Legal Update For Energy Lawyers

Author:Mr David Leckie and Tom Roberts
Profession:Clyde & Co

Coronavirus and Force Majeure

The coronavirus outbreak, which has now been declared a "serious and imminent threat to public health" by the UK health secretary, presents challenges to a party's ability to perform contractual obligations in affected areas. In this update, we analyse whether parties will be able to rely on a contractual force majeure clause to entirely excuse, or temporarily suspend, performance when working in regions affected by the outbreak.

Call to overhaul system for prosecuting fraud

The director of the SFO, Lisa Osofsky, has criticised the UK's "antiquated fraud laws", stating that they hinder convictions.

Ms Osofsky attributed the SFO's failure to prosecute several corporations in recent years to the high evidential standard required for fraud, stating: "I wish we had some of the lower [evidential] standards for fraud because we have a very antiquated system... In fraud cases I've got to have the controlling mind of a company before I can get a corporate in the dock. That's a standard from the 1800s, when Mom and Pop ran companies. That's not at all reflective of today's world."

Lisa Osofksy's comments come in light of criticism of the SFO for its lack of convictions and shrinking case load.

Separately, the SFO has recently added a new chapter to the SFO Handbook, setting out how it will assess the effectiveness of an organisation's compliance programme. See Evaluating a Compliance Programme, published on 17 January 2020.

Contractual force of emails

Seemingly informal emails are capable of having contractual force. In Neocleous & Anor v Rees, the High Court held that an automatic email sign-off may count as a signature for certain legal purposes. In the circumstances, the mere presence of the sender's name on the email, whether it was automatically generated or not, demonstrated a "clear intention" to associate the sender with the content of the email, and to authenticate it. In Athena v Superdrug, the court found that a simple exchange of emails created a contract, on the basis that it included the wording "Please go ahead with the below". The defendant argued that the normal purchasing procedure had not been followed, that there was no intention to create legal relations, and that the relevant employee lacked ostensible authority to enter into the contract. The court granted summary judgment to the claimant on the basis that none of these arguments had a real prospect of success. (See also the Law Commission's...

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