New Regulations To Reduce Packaging Waste In Wales

Commercial solicitor Adam Munn explains the Welsh Government’s new regulations requiring producers of packaging in Wales to collect data on the packaging they supply to others.

Key Contact: Richard Voke

Author: Adam Munn

The Welsh Government has introduced new regulations requiring producers of packaging in Wales to collect and report data on the packaging that they supply. The Packaging Waste (Data Collection and Reporting) (Wales) Regulations 2023 (Regulations), which came into force on 17th July 2023, are designed to support the implementation of the Extended Producer Responsibility for Packaging Scheme (EPR Scheme).

The Regulations require small producers – those with an annual turnover of more than £1 million and who handle more than 25 tonnes of packaging each year – to collect data on the packaging that they supply. Furthermore, large producers – those with an annual turnover of more than £2 million and who handle more than 50 tonnes of packaging each year – are required to collect and report this data to Natural Resources Wales.

The data that producers collect and report will be used to calculate the fees that they will need to pay under the EPR Scheme. Under this scheme, producers will be responsible for the collection and disposal costs of this packaging when it becomes waste. Producers were originally required to start paying the packaging fees under the EPR Scheme in 2024. However, the obligation to pay has now been deferred until 2025.

The Welsh Government’s aim is to provide a financial incentive for producers to become more efficient, improve the recyclability of their packaging and reduce the amount of packaging they place on the market. Similar reporting requirements are due to commence in England on 1 October 2023.

We will continue to track the Regulations and the EPR Scheme and any updates as they develop.

For further information on how these regulations might impact your business, please contact our Regulatory team. 

Building Resilience: How Green Drafting Can Shape Legal Contracts

Green drafting can allow businesses to stay ahead of competitors and comply with ESG obligations. But what is it and how can it shape contracts?

Key Contact: Declan Goodwin

Author: Courtney Wilbor

From start-ups to established companies, the ESG landscape is changing in a way that means mandatory reporting and mitigation of climate-related risks will soon be the norm for all businesses.

The Government’s Sustainability Reporting Guidance for 2022-23 emphasises transparency when considering climate-related risks, highlighting the inevitable shift that it is not only larger companies with 500+ employees or a turnover of £500 million that must proactively monitor and mitigate these risks.

What is Green Drafting?

In its simplest form, so-called “green drafting” involves embedding express sustainability obligations in written contracts. It allows those drafting and negotiating contracts to identify the right climate causes and sustainability solutions for the specific requirements of that contractual relationship or project, reducing the need for renegotiation later. Examples of green drafting include:

•             Placing obligations on suppliers to procure energy from renewable sources in manufacturing and supply agreements;

•             Repair and alteration covenants, rent review assumptions and covenants for the protection of energy and sustainability ratings in property leases;

•             Carbon budget adjustment clauses in completion accounts in share purchase agreements; and

•             Requiring the management of a dispute in a way that minimises its environmental impact in construction contracts.

How can green drafting assist?

The duty to mitigate climate-related risks should be shared with suppliers, manufacturers, and customers alike.

The uptake in green drafting has been slow, largely due to a lack of awareness about how businesses can impose climate-related obligations and caution around potential impacts on profits and relationships.

Yet, a data protection clause would not be omitted if a business were sharing personal data, so why should climate-related clauses be treated differently? A breach of either can result in reputational damage. Given the prominence attributed to climate change and sustainability, perceived neglect of these key issues could be particularly harmful for a business from both a reputational and compliance perspective.

Where to start?

Engaging in meaningful dialogue about your business’ expectations from the outset of contractual negotiations will assist in the incorporation of these clauses.

All our teams at Acuity are always happy to steer our clients through the ever-changing and complex ESG landscape, including advising them on how they can adapt their commercial contracts in order to achieve their sustainability objectives and support the fight against climate change.

Our dedicated Acuity Law ESG team helps to both manage risk and harness the opportunities that arise from getting ESG right. For further assistance on any ESG queries, please get in touch.

