About Giles

Giles is the founder and managing director of ContractStore. It was his idea to set up a company selling documents online and he has played a major part in the company's development. He is an English solicitor, with over thirty years' experience of drafting and negotiating commercial and construction contracts in the UK and overseas. Giles has long been convinced that there is a quicker and simpler approach to the delivery and supply of most contracts, and he is an active proponent of the use of plain English in legal documents. He specialises in the drafting of construction and engineering contracts and as well as contributing contracts to the ContractStore website, he is co-author of the JCT Constructing Excellence Contract and of 'Exporting Made Easy' with Simon Bedford.

Think Twice Before You Copy From Another Website (it could prove to be expensive!)

In a recent case, a home improvement company in Bradford lifted 21 images from the website of a loft conversion company in the London area when it decided to move into loft conversion work and wanted some illustrations.

Absolute Lofts South West London Ltd. sued the Bradford company, Artisan, and its owner, Mr Lubbock, and won substantial damages. Artisan admitted liability and the judge awarded a total of £6300 in damages – £300 for ‘compensatory damages’ and a further £6000 – 20 times the basic compensation– because of the flagrant nature of the breach.

imitate photo

Making duplicates of other people’s images could leave you exposed
Photo by iloveart106 Creative Commons

In a case like this, compensatory damages are calculated on a theoretical basis of what might have been agreed for the use of the images between two willing parties. Experts instructed by each of the parties came up with different figures – the expert for Absolute Lofts argued that Artisan would have paid £9000 for a professional photographer to take those pictures. Artisan reckoned the figure was less than £1000. The judge did not think much of either expert opinion and decided £300 was the right amount as this was what it would have cost to source similar images from a photographic library.

However, the judge then decided that additional damages were due. Section 97 (2) of the Copyright Designs & Patent Act 1988 allows additional damages when there is a flagrant infringement of copyright.  And Article 13(2) of the EU Directive on The Enforcement of Intellectual Property Rights allows for damages appropriate to the prejudice suffered by the injured party.

Artisan’s owner knew that the images were being used without consent. But the judge also found that Artisan had directly profited from the photographs on their website – it seems that they not only implied the company had expertise in loft conversions, but its profits increased as a result.   Even though the distance between the two companies did not mean that Absolute Lofts suffered from direct loss of business as a result of Artisan’s action, the judge nonetheless thought there was prejudice and so awarded the £6000 additional damages.

The internet is often seen as a free resource where you can pick up and copy other people’s pictures or text and use them on another website. This case underlines the fact that you do so at your peril, and do remember that it is relatively easy for a copyright owner to search for and find duplication on the web.

There are plenty of free images available online, and Google search now allows you to search by license. There is a system of Creative Commons licensing that allows image publishers to declare the details of how they want their images shared.  Because of this, the courts are likely to get increasingly firm on blatant infringements.

So, if you are engaging a designer, be sure to check that their contract makes it clear that nothing they supply will infringe any third party’s copyright. Our designers’ contract template covers this along with all the other things you need to consider when working with designers.

For the full case report see: http://www.bailii.org/ew/cases/EWHC/IPEC/2015/2608.html


Consumer Rights Act – Unfair Contract Terms

The Consumer Rights Act 2015 introduces new rights for consumers and our previous articles have dealt with how the Act affects sale of goods, services and digital products.

Kawarau Bridge - Bungee dipping photo

You can’t escape your responsibilities by writing them away in a contract

The Act also re-states and expands the existing law concerning unfair terms in consumer contracts.

The basic requirements are that contract terms must be fair.

The law says that a term is unfair if “contrary to the requirements of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.

This fairness test applies not only to terms in the contract but also to consumer notices – e.g. notices in car parks, as well as notices appearing online on a website.

All written terms in a consumer contract or in a consumer notice must be transparent – i.e. expressed in plain and intelligible language.

Any term in a consumer contract or a consumer notice attempting to limit or exclude the trader’s liability for death or personal injury resulting from negligence is unlawful and not enforceable. (So a bungee jumping company can’t get you to sign away your rights – if the bungee fails, that will still be their fault.)

