led environments and micro‑fulfilment hubs, demanding more capable and engaged frontline teams. At the same time, most retailers depend on dispersed, customer‑facing workforces, flexible labour and seasonal staffing spikes making the upcoming reforms on harassment prevention, unfair dismissal and zero/low‑hours arrangements particularly significant for the sector.

Harassment reform

From October 2026, employers must take “all reasonable steps” to prevent sexual harassment of employees as well as to prevent third‑party harassment of employees across all protected characteristics. The bar is high and employers will only meet it if no further reasonable steps could have been taken, and unlike previous rules, there is no need for repeated incidents or prior knowledge. While tribunals will recognise the limits of controlling third‑party behaviour, especially where freedom of expression is engaged, they will still expect credible, proactive prevention, particularly in high‑exposure, customer‑facing sectors like retail.

Effective compliance in a retail environment means taking a genuinely proactive approach. Employers should:

carry out dynamic, site‑by‑site assessments of harassment risk, considering factors such as time of day, product lines, lone working, late‑night trading, and repeat‑offender patterns
reinforce expectations through customer codes of conduct, visible in‑store signage, and employee‑facing policies that explicitly address third‑party behaviour
provide practical frontline training, including how employees can intervene if they witness harassment, how employees can raise complaints and guidance for managers on handling complaints

Employers should also strengthen contractual terms with suppliers, contractors and landlords to support anti‑harassment standards, and ensure clear reporting routes with complaints or concerns being taken seriously and acted on quickly. Employers should also consider how to monitor complaints or concerns that are raised to highlight problem areas where further steps may need to be taken, operational controls such as buddying arrangements, lone‑working safeguards, CCTV placement, store layout choices and, where lawful, refusal‑of‑service protocols all play a crucial role in preventing harm and protecting staff. Employers in this sector should embed anti‑harassment measures into culture, operations, and third‑party relationships now so that compliance is a by‑product of doing the right things consistently.

Unfair dismissal reform

One of the most significant proposals under the Act for employers is the removal of the two‑year qualifying period for unfair dismissal. Employees will have the right to claim unfair dismissal after six months service from 1 January 2027, meaning that effective use of probationary periods will become even more crucial.

Roughly 6.3 million UK employees have between six months and two years’ service, with currently very limited protection against unfair dismissal but who would be eligible when the reforms come in next year. For retail, the implications are significant:

seasonal and short‑term hires that are on the books for six months or more will have the ability to bring unfair dismissal claims, placing greater focus on the process followed prior to ending their contracts.
with more employees in scope, the risk of constructive unfair dismissal claims also increases (such claims can arise from resignations alleging a fundamental breach of contract).
the increased scope could result in unmeritorious claims being brought. However, even weak unfair dismissal claims can consume management time and increase legal spend.

Retail employers should act now by reviewing contracts and probation processes as stronger probation management will be essential for assessing new recruits prior to the six month qualifying period being completed. Employers should tighten onboarding, set expectations early, and keep proportionate records of any performance or capability concerns. Investing in manager capability is critical too, equipping supervisors to give feedback, address attendance or conduct issues promptly, and make timely probation decisions. Seasonal workforce models should be stress‑tested so that standards are clear from day one and issues can be resolved quickly in peak periods.

Equality action plans

In addition to the publication of a company’s gender pay gap, large employers (with over 250 employees) will also be required to publish Equality Action Plans, to outline actions they will take to support certain groups within their workforces, such as those experiencing menopause.

The duty will be voluntary from April 2026 and mandatory from spring 2027, marking a shift from reactive management to more structured, accountable approaches that are likely to become a marker of best practice.

For retailers, the practical impact will be considerable. The sector is defined by large, dispersed, customer‑facing workforces, uniforms and PPE, shift‑based operations and high‑intensity environments, all of which can exacerbate symptoms for employees experiencing menopause or other health‑related conditions.

Retail employers should begin assessing where future adjustments may be needed. This includes considering whether current uniforms, PPE, and rest‑break arrangements would enable proportionate, short‑notice adjustments if required. The emphasis is on forward planning: understanding which aspects of the working environment may create barriers and identifying practical steps to reduce them.

What’s next?

These changes are only the start. In Part 2 of this series, we explore reforms to zero‑hours arrangements, industrial action, and collective redundancies, areas likely to reshape workforce planning across the sector.

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-transactional-and-advisory/ddcc-people-and-reward

]]>

Shoospeak HR: Temps, timesheets and tension - agency work after zero hours reform

Tue, 3 Mar 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:e4adb3e1-3b7c-4143-9b6e-d8a173fb7eae/as/ART-declan-sun-bznK51HkoJ0-unsplash.avif?assetname=ART-declan-sun-bznK51HkoJ0-unsplash.jpg

alternative text

alternative text secondary

Podcast | 127 min listen

Shoospeak HR: Temps, timesheets & tension

Agency work after zero hours reform

false

aiSummary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

The employment team are back with another episode of Shoospeak HR.

Published: 3 March 2026

Simon Fennell is joined by Sarah Owbridge to consider how the proposed changes under the Employment Rights Act 2025 for zero-hour contracts apply to the agency world.

Listen to the podcast below and send us your feedback to shoospeakhr@shoosmiths.com.

The Shoospeak HR podcast is brought to you by the national employment team at UK law firm Shoosmiths. Tune in for your fix of the latest legal views, thought provoking discussions and opinions about all things employee relations and human resources.

style

single-column-text

https://www.podbean.com/ew/pb-qhqh2-1a5d1da

false

/content/dam/shoosmiths/lawyers/simon-fennell/profile

/content/dam/shoosmiths/lawyers/sarah-owbridge/profile

false

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-transactional-and-advisory/ddcc-people-and-reward

]]>

Shoospeak HR: Flexible or fragile? Changes to zero-hour contracts

Mon, 2 Mar 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:6ff44dfb-3688-4bae-b04b-dc48f3e51361/as/ART-erik-eastman--6zFVL4YuaM-unsplash.avif?assetname=ART-erik-eastman--6zFVL4YuaM-unsplash.jpg

alternative text

alternative text secondary

Podcast | 11 min listen

Shoospeak HR: Flexible or fragile?

Changes to zero-hour contracts

false

aiSummary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

The employment team are back with another episode of Shoospeak HR.

Published: 2 March 2026

Simon Fennell is joined by Steph Pye and Alex Bevan to discuss the proposed changes under the Employment Rights Act 2025 for zero-hour contracts.

Listen to the podcast below and send us your feedback to shoospeakhr@shoosmiths.com.

style

single-column-text

https://www.podbean.com/ep/pb-crxsx-1a5d1cf

false

/content/dam/shoosmiths/lawyers/simon-fennell/profile

/content/dam/shoosmiths/lawyers/steph-pye/profile

false

/content/dam/shoosmiths/lawyers/alex-bevan/profile

false

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-transactional-and-advisory/ddcc-people-and-reward

]]>

Oatlawed: The verdict on ‘Post Milk Generation’

Wed, 25 Feb 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:a265a42a-f161-48d9-b37e-7c9687a56f30/as/ART-US00027.avif?assetname=ART-US00027.jpg

Brand interchange | 2 min read

Oatlawed: The verdict on ‘Post Milk Generation’

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Decision: Dairy UK Ltd v Oatly AB [2026] UKSC 4
Court: Supreme Court
Judges: Hamblen L, Burrows, L, Hodge, L, Briggs L, Stephens L
Judgment: Here
Issue: S 3(4) of the Trade Marks Act 1994

Published: 25 February 2026
Author: Irem Alici

/content/dam/shoosmiths/lawyers/irem-alici/profile

false

style

single-column-text

Background

The Supreme Court’s decision in Dairy UK Ltd v Oatly AB brings a long running trade mark dispute to an end and is an important ruling for the fast growing alternative food and drinks sector.

The dispute arose from Oatly’s registration in April 2021 of the trade mark “POST MILK GENERATION”. The mark was registered for oat‑based food and drink products in classes 29, 30 and 32, as well as for T‑shirts in class 25.

Dairy UK, the trade association representing the UK dairy industry, applied to invalidate the mark under section 3(4) of the Trade Marks Act 1994 which states that:

“A trade mark shall not be registered if or to the extent that its use is prohibited in the United Kingdom by any enactment or rule of law other than law relating to trade marks.”

It argued that use of the mark was prohibited by Regulation (EU) No 1308/2013, legislation designed to help harmonise the market in agricultural products. In particular, Art 78 of the Regulation explains that certain “designations” should only be used for certain products. These “designations” are listed in Annex VII which includes (subject to certain exceptions) the “designation” MILK for milk and milk products intended for human consumption.

The United Kingdom Intellectual Property Office Hearing Officer agreed with Dairy UK in relation to the oat‑based food and drink products, but not the T‑shirts. That decision was overturned by the High Court, which held that the mark did not “designate” milk because it was not used as the name of a product. The Court of Appeal disagreed, finding that the use of “milk” within the mark fell within the regulatory prohibition. Oatly then appealed to the Supreme Court.

Issues

The appeal raised two main questions of statutory interpretation.

The first concerned the meaning of “designation” in Art. 78. Oatly argued that “designation” referred only to the name of a product. On that basis, “POST MILK GENERATION” did not infringe the prohibition, because it did not describe or name oat‑based food or drink as “milk”. Dairy UK argued for a broader interpretation, submitting that “designation” covers any use of a protected dairy term in relation to a product, whether or not it is used as the product name.

The second issue concerned the exception in Annex VII, which allows otherwise prohibited designations where they are “clearly used to describe a characteristic quality of the product”. Oatly argued that “POST MILK GENERATION” clearly conveyed that the products were milk‑free. Dairy UK disagreed, contending that the phrase was ambiguous and consumer‑focused, referring to a group of consumers rather than a characteristic of the products themselves.

In addressing both issues, the Supreme Court applied ordinary principles of domestic statutory interpretation, while recognising the EU origin and purpose of the legislation. The Court stressed that the regulatory regime is concerned not only with avoiding consumer confusion, but also with maintaining fair conditions of competition in agricultural markets.

Decision

The Supreme Court unanimously dismissed Oatly’s appeal.

On the first issue, the Court rejected the narrow interpretation of “designation”. It held that, in context, the term is deliberately broader than “name” or “sales description” and covers the use of protected dairy terms in relation to products generally. As a result, the inclusion of the word “milk” within the composite mark “POST MILK GENERATION” amounted to the use of a prohibited designation in relation to non‑dairy food and drink.

The Court also confirmed that the prohibition applies regardless of whether consumers are likely to be misled. The aim of the legislation is not limited to preventing confusion, but also includes protecting dairy terms and preserving the competitive framework established by the Regulation.

