• At Kemp Little, we are known for our ability to serve the very particular needs of a large but diverse technology client base. Our hands-on industry know-how makes us a good fit with many of the world's biggest technology and digital media businesses, yet means we are equally relevant to companies with a technology bias, in sectors such as professional services, financial services, retail, travel and healthcare.
  • Kemp Little specialises in the technology and digital media sectors and provides a range of legal services that are crucial to fast-moving, innovative businesses.Our blend of sector awareness, technical excellence and responsiveness, means we are regularly ranked as a leading firm by directories such as Legal 500, Chambers and PLC Which Lawyer. Our practice areas cover a wide range of legal issues and advice.
  • Our Commercial Technology team has established itself as one of the strongest in the UK. We are ranked in Legal 500, Chambers & Partners and PLC Which Lawyer, with four of our partners recommended.
  • Our team provides practical and commercial advice founded on years of experience and technical know-how to technology and digital media companies that need to be alert to the rules and regulations of competition law.
  • Our Corporate Practice has a reputation for delivering sound legal advice, backed up with extensive industry experience and credentials, to get the best results from technology and digital media transactions.
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  • Our litigation practice advises on all aspects of dispute resolution, with a particular focus on ownership, exploitation and infringement of intellectual property rights and commercial disputes in the technology sector.
  • We have an industry-leading reputation for our outsourcing expertise. Our professionals deliver credible legal advice to providers and acquirers of IT and business process outsourcing (BPO) services.
  • We work alongside companies, many with disruptive technologies, that seek funding, as well as with the venture capital firms, institutional investors and corporate ventures that want to invest in exciting business opportunities.
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  • At Kemp Little, we advise clients in diverse sectors where technology is fundamental to the ongoing success of their businesses.They include companies that provide technology as a service and businesses where the use of technology is key to their business model, enabling them to bring their product or service to market.
  • We bring our commercial understanding of digital business models, our legal expertise and our reputation for delivering high quality, cost-effective services to this dynamic sector.
  • Acting for market leaders and market changers within the media industry, we combine in-depth knowledge of the structural technology that underpins content delivery and the impact of digitisation on the rights of producers and consumers.
  • We understand the risks facing this sector and work with our clients to conquer those challenges. Testimony to our success is the continued growth in our team of professionals and the clients we serve.
  • We advise at the forefront of the technological intersection between life sciences and healthcare. We advise leading technology and data analytics providers, healthcare institutions as well as manufacturers of medical devices, pharmaceuticals and biotechnological products.
  • For clients operating in the online sector, our teams are structured to meet their commercial, financing, M&A, competition and regulatory, employment and intellectual property legal needs.
  • Our focus on technology makes us especially well positioned to give advice on the legal aspects of digital marketing. We advise on high-profile, multi-channel, cross-border cases and on highly complex campaigns.
  • The mobile and telecoms sector is fast changing and hugely dependent on technology advances. We help mobile and wireless and fixed telecoms clients to tackle the legal challenges that this evolving sector presents.
  • Whether ERP, Linux or Windows; software or infrastructure as a service in the cloud, in a virtualised environment, or as a mobile or service-oriented architecture, we have the experience to resolve legal issues across the spectrum of commercial computer platforms.
  • Our clients trust us to apply our solutions and know-how to help them make the best use of technology in structuring deals, mitigating key risks to their businesses and in achieving their commercial objectives.
  • We have extensive experience of advising customers and suppliers in the retail sector on technology development, licensing and supply projects, and in advising on all aspects of procurement and online operations.
  • Our legal professionals work alongside social media providers and users in relation to the commercial, privacy, data, advertising, intellectual property, employment and corporate issues that arise in this dynamic sector.
  • Our years of working alongside diverse software clients have given us an in-depth understanding of the dynamics of the software marketplace, market practice and alternative negotiating strategies.
  • Working with direct providers of travel services, including aggregators, facilitators and suppliers of transport and technology, our team has developed a unique specialist knowledge of the sector
  • Your life as an entrepreneur is full of daily challenges as you seek to grow your business. One of the key strengths of our firm is that we understand these challenges.
  • Kemp Little is trusted by some of the world’s leading luxury brands and some of the most innovative e-commerce retailers changing the face of the industry.
  • HR Bytes is an exclusive, comprehensive, online service that will provide you with a wide range of practical, insightful and current employment law information. HR Bytes members get priority booking for events, key insight and a range of employment materials for free.
  • FlightDeck is our portal designed especially with start-up and emerging technology businesses in mind to help you get your business up and running in the right way. We provide a free pack of all the things no-one tells you and things they don’t give away to get you started.

The power of a comma: how to make indemnity clauses enforceable

Inserting a suitable indemnity in a share purchase agreement remains the go-to remedy for buyers who discover the possibility of a claim during their due diligence process but still wish to continue with the deal.  If the sellers indemnify the buyer for loss suffered as a result of the identified (but possibly unquantifiable) matter, they effectively underwrite the risk of it happening and make the buyer whole for the full extent of its loss.  The recent High Court case of Wood v Suretem Direct Limited and Another [2014] EWHC 3240 is a good lesson for those involved with the drafting of acquisition indemnities to ensure the wording and grammatical construction is clear, as something as small as a comma can cause wording to be read in very different ways.

The Suretem case involved an indemnity given by the sellers of Suretem Direct Limited to the buyer, Capita Insurance Services Limited, which sought to indemnity the buyer in the event of losses suffered as a result of any mis-selling or suspected mis-selling of insurance products.  The actual wording was one long continuous sentence which covered:

(1)          “all losses, claims…and liabilities suffered or incurred, and

(2)          “all fines…or payments imposed on or required to be made by the Company

(A)          “following and arising out of claims…registered with the FSA [sic], the Financial Services Ombudsmen or any other Authority against the Company…, and

(B)          “which relate to the period prior to the Completion Date pertaining to any mis-selling…”     

(as separated out by Mr Justice Popperwell in his judgement).

Following completion, instances of mis-selling which dated back to before Capita Insurance Services acquired the company were discovered, but no claim had been registered.  The case therefore turned on a question of whether to interpret the indemnity narrowly or broadly.  If part (A) applied to both statements (1) and (2), the indemnity could not be triggered if a claim had not been registered, and so the indemnity could not be enforced by the buyer.  On the other hand, if part (A) only qualified statement (2), the buyer could enforce the indemnity despite no third parties having lodged claims with the authorities.

The court preferred the broader interpretation, allowing recovery by the buyer.  Partly, this was due to the language used: the court was persuaded by the fact that the losses specified in statement (2) clearly related to the type of regulatory context provided by part (A) but there was no similar link between statement (1) and part (A).  Secondly, it was held that the perceived commercial purpose of the indemnity was to provide restitution to the buyer and so to limit the indemnity just to registered claims would be perverse.  Finally, the decision swung on that all-important comma: by including a comma in statement (1) but not statement (2), the court was convinced that the intention was to link statement (2) and part (A) together and to act as a separation of statement (1) and part (A). 

 

For more information, please contact Andy Moseby.