Similarly any term attempting to limit or exclude the various terms implied by the Act (satisfactory quality etc.) are unfair and unenforceable.

What Is ‘Unfair’?

Schedule 2 of the Act contains 20 examples of terms that may be regarded as unfair. These include:

  • Disproportionately high charges when a consumer decides not to carry on with a contract or with services which have not been supplied
  • Terms that allow the trader to decide the subject matter after the consumer is bound by the contract
  • A term allowing the trader to fix the price after the consumer is already bound by the contract
  • A term designed to limit the trader’s liability in the event of death or personal injury of the consumer that results from some act or omission of the trader
  • A term designed to exclude or limit the consumer’s rights if the trader does not perform his obligations adequately
  • A term that allows the trader to bring the contract to an end without reasonable notice unless there are serious grounds for doing so
  • A term which has the effect of binding the consumer to terms which he has had no real opportunity of becoming acquainted with before the conclusion of the contract.

Fairness Exemption

the fairness test in consumer rights

Notices to the public such as clamping warnings are also subject to the ‘fairness test’

The test of fairness will not apply to a term in a contract that specifies the subject matter of the contract, nor will the price be subjected to a fairness test. But for the exemption to apply, the subject matter and the price must be prominent and transparent – i.e. in plain English and intelligible.

What You Need To Do

All businesses need to review their contract terms at this stage to see that they do not fall foul of the Consumer Rights Act and the updated Unfair Terms requirements incorporated in it. Although much of the existing legislation is retained, there are new provisions as well.


A Guide to the Modern Slavery Act for Your Business

Modern Slavery Act 2015

The question that many supporters of anti-trafficking movements may be asking – Does the new Modern Slavery Act (2015) go far enough to ensure that corporates maintain a transparent supply chain?

The new Modern Slavery Act (2015) will apply to all commercial organisations who carry on business or part of a business in the UK.

Author: Sharon Benning-Prince

Regulations under the Act – expected to be implemented in October 2015 – will require those with turnover above a yet-to-be-determined threshold to produce an annual statement for each financial year, under the so-called ‘Transparency in supply chain provisions‘.

Current reports suggest that a turnover threshold of around £36-40 million is likely.

It looks likely that organisations with turnover over this threshold will have to produce their first statement by the end of the current financial year. The Government has indicated it will publish compliance guidance in the next few months.

The Act introduces two main offences:

  • servitude or forced labour
  • arranging or facilitating the travel of another person with a view that a person is being exploited

Section 54: Companies Must Publish a A Statement

  • Section 54 of the Act will require every large business to publish an annual statement setting out the steps the business has taken during the year to ensure that slavery and human trafficking are not taking place in the business itself, or in its supply chain.
  • The statement must be published on the business’s website.
  • The obligation to publish a statement applies to businesses which carry on any part of their business in the UK and which “supply goods or services” (essentially, all trading companies and partnerships).
  • The statement must be approved by the board of directors and signed by a director (in the case of companies), approved by the LLP members and signed by a designated member (in the case of LLPs), and signed by a general partner (in the case of limited partnerships).
  • Overseas conduct will be included, and will be deemed as if the offence had taken place in the UK.

Preparing the Statement
If a company is caught within threshold, the basic requirement is to produce a statement confirming:

  • the steps taken to ensure that slavery and human trafficking are not taking place in your business, or in any supply chain


  • declare that you have taken no steps to confirm the existence of slavery or trafficking. This approach may place a company’s ethical position into question and affect its reputation, so it is expected many companies would prefer not to take this option.

The Act does not specify the exact steps that a business must take in relation to supply chain transparency, and there is no prescribed form of transparency statement. However, the Act suggests that the statement “may” include the following:

  • brief description of your organisation’s business model and supply chain relationships
  • your organisation’s policies relating to modern slavery including due diligence processes and the training available/provided for those in supply change management and the rest of the organisation
  • the parts of the business and supply chain most at risk in the organisation and how the organisation evaluates and manages those risks
  • relevant key performance indicators which would allow a reader to assess the effectiveness of the activity described in the statement.