On the second issue, the Court found that the mark was not saved by the exception for designations describing a characteristic quality. “POST MILK GENERATION” was held to convey a generational or ideological message directed at consumers, rather than clearly describing a product attribute such as being milk‑free. Even if some consumers might draw that inference, it was indirect and insufficiently clear to meet the statutory test.

The appeal was therefore dismissed. The trade mark remains invalid for oat‑based food and drink products, but valid for T‑shirts.

Commentary

While ostensibly a narrow trade mark issue, this could have wider implications for the alternative food and drinks sector. In particular, Regulation (EU) No 1308/2013 also applies to certain “designations” for: beef and veal; wine; poultry; spreadable fats; olive oils and table oils. Those businesses supplying alternatives for these products may expect increased scrutiny on their trade mark filings.

style

single-column-text

Latest perspectives from brand interchange

Read the latest perspectives from Shoosmiths' brand lawyers

Explore all perspectives

/content/shoosmiths/perspectives

/content/cq:tags/shoosmiths/topics/brand-interchange

]]>

From brand to byword? Stopping the slide to genericide

Tue, 24 Feb 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:d913d3c7-73c0-4f47-8348-0eabac05342a/as/ART-u2114277519_corporate_--ar_169_--v_7_c83d69b5-d931-41c5-aad2-ea6e7a9197b6_3.avif?assetname=ART-u2114277519_corporate_--ar_169_--v_7_c83d69b5-d931-41c5-aad2-ea6e7a9197b6_3.jpg

Article | 4 min read

From brand to byword?

Stopping the slide to genericide

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

As brands grow, cultural fame can become legal risk. Genericide is rising, and every category‑defining business must act now to protect what makes its trade mark distinctive.

Published: 24 February 2026
Authors: Antony Craggs

/content/dam/shoosmiths/lawyers/nicky-jenkins/profile

/content/dam/shoosmiths/lawyers/anna-corney/profile

false

style

single-column-text

When a brand achieves substantial commercial success and cultural significance, the trade mark may be used by the public as shorthand for the product category itself. Over time, this transformation from a distinctive indicator to a generic term can lead to revocation of the trade mark.

From BJORNEKULLA, KORNSPITZ, SPAMBUSTER to DRYROBE, there has been a long line of cases addressing genericism. In the latter, Dryrobe successfully defended its DRYROBE mark against claims of genericide, but the case underscores a wider tension: distinctiveness is both the foundation of trade mark protection and the attribute most vulnerable to erosion through linguistic drift.

This article outlines the legal framework governing genericide, highlights key authorities, and offers practical steps for brand owners to prevent their marks from sliding into the generic.

What is genericide?

Genericide describes the process by which a once‑distinctive trade mark becomes the common name in the trade for the goods or services it is registered. The statutory mechanism is found in s.46(1)(c) Trade Marks Act 1994, which provides that a trade mark may be revoked if, after registration: “…in consequence of acts or inactivity of the proprietor, it has become the common name in the trade for a product or service for which it is registered.”

Its rationale is clearly articulated in Kerly’s: the register must not be cluttered with monopolies over terms that the public and traders need to use descriptively.

While genericide is usually driven by public behaviour, it is triggered legally only where that behaviour can be attributed to the acts or omissions of the proprietor, showing how brand stewardship plays a central role in preserving distinctiveness.

“Tupperware” is the classic example of a mark walking the tightrope between fame and genericness. Although still a valid trade mark, global commentary frequently highlights how consumer vernacular threatens its distinctive character.

Other international examples include “thermos”, “aspirin”, and “escalator”. All of which lost trade mark significance in the US, which illustrates the universal risk that uncontrolled linguistic adoption by consumers can deplete even the strongest marks.

Legal test for genericide

Courts apply a fact‑sensitive “use as a mark” analysis to determine whether a sign still performs its essential function: identifying trade origin. Key factors include:

1. consumer perception

The central question is whether the average consumer uses the term to identify the trade mark owner’s product specifically, or to describe the product category more generally. Even widespread colloquial misuse is not determinative if consumers still recognise the term as a brand.

2. trade usage

If retailers, distributors or competitors adopt the term generically without correction, that weighs heavily in favour of genericism.

3. proprietor conduct

Section 46(1)(c) explicitly links revocation to the proprietor’s “acts or inactivity”. Failure to challenge misuse, educate the public, or maintain brand standards all create risk.

4. presentation of the mark

The court considers real‑world use: are the ® or ™ symbols used? Does packaging present the mark distinctively, or merely as product description?

Practical steps to prevent genericide

Brand owners can mitigate the risk of genericide through disciplined brand management:

1use the mark as an adjective, not a noun or verb: Prefer “DRYROBE® changing robe”, not “a dryrobe”. Correct employees, partners, and marketing teams who use it incorrectly.
apply ™ or ® consistently: Symbols reinforce to the public and the trade that the sign is a trade mark.
issue and enforce brand usage guidelines: Provide standard wording for press, retailers, ambassadors, and influencers. Require distributors to follow brand usage in listings and advertising.
monitor and police misuse: Monitor social media, e‑commerce platforms, and industry press. Send cease‑and‑desist letters where necessary. Challenge dictionary entries, product category labels, and retailer headings that use the sign generically.
avoid encouraging generic use through marketing: Never use the brand in lowercase if it is registered in uppercase. Avoid slogans or hashtags suggesting nounal use (e.g., “grab your dryrobe”).
educate consumers subtly: Blog posts, FAQs, and packaging can include reminders that the sign is a registered trade mark. Consider “BRAND® is the original [product type]” messaging.
maintain strong, distinctive brand presentation: Ensure packaging, logos, and website layouts highlight the mark’s “brand” function. Distinctive branding can reinforce trade origin.
document corrective efforts: If litigation arises, evidence of consistent enforcement is invaluable.

Conclusion

Genericide is a real and ongoing threat to brands, but it is not an inevitable consequence of commercial success. The Dryrobe litigation shows that the courts will protect strong, well‑managed brands, but only where proprietors actively preserve distinctiveness and resist misuse.

A trade mark is not a static property right. It depends on the perceptions of consumers, the behaviour of the trade, and the vigilance of the proprietor. With deliberate management, clear communication, and firm enforcement, even the most culturally prominent brands can avoid sliding into the generic.

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-transactional-and-advisory/ddcc-intellectual-property

]]>

New tech, old law? UKJT considers liability for AI harm

Fri, 20 Feb 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:7ab40224-69f5-4efd-aa64-40370c729484/as/u2114277519_Macro_photography_of_a_tech_device_photo_product_ph_2dd8a26b-5b15-49ab-8eec-1b96481517c6.avif?assetname=u2114277519_Macro_photography_of_a_tech_device_photo_product_ph_2dd8a26b-5b15-49ab-8eec-1b96481517c6.png

Article | 6 min read

New tech, old law?

UKJT considers liability for AI harm

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

AI adoption continues to accelerate across sectors, with a significant majority¹ of businesses reporting major performance gains as a result. At the same time, the internal governance around AI adoption isn’t always keeping pace², and AI-related litigation is a key concern for many in-house legal teams³. Add to this an absence of any overarching legal framework for liability in relation to AI in the UK,⁴ and the net result is a somewhat heady mix of short-term gains with (at least perceived) longer term uncertainty and risk.

Published: 20 February 2026
Authors: Alex Bishop, Peter Richards-Gaskin, Alex Kirkhope, Sarah Reynolds, Claire Kershaw, Stefanie Hughes

/content/dam/shoosmiths/lawyers/alex-bishop/profile

/content/dam/shoosmiths/lawyers/peter-richards-gaskin/profile

false

/content/dam/shoosmiths/lawyers/alex-kirkhope/profile

/content/dam/shoosmiths/lawyers/sarah-reynolds/profile

false

style

single-column-text

Against this background, the UK Jurisdiction Taskforce (UKJT) has recently published, and is consulting on, a draft legal statement on liability for non-deliberate AI harms under the private law of England and Wales (the Statement). The core issue the Statement is concerned with is “in what circumstances, and on what legal bases, English common law will impose liability for loss that results from the use of AI”.

The UKJT’s approach to this is founded on the premise that AI (defined in the Statement as “a technology that is autonomous”⁵) does not have legal personality in English law so liability for any harms caused by the use of it must therefore be attributed to other ‘legal persons’. Despite the novel context, the UKJT suggests such liability can be attributed using ordinary existing legal principles within the ‘inherently flexible’ English common law system.

From that starting point, the Statement addresses the following questions:

does the principle of vicarious liability apply to loss caused by AI?
in what circumstances can a professional be liable for using or failing to use AI in the provision of their services? If AI used in the provision of professional services produces erroneous output, is the professional liable for loss resulting from the error?
can a person ever be liable for harms caused by use of AI where there is no fault on their part?
does liability attach to false statements made by an AI chatbot?

Key takeaways / comment

Overall, the Statement serves as a helpful reminder of both (i) the extent to which existing legal principles can be applied to the relatively novel scenarios and risks of AI use and (ii) the ability of the English common law system to adapt further where necessary to address these.

In most commercial contexts the contractual arrangements between the various parties to an AI supply chain will be the most important legal framework governing liability for any non-deliberate harm arising. The need for application/analysis of tortious or other legal principles is likely to be relatively rare in practice, and parties within the AI supply chain should therefore prioritise clear and robust contractual allocations of risk, and view any potential claim in negligence as amongst themselves as a fallback Claims brought by end users against professional services firms are likely, however, to be brought in professional negligence, whether under the terms of their contract or under tort.

Meticulous drafting of contracts has always been important, and highly complex supply chains are also nothing new. Nonetheless in the context of AI supply chains (the structure of which, the Statement notes, is likely to change as the technology advances), contracting parties and their advisers will benefit from renewed emphasis and particular attention to detail around the ‘basics’ of warranties, indemnities, limitations and exclusions. A thorough understanding of the technology, roles and responsibilities of all parties within the supply chain will be key in apportioning liability and managing risk appropriately.

It’s worth noting in this context that, to date, AI vendors have been reluctant to offer detailed liability cover in respect of ‘downstream’ use of their products and platforms, though basic protection such as IPR indemnities for AI outputs is becoming more common with larger vendors. Over time our expectation is that, in the same way as for data protection, under increased customer demand - more detailed template clauses will begin to take hold, requiring vendors to verify not only legal compliance, but also the broader legal, security and ethical processes and governance they have in place in respect of their AI systems. Given the dynamic nature of AI systems, their performance, ongoing development and outputs, such governance would cover the full lifecycle of the system, spanning its historic development and training, current performance as well as ongoing oversight (human or otherwise) to provide customers with adequate assurance as to the product’s accuracy and integrity over the term of its deployment.

