Contracts form the cornerstone of business relationships. Having clarity as to the terms parties are bound by in a contract is paramount to business efficacy. Such terms and their interpretation are also vital when it comes to disputes arising within contractual relationships.

Navigating the complexities of contractual interpretation and understanding when and how terms may be implied into a contract by the courts may seem daunting. This article looks at the established principles of English law that apply to interpreting contracts and how the approach taken by the courts is designed to provide clarity and certainty to contractual arrangements.

Interpretation of Contracts

The interpretation of contracts is an essential aspect of contract law: ensuring that parties understand the rights and obligations outlined within the agreement. When disputes arise, the court’s primary objective is to ascertain the intention of the parties based on the language used in the contract. In doing so, the court considers various factors, including:

Literal Meaning:

The starting point for interpreting a contract is the literal meaning of the words used.  Each term is given its ordinary and natural meaning. In essence, if it is clear and obvious within the contract as to what the wording means, the court will not override these provisions even if, on its face, the contract may not make commercial sense.

‘… the question is what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean’… so said Lord Hoffman in the case of Chartbrook Ltd v Persimmon Homes [2009] AC 1101

This approach has been reiterated in a recent case in the High Court: Dooba Developments Ltd v MacLagan Investments Ltd [2016] EWHC 2944 (Ch). In Dooba it was held that where the meaning of words in a contract is clear and unambiguous, it is not necessary to consider commercial common sense or the intent of the parties. The literal meaning of the words will take effect.

Whole contractual approach:

Another approach the courts adopt is to interpret individual clauses in a manner that is consistent with the overall purpose and intent of the contract. In this respect, the contract is to be viewed as a whole, rather than focusing on one particular term and/or phrase.

Context

Where the words used in a contract are less clear and/or have an air of ambiguity about them, the courts will examine the contract as a whole and consider the surrounding circumstances and context in which it was formed. It is considered that this holistic approach helps to uncover the true intention of the parties.

Although the court will not deviate from the text within the document, it can look at the wider context and background information available to the parties when the document was first made. This is an objective test.

For example, the parties’ past dealings or course of conduct may provide insight into their intentions, especially when interpreting ambiguous terms.

Implied Terms

In addition to the express terms explicitly stated within a contract, English law recognises the existence of implied terms. Implied terms are obligations that are not expressly stated in a contract but are nonetheless deemed to be part of the contractual agreement. These terms can be implied in three main ways:

1. Statutory Implication: Certain terms may be implied into contracts by statute, such as the Sale of Goods Act 1979, which implies terms regarding the quality and fitness for purpose of goods sold in the course of business.
2. Custom and Trade Usage: Implied terms may arise from established customs or trade usage within a particular industry. These customary practices become inherent to contracts within that industry.
3. Common Law: Implied terms may also arise through common law, where the court determines that certain terms are necessary to give business efficacy to the contract or to reflect the presumed intentions of the parties.

Implied terms play a crucial role in filling gaps within contracts and ensuring fairness and reasonableness in contractual relationships. Generally, however, terms will not be implied by the courts if the contract terms are clear and unambiguous, and their literal meaning can be applied objectively.

Seeking Clarity and Certainty

For businesses navigating the intricacies of contract interpretation and implied terms, seeking professional legal advice is essential. A skilled solicitor can provide invaluable guidance in drafting, interpreting, and enforcing contractual agreements, minimising the risk of disputes and providing clarity and certainty to business transactions. It is vital that parties are clear on what they intend to contract for, which in turn will allow those drafting the contract to ensure that it accurately reflects that intention.

In conclusion, understanding the principles of contract interpretation and implied terms is vital for businesses seeking to enter into clear and enforceable agreements. By adhering to established legal principles and seeking expert advice when necessary, businesses can mitigate risks, foster successful commercial relationships and avoid costly and time consuming disputes.

Ultimately it should also be remembered that clarity in contracts leads to certainty in business.

The ‘battle of the forms’ is a phrase which is used to describe the common scenario in which contracting parties compete to ensure their standard terms and conditions apply.

In the second of our six-part blog series about commercial contracts we look at the practical ways businesses can ensure their terms and conditions are incorporated into their business dealings, and who is likely to come up trumps in the battle of the forms.

The traditional approach

In the first blog in this series we considered what it takes to form a legally binding contract and examined what is meant by an offer and an acceptance (Commercial contracts: a practical guide for businesses – Pannone Corporate). When considering which contract terms apply, these principles again become important as the court will examine whether there has been an offer to contract on specific terms which has been unequivocally accepted.

This traditional approach can give rise to two contrasting examples:

• where a supplier sends its standard terms of business and those terms are accepted by the customer, either expressly or by conduct in continuing to deal with the supplier on those terms, the supplier’s terms will govern the contract.
• where a supplier sends its standard terms of business and a customer responds with its own standard terms of business, the customer has in that case rejected the supplier’s terms and introduced a counter-offer to contract on its terms. The court will then be looking to see whether the supplier accepts the customer’s terms whether expressly or by its conduct.

Where competing terms of business are at play, the court will be looking at the chronology of when offers were sent and the behaviour of the parties in determining the point at which a set of terms has been accepted.

Last shot fired

More often than not, the last set of contractual terms presented without any objections being raised will be deemed as accepted. This is often referred to as the “last shot”.

For example, where a customer places an order on the basis of its standard terms and the supplier responds with its own standard terms, if the customer then proceeds to place the order and accept delivery then the last contractual terms fired will be deemed to govern the relationship (in this case the supplier’s terms).

A misfired shot

A risk for parties is failing to adequately bring terms to another party’s attention.

Standard terms and conditions must be readily available to the other party if they are to be capable of being accepted. If a document is sent by email with terms and conditions on the reverse, those terms must also be emailed if they are to be relied on.

Similarly, if documents are sent with a link to website terms and conditions, the link should be a live link through which the contractual terms can be accessed.