An Introduction to eSports in The UK and its Unique Considerations.

Key Contact: Tessa Laws

Author: Alex Cater

Whether or not you know your Pac-Man from your Sonic, the popularity of video games in the UK shows no signs of abating. In 2022, OFCOM reported that 60% of UK adults engage in gaming and the industry has contributed an estimated £2.8 billion to the UK economy – with trends indicating a further upward trajectory. It is then unsurprising that a sub-section of the market has emerged for competitive video games or “eSports”.

eSports are similar to traditional sports in that individuals or teams compete against each other in tournaments in front of spectators for accolades or prizes but matches are played in a digital arena instead of a physical one. These competitions are already garnering huge viewership both online via streaming and in person in the actual eSports arena, with prize pools reaching the millions.

However, despite its recent successes, the eSports industry is not without growing pains. It is becoming increasingly clear that, while similar to traditional sports, the industry faces unique challenges and some interesting legal considerations.

Players’ commercial gaming contracts must be drafted in the context of the market and address issues such as whether players can be required to “stream” their gameplay to audiences outside of a competition setting or how they can distinguish practising from playing for fun.

Additionally, it is common practice within the industry for players in a team to live together in a “gaming house” in order to better facilitate team management. Not only does this affect the aforementioned contractual arrangements, but it raises real estate concerns – as access to high-speed internet and relevant equipment is an absolute requirement.

Reputation management also becomes essential for all parties as scandals, such as in 2019 when a video game developer punished an eSports player for voicing support for the Hong Kong protests during an official stream, can cause huge drops in viewership, player base and ultimately revenue.

For advice about legal issues impacting the videogame and eSports sectors, contact our Creative Industries team.

Employee Ownership Trusts

Key Contacts: Christian Farrow

Author: Nia Workman

What is an Employee Ownership Trust?

An Employee Ownership Trust (EOT) is a trust set up by existing company owners for the benefit of all its employees. The EOT becomes a majority owner of the company (meaning that it owns over 50% of its shareholding). EOTs do not give employees a direct share ownership, rather they own the company for the benefit of all its employees collectively.

In 2012, the UK Government undertook a review of employee ownership (the Nuttall Review), which aimed to promote diversification of the economy by encouraging employee ownership. As a direct consequence, the Finance Act 2014 introduced certain tax reliefs to incentivise companies to become EOT owned, and for individuals to sell their controlling interest in a company to an EOT.

What tax reliefs are available for businesses that form EOTs?

For shareholders, the significant advantage is that disposals into an EOT can be made free of capital gains tax and inheritance tax;

For employees – companies owned by EOTs can pay employees bonus payments of up to £3,600 per year free of income tax; and

For companies– corporation tax deductions to the value of any annual bonuses paid to employees.

What do businesses need to know before establishing an EOT?

Setting up an EOT is no small feat and several key factors should be considered before embarking on the process: 

1. Who will be the trustee?

There is the potential for conflict of interest if an employee or director of the company is also a trustee of the EOT.

• What is the market value of the shares to be acquired by the trustee?

This may need to be determined by an independent valuer.

• How will the trustee raise the funds to acquire the shares?

You should establish whether the company will lend money to the trustee or whether the trustee will borrow money independently from the company.

Ultimately, with the correct guidance, setting up an EOT can provide many benefits to both exiting shareholders and a company’s employees. If you would like discuss EOTs in more detail, please contact our corporate team.

What is expected from banks to tackle fraud? The Supreme Court’s Decision On the so-called Quincecare Duty

Good news for banks, but limited relief for Authorised Push Payment fraud victims – we unpack the implications of Philipp v Barclays Bank UK PLC [2023].

Key contacts: Aisha Wardell

Author: Beth Gilbert

The Supreme Court recently handed down its judgment in Philipp v Barclays Bank UK PLC [2023] UKSC 25, finding that Barclays did not owe a duty to protect a customer against fraud by refusing to carry out payment instructions, even in circumstances where the bank had reasonable grounds to believe that the customer was being defrauded by an “Authorised Push Payment” (APP) scam.