In the rarer cases where liability cannot be determined under contractual arrangements (and with reference to the four questions noted above):

the principle of vicarious liability is unlikely to apply to harm caused by AI. Since an AI system has no legal personality itself, it cannot have the primary liability upon which the vicarious liability of another (legally recognised) person could be based. That said, an employer may be vicariously liable for loss resulting from the negligent use of AI by an employee (subject to the usual analysis).
the question of whether a professional has been negligent in their use of AI – or for failing to use AI – is likely to be determined in much the same way as the question of whether they have been negligent in using – or not using – any other tool available to them, applying well-established legal principles⁶. It will be highly fact specific; for example:
- evidence as to the standard of care exercised by reasonably competent members of the relevant profession⁷ will be crucial. While this may be informed by any applicable guidance from regulators/professional bodies (to which professionals must of course pay close attention), as the UKJT notes this “tends to be somewhat high level”, and evidence as to consistent market practice may be hard to pin down for a variety of reasons.
- particular uncertainties may arise in relation to causation where it is necessary to understand why AI produced the output it did (not only that it was incorrect). Maintaining clear and comprehensive audit trails (for example of prompts to the AI tool and steps taken to check/refine output, amongst other things) may help to fill evidential gaps.
whether in the context of AI use or generally, a person will not normally be liable for harm caused through no fault of their own, save for a failure to meet an agreed standard or result. In light of which, if the professional advice produced falls below the standard expected of a reasonably competent professional in that field, then it is likely that a professional services firm will be found liable in negligence to an end user/client, even if it was AI that caused or made the error. In addition, where an AI system is incorporated into a tangible product, such as a CD-ROM for example, the Consumer Protection Act 1987 will apply and carries strict liability for defective products causing certain physical harms. The Law Commission has stated it intends to review this area of the law including to address the status of “pure software”⁸.
non-contractual liability may in principle arise for statements made by an AI chatbot, in negligent misstatement or misrepresentation, deceit, libel, slander and/or malicious falsehood. As ever much will depend on particular facts, for example whether the chatbot’s response was autonomous or pre-determined, whether it is clear the AI chatbot is just that (as opposed to appearing as a chat function with a human), or whether the chatbot was well known to hallucinate.

Next steps

While the Statement goes some way to dispelling perceived legal uncertainties around liability for AI-related harm, needless to say real uncertainties remain. Robust governance frameworks and contractual arrangements are essential to mitigating the most significant risks/uncertainties, ensuring management time and resource can remain focussed on driving business forward. Flowing that governance and contractual assurance right through an organisation’s AI supply chain will increasingly become essential rather than a ‘nice to have’.

The consultation closed on 13 February 2026 and the UKJT states it intends, once responses have been considered, to publish a final version of the Statement as soon as possible.

More information

If you’re navigating the governance or contractual issues raised in this article – and need to protect your organisation’s risk and liability when procuring AI systems – our AI and dispute resolution and litigation teams are ready to help you move forward with confidence.

¹ 64% of respondents to Shoosmiths’ AI Governance Report: Uncharted territory: Navigating AI governance for better business performance.
² 32% of respondents to the above survey reported having advanced accountability frameworks in place.
³ 55% of respondents to Shoosmiths’ Litigation Risk Report 2026 expect AI-related litigation to increase.
⁴ Other jurisdictions, including the EU with its stalled AI Liability Directive, have also struggled to codify clear liability principles in relation to AI.
⁵ Note that there is currently no universally accepted definition of AI, though the definition adopted by the UKJT within its Statement deliberately shares lineage with definitions used by UK Government, the EU and the OECD.
⁶ See in particular South Australia Asset Management Corporation v York Montague Ltd [1996] UKHL 10 and Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20
⁷ In accordance with the ‘Bolam test’ from Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
⁸ This is a nuanced area given the state of the art in relation to software delivery methods and the current precedent that software-as-a-service does not amount to “goods” under UK legislation.

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-disputes-risk-and-compliance/ddcc-dispute-resolution-and-litigation

]]>

The rise & rise of the influencer

Mon, 16 Feb 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:6fd61c76-788e-45a1-a394-562a08b3daad/as/ART-rodolfo-puchulu-jGfIzudYK_Q-unsplash.avif?assetname=ART-rodolfo-puchulu-jGfIzudYK_Q-unsplash.jpg

Brand interchange | 3 min read

The rise & rise of the influencer

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Over the past few years, I’ve worked my way through a myriad of lifestyle, health and fashion “fixes.” I’ve abandoned UPFs, renounced red meat, gone organic, flirted with 0% beer, invested in a machine to grow herbs, bought a genius multitool for adventures, and succumbed to a “transformer” bag that promises to shift from backpack to briefcase “in seconds”, to make life more “efficient and enjoyable.” I have also downloaded an impressive number of apps, mostly to solve problems I didn’t know I had.

Published: 16 February 2026
Author: Andrew Brennan

/content/dam/shoosmiths/lawyers/andrew-brennan/profile

false

style

single-column-text

Predictably, none of this has transformed my life. I am not fitter, calmer, more stylish nor more productive. The herb machine sits idle, the multitool remains in its box, I’ve enthusiastically welcomed back red meat (and beer), organic shopping proved too expensive, and the “transformer” bag has delivered neither efficiency nor enjoyment. The only measurable differences are a lighter bank balance and the hours surrendered to social media, absorbing life advice from younger strangers - which, regrettably, accounts for much of the above.

Increasingly, this is the world we live in: one in which influencers act as guides to everything from fitness regimes to financial planning. Their recommendations shape consumer behaviour, while their faces, voices, personalities and even AI‑generated avatars have become valuable commercial assets in their own right.

Nowhere is this shift more apparent than in the recent $975 million deal involving TikTok star Khaby Lame, who has effectively licensed not just his likeness, but a full AI‑generated digital replica of himself. The transaction, which includes rights to a “digital twin” capable of mimicking his voice, expressions and online persona, signals a further shift in how image rights are understood and monetised within the creator economy.

For the purchaser, Rich Sparkle Holdings, the attraction is obvious: Lame’s AI avatar can appear in multiple languages, across multiple time zones, producing content around the clock without the constraints of human availability. Projections suggest that the digital version of Lame could help generate billions in annual revenue.

But the deal also exposes a rapidly expanding set of legal and commercial questions relating to the protection and exploitation of image rights, especially where AI is involved. Historically, image rights concerned narrower issues: the use of photographs, lookalikes in advertising or celebrity endorsements. Today, the scope is far broader.

For influencers, this raises difficult questions around control, consent and longevity. Who owns the data used to train an AI model to behave “like” them? What happens if the avatar endorses something they disagree with, continues to appear commercially long after rights have expired, or is convincingly misused in a deepfake? For lawyers, the challenge is intensifying, as legislation struggles to keep pace. Nowhere is this more evident than in the UK, which lacks a comprehensive statutory framework on image rights, leaving practitioners to stitch together passing off, data protection, privacy, copyright and contract law to address scenarios legislators never envisaged.

The Khaby Lame deal highlights a wider reality: influencers are no longer simply creators, but global brands whose identity can be licensed, replicated and monetised across multiple channels, often at a scale once reserved for major corporations. As their economic footprint expands, so too does the case for modernising the law on image rights, particularly in the UK where calls for reform are growing louder.

And for anyone wondering how we arrived at this point, it’s worth reflecting on all those hours spent scrolling through social feeds and “life hacks.” Influencers didn’t simply rise - we invited them in, one ‘like’ at a time.

style

single-column-text

Latest perspectives from brand interchange

Read the latest perspectives from Shoosmiths' brand lawyers

Explore all perspectives

/content/shoosmiths/perspectives

/content/cq:tags/shoosmiths/topics/brand-interchange

]]>

Click, complain, complications: The perils of online takedowns

Fri, 6 Feb 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:7d291503-dc0f-4f7d-b5f2-bf419370dd56/as/ART-US00092-(11).avif?assetname=ART-US00092+%2811%29.jpg

Brand interchange | 3 min read

Click, complain, complications

The perils of online takedowns

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Court: Intellectual Property Enterprise Court
Judge: HHJ Hacon
Judgment: Here
Issue: Actionable (Groundless) Threats

Published: 6 February 2026
Author: Andrew Brennan

/content/dam/shoosmiths/lawyers/andrew-brennan/profile

false

style

single-column-text

Online marketplaces such as Amazon and eBay are a key route to market for many brand owners. However, with success comes imitation, with many brand owners identifying third party products on the platforms which infringe their intellectual property rights.

To address this, the online marketplaces provide a takedown service, whereby the brand owner can identify its intellectual property and the alleged infringement. If the online marketplace agrees, typically the allegedly infringing product is removed from the platform. The number of online takedowns today runs into the millions.

However, what happens if the intellectual property right asserted is invalid or the allegation of infringement without basis? In these circumstances, the alleged infringer’s product may be removed without justification, with the alleged infringer suffering loss of sales. Typically, it is very difficult for the alleged infringer to persuade the online marketplace to reverse its decision.

In the United Kingdom, this can give rise to a cause of action for actionable threats. Broadly, the takedown notice may constitute a threat of infringement proceedings. In such circumstances, the alleged infringer (a person ‘aggrieved’ by the threat) may be able to commence proceedings seeking a declaration from the court that there is no infringement and damages arising from the takedown. For simple cases, the claim can be conducted relatively cost effectively. This is often an unexplored risk for brand owners using takedown notices.

These are the allegations raised in Luxe World v Touch of Vogue. Here, Luxe World alleges that Touch of Vogue’s registered design (for an attachment to a bicycle, pictured below) used to takedown Luxe World’s bicycle products is invalid because it was prior disclosed outside the grace period. If so, it says that the takedown notice constitute a threat of infringement proceedings for which it suffered damages. As a result, it seeks certain relief from the court, including an injunction and its damages or an account of Touch of Vogue’s profits (typical remedies for a claim of intellectual property infringement).

There are, however, limitations to such a claim. While it was common ground that Luxe World was entitled to seek its damages (if any), at the Case Management Conference of the claim, His Honour Judge Hacon was asked to consider whether Luxe World was entitled to seek an account of Touch of Vogue’s profits.

Here, HHJ Hacon concluded that such relief was not available. The legislation addressing actionable threats (s. 26C of the Registered Designs Act 1949) only makes provision for damages. This is distinct to the legislation which addresses infringement (24A(2) of the Registered Designs Act 1949). Further, he held that he was bound by the reasoning in Devenish Nutrition Ltd v Sanofi-Aventis SA [2009] Ch 360 (CA) that restitutionary remedies such as an account of profits are not available in respect of non‑proprietary torts (such as unjustified threats).

