You've got mail: the postal acceptance rule and Scots law

Twenty years ago, the Scottish Law Commission was considering the provisions of The United Nations Convention on Contracts for the International Sale of Goods, which even then was over a decade old. It explained that the Convention contained “a modern, internationally agreed set of rules on the formation of certain contracts”, had been “prepared by experts on contract law from many countries...[that it was], to some extent, an amalgam of civil law and common law traditions [and that perhaps].. for this reason its rules are very similar to the existing rules of Scottish law.”

It noted too:

“Scots law has a tradition of being receptive to the best international legal developments, given the obvious advantages for Scottish traders, lawyers and arbiters in having our internal law the same as the law which is now widely applied throughout the world in relation to contracts for the international sale of goods, and...the sensible tradition in Scotland of not having different rules for the formation of contracts of different types”.

One of the issues exercising the Commission was the postal acceptance rule: “the special rule whereby, contrary to the general rule that an acceptance is effective when it is communicated to the offeror, a postal acceptance becomes effective when the letter is posted.”

The rule is an old one: Thomson v James (1855) 18 D 1; Jacobsen, Sons & Co v Underwood & Son Ltd (1894) 21 R 654. But it had become a controversial one and the Commission was considering it in the context of its abolition which it noted “would, in our view, be a good thing.” After all, the rule did seem, even then, out of line with the expectations of the lay businessman who might:

“be somewhat surprised to learn that … it is the present law that an offer stated to be open for acceptance until 5 pm on Friday can be validly accepted by a letter arriving at 10 o'clock on the following Monday morning.”

Norwich Pharmacal orders and the Scottish courts

Our last post included the scarcely contentious claim that litigation is risky, costly and time-consuming. Bad enough, then, if you have to litigate to protect or advance your own interests but what if you get embroiled in someone else’s dispute? A retailer can innocently offer for sale goods, manufactured by another, which are said to infringe someone else’s intellectual property rights. An internet service provider can host a site on which someone anonymously defames, or makes maliciously false statements about, another.  The business stuck in the middle can then find demands being made on it by both sides. Typically, one side will want information to assist in proposed court action whilst the other may have a legitimate right to have that information (for example, their name and personal details) kept private. It’s important for businesses to understand what obligations fall on someone who gets mixed up in this way. After all, it could happen to you. It can save an awful lot of management time, at least, if you already have some idea of what you should and shouldn’t do and what can, and can’t, be demanded of you.

Design rights: remedies for innocent infringement

It's a hazard of modern business life that, if you are offering things for sale, at some point you will receive a letter from someone claiming that you are infringing their intellectual property rights. Fashion retailers in particular can suddenly be told that goods they are selling infringe a design right, registered or unregistered, UK or Community. The letters we see range from the very reasonable to the aggressively ridiculous. There seems to be an increasing trend of demanding all sorts of things (damages, expenses and the like) to which there is simply no entitlement from someone who has merely offered for sale something that they had no reason to suspect infringed anyone's rights: an innocent, secondary infringer. So what penalty might such a retailer face? The answer is, it depends.

Death and a Good Name: defaming the dead

In the view of Charles Caleb Colton, “The two most precious things this side of the grave are our reputation and our life.”

But what about the other side of the grave? The press is currently replete with comment on the recent allegations about the late Jimmy Savile. There are of course many disturbing facets to both the allegations and the details emerging about the responses to them when they were originally made. But the affair also has resonance for lawyers who are interested in what protection the law does, should and could give to the reputations of the dead or what rights might be given, and to whom, when the dead are defamed. 

The reason for the flurry now may seem clear:

"As any good journalist knows, the dead can't sue – that's why it's now safe for everyone to say they knew Jimmy Savile was up to no good in the 1970s and he can't touch anyone for writing it. It's also one of the reasons why now – rather than 40 years ago – the endless revelations about him are churning out of Britain's media industry quicker than people can turn off Channel 4's Hotel GB."

In a number of ways, though, the legal position is not as clear-cut as you might think.

Rangers again: gratuitous alienations and the notion of value

The sale of Ibrox Stadium may yet raise issues about the meaning of words and concepts used in insolvency law that don't appear to have been considered by the courts before, at least not in the precise context in which the ongoing Rangers saga presents them. In this post, we look in some detail at the various reports and statements issued by the club's administrators and wonder: what is an asset like a football stadium actually "worth"; how do you assess what is an "adequate" price for it; is "adequate" a notion that depends wholly on the circumstances of the particular sale; and, if so, does the word connote anything meaningful or give any useful guidance at all, particularly in the context of administration?

In the news: Signet Magazine

The current edition of the WS Society's Signet Magazine features an article about our experience of the Signet Accreditation scheme. You can find the article here.

Law Awards of Scotland 2012

We're through to the finals for the Law Awards of Scotland Litigation Firm of the Year 2012.

We were invited to apply some months ago. The invitation was made after the organisers spoke  to clients and other lawyers, so as to identify the highest rated Scottish law firms. Only those are then invited to submit an entry, so to get through to the finals is really pleasing.

Rangers: is it all in the timing?

It’s been a while since our last post about Rangers and the legal spotlight has now moved from questions of insolvency and administration to that of the employment rights held by those players, including Steven Naismith and Steven Whittaker, who don’t want their contracts to transfer to “Newco”. Both sides (players and owners) agree that a right to object to a transfer arises under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) but there seems to be a difference of opinion about what the Regulations mean in practice. New owner Charles Green was quoted this morning as saying:

“It’s clear the regulations behind TUPE are if someone has an objection, they have to notify within 24 hours. This is almost two weeks after the day. I think this is just opportunism. I’ll definitely challenge it.” 