The court will look at all the facts of a case to determine whether or not terms and conditions have sufficiently been brought to another’s attention.

Course of dealing

The last shot fired doctrine can be displaced where the correspondence between the parties or their conduct shows that they intended to contract on some other terms. The court will examine all the evidence in the case to determine the prevailing terms.

For example, where there has been a framework agreement entered into in relation to the terms governing future supplies then a last shot fired may not succeed in overriding that framework. Similarly, where there has been a course of dealing between parties pursuant to one party’s terms then it may be difficult to displace that by shooting across competing terms, without something more.

The wording of a party’s terms may also help to guard against the last shot fired principle. In the case of TRW Ltd v Panasonic Industry Europe Gmbh (2022), the last shot doctrine was not accepted. Instead, the judge concluded that the first set of terms sent (being the seller, Panasonic) applied. Panasonic’s general conditions protected it from falling victim to the “last shot” doctrine, as it disapplied any conditions of TRW that diverged from its own terms, and the parties continued to deal with one another on that basis.

Practical Implications

Losing out in the battle of the forms can have commercially catastrophic consequences for contracting parties. It is therefore important that businesses consider their systems and processes when entering into new contracts to ensure they are legally and commercially protected through the governing terms. In practical terms, businesses should consider:

• including reference to standard terms and conditions on all pre-contract documents, to try to ensure they fire the last shot.
• negotiating and agreeing the contractual terms which will govern relations. This avoids any ambiguity as to whose terms apply.
• requiring parties to sign contractual terms so that it is clear that terms have been accepted.
• whether there has been an earlier framework agreement or a course of dealing which may be regarded as taking priority.
• training staff on the risks that contractual terms presented could be found to be incorporated by conduct. Failure to review and understand these terms could mean that a business could find itself bound by another’s standard terms.
• ensuring its terms and conditions are well drafted in order to provide protection against the last shot, as in the Panasonic example.
• making sure that terms are sufficiently brought to another’s attention. If terms are printed on the reverse of documents being sent electronically, make sure the terms are also sent. If being sent via a website link, make sure this directs to a live copy of the terms and conditions.

Finally, if parties do not in fact intend to be bound by contractual terms until a formal document is signed, or further terms are agreed, they should mark all negotiations, correspondence and draft agreements as being ‘subject to contract’ to avoid inadvertently being bound to draft terms.

If you would like to discuss this blog, please contact Sarah Bazaraa on 07920 237599 or by email to sarah.bazaraa@pannonecorporate.com

In the first of a six-part blog series from Pannone’s dispute resolution team, we take a closer look at commercial contracts, focusing at those elements which give rise to the risk of disputes, and how best to navigate those challenges.

Parties may believe that they are embroiled in a contract dispute, but the first question for the court will be “is there a legally binding contract in the first place?” In this blog, we examine the requirements for the formation of a legally binding and enforceable contract.

The five requirements for a legally binding contract

A contract gives rise to legally enforceable rights, obligations and remedies. It’s therefore important to consider whether or not a legally binding contract has been formed.

It’s not necessary for a contract to be documented in order to be legally binding. A contract can be formed whether made in writing or verbally.

However, there are five key requirements which must be present to form a legally binding agreement. These are:

1. an offer
2. acceptance
3. consideration
4. a mutual intention to create legal relations
5. certainty of terms.

Let’s take a closer look at each of these.

1          Offer

What is an offer?

An offer is defined as “an expression of willingness to contract, made with the intention that it shall become binding upon the person making it, as soon as it is accepted by the person whom it is addressed”. In other words, an offer is a promise made to enter into a contract.

When is an offer not an offer?

It’s important to distinguish between an offer to contract from what is commonly known as an ‘invitation to treat’. Parties need to consider whether the proposal which is made is intended to give rise to a legally binding contract (an offer), or whether it’s made with the intention of entering into negotiations (an invitation to treat). An example commonly given for an invitation to treat are goods displayed in a shop window. An invitation to treat will not amount to an offer to contract.

Can an offer be withdrawn?

An offer can be withdrawn before acceptance has taken place. This can happen in a number of ways. For example, an offer may give a deadline for acceptance. If the offer expires, the offer may not be capable of acceptance. If there’s no specific deadline for acceptance, the courts deem the offer to remain open for a reasonable amount of time. A ‘reasonable amount of time’ will depend on the particular circumstances of the case.

2          Acceptance

When is a contract formed?

A contract is typically formed, and therefore becomes legally binding, at the point of acceptance. Acceptance is the final confirmation that the terms of an offer are agreed. Acknowledging receipt of an offer will not constitute an acceptance. Instead, acceptance should clearly signal an intention to be bound by the terms of the offer. When assessing this, the court will apply the reasonable person test, i.e. would a reasonable person standing in the shoes of the person making an offer find that there is a clear intention to accept the terms of the offer and subsequently form the contract.

Acceptance of an offer can also be demonstrated by way of conduct which evidences an intention to accept the offer.

Is it an acceptance or is it a counteroffer?

In order for an acceptance to give rise to a binding contract, it’s important that the specific terms of the offer have been accepted. If alternative terms are proposed, this will not amount to an acceptance of the offer, but will instead amount to a counteroffer. A counteroffer amounts to a rejection of the original offer so that no contract exists. Querying something, or seeking clarification about the terms of the offer, will not, however, amount to a counteroffer.

3          Consideration

What is consideration?

The requirement for consideration is in essence the principle that you cannot get something for nothing. It’s centres on the idea that a party cannot enforce a promise unless it has given or promised something in exchange for it. The law does not interfere with the bargain struck between two parties and so will not test whether consideration is adequate, so long that the consideration has a value, even if that is a pound.

Who must the consideration move between?

Consideration must move from the party who seeks to enforce a promise, as this is in line with the doctrine of privity to a contract, i.e. only those privy to the contract can enforce the rights under the contract. However, the consideration does not necessarily have to move to the person who makes the promise.

Does past consideration count?