Notably, it followed that, as Luxe World was only entitled to seek damages the Court held it should quantify those damages and pay the appropriate court fee (typically a claimant only has to pay the court fee for the injunction, with the court fee for damages/account of profits payable when these are determined at a subsequent inquiry/account of profits).

Ultimately, the claim serves as a timely reminder that online takedown tools, while powerful, are not without legal risk. Brand owners who rely on these mechanisms must ensure their rights are valid and their allegations well‑founded, or risk finding themselves on the receiving end of an actionable threats claim.

style

single-column-text

Latest perspectives from brand interchange

Read the latest perspectives from Shoosmiths' brand lawyers

Explore all perspectives

/content/shoosmiths/perspectives

/content/cq:tags/shoosmiths/topics/brand-interchange

]]>

SMMT: A hard year ahead, but UK auto’s recovery is underway

Tue, 3 Feb 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:2151e3c6-31ad-4eb6-aeac-24501b1efd1f/as/ART-rodolfo-puchulu-a6Emhe6V8zU-unsplash.avif?assetname=ART-rodolfo-puchulu-a6Emhe6V8zU-unsplash.jpg

alternative text

alternative text secondary

ARTICLE | 4 min read

SMMT: A hard year ahead, but UK auto’s recovery is underway

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

UK automotive faced a tough 2025, but EV growth, renewed production momentum and smarter strategy show the sector is shifting from survival to recovery.

Published: 3 February 2026
Author: Jonathan Smart

/content/dam/shoosmiths/lawyers/jonathan-smart/profile

false

style

single-column-text

The UK automotive sector has just come through what the SMMT rightly calls one of the toughest years in a generation and the numbers are sobering.

Total vehicle production fell 15.5% in 2025, with just 764,715 cars and commercial vehicles leaving UK factories. Car output dropped 8%, while commercial vehicle production collapsed by a staggering 62.3% as plants consolidated and supply chains buckled under disruption.

That is not a cyclical wobble. It is a stress test and reflects the perspectives we are seeing from in-house lawyers, as shown in our recent article, Automotive supply chains: A new era of dispute risk.

Cyber disruption, trade uncertainty, particularly across the Atlantic, and the painful reality of restructuring for electrification all hit at once. Add in persistently high UK energy costs and you have a sector that has spent 2025 firefighting rather than investing.

And yet, buried in the gloom is something the UK automotive industry has not had for a while: momentum.

December mattered and not just statistically

December production figures might look like a footnote, but they matter. Car output rose 17.7% year‑on‑year, ending four months of decline and signalling that the production engine is starting to turn again. This wasn’t a blip driven by incentives or stock clearance. It reflected new models entering production and manufacturers moving from transition to execution.

Electrification, often portrayed as a drag on UK competitiveness, is in fact becoming a source of resilience. Production of battery electric, plug‑in hybrid and hybrid vehicles rose 8.3%, reaching a record 41.7% share of total output and represents a structural shift, not a trend line.

The UK is no longer “getting ready” for EVs. It is building them at scale. Just as important the workforce is adapting as our own employment team reports Driving EV innovation: Talent & law.

Exports still define the sector and that cuts both ways

UK automotive remains fundamentally export‑led. 77.5% of vehicles produced in 2025 were exported, with Europe accounting for over half of that volume. The US remains a critical high‑value market, but exports there fell sharply amid tariff uncertainty, underlining how exposed the sector remains to geopolitical drift rather than industrial failure.

This matters because manufacturers are increasingly building cars close to their markets; localisation not globalisation is the new world order Automotive supply chains: A new era of dispute risk. If the UK wants production volume, it needs trade certainty, not just trade ambition. Looming changes to Rules of Origin under the Brexit framework, alongside increasingly protectionist “Made in Europe” rhetoric, risk turning friction into a permanent feature rather than a transitional hangover.

For a sector that already competes with some of the highest industrial energy costs in Europe, that would be self‑defeating.

The recovery path is visible, but not guaranteed

The SMMT’s outlook for 2026 is cautiously optimistic. UK car production is expected to return to growth, rising by more than 10% to around 790,000 units, with overall light vehicle production potentially reaching 824,000 units. Under the right conditions, the industry could reach one million vehicles by 2027.

Those conditions are not abstract. They are practical and well‑rehearsed:

competitive energy costs that do not penalise manufacturers for electrifying;
delivery, not just announcement, of the Industrial and Trade Strategies;
supply‑chain support that recognises UK automotive is only as strong as its tier‑two and tier‑three base;
and a healthy domestic market, because you cannot anchor production on exports alone.

Significant investment has already been committed, public and private, including government support through the DRIVE35 programme. But capital is mobile. If the UK cannot translate strategy into certainty, that investment will quietly re‑route elsewhere.

This is not a nostalgia industry, it’s an advanced manufacturing test case

Too often, automotive is framed as a legacy sector asking for protection. The reality is the opposite. UK automotive is a bellwether for whether Britain can compete in advanced, capital‑intensive, net‑zero manufacturing at all.

If we can get this right; aligning industrial strategy, energy policy, skills and trade automotive becomes a growth engine again. If we get it wrong, the decline will be polite, gradual and irreversible.

The good news? The models are coming. The factories are retooling. The workforce is adapting. The recovery is no longer hypothetical.

The question for 2026 is brutally simple: will policy keep up with production or get in its way?

/content/shoosmiths/all-experience-fragments/perspectives-disclaimer

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-sectors/ddcc-mobility-logistics-and-manufacturing-perspectives

]]>

Brand interchange: Blockbusters, biopics & breakouts

Mon, 2 Feb 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:45f2d51a-7ee0-4842-b83f-33536210349f/as/ART-US00092-(19).avif?assetname=ART-US00092+%2819%29.jpg

Brand interchange | 4 min read

Blockbusters, biopics & breakouts

The top 10 films where the plot turns on intellectual property

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Intellectual property might not sound like the stuff of cinematic thrills, but Hollywood has quietly built an impressive filmography around patents, trade marks, trade secrets and licensing deals.

Published: 2 February 2026
Author: Andrew Brennan

/content/dam/shoosmiths/lawyers/andrew-brennan/profile

false

style

single-column-text

Intellectual property might not sound like the stuff of cinematic thrills, but Hollywood has quietly built an impressive filmography around patents, trade marks, trade secrets and licensing deals. From dinosaurs running amok to mop‑based entrepreneurship, IP disputes have shaped some of cinema’s most memorable storylines. Here are Shoosmiths’ intellectual property team’s top ten films where the plot hinges on intellectual property (sometimes explicitly, sometimes lurking behind the chaos) plus one honourable mention that practically defines the dangers of copyright infringement.

1. Jurassic Park (1993)

IP issue: Misuse of trade secrets

The rampaging T. Rex and terrified visitors tend to overshadow the fact that the entire plot of Jurassic Park is set in motion by an attempt to misappropriate trade secrets. Dennis Nedry, disgruntled system architect, attempts to steal InGen’s closely guarded trade secrets (including the embryo storage system and genetic engineering know‑how). His industrial espionage triggers a catastrophic systems failure, freeing the dinosaurs and reminding employers everywhere that cybersecurity matters almost as much as fencing.

2. Tetris (2023)

IP issue: Copyright licensing

You wouldn’t expect a film about a falling‑blocks puzzle game to be a corporate thriller, yet Tetris turns the battle for video game licensing rights into a Cold War‑era caper. The film follows Henk Rogers as he navigates Soviet bureaucracy, corporate rivals, and fragile geopolitical tensions to secure handheld rights for Nintendo’s Game Boy. It’s a sharp, fascinating demonstration that IP negotiations can be every bit as gripping as a spy movie.

3. Zootropolis 2 (2025)

IP issue: Patent entitlement

While animated blockbusters rarely dabble in patent law, Zootropolis 2 stands out as the first (and possibly last) children’s film ever to feature a dispute over patent entitlement as a central plot device. Agnes the pit viper is revealed to be the true inventor of the weather walls, with business-lynx, Ebenezer Lynxley, falsely claiming he was the inventor and seeking the patent for it. Murder, the framing of the true inventor and the creation of a multi-generational business empire ensue. It’s IP law with fur. Zootropolis 2 receives bonus points because (it is alleged) Disney could not use Zootopia (the name in its home market) in the United Kingdom and some other markets because of trade mark issues.

4. The Founder (2016)

IP issue: Trade marks and brand control

Part rise‑and‑rise tale, part cautionary story, The Founder follows Ray Kroc’s transformation of McDonald’s from a local diner into a global empire. The real IP twist? Kroc recognises that the true value of the business isn’t in its burgers but in its brand (the McDonald’s name and the Golden Arches). By securing control of the branding, he effectively sidelines the original founders from their own creation, illustrating the formidable power (and peril) of having control over one’s trade marks.

5. The Social Network (2010)

IP issue: Copyright infringement and misuse of confidential information

David Fincher’s taut drama about the birth of Facebook is fuelled by allegations from the Winklevoss twins that Mark Zuckerberg took their idea (and elements of their original code) for a Harvard social network. The legal battle highlights the blurred lines between inspiration, collaboration, and misappropriation in the tech world.

6. Duplicity (2009)

IP issue: Misuse of trade secrets

Julia Roberts and Clive Owen star as former spies entangled in a high‑gloss battle between two rival corporations. Their mission? Steal a secret formula for a revolutionary new product. Duplicity is a witty, twist‑filled example of trade secret theft at its most glamorous: secure labs, corporate paranoia and double‑crosses served with champagne all culminating in an epic gun fight at the Gugenheim (an average Tuesday afternoon for an IP lawyer).

7. Flash of Genius (2008)

IP issue: Patent infringement

This biographical drama tells the story of Robert Kearns, a college professor who invented the intermittent windshield wiper and then spent decades fighting major automakers who are alleged to have used his invention without permission. The resulting legal battle, grounded in patent law, is a David v Goliath story.

8. Joy (2015)

IP issue: Invention and product protection

Jennifer Lawrence stars as Joy Mangano, the inventor of the Miracle Mop. The film follows her struggle to turn her patented innovation into a commercial success while facing copycats, manufacturing challenges and contract disputes. For any budding entrepreneur, Joy is a reminder that protecting and commercialising IP requires not only creativity, but resilience.

