The document provides an update on commercial law for in-house lawyers, including the Consumer Contracts Regulations 2013 and three relevant cases on good faith in contracts. It also discusses a new in-house lawyer telephone consultation service and issues related to technology developments like toll fraud and password confidentiality. Key points covered include required information and cancellation rights under the Consumer Contracts Regulations, implications of the duty of good faith in long-term "relational" contracts, and allocating responsibility for third party hacking to prevent toll fraud disputes.

1. Commercial law update
In house lawyers forum – October 2014

2. • Consumer Contracts Regulations 2013
• contract update – three cases
• technology developments – toll fraud

3. In house lawyer ‘checker’ product
• free second opinion/expert view/check
a point
• approx. 20 minutes on the telephone
• equivalent to seeing a specialist at their
desk
• exclusively for in house lawyers
Terms and conditions apply

4. The Consumer Contracts…
(information, cancellation and additional charges)…
Regulations 2013

5. CC (information, cancellation and additional charges)… Regs
• information
• cancellation
• additional charges

6. CC (information, cancellation and additional charges)… Regs
• information
– template cancellation form, compatible
equipment, complaints, ‘pay now’ button
• cancellation
• additional charges

7. CC (information, cancellation and additional charges)… Regs
• information
– template cancellation form, compatible
equipment, complaints, ‘pay now’ button
• cancellation
– 14 days (or 1 year) cancellation, return &
refund
• additional charges

8. CC (information, cancellation and additional charges)… Regs
• information
– template cancellation form, compatible
equipment, complaints, ‘pay now’ button
• cancellation
– 14 days (or 1 year) cancellation, return &
refund
• additional charges
– no pre-ticked boxes or premium phone
lines

9. • ‘good faith’ – BGS v IDC (2014 CFI) -
remember these…
– Compass Group v Mid Essex (2013) CA
– TSG Building Services v South Anglia
(2013) CFI
– Yam Seng v International Trade Corp
(2013) CFI?

10. • ‘good faith’ – BGS v IDC (2014 CFI)
• here - implied duty of good faith where
there is a ‘relational’ contract requiring
a relationship based upon trust

11. • for long term agreements – outsourcing,
franchising, agency, distribution –
consider arguments of ‘implied good
faith’
• however…

12. • agreement with DVLA
• ‘Partners Achieving Change Together
Partnering Agreement’ (!)

13. • held
– if good faith was intended – should have
been explicit

14. • if you can’t be sure of a breach but are
seeking damages
– argue that the agreement is ‘relational’
• if the other side make this argument
– focus on the wording of the contract &
previous case law, that it is not
‘necessary’ in order to make sense of the
agreement

15. • disputes to be resolved first…
• … by ‘friendly negotiations’
• binding?

16. • if you are faced with an obligation like
this – at least try talking!
• avoid ‘friendly negotiation’ type
wording unless you’re prepared to
commit to it

17. • Voiceflex v Frip Finishing Ltd (2014 CFI)
• can Voiceflex recover cost of calls made
on Frip’s account?
• Frip to “use all reasonable endeavours
to keep the password confidential”

18. • toll fraud – check terms
• where facts are hard to prove (3rd party
hacking), consider explicit allocation of
responsibility – and explicit steps for
customer to observe
• practical point worth checking…

19. • Consumer Contracts (Information,
Cancellation and Additional Charges)
Regulations are now in force
• for ‘relational’ contracts – good faith
may now be implied (but bear in mind
competing case law)
• repeated use of the word ‘partner’
won’t avoid disputes

20. Get in touch if you have any questions or
would like further information.
t +(0)121 237 3992
e richard.nicholas@brownejacobson.com