Consideration which is given at some time in the past is not a valid form of consideration, this being an act which has come before the promise was made and therefore not something of value.

4          Intention to create legal relations

Why is this important?

If the courts determine an agreement was reached without a mutual intention to create legal relations, that agreement will not be legally binding.

What is required?

When considering whether the parties had the necessary intention to create legal relations, the courts will consider the conduct of the parties and all the relevant circumstances. If an intention is disputed, the onus is on the party who claims there was no intention to prove this allegation. In order to avoid any ambiguity, it’s beneficial for parties to clearly identify their intentions from the outset.

The business presumption

Businesses should be aware that there is a presumption that there is an intention to create legal relations in commercial circumstances. In the event a party objects to there being a presumed intention, the onus is on that party to prove otherwise.

5          Certainty of terms

Are the terms clear?

For there to be a legally binding contract, there must also be certainty of terms. This requires all the essential terms that form the contract to be complete and free from ambiguity. If an agreement omits a material term or is uncertain, this may lead to the agreement not being capable of being enforced.

The court’s approach

In assessing whether essential terms have been agreed, the court will assess whether an honest and reasonable businessperson would have concluded from the parties’ communications and conduct that they had agreed all the terms they considered to be a precondition to creating legal relations.

Generally speaking, the court will not wish to interfere with agreements reached between two commercial parties. However, in certain circumstances, the court does have the ability to fill in gaps in a contract to give effect to the parties’ intentions. This will depend on all the circumstances of the case.

What’s next…

Our next blog post in this series will examine the ‘battle of the forms’ and how to ensure that your contract terms govern your business relations.

If you would like to discuss this blog, please contact Paul Jonson on 07737571147 or by email to paul.jonson@pannonecorporate.com

Pannone Corporate has been recommended as top tier in two practice areas and also recommended in a further ten practice areas in The Legal 500 2024 edition released yesterday.

Here are some highlights from what our clients had to say:

Commercial litigation 

“Direct partner contact, in-depth subject expertise and competitive rates due to its size and structure which makes it stand out in the Manchester and national market.”

“Pragmatic yet thoroughly detailed advice together with responsiveness and quick turn-around times – an invaluable resource for a busy in-house team.”

“Collaborative, responsive, thoughtful and with a deep knowledge and understanding of our business.”

Commercial property

“The team is very experienced and offers a personalised service. They are highly knowledgeable and able to represent the core interests of their clients without prompting.”

“A smaller team that offers a big company service and an ethos personalised to the needs of the client.”

“Valued members of their team and ours. They are always available and ready to answer quick questions and give advice.”

Contentious trusts & probate

“Sound, intelligent advice and support.”

“Exceptional advice and persuaded me to agree to mediation. This proved to be excellent advice and helped achieve a fantastic result, avoiding court costs.”

“Client-focused and provide realistic straight-talking advice in a manner clients can easily understand. They are very experienced around the legal issues but also have their eye on costs.”

Corporate & commercial

“Able to manage demanding and challenging stakeholders – always with a smile on their faces.”

“Highlights risks in a commercial manner. Doesn’t labour incidental points, a characteristic that helps keep processes moving and on track.”

“Always has a solution when required to get through a log-jam and able to manage diverse stakeholders to ensure a consensus solution is found.”

Debt recovery

“Pannone are very good at replying and explaining their process. We can call them anytime and they pick up – not the case with other firms.”

“The personal touch and the relationships with people at Pannone. They have held inhouse training at their Manchester office to help myself and my staff understand the legal process.”

Employment

“Supported several very complex cases and always quick to respond, giving excellent and considered advice. They understand our business and some of the difficulties we face and apply this when giving advice.”

“‘We have built a strong relationship with the whole team and no matter what the issue, any of them can be approached and you can trust that if it is not their area of expertise they will liaise with the subject expert within the team before providing advice.”

“Their employment law knowledge is fantastic, and they present this in a simple yet effective way.”

Health & safety

“An outstanding partner to myself and the whole business. Nothing is too much trouble.”

“Undoubtedly the firm to watch in the North West, buckets of experience mixed with in-depth knowledge of the regulatory landscape means the firm is going from strength-to-strength.’

“The class act of the North’

Insolvency & corporate recovery

“A very commercially sound and technically gifted team who provide an excellent service.”

“Excellent technically and commercially, and fun to work with.”

“Strong technically, very commercial, results-orientated and well-respected in the market.”

“A good communicator and always willing to take a commercial view.”

Intellectual property

“Pannone have kept up with us every step of the changes in our organisation, and their diligent handling of our cases has played a significant part in our organisation’s success post-pandemic. They are consistently a pleasure to deal with – no matter the query or the request, the team work tirelessly to meet our expectations.”

IT & telecoms

“Adept at providing commercial and pragmatic advice which comes from being experts in the sector.” 

“Manages to provide the right level of advice for our business without over-engineering it.”

Media & entertainment 

“Highly professional, supportive and excellent advice”

“An ability to see around corners…always my first choice.”

Property litigation

“A very cohesive and proactive team, which is essential to support our sometimes urgent and time-critical requirements.”

Notable individuals

Hall of Fame

Melanie McGuirk – Intellectual Property

Tim Hamilton – Corporate and Commercial

Leading Individuals

Amy Chandler – Intellectual Property

Amy Chandler – IT and Telecoms

Nicola Marchant – Contentious Trusts and Probate

Paul Jonson – Commercial Litigation

David Brown – Property Litigation

Melanie McGuirk – Media and Entertainment

Jack Harrington – Employment

David Walton – Health and Safety

Next Generation Partners

Gemma Staples – Property Litigation

Jonny Scholes – Contentious Trusts and Probate

Rising Stars

Sarah Bazaraa – Intellectual Property and Media & Entertainment

Arshnoor Amershi – Corporate and Commercial

Andrew Walsh – Corporate and Commercial

Essex-born 26-year-old Joel Costi-Mouyia lives in West Didsbury and is a paralegal in our Dispute Resolution team. 

