Clarke Willmott has a dedicated, specialist team who are ranked in the top bands in publications such as Legal 500 and Chambers, and whose members are often called on to provide expert comment by the BBC, the national press and specialist publications such as Computer Weekly and to provide training on technology topics. In addition, we are able to draw on cross-disciplinary experience from across the firm to offer a full service Technology practice including both contentious and non-contentious advice and representation in all sectors.
ICT Contracts: drafting, negotiation & implementation
The Technology team act both for suppliers of ICT solutions (often in specialised sectors) and for organisations in both the private and public sector who are acquiring ICT solutions for use in their business. With the growth in outsourced and off-shored ICT provision, and with Cloud computing solutions offering apparently huge cost savings, the models of ICT procurement have diversified dramatically in recent years, and so have the business risks.
Our team have supported a wide range of organisations through major technology acquisition or supplies and also handled renegotiations and contractual renewals as things change over time. Because of our experience, we are alert to areas of developing concern (“red flag” ) issues in an IT project, which may indicate urgent intervention is needed, and very happy to act as a sounding board for clients who feel the normal teething issues of a project may be turning into something more significant.
We also have experience in Alternative Dispute Resolution, so that if an ICT project does into trouble we can often assist organisations in getting things back on track without wasting the massive investment in time and money already spent, and avoiding a wasteful, prolonged and destructive lawsuit.
ICT contracts are often high-value and/or business critical. The negotiation cycle, from initial request for proposals through to contract signature, typically takes months and, in the public sector, requires compliance with the OJEU procurement framework in addition to the ordinary contractual considerations. Issues such as escrow, IP indemnities, service level agreements (and associated enforcement through service credits or other contractual mechanisms), responsibility for sub-contractors and – most importantly – liability and exclusion all have to be dealt with. In addition, it’s essential that the legal team have the technical knowledge to tie in the technical schedules and ensure that the contractual structure works to deliver what’s intended.
We are frequently instructed to advise in relation to disputes within the technology sector. These often arise from the procurement of IT solutions and issues arising from the implementation of new systems and supporting software. They can also include disputes over rights to exploit software and over the scope of licensing arrangements.
Common themes include:
- Projects going wildly over budget
- non-delivery or seriously delayed implementation
- Scope or specification creep; disputes over what was agreed
- abuse of change requests – often a red-flag showing a project in trouble
- lack of provision by clients for staff time on training and system testing
- problems arising from third party finance
- consumer credit arguments
- problems with sub contractors
- disagreement over contractual terms especially limitation of liability
- abuse of licenses
- intellectual property issues
Such disputes can have a crippling effect on the day to day management of a business, which can be catastrophic if not resolved quickly and effectively.
We bring our understanding of the industry and the imperatives faced by those within it to the disputes on which we act This enables is to focus on the immediate issues and bring disputes quickly to the right resolution.
We are experienced in obtaining Norwich Pharmacal orders against entities such as Internet Service Providers to obtain relevant evidence of online wrongdoing by people who have sought to hide behind anonymity or pseudonymity.
In addition, recent changes in the court rules require the parties to all disputes (whether or not in the IT sector) to consider what relevant evidence exists in electronic form (possibly under the control of third parties such as outsourced service providers). We work closely with computer forensic experts to retrieve usable evidence from electronic sources and to ensure the most effective and cost-aware use of electronic evidence.
As indicated above, social media is increasingly becoming a mine-field for businesses. Defamation can be committed just as easily (and much more quickly) within the 140 character limit of Twitter as under any other process. Members of the technology team have in the past acted to remove prejudicial material posted by our clients’ competitors from YouTube, dealt with email and Facebook harassment campaigns orchestrated by ex-employees, assisted clients in managing on-line presence by, for example, promoting acceptable use policies among their employees, contractors and affiliates and advised about the legal implications of on-line disclosure of sensitive information.
Business carried on over the internet accounts for 8-10% of all retail trade in the UK (some surveys put it as high as 12.7%), the highest percentage in the EU. Particularly where it applies to trade with consumers, it is governed by a complex web of regulations such as the Distance Selling Regulations, the Electronic Commerce Regulations and the rules relating to the provision of services. Other issues such as the Payment Card Industry Security Standards, and regulations on cookies and spam are also crucial in the on-line environment. In addition (a point often overlooked) goods and services sold over websites have to be presented in a way which makes them accessible to people suffering from disabilities. Failure to comply with accessibility requirements is a criminal offence.
Data Protection & Freedom of Information
With monetary penalties for breach of the Data Protection Act having increased to £500,000 in 2010, with further increases likely under proposed EU legislation, clients increasingly find themselves having to prove that their processes for keeping personal data secure are adequate. Accordingly, tailored training and drafting appropriate company policies and handbooks forms a major part of our work in this area. We work closely with our employment team, since most data protection issues within organisations have a human resources dimension.
Subject access requests are becoming more prevalent, especially as an adjunct to claims against companies. This increases the importance of responding thoroughly and not giving hostages to fortune by an ill-thought-out response. For those in the public sector, freedom of information requests under the Freedom of Information Act and Environmental Information Regulations are also becoming more frequent and, although the law requires them to be treated as “person and purpose neutral” can often the harbingers of judicial review applications.
In each case, we advise clients on how to respond, what exemptions may be available to them, what the risks are of specific actions or inactions and assist in drafting responses and dealing with complaints to the Information Commissioner and, in the infrequent cases where things go further, any associated litigation.