We can't see a "24 hours" provision in the Regulations but neither, in the discussions about who’s right and who’s wrong, have we yet seen mention of the case law in which precisely these issues of timing have been very carefully considered.

Voluntary associations: time to reform the club?

The news at the end of last week was full of reaction to the legislative programme announced in the Queen’s Speech. Most commentators seemed underwhelmed. We’re still trying to work out how many mixed metaphors are contained in Polly Toynbee’s “This limp array of damp bills has been drained of any potential life” (which put us in mind of nothing so much as Roy's wonderful “damp squid” ). However, on Thursday, Michael Moore told the House of Commons that, in addition to the proposed bills outlined, the UK coalition “will seek to support the Scottish Law Commission in bringing forward measures to reform the law in relation to Scottish Partnerships and Unincorporated Associations”. Scarcely the kind of thing to get the heart racing, no doubt. And yet, it is by the work of the unincorporated association that much of the stuff of everyday civic life is delivered and the proposals should be of interest to anyone who has any dealings with a broad range of bodies from sports associations and childcare groups to branches of political parties, charities and religious organizations.

Watch your name and protect your brand

Research conducted in 2010 showed that American technology giants were responsible for a quarter of all applications to The Company Names Tribunal. A couple of years on, the Intel Corporation in particular has had a run of orders in its favour. However, a recent decision that went against it gave very useful guidance on the matters that might sway a CNT adjudicator. Consideration of the emerging body of decisions highlights the importance to brand protection of a combination of a company name watch service and a readiness to deal with any abusive registration by a speedy, and appropriate, application for an order.

Law Awards of Scotland 2012

We've been contacted by the organisers of the Law Awards of Scotland 2012 and asked to enter this year's awards. The invitation was made after they'd carried out extensive research, speaking to clients and other lawyers, so as to identify the highest rated Scottish law firms and invite them to submit an entry for consideration by the judges. The organisers explain:

"Not just any law firm or individual can enter the awards, only those who are ‘recommended’ by their clients and peers are invited to take part....we get in touch with client companies from all over Scotland and ask them to rate the law firms that they use. Once we have this information from clients, we then invite the law firms which have been rated highly by clients to enter the awards. We also ask the law sector to rate their peers and tell us who they feel are the best in their industry. Those who rate highly are also invited to enter the Law Awards of Scotland."

This is the second year running that we've been rated highly enough to be approached and asked to enter, which of course is great. Who knows. One of these days we might actually win. 
 

Computer misuse: hacking, interception and the meaning of "transmission"

There’s been a lot of confusion in the reports concerning the hacking by a Sky News reporter of “Canoe Man” John Darwin’s email account. It’s said that intercepting email is an offence under the Computer Misuse Act 1990. That’s not quite right. Sky's John Ryley pleads “public interest” and it’s said that there is no such defence under the Act. That is right but misses the point.

A costly tweet

Mr. Justice Bean decided at the High Court in London earlier today to award the New Zealand cricketer, Chris Cairns, £90,000 damages in respect of comments contained in a Tweet sent in 2010 by Lalit Modi. The Tweet was 24 words long (and two of those were "the"). Experts disagreed whether 35 or 95 people had read it before a compromise agreement was reached at 65. Neither the number of words used nor the number of people who read them are determinative of what damages should be awarded. What matters is the harm caused by the accusation and the accusation here was a serious one. Still, the decision is a salutory reminder that you don't need to work hard or spend a lot of time to lose a lot of money in a libel case in the English courts. The plaintiff's lawyers are said to estimate that the costs due by Mr. Modi will come in at £1.5m.

Rangers: not entirely directionless

The overwhelmingly common theme to the reports of Lord Hodge’s ruling yesterday was that he refused to give any directions: the BBC’s “'No ruling' on Rangers administrators' Ticketus challenge”  seems pretty typical. Having read the judgment, we’re not so sure that that is a helpful summary of what is a very interesting opinion. The court seems to us to have provided a careful and useful analysis of the law and, for the administrators in the particular case, a pretty clear steer as to what they can do and guidance which they can follow (follow – no more puns, honestly).

Eloquent confusion and the incomprehensible notice: what's a landlord to do?

We recently represented the successful appellants in the case of Scott v Muir and another . Sheriff Principal Stephen’s decision ought to be required reading for anyone who advises landlords or tenants or conducts commercial property litigation in Scotland.  It sets down for the first time the essential core terms of a valid pre-irritancy warning notice served in terms of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 s4(2).

Update - winding up, banks, and the s127 validation order

Further to Monday's post, following detailed exchanges, the bank's legal department seem to have accepted that we were right. They unfroze the accounts this morning and they are now operating normally.

Winding up, banks, and the s127 validation order

We were instructed on Thursday of last week by a company that was being prevented from paying its staff. By Friday afternoon, and a couple of court hearings later, it could pay them but the way we got there appears to be unusual, in Scotland at least.

Law and the independence referendum: is there really a "debate" to be had?

It can be tricky to separate law from politics. Some claim sincerely to believe that any Act passed by the Scottish Parliament which provided for the holding of a referendum on Scottish independence would be unlawful. We live in exciting times and the politics may be genuinely intriguing but is the law not actually, and drily, beyond any real debate?