When he’s not resolving disputes, he’s playing football or making music – keep reading to learn more about his route to working in law and professional aspirations for the future. 

What was your role/experience prior to joining Pannone?

I graduated from the University of Liverpool in 2018 and began working for DWF as part of RSA Manchester’s in-house civil litigation team where I specialised in RTA related cases. 

Although this was my first post-graduation job in law, I also previously completed work in a Citizens Advice Bureau on issues relating to welfare rights, as well as completing a three month placement in Liverpool University’s Legal Aid Clinic, where I worked on matters concerning immigration and asylum seeking. 

While these two experiences are certainly different to my current line of work, they gave me invaluable exposure to the practical application of the law.

What is your role at Pannone?

I’m a paralegal in the Dispute Resolution team, dealing with a wide range of disputes in the fields of debt recovery, commercial contracts, wills and probate, property and intellectual property.

Why did you join Pannone?

Pannone is a young law firm that has grown since it started in 2014 – this success was something that I wanted to be a part of. 

We’re also a firm that really emphasises the importance of a collaborative working environment, which is something that really appeals to me. As a junior member of our team, it’s often I’ll need to pick the brains of some our more senior members of staff and they’re always more than happy to help out. This has been great – not just for my own development, but also in making me feel like a welcomed and well-integrated member of the firm. 

What route did you go down, in terms of training and qualifications?

I’ve had a relatively standard introduction to the legal and professional world. Not long after graduation, I began working for DWF in November of the same year and then began my LPC full-time in January 2020. 

I completed this in December 2020 and was fortunate enough for DWF to offer me some part-time work whilst I completed my LPC studies, which allowed me to maintain some level of income. 

I then went on to join Pannone in December 2021 and I’m delighted to have recently been offered a training contract which I am due to start in September 2023. 

Why did you choose this route?

Having worked primarily in litigation for the past four years, I felt it was important to follow the training contract route as a means of expanding my knowledge alongside my contentious professional legal experience. 

Pannone has a number of interesting departments dealing with non-litigious client issues such as corporate law that I’m excited to work in as part of my training contract seats and wider legal education.

What is the most satisfying aspect of your job?

Definitely hitting drafting deadlines and securing positive results for our clients. Throughout my time at Pannone, I’ve thoroughly enjoyed building and developing relationships with our clients and to be able to meet their goals and expectations is something I take a lot of pride in.  

What does a typical day look like?

I normally start my day by checking through my emails to make sure that nothing urgent has come in the previous evening requiring my immediate attention. Once I’ve done this, I’ll get into the work that I’ve planned out for the day. 

Organisation is an essential skill for excelling in our work, so at the end of each working day I tend to draft a small to-do list of tasks that I’ll need to tackle the following day.

What are your career ambitions?

Having been offered a training contract, my initial ambition is to qualify as a solicitor at Pannone Corporate. There’s a wealth of experience across the firm, so I’m hoping to soak up as much of this as possible and continue to develop and improve in the right way. 

If you were managing partner for the day, what’s the first thing you would do? 

I think I would try and promote some sort of fitness initiative to all employees. I’m a big believer in the ‘healthy body, healthy mind’ approach to life and find that if I’m regularly exercising, it helps me to manage my own workload and deal with any stresses, work-related or not, that get thrown my way. 

What would you be doing if you didn’t have a career in law? 

Maths was probably my long-standing favourite subject at school and was almost the subject I chose to study at university. I did toy with the idea of something more maths related, such as economics or actuarial science, but neither of these were something I ended up going for.

Career wise, it’s difficult to say, but I’ve always tried to blend my love of music and sport with my professional ambitions, so I’d like to think I may have done some sort of work dealing directly with sportspeople and musicians. My master’s dissertation was based on whether current copyright legislation provides scope for streaming platforms to exploit musicians and therefore not adequately remunerate them for their work – so law and music is something I’ve always attempted to fuse. If not this, a professional career as a musician or producer wouldn’t have gone amiss!

What can lawyers / the legal profession do to better support clients? Does anything need to change?

One step I always think is vital is to help our clients understand the litigation process. I’m conscious that from the client’s side, the legal world can be intimidating and often convoluted, so it’s important for us to untangle and simplify this as best as we can. 

What do you enjoy doing outside of work?

I currently play football for Village Manchester Football Club in the Lancashire and Cheshire Saturday league. If I’m not playing football, I also enjoy running or going to the gym. 

Do you have any particular skills/talents that your work colleagues may not know about?

I take a lot of pride in my love for music and have been playing piano since around the age of eight. I have also performed as part of an indie-rock band as a singer and guitarist, having received track of the week accolades on BBC Introducing and also supported an NME award-winning artist as part of their UK tour. 

In the past couple of years, I’ve also started DJing and performing in different places around Manchester – not to mention the Pannone Corporate party last Autumn.

For those working in the legal profession, the Legal 500 rankings are an annual fixture in a firm’s calendar. The rankings are based on client feedback about what it’s like to work with lawyers, and which firms excel in particular areas.

As a firm, we rank favourably across the practice areas in which we operate and this is testament to our belief that our talented team is even greater than the sum of its parts.

We also believe in celebrating recognition for an outstanding performance, which is why it’s fantastic to see some of our team named in the Legal 500 Northern Powerhouse Awards shortlist. This shortlist has just been announced to recognise the lawyers, law firms and in-house legal departments setting the pace in the region, providing a platform to celebrate their achievements over the last 18 months.

The shortlists and winners were based on the Legal 500’s independent research for their annual UK Solicitors guide and winners will be selected by a judging panel.

We would like to congratulate our colleagues below on being shortlisted by the Legal 500 and look forward to the awards in March.

• TMT – rising star – Sarah Bazaraa
• Corporate – rising star – Andrew Walsh
• Private client litigation – lawyer of the year – Nicola Marchant
• TMT – firm of the year – Pannone Corporate IP/IT team

For our first profile of 2023, we meet Rebecca Mason, PA in the Litigation and Disputes Resolution team.