The homepage of your website must contain:

  1. a prominent link to the statement, which must be approved by the board and signed by a director
  2. homepages of both the parent company and any subsidiary websites
  3. if the company does not have a website it must provide a copy of the statement within 30 days to anyone who requests it

Application / Jurisdiction

  • a company/partnership over a certain size
  • that supplies goods or services
  • and carries on a business or part of a business in the UK

The Act itself imposes no legally binding requirements to conduct due diligence on supply chains. And there is some flexibility regarding the content of the statement, as companies may find it difficult to compile all the relevant information. The Government has framed Section 54 in such a way as to leave it open to businesses themselves to determine how best to comply with its requirements, and how far they should go in identifying where any risks may lie – and how to tackle them.

The Government has also made it clear that it expects each business to take an appropriate and proportionate approach, based on the nature of its business and the industry sector.

What should you be doing now?
Companies should assess whether they are caught by these requirements. For some this will be straightforward, while others will need to decide on an entity-by-entity basis once the turnover threshold is published. Even if your turnover is lower than the threshold, it may be good for a company reputation to follow some of the guidance and recommended procedures to build customer confidence.

If your company is likely to be affected then you could:

  • start assessing current levels of information on your supply chains. The company will need to start engaging with its direct and indirect suppliers, and set up due diligence systems to obtain reliable information
  • draft and implement a policy on slavery and trafficking
  • assess the need for training within your organisation, and your supply chains, on human rights compliance
  • incorporate anti-slavery and trafficking obligations (and related policies) into procurement agreements, and require similar obligations to be incorporated into any sub-contracting arrangements
  • review your supplier due diligence processes to incorporate procedures that identify modern slavery and trafficking risks.

Will it work?
At this time, it seems that any process that seeks to address trafficking and forced labour issues are to be welcomed. However there are no criminal or financial penalties for non-compliance, and that is an area that could be reconsidered. In order to ensure that companies comply with the Act and comply properly and ethically, there should be some element of financial penalty.

Notwithstanding the lack of penalty, any company that is deemed not to be adhering to the Act may suffer detriment from a reputation perspective, and this in itself may be enough of an incentive for both companies that fall within the threshold, and those that don’t, to comply with Section 54 properly.

Further Reading

New Public Procurement Regulations come into effect on 26 February 2015.

Under the Europe-wide public procurement directives, contracts above a certain value have to be open to competition and publicly advertised when they are being awarded by central government, local authorities and a wide range of public bodies.  The effect of these directives is to open up the award of contracts to competition across the European Union – any company based in the EU can bid.

The new Public Contracts Regulations 2015 in the UK are extensive and adopt the  simplified, modernised approach of the European Commission.

Among the changes are:

 New opportunities for SMEs to bid for public sector work: in the case of central government, contracts with a value of £10,000 or more should be advertised on the Contracts Finder website, with a threshold of £25,000 in the case of local authorities and housing associations

• Modification of existing contracts without the need for advertising a new contract is now stated more clearly than before.  Additional work or services is allowed where a change of contractor cannot be made for economic or technical reasons or where the change would cause significant inconvenience or substantial duplication of costs for the contracting authority. Modification is also permissible where the value of the change is below 10% of the initial contract value in the case of service and supply contracts or 15% for works contracts

• Grounds for refusing an award to a contractor include any bidder who has “shown significant or persistent deficiencies in the performance of a substantive requirement under a prior public contract”.  Any bidder who has been convicted of conspiracy, corruption, bribery and a range of other offences must not be awarded a contract.

• Payment terms – public sector contracts must provide for payment within not more than 30 days from receipt of a valid invoice.
The Public Contracts Regulations 2015 can be found here:

A useful summary of the new regs can be found here.

New Law to Help Self Builders moves forward

A Government bill to help enable more people to build their own homes has passed its final stage in the House of Commons. It has all party support and goes to the House of Lords this week.