9. The Prestige (2006)

IP issue: Trade Secrets

An often overlooked Christopher Nolan film, few movies capture the power and peril of trade secrets as vividly as The Prestige. The rivalry between magicians Robert Angier and Alfred Borden escalates into obsession when Angier becomes consumed with uncovering the secret behind Borden’s show‑stopping illusion, The Transported Man. In a profession where a trick’s mechanics are its most valuable assets, this clandestine knowledge becomes the ultimate prize.

10. Air (2023)

IP issue: Licensing negotiations

Air centres on a high‑stakes licensing deal for Michael Jordan’s name, with Michael Jordan’s mother ultimately negotiating a royalty of sales. The film shows Nike’s efforts to secure the rights that would eventually underpin the Air Jordan empire.

Honourable Mention: Nosferatu (1922)

IP issue: Copyright infringement

Not a film about IP, but itself a major IP landmark. Nosferatu was an unauthorised adaptation of Bram Stoker’s Dracula. Bram Stoker’s estate promptly sued for copyright infringement, being awarded an injunction and destruction of all copies of the film. Thankfully for horror fans, some survived. It remains a testament to the enduring risks of disregarding copyright.

style

single-column-text

Latest perspectives from brand interchange

Read the latest perspectives from Shoosmiths' brand lawyers

Explore all perspectives

/content/shoosmiths/perspectives

/content/cq:tags/shoosmiths/topics/brand-interchange

]]>

Navigating the UK’s 2026 tax landscape

Mon, 26 Jan 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:91463000-8c12-4cfb-83b4-65ab8be9b94d/as/ART-US00021.avif?assetname=ART-US00021.jpg

alternative text

alternative text secondary

ARTICLE | 6 min read

Navigating the UK’s 2026 tax landscape

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

As 2026 gets well underway, it seems that GCs and finance teams across all sectors are being kept on their toes in ensuring compliance with the UK’s increasingly complex tax system and handling any tax disputes that arise.

Published: 26 January 2026
Author: Michael Scaife & Thomas Wilkinson

/content/dam/shoosmiths/lawyers/thomas-wilkinson/profile

/content/dam/shoosmiths/lawyers/kate-garcia/profile

false

style

single-column-text

If you are a GC reading this, you are not alone! Shoosmiths has released the Litigation risk 2026 report, compiling insights from over 360 general counsel and senior lawyers across our major sectors. 14% of respondents dealt with tax disputes in 2025, including 28% of respondents in the financial services sector, 17% in the consumer and retail sector, 12% in the automotive sector, 13% in the real estate sector, and 5% in the technology sector.

With 43% of respondents predicting that tax litigation risk will increase over the next three years (57% in the financial services sector), we have identified three themes to watch out for this year, and three actions to take now to ensure your organisation is well positioned to deal with Tax Litigation risk.

Three themes to watch out for in 2026

1) A more digital, data-driven HMRC – more automated enquires and fewer ‘human’ touchpoints

HMRC already holds vast quantities of data from returns submitted to it. It also aggregates data from numerous other sources (such as Companies House and HM Land Registry) using its “Connect” system. That system is great at analysing vast datasets for inconsistencies and anomalies but needs a lot of human oversight.

Our expectation is that 2026 will see a shift towards the replacement of human intervention wherever possible. For example, HMRC is preparing to launch a proof-of-concept for a new ‘Caseworker Assistant’ – an AI tool embedded in its case management system. It will focus on summarising case histories, answering case-specific questions and monitoring for returned documents. According to Simon Price, HMRC’s Director for Insight, AI and Innovation, this should result in a noticeable reduction in case handling time and allow staff to redirect their effort to more complex issues.

For taxpayers, this may mean that complex enquiries are dealt with more efficiently which would no doubt be a welcome development. However, it may be that, in the meantime, there are more frequent minor interventions, triggered without much human review or oversight. It is possible that these systems may suffer from ‘teething’ problems and that, as a result, taxpayers face enquiries which contain errors or inaccuracies. It is possible that the burden will increasingly fall on the taxpayer to explain why the system has got things wrong in these circumstances.

2) Self-Correction – a shift of obligation

HMRC consulted on a range of compliance ideas last year, in the consultation ‘The Tax Administration Framework Review: New ways to tackle non-compliance’. We are expecting some of those ideas to be taken forward this year, including the possible introduction of a ‘self-correction’ power, enabling HMRC to require taxpayers to amend a return or explain why no amendment is required within a specified timeframe.

This would represent a significant shift, placing the onus on the taxpayer to consider a possible error and take steps to rectify it in circumstances where HMRC may not have fully explained to a taxpayer why they consider that amendment may be necessary Correction would no longer be a limited HMRC power confined to obvious errors, but a structured compliance tool sitting between “doing nothing” and opening an enquiry. In effect, taxpayers could be compelled to do more of the analysis and engage with HMRC’s view of the data, even where that view might be wrong or unsubstantiated.

3) More technical litigation - time limits for tax appeals

Time limits for challenging HMRC decisions are strict. For many years, the starting point for late appeal applications has been the Martland test, as set out in William Martland v The Commissioners for HMRC [2018] UKUT 0178 (TCC). Under this test, the Tribunal considers (a) the length of the delay; (b) the reasons for the delay; and (c) the merits of the proposed appeal, to be balanced against the prejudice which would be caused to both parties by granting or refusing permission. Essentially, the longer the delay, the more compelling the explanation for the delay needs to be for the Tribunal to accept an appeal outside of the statutory time limits. The case of HMRC v Katib [2019] UKUT 189 (TCC)further emphasised that the need for statutory time limits to be respected was a matter of particular importance to the exercise of the Tribunal’s discretion. Delays can therefore result in lost opportunities for taxpayers, even if the underlying tax dispute is relatively strong.

There was some optimism following the Upper Tribunal’s 2025 decision in Medpro Healthcare Ltd & Anor v HMRC [2025] UKIT 255 (TCC) that Tribunals could exercise a broader and more case-sensitive discretion to carry out the full Martland balancing exercise, and give more weight to a holistic balancing exercise without the length of the delay overshadowing the merits of the case rather than focusing on the ‘particular importance’ of the need for statutory time limits to be respected.

However, 2026 has already kicked off with the Court of Appeal judgment in HMRC v Medpro Healthcare Ltd & others [2026] EWCA Civ 14 which essentially takes taxpayers back to the more hostile environment in which late appeals will rarely be allowed, reinforcing the need to take action quickly on receiving assessments from HMRC.

Three actions to take

It is a bit late for New Year’s resolutions, but here are three manageable actions that might pave the way to a smoother 2026:

1. Strengthen evidence and documentation

With automation rising, contemporary evidence will be critical in disputes — particularly cross‑border matters. Ensuring a strong evidence infrastructure will be key to your organisation’s readiness to respond to any enquiry or dispute. Please reach out to your usual Shoosmiths contact if you would like help in creating a tax preparedness package to ensure valuations, motivations and commercial decision-making processes are recorded in case of HMRC enquiry.

2. AI integration into compliance readiness

Integrate AI into all compliance‑readiness assessments by carrying out a litigation‑preparedness review that identifies potential areas of exposure. Ensure the organisation’s use of AI is examined throughout the process so that any dependence on AI‑generated outputs is tested and any related vulnerabilities are fully understood and, where possible, appropriately addressed. Think about the impact of AI on legal professional privilege.

3. Prioritise ethics in the company culture

Foster an ethical environment built on trust, transparency, and openness, with leadership clearly modelling a commitment to integrity, speaking up, and seeking support when needed. Consider the wider impact of decisions, including potential unintended tax consequences, and be ready to make disclosures promptly if and when tax errors are identified in order to mitigate penalties and maintain a good relationship with HMRC.

And, of course, keep up-to-date with Shoosmiths’ Litigation risk 2026 report to see how your own experiences compare with others in your sector.

Please contact us if you would like more information or help in preparing for the changing tax litigation landscape this year.

/content/shoosmiths/all-experience-fragments/perspectives-disclaimer

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-transactional-and-advisory/ddcc-tax

]]>

Automotive supply chains: A new era of dispute risk

Mon, 19 Jan 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:4aaf5039-eb50-487e-8f66-5f9c7871d281/as/Detailed-perspective-(12).avif?assetname=Detailed+perspective+%2812%29.png

alternative text

alternative text secondary

ARTICLE | 5 min read

Automotive supply chains: A new era of dispute risk

Why instability is reshaping the sector

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Automotive supply chain disputes are accelerating as geopolitical shocks, technology transitions and cost volatility collide. The global, linear model that defined the sector no longer holds. For ambitious OEMs and their suppliers, resilience now depends on dual sourcing, deeper tier visibility and contracts built for volatility. Continuity, not perfection, will be what keeps automotive production moving.

Published: 19 January 2026
Author: Jonathan Smart

/content/dam/shoosmiths/lawyers/jonathan-smart/profile

false

style

single-column-text

The message is clear: in-house lawyers in the automotive sector are under pressure. Our annual litigation report shows automotive supply chain disputes dominating their workload, with 65% of respondents handling logistics issues – more than any other industry surveyed. That trend is not easing; 58% expect this risk to grow over the next three years, and more than half say their boards are already treating it as a priority concern.

Supply chains are becoming a fault line for the sector. With that in mind, the real question is what is driving this surge in disputes, and what can OEMs and suppliers do now to stay ahead of the risk?

A sector under strain

Global instability is rewriting the rules of automotive supply. Semiconductor disruption, conflict‑driven component shortages and escalating US‑EU‑China friction are forcing OEMs and suppliers to rethink long‑held sourcing strategies. The old playbook of one global factory serving multiple markets simply no longer works. The modern trend of increased localisation is the very antithesis of the globalisation for which the industry was historically famed. Clients tell us that proposed US sanctions and China’s grip on battery minerals are already reshaping investment decisions.

Technology scaling risk

Elsewhere, electrification, battery ecosystems and software‑defined vehicles have multiplied points of failure. One misaligned software release or delayed component can stall entire production lines; as such, “just in time” supply chains are more fragile than ever. As supply networks become more interdependent, disputes triggered by operational friction are becoming unavoidable. These are rarely “legal problems” in isolation – they are business continuity problems that turn legal when pressure peaks.

Cost pressure at boiling point

Finally, manufacturers are demanding price stability that suppliers cannot absorb. Raw materials, energy and labour remain volatile, yet contractual expectations often assume flat costs. We are increasingly seeing suppliers threaten to halt delivery around disputes on price increases and OEMs push urgent contractual remedies just to keep vehicles moving. When relationships deteriorate, disputes emerge not from the contract’s language, but from the commercial reality teams are reacting to under strain.

Where automotive supply chain disputes are emerging

Late deliveries, missed volumes and line‑stop costs are now routine flashpoints. Price volatility is adding heat, with raw material spikes pushing parties into conflict over who carries the burden.