Hear all about how 23-year-old Rebecca from Worsley came to work in law, her involvement in the firm’s wider community groups and her athletic talents.

When did you join Pannone Corporate?

I joined Pannone as a PA back in July 2022 and, prior to this, I worked in the financial services industry within the SIPP department for investment platform, AJ Bell.

Why did you join Pannone?

The legal sector has always interested me and, as a recent graduate still somewhat figuring out my career path, I believed that working as a PA offered a brilliant opportunity to gain some on-the-ground insight into the industry. 

The chance to work in the role at one of the North West’s leading law firms has been invaluable for my career development. On a daily basis, I’m able to work alongside a vast number of inspirational people, ranging from junior to senior level.

What route did you go down, in terms of training and qualifications?

I studied history, psychology and English language and literature at A Level and then went on to study history at the University of Sheffield, where I specialised in the history of the British Empire and humanitarianism throughout the course of the twentieth century.

Why did you take this route?

History has always been a subject close to my heart and I was allured by the prospect of covering untouched, or in some circumstances, neglected areas of history. 

What is the most satisfying aspect of your job?

Leaving the office knowing that I’ve made someone else’s day that bit easier!

What does a typical day look like?

The best thing about being a PA is that no two days are the same. I work alongside a range of team members with different specialist areas, meaning that my work can be very varied. Predominantly, this involves conducting research, pulling evidence together through bundles, diary management and overseeing administrative duties.

What are your career ambitions?

I want to continue developing my skillset as a PA, whilst deepening my knowledge of the legal sector. There is a plethora of progression opportunities within the legal industry which are not exclusively for those with solicitor qualifications, so I’m hoping to explore these options further in the future.

If you were managing partner for the day, what’s the first thing you would do? 

I’d encourage my colleagues to get involved in both the charity and environmental groups within our firm to increase the positive influence that we have in both the local and wider community.

What would you be doing if you didn’t have a career in law? 

I love participating in and watching sport, so perhaps a role in sports journalism.

Do you have any particular skills/talents that your work colleagues may not know about?

I previously competed at national level in both athletics and cross country, with my proudest achievements including a bronze team medal in the Northern cross-country championships, as well as holding an unbeaten age-group record at San Francisco parkrun! 

Although I’m no longer a competitive athlete, I am still very much involved in my local athletics club, Salford Harriers, and I am the senior women’s team manager.

In this instalment of My Life in Law, we get to know one of our brilliant PAs who works alongside our fee earners to ensure the firm runs smoothly and that we consistently deliver excellent client services.

Claire Walton tells us what it’s like to support Pannone Corporate’s lawyers on a day-to-day basis, her desire to feed the nation, and her love of Vespas!

What was your role prior to joining Pannone?

I joined in September 2021 and, prior to this, I trained as air cabin crew for six years – a total career change! I’ve also worked within the healthcare sector, business travel and events, and parcel and transport. 

What is your role at Pannone? 

I work within a small team of PAs to support Pannone’s litigation and dispute resolution team.

Why did you join Pannone? 

I was searching for something completely different – wanting to learn something new and to step out of my comfort zone. Corporate law was completely off my radar, but I’d heard great things about Pannone and the people who worked there… it was a leap into the unknown, but a great leap!

What route did you go down, in terms of training and qualifications?

I didn’t have any experience working as a PA in law, so this sector was totally new to me. The majority of my experience has come from creative agencies, property development and sales – all skills that I’ve transferred over and are serving me well in the legal industry.

Why did you choose this route?

It chose me! 

What is the most satisfying aspect of your job? 

To be able to utilise what comes naturally to me – organisation, a bit of technical know-how and a good sense of people and customer service. It’s appreciated by my peers and that’s job satisfaction to me.

What does a typical day look like? 

Every day is different. I’m an avid list writer, so it always starts with a to-do list but it inevitably all changes once I log on. A good mix of work comes my way, it can be researching, creating e-shots for our monthly social posts, creating e-bundles and finalising letters. I also regularly support with events, meetings, workshops and seminars, which I really enjoy, as it means I get to meet new people. 

What are your career ambitions? 

To grow my skill set and progress to a learning and development role, where I can support others within the team. 

If you were managing partner for the day, what’s the first thing you would do?  

Pinch myself…!

What would you be doing if you didn’t work in law? 

I’d have a food van and my partner and I would travel the country feeding the nation!

What do you enjoy doing outside of work? 

Tinkering with my 70’s Vespa style scooter and tootling around town. As you can probably guess from my food van dream, I also love cooking and eating.

In the latest in our series, My Life in Law, we speak to Associate Partner, Jonny Scholes, who has been with the firm since its inception on Valentine’s Day 2014, having worked at the previous incarnation of Pannone, joining as a paralegal in 2005. Having risen through the ranks to become a key member of the dispute resolution team, Jonny talks about his love affair with Pannone Corporate, the ‘speed date’ with partners which made him realise the firm was the one, his long-held ambition to be a professional rugby player, and his side-line in writing children’s picture books!

Tell us a little bit about when you joined Pannone Corporate?

I moved across as part of the management buy-out of the old Pannone LLP (with the remaining team joining Slater & Gordon). I started at the old Pannone as a paralegal for eight months or so in 2005. I’d been offered a training contract and arranged to do some work whilst I was waiting for it to begin. I started life in the travel team in personal injury, dealing with bulk claims involving sickness bugs abroad! I then had a few months off when I travelled across the West and East coasts of America with my brother, before starting my training contract in September 2006.

What did you do before joining?

My only other jobs before working at Pannone were working in my local pub – The Crown in Heaton Mersey – and working as a theatre porter at the Alexander Hospital in Cheadle. I enjoyed both jobs and they gave me some useful transferable skills, particularly in dealing with people, including some who could be a little nervous or wary and others who were a little more difficult! I also did a vacation scheme placement at the old Pannone too.