What is Authorised Push Payment Fraud?

An APP fraud occurs where a bank’s customer is induced by fraudulent means to authorise its bank to transfer money to a bank account that is controlled by a fraudster. Fraudsters commonly masquerade as legitimate companies to induce individuals to authorise their bank to make such transfers.

Effective relief from APP fraud had until recently been difficult to obtain because the payments are authorised by the individual customer. However, recent case law appeared to signal a departure from this principle and it seemed that banks were increasingly expected by the courts to play a significant role in preventing financial crime, even when the customer authorised the payment- the so called Quincecare duty.

The judgment will be welcome news for banks as the Supreme Court set out the scope of the Quincecare duty and in so doing clarified the relationship between banks and their customers. The Court drew a subtle but key distinction between instances of fraud where a customer unequivocally authorises the bank to make the payment and those where a customer’s agent (such as a director of a corporate customer) acts dishonestly to defraud the customer. In the first scenario, the bank is duty-bound to execute the payment instructions promptly and is not required to enquire further into the transfer, even with reasonable grounds for believing the customer is being defrauded. In the latter, the customer’s agent will lack actual authority to give the instruction and so the bank may rely on the agent’s apparent authority but only in circumstances where there is no apparent dishonesty that would cause a reasonable banker to make inquiries to verify the agent’s authority.

Future victims of APP fraud will now need to look to the new legislative framework of the Financial Services and Markets Act 2023 for any potential reimbursement, rather than seeking redress for any breach of common law duty owed by the bank. This is consistent with the Supreme Court’s view that it is Parliament and the regulators’ role, not the courts, to navigate how losses in APP fraud cases should be shared.

If you need advice on the implications of this ruling for your business, contact our Litigation & Dispute Resolution team.

Acuity Law Welcomes Specialist Immigration Team To New Birmingham Office.

Acuity Law is pleased to announce the arrival of three immigration specialists from law firm Axiom Ince.

Partner Sabina Kauser and trainee solicitors Mehreen Ali and Arooj Tussadiq join Acuity’s newly opening Birmingham office, located in the heart of the city’s thriving business community.

The arrival of Sabina and her team strengthens Acuity Law’s Immigration offering and complements Acuity’s market-leading Employment & HR practice under the leadership of Senior Partner Claire Knowles.

Sabina brings a wealth of immigration expertise to Acuity, having previously led the immigration practice at Axiom DWFM and managing her own firm for nearly a decade. She chairs the Birmingham Law Society Immigration Committee, and she was awarded Solicitor of the Year at the 2023 British Asian Professional Awards.

Acuity Law is a fast-growing national law firm, that offers partners a choice between joining as an employed partner or as a consultant partner. The firm has over 150 lawyers supporting business clients throughout the UK.

With its new immigration team Acuity Law can provide a full solution to UK businesses making overseas hires and can support individuals moving from abroad to take up positions in the UK. This is expected to be particularly attractive to those Acuity Law clients in the healthcare and hospitality sectors where challenges with recruitment are being addressed by recruiting overseas talent.

“I am delighted to be joining Acuity Law. I am attracted by the opportunity to build my market leading practice and to be part of a top ranked professional team at Acuity Law,” says Sabina Kauser.

Steve Berry, Chairman of Acuity Law, said: “We are delighted to welcome Sabina Kauser and her team as our first lawyers for our new Birmingham office. We hope more ambitious and talented lawyers will join us and be attracted by our flexible and rewarding career structures.”

Claire Knowles, Senior Partner and Employment & HR team lead at Acuity Law said: “Immigration is an important consideration for many of our clients and we can now provide a complete in-house solution to our clients from point of hire, through to starting work. I’m confident that the ability to work with the Acuity immigration team will give our clients a tangible competitive edge.”

To find out more about our Acuity Immigration team, get in touch.