The purpose of the Self Build and Custom Housebuilding Bill – the brainchild of South Norfolk MP Richard Bacon – is to make it easier for an individual or a group of individuals to obtain land in order to build a house to live in. It places a duty on local councils to keep a register of people who wish to build their own home and who are actively seeking to acquire serviced plots of land in the local authority’s area. The Bill then requires each local council to take account of its ‘self build register’ when exercising the functions of planning, housing, regeneration and the disposal of land.

In Laying the Foundations: a Housing Strategy for England (2011), the Government set out plans to enable more people to build or commission their own home – there is an aspiration to double the size of the self-build market, creating up to 100,000 additional self-build homes over the next decade. Various measures have been introduced to ease the path for those wanting to build their own home including (repayable) funding; an exemption from the Community Infrastructure Levy; amendments to planning guidance; and improved access to public sector land.

Our thanks to NACSBA , the National Custom & Self Build Association, for this information.

Self Builders get a Section 106 boost from the Government

Until now, self-builders in the UK have faced the risk of an expensive levy payable to the local authority as a contribution to the local community, in return for getting planning permission.  This levy has now been abolished for people building their own homes and they will now be exempt from these payments to local authorities, the Communities Secretary Eric Pickles announced recently. The exemption comes into force immediately and could affect hundreds of self builders currently going through the planning process.
Eric Pickles said: “This will also be a massive boost to the self build and custom build sector. Overnight in many parts of England, it will be cheaper to build an extension, a family annex or just build your own home.”
Section 106 Agreements are designed to provide financial benefits for the local community from the granting of planning permission and have traditionally been used to extract incentives from developers. They may take the form of new playgrounds, road crossings and even schools, depending on the size of the development. In recent years, however, NaCSBA reports that many one-off self-builders have found that local authorities are demanding a payment under a 106 agreement before granting planning approval — often in the £1,000s. In one case a self builder was charged £140,000 (in Dorset) to build their own home. The call to exempt self builders from Section 106 campaigned for jointly by NaCSBA and Homebuilding & Renovating.

ContractStore has contract templates for selfbuilders available for downloading at this link http://www.contractstore.com/homebuilder including free guidance.

ContractStore teams up with Artquest to offer contract templates for artists

ArtQuestContractStore is delighted to announce a partnering arrangement with Artquest. This is mainly intended to help artists who need contract documents to support them in their work.

To mark the occasion, together we have developed a Consignment Agreement for use by artists when sending their work to a gallery for exhibition and sale.

Quentin Matsys (1456/1466–1530) - The Yorck Project: 10.000 Meisterwerke der Malerei. DVD-ROM, 2002. ISBN 3936122202. Distributed by DIRECTMEDIA Publishing GmbH.

Art and law join together in our new agreement with Artquest. Quentin Massys’ Portrait of a Lawyer c. 1510.  Distributed by DIRECTMEDIA Publishing GmbH.


The Artist Consignment Agreement (document A246 in the ContractStore catalogue), is available as a free download for a limited period.

Also, Artquest subscribers can benefit from a 15% discount on all ContractStore templates. These include a Design Agreement, a Model Release Form, and Art Gallery – Artist Agreement among the 250 contract templates for sale from our website.

Christmas – a season of goodwill, but beware you don’t fall foul of the law when organising a Christmas party

Christmas is the season of goodwill.  But Christmas parties have been known to result in disputes over sexual harassment and in today’s multicultural society  there is even a possible risk of complaints about religious discrimination according to our employment lawyer, Philippa Wood.

So, why not send a few minutes reading her article on whether celebrating Christmas could present a risk for an employer.

You can find the article here: http://www.keystonelaw.co.uk/other/keynotes/2014/12/does-celebrating-xmas-open-yourself-up-to-religious-discrimination-claims/


Online Legal Services are “less intimidating, cheaper, quicker and more convenient”

It is good to see a positive report on the benefits of online services such as those offered by ContractStore.  The report entitled “2020 Legal Services – How Regulators Should Prepare for the Future” has reviewed the various offerings online that enable consumers (and businesses) to benefit from the new technology and to obtain a cost-effective solution to some of their problems.  The Legal Services Consumer Panel that issued the report advises the Legal Services Board, the ‘super-regulator’ of legal services in England.