What’s your role at Pannone?

I’m currently an Associate Partner, having worked my way up through the ranks from my trainee days. I’m in the dispute resolution team and deal with general commercial litigation disputes, with a particular specialism in contentious trust and probate matters.

What drew you to Pannone?

I applied for a training contract with six Manchester firms. Pannone was one of them and stood out as being a full-service law firm, which was good for me as I didn’t know which area of law I wanted to specialise in at that time. In the end, it was the feel of the firm and the people that really attracted me. Pannone was the first of my second interviews for a training contract (a kind of ‘speed date the partners’ over lunch event, which sounds horrendous, but wasn’t too bad!) and I was offered a training contract.  I said I wanted to do a few more interviews before deciding, but after an assessment centre at a large Manchester firm, where it was clear to me the people weren’t as in tune with me as those at Pannone, I came outside, rang Pannone to accept their offer and cancelled my other interviews. I’m pleased to say it’s still the people that make the firm to this day.

What route did you go down, in terms of training and qualifications?

After my A-levels in English Literature, History and Politics, I didn’t want to do any of those as a degree on their own, so I opted for law, which encompassed elements of them all. However, I wasn’t actually planning on going into law as a profession at that time! I did my law degree at Oxford and then had a year out, where I was supposed to be playing rugby in France. Unfortunately, that didn’t work out due to a knee injury. In the end, I went back to Oxford and did a Masters in Criminology – in part to bide me some time to decide what I wanted to do for a career and also to try and get a rugby union blue (but an early season arm break put paid to that!). I applied for training contracts whilst doing my Masters and was offered one at Pannone just before I started my LPC back up in Manchester at Manchester Met. After that I did a stint as a paralegal at Pannone and then began my training contract.

Why did you choose this route?

I guess it was a case of finding my way as I went along. It just took me a bit of time to decide that being a solicitor was a decent fit for me. All in all, the slightly longer approach into the profession has probably made me more well-rounded. 

What’s the most satisfying aspect of your job?

I enjoy working with people and particularly the people at Pannone. It’s nice to see more junior fee earners progress and grow in confidence. In a more, pure work capacity, I’m lucky that my contentious probate cases often give me an opportunity to make a real tangible difference to people’s lives, often in very sad or distressing circumstances for them. That can be very rewarding.

What does a typical day look like?

A typical day can often be hectic and is often changeable! My ‘to do’ list alters three or four times a day, most days. I’ll try and get some smaller jobs out of the way first thing and may need to set some time aside for a chunkier piece of work such as drafting a long letter of claim, or preparing instructions to counsel. There’ll normally be an element of supervision in there too: reviewing work done by junior lawyers in the team. Some of my time will be spent on business development issues and no doubt I’ll have a few phone calls and multiple emails in the day as well. Perhaps less frequently I may have a client meeting, conference with counsel, a mediation or even a court hearing and, if I’m lucky, the odd client lunch as well!

What are your career ambitions?

I’ve always had the philosophy of just getting my head down, working hard, and trying to be a good employee to have in the firm! By doing that I’ve always trusted that I would be rewarded at the right time with progression. Thankfully that’s tended to be the case and I’ve progressed each time I’ve felt ready to. Where I’m at now is a good place to be and if I keep on progressing as I am, then one day I’d hope to join the partnership.

If you were managing partner for the day, what’s the first thing you would do? 

I’d look to set up some kind of fun team building event. Being from a sporting background (rugby), I think building team spirit is essential to a positive and productive environment and building relationships within the workplace only leads to a better culture and then better service delivery. I’d also allow everyone a Friday afternoon in the sun at Dukes (the pub) – also important for team building!

What would you be doing if you didn’t have a career in law? 

If you’d asked me this when I was younger I’d have said a professional rugby player, but now with three children of my own, it would probably be some form of teaching, or writing children’s books! As it is, I’m limited to coaching the ‘Tiny Tacklers’ at my local rugby club, Burnage, on Sunday mornings in the rugby season.

What can lawyers / the legal profession do to better support clients? Does anything need to change?

The one thing I’ve learned to improve on over time, which I know clients appreciate, is the provision of information. Clients just want to know where things are up to and to be kept informed and updated. Clearly there will be times when you’re busy and you take longer to return pieces of work to clients. I’ll regularly try to send a few short emails at the end of a day if my timescales have slipped to let the client know. They’re generally okay with that and are grateful to be kept informed rather than having to chase. I think this is an area of client service a lot of solicitors can improve on.

Outside of work, what do you enjoy doing?

I lead a busy life with my wife Karen and our three children: Tessa (10), Tilly (7) and Toby (4). I love spending time with them and they’re a lot of fun, but it’s non-stop running around after them! Aside from that, spending time with our friends is also important to me, as is exercise. I’ve just finished playing rugby regularly with my club’s third team and am getting into CrossFit, cycling, and dabbling at golf! If you know anyone who could clone me to free up some more time to do all the above that’d be good!

Do you have any particular skills/talents that your work colleagues may not know about?

I read a good bedtime story… and have also written a few children’s picture book texts over the years as a bit of a hobby, some examples being: ‘Nacho Newt and his Parachute’, ‘Flamingo Joe’, ‘The Gnome that Left Home’ and ‘When a Fisherman Caught an Astronaut’! I’ve not written any for a while though, so maybe I need to get back into it! Then I just need to find a good illustrator to bring them to life!

Where do you live?

I live in Heaton Chapel in South Manchester near Stockport. There are quite a few from the office who live in the Heatons and it’s a great place to live – only 10 minutes on the train to Manchester, close to the airport, lots of bars and restaurants, the Savoy cinema, my rugby club and a great community spirit!

Pannone Corporate has expanded its client base, after being appointed onto the legal framework for the Canal & River Trust. 