Technical issues are growing too with battery defects, safety concerns and software failures triggering high‑stakes arguments about responsibility. At the same time, both OEMs and suppliers are testing the limits of their contracts as margins tighten and performance slips.

Add into that geopolitical disruption, – sanctions, supplier losses and logistics bottlenecks, and fragile relationships are tipping into formal disputes at speed. This is the reality: operational problems are becoming legal problems overnight. What businesses need now is joined‑up governance, not siloed reactions.

How automotive businesses can mitigate supply chain risk

Commercial levers: Dual sourcing is now essential. In a world defined by geopolitical shocks and unpredictable costs, relying on a single supplier is not resilience – it’s risk. When one link in the chain snaps, whether through insolvency, disruption or material shortages, production does not slow down, it stops overnight.

That is why dual sourcing has become the most powerful lever manufacturers can pull. It cuts vulnerability, strengthens negotiating power and gives automotive businesses the flex they need to absorb shocks without bringing factory output to a halt. Strong contracts matter – but they cannot keep a production line moving if the only supplier collapses. A diversified supply base can. And in today’s landscape, it is the foundation of genuine supply‑chain stability.

Operational levers: Real resilience starts with visibility. Too many automotive manufacturers still only see as far as their Tier 1 suppliers, leaving critical risks hidden deeper in the chain. Batteries, semiconductors and software all rely on complex networks, and without proper mapping, businesses cannot spot where pressure will hit.

Across the industry, that is changing. Risk mapping is now essential, giving manufacturers the insight to identify bottlenecks early and understand how disruptions ripple through their operations. With stronger operational oversight – especially deeper‑tier visibility – businesses can react faster, avoid preventable shocks and build supply chains that genuinely hold under pressure.

Legal levers: These do not stop disruption, but they decide how well you navigate it. Commercial and operational steps reduce risk, but the legal framework is what keeps control when pressure builds.

Contracts should include unambiguous performance obligations on volume, quality and delivery. Without them, small issues turn into big disputes.

With costs, technology and component availability shifting fast, manufacturers need clear processes to adjust terms in a structured way. Ambiguity is a shortcut to conflict. Instead, businesses should protect themselves with practical termination rights and realistic liability caps. When a supplier relationship breaks down, these tools keep risk contained.

Despite that, even the strongest contract has limits. A perfect clause will not restart production if a sole supplier fails. That is why legal levers must sit alongside commercial strategies like dual sourcing, working together to prevent disputes and not just manage them.

Looking ahead

As our research highlights, boards expect supply chain disputes to remain high for at least the next three years. The combination of geopolitical fragmentation, technology complexity and cost compression is not going away.

Automotive businesses that thrive will be those that embed resilience – dual sourcing, supply chain transparency and contracts built for volatility – not as a response, but as standard practice.

Litigation risk 2026 report

For our third annual Litigation risk report, we spoke to more than 360 UK-based general counsel and senior in-house lawyers from large businesses across automotive, consumer and retail, energy, financial services, real estate and technology sectors.

/content/shoosmiths/perspectives/reports/litigation-risk-2026-report

Download the report

/content/shoosmiths/all-experience-fragments/perspectives-disclaimer

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-disputes-risk-and-compliance/ddcc-regulatory-compliance-and-risk

]]>

Litigation risk 2026 report

Mon, 19 Jan 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:65198baf-1b09-4282-a500-d9eedc7f1b0f/as/Litigation-Risk-cover.avif?assetname=Litigation-Risk-cover.jpg

alternative text

alternative text secondary

Litigation risk 2026 report

Responding to the new wave of global risks

Get the views of 360 GCs on today’s disputes and tomorrow’s new and evolving risks

false

cta

https://sites-shoosmiths.vuture.net/6/3326/landing-pages/litigation-risk-report-2026---download-form.asp

Download the report

title

false

Modal title

medium

17B078

For our third annual Litigation risk report, we spoke to more than 360 UK-based general counsel and senior in-house lawyers from large businesses across automotive, consumer and retail, energy, financial services, real estate and technology sectors.

Now, with the benefit of three years’ of data, we have deepened our analysis and uncovered the new battlegrounds for business.

This year, our survey respondents reveal that while regulatory disputes, especially in financial services, clean energy and tech, have increased, employment, competition, and environmental claims have eased. Yet, the forecast is far from reaching a plateau: expect a rise in litigation across England and Wales, North America, Asia Pacific, and the EU over the next three years.

style

single-column-text

Key findings for 2026

55%

Involved in regulatory disputes in last 12 months.

17B078

55%

Expect AI-related litigation to increase.

17B078

73%

Believe state-sponsored cyber attacks increased risk.

17B078

68%

Believe ‘legal merit of the case’ the key factor.

17B078

AI-related litigation has risen to become the top concern, outpacing intellectual property and breach of contract. Add to this the spectre of geopolitical instability, cyber-attacks, and shifting priorities in sustainability and DEI, and it’s clear that in-house teams will be scaling up to meet a new wave of challenges.

The report includes actionable intelligence and practical advice: how leading companies are strengthening cybersecurity, rethinking supply chains, and ramping up legal resources. It spotlights why legal merit and reputation now trump cost in litigation decisions and examines how companies are proactively bringing claims for financial gain. If you want to ensure you are prepared for the year ahead and understand how your peers are responding, we think this report will provide essential insight for 2026 and beyond.

Litigation risk 2026 report

Get the views of 360 GCs on today’s disputes and tomorrow’s new and evolving wave of global risks.

https://sites-shoosmiths.vuture.net/6/3326/landing-pages/litigation-risk-report-2026---download-form.asp

Download the full report

Download the report

style

single-column-text

We do see a challenge in AI democratising access to litigation, It is now very easy for individuals to use AI to write DSARs, for example, so we need to be prepared to respond to that. Plus, in group actions, claimant law firms use AI to look back at previous statements that companies have made and that increases the entry points for litigation.

Andrea Murray, Director of Competition, Litigation and Compliance at Virgin Media O2

Litigation risk 2026 report: walkthrough

https://youtu.be/1kjHizwRuds

style

single-column-text

Our leaders in dispute resolution & litigation

Explore all people

/content/shoosmiths/people

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:63e9ffc1-e630-435e-99b5-91c74ead6e21/as/Alex-Bishop.avif?assetname=Alex+Bishop.jpg

Partner

Alex Bishop

Discover

/content/shoosmiths/people/directory/alex-bishop

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:a70ee10b-eee9-4552-8cef-a1b6e07d77f6/as/00008204.avif?assetname=00008204.png

Partner

Sarah Teal

Discover

/content/shoosmiths/people/directory/sarah-teal

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:9461d774-b976-45c4-a02b-6ed90f66a0ac/as/00006761.avif?assetname=00006761.png

Partner

Hayley Saunders

Discover

/content/shoosmiths/people/directory/hayley-saunders

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:ba062dad-367e-4951-a7c4-c853feb10026/as/02002191.avif?assetname=02002191.png

Partner

Andrew Whalley

Discover

/content/shoosmiths/people/directory/andrew-whalley

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:0ca446f3-0b10-4190-947d-5af7135cc483/as/00009555.avif?assetname=00009555.png

Partner

Andrew Brennan

Discover

/content/shoosmiths/people/directory/andrew-brennan

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:8b2d4230-d175-4ad3-852a-2fe2950ffe50/as/02001014.avif?assetname=02001014.png

Partner

Daren Allen

Discover

/content/shoosmiths/people/directory/daren-allen

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:7b3f60ee-f628-44f8-968a-5494b63ac16a/as/00010079.avif?assetname=00010079.png

Partner

Phil Crowe

Discover

/content/shoosmiths/people/directory/phil-crowe

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:af6a25ac-8321-43ed-aaeb-4db997aa2e85/as/00008518.avif?assetname=00008518.png

Partner

Jonathan Smart

Discover

/content/shoosmiths/people/directory/jonathan-smart

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:bbfa136e-d182-4740-a5c5-7efc863a007c/as/00010018.avif?assetname=00010018.png

Partner

Stuart Clubb

Discover

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:732dbb0c-9f59-48e1-b097-6f72ccd83409/as/02001886.avif?assetname=02001886.png

Partner

Hannah Field

Discover

/content/shoosmiths/people/directory/hannah-field

Perspectives shaping dispute resolution & litigation

From emerging risks to strategic opportunities, stay ahead with our sector-specific insights, articles, and news covering the issues and innovations driving change

Explore all perspectives

/content/shoosmiths/perspectives

/content/cq:tags/shoosmiths/expertise/disputes-risk-and-compliance/dispute-resolution-and-litigation

/content/cq:tags/shoosmiths/content-type/perspectives

]]>

Negligence claims: judgment on scope of duty and recoverable loss

Tue, 13 Jan 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:99d3c618-83c6-46e1-8d43-5e741332a845/as/ART-US00045.avif?assetname=ART-US00045.jpg

alternative text

alternative text secondary

ARTICLE | 5 min read

Negligence claims: judgment on scope of duty & recoverable loss

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

The recent Court of Appeal judgment in Afan Valley Ltd & others v Lupton Fawcett LLP has highlighted the importance, in potential professional negligence claims, of carefully assessing scope of duty and recoverable loss at an early stage.

Published 13 January 2026

/content/dam/shoosmiths/lawyers/peter-richards-gaskin/profile

/content/dam/shoosmiths/lawyers/james-kidd/profile

style

single-column-text

The Court of Appeal (CoA) has unanimously dismissed an appeal by the various insolvent Claimant companies (acting by their Joint Administrators) against an order striking out their claims against the Defendant solicitors’ firm and granting reverse summary judgment. In his judgment Lord Justice Nugee (with whom Lord Justices Edis and Holgate agreed) endorsed the key finding of the High Court judge that the Claimants had failed to show they had suffered any loss as a result of the Defendant’s allegedly negligent advice, in particular on the basis of a ‘money in money out’ argument, and applying the Supreme Court’s approach set out in its 2021 decision in Manchester Building Society v Grant Thornton LLP (MBS).

Background

In short, the Claimants were special purpose vehicles used as part of property investment schemes that together raised around £68m from investors in the UK and abroad. The schemes were however operated fraudulently, resulting in the Claimants’ eventual insolvency.

The Claimants’ case was that they had sought advice from the Defendant over a prolonged period as to whether the schemes were collective investment schemes (CISs) within the meaning of ss.235 and 417(1) of the Financial Services and Markets Act 2000 (FSMA) (and therefore subject to the general prohibition at s.19 FSMA). The net result was that by late 2017 the Defendant advised the key individual operating the schemes to “become FCA regulated”.