According to the report, their survey data shows strong consumer demand for online services: 47% of consumers polled said online delivery is important to them.

As technology makes legal services simpler to use, involve less effort and cheaper to buy, more people are likely to carry out the sorts of tasks – like writing a will or arranging a power of attorney – which currently they either prefer to put off or cannot afford to do.  The various online services offer many benefits. Among other things, “they may be less intimidating, cheaper, quicker and more convenient.’”


‘Self-lawyering’ (sic) is expected to increase as consumers seek alternatives to lawyers through technology enabled DIY solutions. This will enable some consumers to complete common legal tasks without the need to engage a lawyer, or with minimal supervision by a lawyer.

As the report says, historically, lawyers have been a conservative profession which has successfully resisted change.  It is therefore encouraging to see the Legal Services panel acknowledging the beneficial impact for users of the new marketplace when the report says that  “in overall terms, there would seem good grounds for being optimistic about the future. Market liberalisation, technology and other forces should produce innovative and cheaper services that can benefit all consumers and widen access to groups currently excluded from the market.”

Concerns About Regulation

However they do have concerns at the unregulated nature of the online legal market. So they want to encourage and facilitate initiatives to raise standards and extend access to redress in unregulated markets while “continuing to press for modernisation of the wider regulatory framework in the longer term.”

There is something of anomaly in the regulatory framework at present: on the one hand, to practise as a solicitor you first have to train, qualify, be registered with the Solicitors Regulatory Authority and comply with the SRA Code of Conduct and Accounts rules.  But the ‘regulated activities’ which only solicitors can perform are very few – essentially court litigation, handling probate and some property transactions.  As a result, the internet has enabled the proliferation of a wide range of legal or quasi-legal services which are not subject to any professional control and can be provided by people without any training in the law.

Quality Legal Documents

At ContractStore, we have taken steps to ensure that our services meet high professional standards.  All our documents are prepared by qualified, experienced lawyers and we are a founder member of APOD, the Association of Publishers of Online Legal Documents which itself has a Code of Practice that members have to sign up to.

The full report can be found here –  http://www.legalservicesconsumerpanel.org.uk/publications/research_and_reports/documents/2020consumerchallenge.pdf


Fine of £300,000 for sending spam is overturned on appeal.

A £300,000 penalty issued by the Information Commissioner (ICO) against a Mr Niebel   for sending unwanted text messages ‘on an industrial scale’ has been cancelled on appeal.

Hundreds of thousands of messages were sent from hundreds of unregistered sim cards seeking out potential claims for mis-selling of PPI loans or for accidents.  And there was no evidence to show that he made any effort to make sure that the recipients consented or that he retained any record of consents. He did not even  bother to register with the ICO under the Data Protection Act (DPA) as a controller of data.

Under the regulations in place since 26 May 2011 the ICO can impose fines of up to £500,000.   But the regulations say the contravention must be serious. It must also be “of a kind likely to cause substantial damage or substantial distress”.

The fine imposed by the ICO covered messages sent before and after these new regulations came into effect. In fact only 286 of the messages were sent after 26 May, a tiny proportion of the total.

In his judgement, Judge NJ Warren said that the effect of the contravention was likely to be widespread irritation but not widespread distress. “Given the scale of the contravention, there is the possibility of some distress in very unusual circumstances but we cannot construct a logical likelihood of substantial distress as a result of the contravention. We conclude that the contravention is not of a kind likely to cause substantial distress. “ So he cancelled the penalty notice.

Even if it does not cause distress, spamming is still illegal and you need to be sure to obey the rules if you want to send out marketing material.  Direct email marketing to consumers is acceptable if the sender has “obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient”, where the marketing is for “similar products and services only” and providing the recipient can easily unsubscribe  so as to refuse the use of their contact details for that marketing in future.