The North West law firm will provide construction and property litigation support, as part of a five-year agreement. Pannone is one of a number of law firms to be appointed by the Canal & River Trust.  

The Trust works with communities to transform their local canal or river, creating places and spaces for everyone. Together with volunteers and supporters, the Trust plays an important local role in addressing global issues, such as climate change and biodiversity decline. 

Paul Jonson, senior partner at Pannone Corporate, said: “We’re delighted to have been appointed onto the national legal framework for the Canal & River Trust, following a rigorous and competitive procurement process. 

“The charity plays a vital role in enhancing our waterways, transforming places and enriching lives. Our team will be working closely with the Trust to ensure that their purpose and vision is not compromised.”

Gemma Staples, associate partner in the property litigation team, added: “The Canal & River Trust is making a significant contribution to protect and nurture the natural environment that sits right on our doorstep. The events of the last two years have shown how important that environment is to our health and wellbeing andI, amongst thousands of others, have found solace in time spent in woodlands and by our local waterways. I’m thrilled to be able to work with such an organisation.”

The Canal & River Trust covers six English regions, including the North West, East and West Midlands, London and the South East, the South West, and Yorkshire and the North East, as well as Wales. Teams cover water management, sustainability, restoration, community engagement, design and planning, ecology andengineering. 

In the first of our quarterly retail law updates, we look at the latest news and legal developments affecting the sector.

It covers the upcoming Children’s Code, which will come into force in September and will impact those online retailers that currently process personal data of under 18s. We also look at the new guidance on buy now, pay later, as well as key fashion cases setting the tone for the industry, including when drawing inspiration becomes infringement.

Read our quarterly update here https://discover.pannonecorporate.com/retail-update

If you would like to discuss these topics in more detail, or have any questions, contact partner, Melanie McGuirk on 07790 882567 or email melanie.mcguirk @pannonecorporate-com.stackstaging.com

Sarah Bazaraa and Alexandria Winstanley, intellectual property and media lawyers at Pannone Corporate

Colin and Cuthbert the Caterpillars have hit the headlines and captured the attention of the nation as M&S issued High Court proceedings to challenge Aldi on its sale of an alleged copycat cake.

M&S is well-known for having a range of successful and hugely popular ‘character’ products such as Colin the Caterpillar and Percy Pig. Colin the Caterpillar is said to have hit the market in 1990 and to have had the same look since around 2004, securing its place as a firm favourite for birthdays and celebrations over the years. Such is this cake’s notoriety, he’s recognisable to many by his first name only.

It has been widely reported that M&S issued High Court proceedings on 14 April 2021 to challenge Aldi’s sales of Cuthbert the Caterpillar on the basis that Aldi’s product ‘rides on the coat tails’ of the success of Colin the Caterpillar. M&S may be concerned that Aldi’s lower priced cake will result in a diversion of sales and undermine the success of its own product.

What protection does M&S have?

M&S seeks to protect its intellectual property rights in relation to its products and brands, including by securing trade mark registrations. Trade mark protection offers brand owners the exclusive right to use the registered marks for the types of goods and services for which they are registered.

In circumstances where M&S can establish a goodwill in the ‘look and feel’ of its products, M&S can also challenge third parties who deal in confusingly similar goods where that conduct misrepresents a commercial connection between them and causes M&S damage.

This isn’t the first time Aldi has found itself in hot water over selling products with names and packaging which are intentionally similar to well-known and established brands. The retailer has taken a tongue-in-cheek, unashamed approach to offering ‘Like Brands, Only Cheaper’, which treads the very fine line between inspiration and intellectual property infringement.

High profile cases have included a successful claim by celebrity makeup artist and beauty brand Charlotte Tilbury in 2019, who won a legal battle against the supermarket for selling £6.99 copies of her Filmstar Bronze & Glow palette which she retails for £49. Other brands have taken a different view. Brewdog perhaps viewed the imitation as flattering when Aldi launched a copycat of their famous Punk IPA. The beer company responded with a spoof Aldi IPA which ended up being stocked in UK and German stores, as well as inspiring an initiative which means a tree is planted for every case sold.

What next for M&S?

If M&S succeeds in its claims, then the retailer may secure an injunction preventing Aldi from marketing or selling the Cuthbert the Caterpillar in future. Any such decision could also serve as a warning message to Aldi and the market more generally that M&S will not tolerate copycat products, which may act as a deterrent in future.  Certainly the dispute has already attracted a lot of high profile attention, meaning that M&S will be educating the public through the PR this case attracts that Aldi’s product is the copycat and M&S’s product the much loved original.

Notwithstanding  the media spotlight and social media memes in this case, there is a serious commercial issue at the core. Retailers and brands understandably want to protect their creative investments, ensure brand loyalty from customers, and maximise their ability to challenge a competitor who oversteps the mark. This high profile example acts as a reminder to retailers and brands to have the proper intellectual property protections in place in order to be able to do so effectively, as well as emphasising the value of an accompanying PR campaign to shine a spotlight on acts of alleged infringement.

 The high-profile spat between Dolce and Gabbana and Diet Prada continues to create quite a stir among fashion circles – long after the now-infamous D&G ad campaign in 2018, which set this whole public affair in motion. The Italian brand has accused the self-professed ‘fashion watchdog’, Diet Prada, of fuelling a large-scale backlash to its misjudged ad, by unleashing a volley of social media content, as well as its contended “illegal publication of Stefano Gabbana’s private conversations” on Instagram.

Dolce and Gabbana alleges that by way of their heavily followed Instagram account, Diet Prada’s founders initiated a “smear campaign”, consisting of “serious and repeated defamatory conduct” aimed at harming the Italian brand to the value of €3 million in damages.

While the long-running legal battle is being played out in foreign courts, it poses some very pertinent questions that are as relevant to UK companies as they are to global brands – namely, the growing role social media is playing, not only in acting as a medium for defamatory comment, but being used as a tactic for applying pressure on the opposing side during legal proceedings.