The Claimants alleged the Defendant should have advised much earlier that the schemes were (or very likely were) CISs, in which circumstances the schemes would never have been promoted and no investments made. Instead, on the Claimants’ case, the consequence of the Defendant’s advice was that the Claimants incurred significant liabilities under s.26 FSMA, entitling the investors to recover (i) the funds invested, plus (ii) compensation for any loss sustained as a result of having parted with those funds.

High Court decision

The Defendant applied for strike out/reverse summary judgment, arguing that the Claimants had failed to establish any recoverable loss.

The High Court agreed; the s.26 liabilities to return the funds invested were the primary head of loss claimed, but those liabilities were only equal to the assets obtained, and so overall the Claimants were no worse off (the ‘money in money out’ argument). In addition, it was the (fraudulent) use of the funds invested which had caused the losses claimed, rather than merely their receipt. Following MBS, the scope of the Defendant’s duty of care to the Claimants was limited to the impact of FSMA to the extent the schemes were CISs; the relevant alleged harm flowing from that was the requirement to repay the funds invested which was set off in full.

The appeal

The Claimants appealed on three grounds, essentially that:

the investments made were not ‘balance sheet neutral’, since commissions and fees were payable on completion
the judge was wrong in his analysis of the scope of duty (albeit this later evolved into a point around longer-term expenditure)
they had a reasonable prospect of demonstrating further losses in the form of compensation payable under s.26(2)(b) FSMA

Court of Appeal decision

Addressing scope of duty first, Nugee LJ endorsed the judge’s conclusion that the duty of care the Defendant undertook was limited to the impact of FSMA if the schemes were CISs. This was the question it was asked to advise upon (not any wider issues around commercial viability of the schemes, risk of fraud etc) and the only pleaded impact was the s.26 liability.

On that basis, Nugee LJ considered there was no sufficient nexus between the Ground 1 losses (commissions and fees) and the Defendant’s duty of care. These were losses which would have been incurred whether the schemes were CISs or not and, applying the MBS framework, these were not losses the duty of care was intended to guard against.

Conversely there was sufficient nexus, in principle, between the Ground 3 losses (s.26(2)(b) compensation) and the Defendant’s duty of care; “the Claimants’ only possible escape from the logic of the [money in money out] argument”. This was also bound to fail, however; in the ‘counterfactual world’ in which the schemes were not CISs, the same sequence of events would have unfolded, culminating in the Claimants’ insolvency. Whilst the investors would not have rights under s.26 FSMA, Nugee LJ accepted the Defendant’s argument that the investors would (as they did in any event) have valid claims against the Claimants in the tort of deceit and in breach of contract which were “at least as valuable” as s.26 claims. It would only be if the s.26 claims were of greater value than other available claims that the alleged negligence would give rise to loss recoverable from the Defendant.

The Claimants’ further argument around losses relating to longer-term expenditure required from investors was disposed of in short order; it assumed the schemes were ultimately intended to be profitable which was “flatly inconsistent” with the Claimants’ own case that they were in fact a dishonest Ponzi scheme.

The appeal was accordingly dismissed.

Key takeaways

The CoA decision provides a further useful example, to those engaged or potentially engaged in professional negligence disputes, of how the Courts will apply the “structured framework” set out in MBS in 2021, in particular the questions relating to scope of duty, factual causation and the nexus between duty and harm.

It also clearly illustrates the importance for parties contemplating bringing a claim of carefully considering at an early stage what the MBS analysis would ‘look like’, engaging constructively and comprehensively in pre-action correspondence, and (if/when appropriate) pleading their case fully and promptly. While certain aspects of the claim may well appear strong, if there are ‘gaps’ in other elements then the claim as a whole will be susceptible to strike out/summary judgment applications (and the attendant costs consequences).

Finally, in relation to unauthorised CISs generally, the decision highlights (and briefly contrasts) the different potential causes of action investors in such schemes may seek to rely on - subject of course to the facts - to recover associated losses, as well as a lack of authority on the statutory right to claim compensation under s.26(2)(b) FSMA.

Update

On 4 March 2026, an application for permission to appeal the Court of Appeal decision was lodged with the Supreme Court. The Supreme Court’s decision will be published in due course and we await the outcome with interest.

/content/shoosmiths/all-experience-fragments/perspectives-disclaimer

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-disputes-risk-and-compliance/ddcc-dispute-resolution-and-litigation

]]>

Shoosmiths bolsters Litigation team and Leeds presence with Partner hire

Tue, 6 Jan 2026 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:ca111f79-c2f6-489e-9fa1-dc090064953f/as/NEWS-US00003.avif?assetname=NEWS-US00003.jpg

alternative text

alternative text secondary

Press release | 2 MIN READ

Shoosmiths bolsters Litigation team & Leeds presence with Partner hire

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Shoosmiths is delighted to announce the appointment of Tim Pickworth as Leeds-based Partner in the firm’s Litigation, Regulatory and Compliance team.

Published: 6 January 2026

/content/dam/shoosmiths/lawyers/alex-bishop/profile

false

style

single-column-text

Tim joins from DAC Beachcroft, where he launched and led the firm’s Leeds Commercial Disputes team for the past five years. He brings with him extensive experience in advising on high-value and complex commercial disputes including M&A, fraud and contractual claims spanning a range of sectors including aerospace, energy, technology, healthcare and retail.

Tim’s work centres on complex disputes with a particular specialism in relation to urgent injunctive relief, including freezing orders, breaches of covenant and misuse of confidential information. He has acted for clients on multi-million-pound litigation and international arbitration cases and holds strong relationships with high-profile clients, in the UK and globally. Tim is recognised by Legal 500 as a ‘Next Generation partner’ and an ‘outstanding lawyer’.

Shoosmiths Partner and Head of Litigation, Regulatory and Compliance practice, Alex Bishop, said: “We’re delighted to be welcoming Tim to Shoosmiths. His strong track record and reputation as a technically excellent and commercially astute litigator will further enhance our ability to attract and service high-value, complex disputes work, both nationally and internationally.”

“Tim will be based in Leeds, championing our firm’s commercial litigation presence in the region. His leadership and cultural alignment make him a great fit for Shoosmiths’ 2030 strategy, having built and managed teams in his previous role where he initiated cross-office collaboration and actively contributed to mentoring and DEI initiatives.”

Commenting on his appointment, Tim said: “To be part of the firm’s standout Litigation, Regulatory and Compliance team is an exciting prospect. I’m looking forward to playing a key role in Shoosmiths’ growth strategy, and it is a great opportunity to contribute to a positive, collaborative firm that is focussed on building on the stellar reputation it has established across the UK litigation market.”

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-disputes-risk-and-compliance/ddcc-dispute-resolution-and-litigation

]]>

The Shareholder Rule – Gone for Good? Privilege Update Explained

Tue, 16 Dec 2025 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:1b5c98dd-d720-4869-9756-202f37f52fd0/as/Brand_Images_Places-(70).avif?assetname=Brand_Images_Places+%2870%29.jpg

Article | 3 min read

The Shareholder Rule – Gone for good?

Privilege update explained

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

The Privy Council’s recent decision in Jardine Strategic Ltd v Oasis Investments II Master Fund Ltd and others [2025] UKPC 34 marks a decisive end to the ‘Shareholder Rule’ following on from the English High Court’s earlier rejection of the doctrine in Aabar Holdings v Glencore. While Aabar was the first to challenge the rule’s application in English law, Jardine goes further, removing any residual uncertainty and confirming that privilege prevails in shareholder disputes. What’s changed and why does it matter for UK boards and investors?

Published 16 December 2025

/content/dam/shoosmiths/lawyers/hannah-field/profile

/content/dam/shoosmiths/lawyers/laura-clark/profile

false

style

single-column-text

Jardine Strategic Ltd: a shareholder challenge to a corporate restructure

Jardine Strategic Holdings Limited (“JSHL”), part of the Jardine Matheson group, announced a restructuring in 2021 that would see shareholders’ shares cancelled in exchange for payment of fair value. The $33 per share offer was approved at a special general meeting, but not all shareholders were convinced. Minority investors challenged the fairness of the price and asked the Bermuda courts to determine the true value of their shares in accordance with section 106(1) of the Bermuda Companies Act 1981.

As part of their claim, the shareholders sought disclosure of legal advice obtained by JSHL about the valuation. The company refused, relying on legal advice privilege, bringing the long-standing “Shareholder Rule” into sharp focus once again.

The Shareholder Rule: a historical doctrine

For over a century, the Shareholder Rule meant companies could not use legal advice privilege to shield documents from shareholders in disputes. The logic was simple: shareholders, as owners, had paid for the advice and should be entitled to see it, and had a proprietary interest in the company and its assets. But as company law evolved, recognising companies as separate legal entities, the rule became increasingly out of step with modern practice.

The Privy Council’s verdict: privilege prevails

The Privy Council has now decisively rejected the Shareholder Rule, confirming it no longer forms part of Bermuda law and “ought not to continue to be recognised in England and Wales”. The Board found the rule inconsistent with the principle of separate legal personality and dismissed arguments that shareholders’ interests are always aligned with those of the company – especially in litigation.

While a narrowing of the Rule was considered, as advanced by the Court of Appeal judge, the Privy Council rejected this approach due to concerns over legal certainty. The Board noted that any attempt to narrow the Rule would create uncertainty for directors and advisers. Without clear boundaries, directors would not know whether their legal advice would remain privileged, undermining the very purpose of legal advice privilege and discouraging open communication with legal advisers.

Why is the decision in Jardine more important?

Unlike Aabar, which was a High Court decision and left scope for further judicial consideration, Jardine Strategic is a Privy Council ruling with binding effect in England and Wales which clarifies the application of the rule. Rather than simply rejecting the rule in a single context, it abolishes it entirely, and providing much-needed clarity for boards, advisers, and shareholders alike.

Why does this matter?

The Privy Council’s ruling is not just a doctrinal clarification - it has immediate, practical consequences for all parties involved in corporate disputes:

boards and directors can now engage in frank discussions with legal advisers, knowing that privilege will be robustly protected. This supports better risk management and more effective decision-making, especially in contentious or high-value transactions
shareholders must adapt their litigation strategies, as they can no longer rely on the Shareholder Rule to access privileged advice. The decision is an additional hurdle for shareholders, who are already often at an informational disadvantage when in disputes with boards who have greater access to company documents. Access to privileged company documents is now limited and there are no special rights conferred solely because of investor status
companies may wish to review their constitutional documents to clarify when, if ever, privileged advice may be shared with shareholders, ensuring transparency and managing expectations

This decision removes any lingering doubt left after Aabar and sets a clear, modern standard for privilege in shareholder disputes, making the legal landscape more predictable for all parties.