Applying pressure in the hope of a settlement is nothing new; using such a public platform in which to do so is certainly a growing trend. Social media has popularised and accelerated many things in society – its vast reach, instant impact, and widespread adoption, makes it a perfect channel for engaging with untapped audiences and amplifying your message.

However, there’s a big disclaimer that comes with using this method to interact with people – whether you’re a business or an individual. Defamation occurs when someone causes substantial harm to the reputation of another by publicising a false statement – inappropriate or ill-considered written words, posting private correspondence in which allegations about someone else are made, sharing, forwarding or commenting on news or gossip, will all potentially be grounds for a libel case.

It’s so commonplace to use the likes of Instagram as a means of communicating with people, it becomes second nature to share material on the platform; it’s vital however that companies think twice about using social media channels as a pressure tactic in an ongoing legal case, or as a means of attacking competitors given the risk such behaviour could expose you to.

It’s essential to tread carefully when using social media and other media outlets for any form of publicity, whatever the motivation, and equally important to recognise when it’s happening to you as a business. When does a social media post cross the line? Where do the boundaries lie? Has something happened which harms your or your business’ reputation? Can you legitimately object and challenge the way in which a competitor has spoken about you on-line?  Once subject to targeted attack, the erosion of your reputation can be difficult to recover from.

As a business, it’s important to understand your rights when it comes to instances of defamation and the breach of privacy of your staff and directors, and to engage in PR and other business strategies appropriately through the right channels. Dolce and Gabbana’s bitter duel with Diet Prada has been played out in a very public way over a number of years. Businesses need to avoid airing their dirty (even if fashionable) laundry in public – it is ultimately and inherently unattractive, being publicity for all the wrong reasons. Instead, harnessing the power of social media positively to facilitate the creation or exchange of information in order to promote a business is much more likely to give that business greater longevity and credibility.

Melanie McGuirk and Sarah Bazaraa comment on the judgment in the libel case of Johnny Depp v News Group Newspapers Limited.

Described as the biggest libel trial of the 21^st century, staged over 16 days, across five courtrooms and with witnesses giving evidence both in-person and via video-link from LA, Chicago, the Bahamas and Australia; Johnny Depp’s libel claim against The Sun’s publisher, News Group Newspapers Limited and its journalist, Dan Wootton, drew to a close yesterday.   

The judgment held that the meaning of The Sun article published in April 2018 with the headline, “GONE POTTY How can JK Rowling be ‘genuinely happy’ casting wife beater Johnny Depp in the new Fantastic Beasts film?’ was substantially true.

Mr Depp has lost his defamation claim. The judge examined serious allegations concerning 14 incidents during which it was contended Mr Depp was controlling, verbally or physically abusive towards his former wife Amber Heard when under the influence of alcohol and/or drugs. Having done so, the judge found that The Sun had proved that it was more likely than not that Mr Depp had committed physical violence against Ms Heard; caused her to suffer significant injury; and on occasion caused Ms Heard to fear for her life.

Substantially true 

Although the published allegations against Mr Depp were of criminality, the libel claim was a civil case. This meant that the standard of proof which The Sun was required to meet was one of balance of probability (i.e. was it more likely than not that the conduct occurred). Due to the serious nature of the allegations at issue, the court required greater evidence to be satisfied that the truth defence was established on the balance of probabilities – not an easy threshold for The Sun to meet.

With that in mind, it is perhaps surprising that The Sun ran the single defence of truth rather than additional defences, such as that the article comprised the journalist’s honest opinion or was in the public interest. This suggests The Sun was very confident in its truth defence. At the heart of this confidence will have been The Sun’s reliance on the testimony of Ms Heard. While not a party to the litigation, the evidence of Ms Heard will have been crucial to The Sun’s defence.

It is worth noting that the case did not settle before trial (as many libel cases do), again suggesting that the newspaper believed it would win. A cynic might comment that a newspaper can sell even more newspapers about a case while court proceedings continue.

A matter of fact 

It was difficult to speculate on the outcome before the judgment was handed down, as the case came down to matters of fact. The majority of the 125-page judgment comprises a detailed review of the witness evidence presented to the court by the parties, including witnesses who were friends, relatives, former and current employees of the former couple.

After hearing all the evidence from the witnesses directly and seeing how they responded to questioning under cross examination, the judge had to consider whether it was more probable than not that the article was substantially true in its meaning. That is the view the judge had reached, finding in relation to 12 of the 14 incidents that there was evidence of assault by Mr Depp on Ms Heard, putting her in ‘fear of her life’ during three of them.

Early reports on the decision state that Mr Depp may appeal what his lawyers have called ‘a perverse and bewildering’ ruling. However, it is acknowledged that the trial judge has seen and heard the witnesses and his or her view as to where credibility lies is entitled to great weight. The appeal court may well be reluctant in this case to interfere with the judge’s findings of fact, which he has plainly gone to a great length to set out in detail in his judgment.

The requirements for making a legally valid will are set out in a statute from 1837. One such requirement, that a will be witnessed “in the presence of” two witnesses, has caused significant practical difficulties during the Covid 19 pandemic. With many clients naturally wanting to make or update wills whilst self-isolating we have had to find inventive practical solutions that satisfy the legal requirements. Jersey has already passed a law to allow the witnessing of wills via Zoom or video link and this week the UK Government has announced that it too will implement this change.

This development is to be welcomed as it will bring outdated legislation in line with modern technology. The change in the law is to be backdated to 31 January 2020 so that anyone who has mistakenly witnessed a will via Zoom or video link will receive retrospective validation whilst the new rule is to remain in place until at least 2021. However the change is also likely to cause problems as scope for undue influence “off camera” and the danger of losing documents is likely to result in a rise of inheritance related disputes. We have to assume that as remote measures such as Zoom are likely to stay, the Government will look at making a permanent change and at the same time putting in place safeguards to prevent undue influence and duress. For more information please feel free to contact Jane Shaw or Fiona Bushell.