The takeaway

The Privy Council’s decision in Jardine Strategic Ltd v Oasis Investments II is a win for clarity. Companies and their advisers can rely on privilege with greater confidence, while shareholders must pursue their claims within the established boundaries of litigation privilege.

/content/shoosmiths/all-experience-fragments/perspectives-disclaimer

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-expertise/ddcc-disputes-risk-and-compliance/ddcc-dispute-resolution-and-litigation

]]>

Hiring for the holidays? What employers need to know about the Employment Rights Bill

Mon, 15 Dec 2025 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:3f52ccd5-ae66-4011-9a94-278ffe8bb9e0/as/ART-u2114277519_create_high_end_photography_showing_detail_of_hot_871b7ce3-7550-4653-9769-5b93db310007_2.avif?assetname=ART-u2114277519_create_high_end_photography_showing_detail_of_hot_871b7ce3-7550-4653-9769-5b93db310007_2.jpg

Article | 3 min read

Hiring for the holidays?

What employers need to know about the Employment Rights Bill

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Each Christmas, UK retailers hire over 400,000 temporary staff to meet festive demand. This year, the rush for mince pies and fairy lights comes with added complexity: the Employment Rights Bill (ERB) could reshape seasonal hiring.

Published 15 December 2025

/content/dam/shoosmiths/lawyers/samantha-mackie/profile

/content/dam/shoosmiths/lawyers/katie-hindle/profile

false

style

single-column-text

The festive hiring landscape

The Christmas season is a time of sparkle, celebration and a surge in consumer demand. To cope, retail, hospitality and warehousing businesses rely heavily on seasonal staff. Recruitment often starts in October, with fixed-term or zero-hour contracts offering flexibility. But the ERB, currently progressing through Parliament and the House of Lords, introduces reforms that will change how employers engage these workers.

Current practice

Zero-hour and short-term contracts give employers agility to respond to fluctuating demand. Key features of zero-hour contracts include the freedom to work elsewhere without providing exclusivity to one employer. Employers are not required to offer work, workers are not obliged to accept it and neither party must give notice. A perfect set up for those fitting shifts around Christmas shopping and festive plans?

While these contracts suit some demographics like students, gig economy workers and those seeking extra income during the festive period, they present challenges. Zero-hour staff are generally classified as “workers” rather than “employees”, which means fewer statutory rights (e.g. no unfair dismissal protection and limited redundancy rights). Their income is unpredictable and, if the arrangement is extended, there is limited job security. Industry bodies have long recognised these issues, but during peak seasons, zero-hour arrangements can remain practical for both sides.

What the ERB proposes

The ERB does not ban zero-hour contracts. Instead, it aims to curb “one-sided flexibility” by permitting zero-hour arrangements only with agreement from the worker. Other proposals include:

Guaranteed hours offers:

if a worker regularly exceeds contracted hours over a reference period, employers must offer a guaranteed-hours contract reflecting those hours
the reference period is expected to be 12 weeks, starting from the first day of assignment and continuing in 12 week blocks thereafter
workers will then have a set period within which to accept the offer. Workers can decline and remain on zero-hour terms, but offers must specify days/times when work will be available

Shift notice and compensation

workers gain the right to reasonable notice of shifts. “Reasonable notice” must include the shift’s duration and start/end times
notice given less than a “specified amount of time” (to be set by regulations) will be unreasonable. This includes a deviation from a shift pattern included in a worker’s contract
if a shift is cancelled, moved or cut short at short notice, the employer will need to pay a “specified amount” to the worker. The extent of the financial ramifications is still unknown

Could agency workers solve the problem?

A thrifty employer might seek to pivot around the proposals by engaging agency workers instead. However, agencies cannot deliver a Christmas miracle in these circumstances as the provisions will also apply to agency staff. Hirers will generally be responsible for guaranteed hours offers, so strengthening your agency relationships and having meaningful contractual negotiations is key. For more information on ERB agency proposals, read our article here.

Impact on seasonal hiring

The new zero-hour contract restrictions will create substantial operational challenges for consumer and retail employers during the festive period, where staffing needs fluctuate even hourly. The requirement to provide guaranteed hours for seasonal workers removes the ability to scale labour in line with real-time demand. Practically, this means retailers may be caught paying for unrequired hours on quieter days, increasing wage costs and reducing the responsiveness that peak trading traditionally relies on.

Forecasting demand in advance also becomes significantly harder. Retailers are being asked to effectively “crystal-ball gaze” when deciding staffing levels weeks ahead. Retailers might need to consider methods of predicting consumers’ response to sales, promotions and economic pressures. Realistically, consumer behaviour is difficult to track: a slow Black Friday can be followed by a surge in December, or vice versa. The new provisions force staffing decisions before reliable sales data is available, increasing the risk of overstaffing/understaffing stores and warehouses.

Administrative burdens will also rise. Employers will need earlier recruitment cycles, more complex scheduling systems and tighter contract management. Any error increases exposure to tribunal claims or financial penalties during an already high-turnover period.

The House of Lords has acknowledged these concerns and advocated for regulations that reflect the unique nature of seasonal work. As a compromise, the government has agreed to consult on the impact this new statutory duty will have on seasonal workers and the impact of the new statutory duty on agency workers who do seasonal work before implementing regulations are finalised. Nevertheless, businesses should prepare for significant changes ahead.

Is overtime the answer?

Relying on current employees seeking overtime is no simple fix. Permanent staff may resist additional hours, overtime rates increase costs and workforce fatigue risks rise, particularly in logistics roles where accuracy matters. Overall, retailers will need to invest in earlier planning, stronger agency relationships and more sophisticated demand-forecasting tools to maintain operational stability under the new regime.

Practical steps for employers

The ERB is expected to become law before the end of 2025 with most changes phased in during 2026-2027. Once these provisions come into force, employers should:

Audit your workforce: Identify zero-hour and low-hours contracts and review workload planning systems.

Adapt recruitment strategies: Explore hybrid models which combine permanent staff overtime with limited seasonal hires.

Plan ahead: Forecast peak retail trading staffing requirements early and manage rotas proactively to minimise the risk of overstaffing.

Monitor hours: Implement software or clocking-in systems to track average hours worked for compliance.

Fixed-term contracts: There will be limited circumstances that will allow an employer to offer a fixed-term contract where it is “reasonable” e.g. the worker is only needed to perform a specific task. This provides a potential route to manage short-term demand although employers should anticipate claims and developing case law to determine what is “reasonable”.

Key takeaway

The ERB seeks to balance flexibility with fairness. Seasonal hiring will remain possible, but it will require more planning and robust compliance processes. Employers should start risk-assessing the Bill’s impact now, exploring hybrid staffing models and ensuring systems can manage guaranteed-hours obligations.

/content/shoosmiths/all-experience-fragments/perspectives-disclaimer

style

single-column-text

]]>

Nationwide fined £44m: Key lessons on financial crime

Mon, 15 Dec 2025 00:00:00 GMT

https://delivery-p150664-e1601913.adobeaemcloud.com/adobe/assets/urn:aaid:aem:f38f69a8-91d9-41c5-9454-24a0e4fbeb36/as/Brand_Images_Places-(72).avif?assetname=Brand_Images_Places+%2872%29.jpg

Article | 3 min read

Nationwide fined £44m: Key lessons on financial crime

false

aiSummary

Summarise with AI

AI summary

/content/shoosmiths/index

Summarise with AI

title

true

Modal title

medium

17B078

Nationwide Building Society was fined £44m (after 30% discount), by the Financial Conduct Authority ('FCA') for inadequate anti-financial crime systems and controls between October 2016 to July 2021. Here we outline the key facts and takeaways from the FCA’s Final Notice dated 11 December 2025.

Published 15 December 2025

/content/dam/shoosmiths/lawyers/daren-allen/profile

style

single-column-text

Key facts:

Nationwide’s system for risk assessing customers, at the start of the relevant period, was unsophisticated with only limited categories (e.g. person charged or convicted of financial crime) falling within the definition of a high-risk customer
Nationwide did not have effective systems for refreshing customer due diligence (‘CDD’) and conducting customer risk assessments
there were (i) gaps in the CDD undertaken for existing customers, (ii) some risk assessments were not fully completed, and (iii) Nationwide could not be confident that it had identified all high-risk customers
the deficiencies had a potentially material impact on the ability to monitor customer activity
Nationwide had no process for undertaking either periodic or event-driven reviews of a substantial proportion of its customer relationships
Nationwide allowed personal accounts to be used for business purposes, without effective mitigating controls. In particular, (i) CDD measures were not calibrated to capture business characteristics (ii) transaction monitoring systems were not designed to identify unusual / suspicious business activity, and (iii) training and processes did not include sufficient guidance on how to investigate business use accounts
Nationwide missed opportunities to identify unusual activity when payments, related to the Coronavirus Job Retention Scheme, were received into the accounts of personal customers

Key takeaways:

firms must establish and maintain an adequate risk-based anti-money laundering control framework which is comprehensive and proportionate to the nature, scale and complexity of the firm’s activities
a firm’s AML framework must include measures to establish the identity of customers accurately at the start of the relationship and to undertake sufficient CDD to enable the firm to understand the purpose and nature of the customer’s intended relationship so that the firm can assess the money laundering risks presented by the customer
where AML risks are high, firms should undertake enhanced due diligence
firms should monitor the activities of customers, to ensure that the conduct is consistent with the firms understating of the customer. The extent and frequency of the monitoring will depend on the risks identified
where the risk associated with the customer relationship is high, enhanced ongoing monitoring of the relationship must be undertaken
where customer activity is inconsistent with the firm’s understanding of the customer, it should investigate and (where appropriate) submit a suspicious activity report to the National Crime Agency
given that there is an elevated risk of financial crime in the retail banking sector (because of the volume of transactions, simple onboarding processes and its mass market nature), additional precautions need to be taken in respect of SME customers
retail banks need to be wary of account holders using personal current accounts for business purposes and must have systems in place to detect / identify the scale of the issue. FCA referenced one egregious case in its press release, where Nationwide failed to identify unusual activity on the part of a customer (i.e., during an 8-day window, the customer fraudulently claimed and received £26m of payments relating to the Coronavirus Job Retention Scheme)

More information

For more information or advice, please contact our Financial Services Disputes and Investigations team.

/content/shoosmiths/all-experience-fragments/perspectives-disclaimer

style

single-column-text

/content/shoosmiths/all-experience-fragments/ddcc-sectors/ddcc-financial-services-perspectives

]]>