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IHL Legal Briefings

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The rule of penalties subjected ?to a thorough going-over

December 2015. By Cooley, Alex Radcliffe, and ?Erin Vickers

The much anticipated judgment of the Supreme Court in the conjoined appeals of Cavendish Square Holdings BV v Talal El Makdessi and ParkingEye Ltd v Barry Beavis [2015] was handed down last month. [Continue Reading]

The Court of Appeal clarifies the law on remedies for misrepresentation

November 2015. By Cooley and Chimé Metok Dorjee

The remedies available for misrepresentation depend on whether the misrepresentation was fraudulent, negligent or innocent. If a misrepresentation is fraudulent or negligent, the claimant may claim both rescission and damages under s2(1) of the Misrepresentation Act 1967 (the Act). If a misrepresentation is negligent or innocent, the court has the discretion to award rescission or damages in lieu of rescission under s2(2) of the Act. In the recent case of Geoffrey Alan Salt v Stratstone Specialist Ltd [2015] the Court of Appeal confirmed that the courts have no discretion to award damages for innocent or negligent misrepresentation under s2(2) where the remedy of rescission is not in fact available.? [Continue Reading]

Courts will not rescue parties to a disastrous bargain

October 2015. By Cooley and Alex Radcliffe

Cases involving the proper approach to contractual interpretation only infrequently warrant determination by the Supreme Court as the ‘rules’ have been comparatively settled for some time. There have, however, been indications of a growing tendency ?of the courts to resolve unattractive interpretations based on the strict wording of contracts by reference to ‘commercial common sense’ that requires an alternative interpretation. In response to these decisions, the Supreme Court’s decision in Arnold v Britton & ors [2015] has re-established the supremacy of the principle that the intention of the parties to a contract should, with ?very limited exception, be derived from the natural meaning of the words they have chosen to use. ? [Continue Reading]

No winners in a battle of forms

September 2015. By Cooley and Alex Radcliffe

A classic battle of forms has ended in the faintly ignominious conclusion that neither party had done enough to have their standard terms and conditions (Ts&Cs) incorporated into the contracts in dispute. The High Court’s decision in   Transformers ?& Rectifiers Ltd v Needs Ltd   [2015] provides an instructive summary of key authorities and serves as a warning that parties ?in long-term commercial relationships ?must remain vigilant when it comes to asserting and, crucially, maintaining their contractual position. [Continue Reading]

What level of warranty has been given in ambiguous contracts?

July 2015. By Cooley, Jamie Humphreys, and ?Nicole Bieber

An essential part of any engineering or construction contract will be the contractorÂ’s warranties as to the quality and standard of the works to be performed. Warranties are contractual assurances ?that aim to apportion risk and liability between parties, and give rise to a claim for damages if breached. They are often key points of negotiation as the employer pushes for certainty through absolute, or performance-based, objectives, while the contractor seeks to restrict their commitment to exercising reasonable skill and care (as is the limit in standard professional indemnity insurance). To complicate matters further, these warranties will frequently sit alongside a design specification containing details of exactly what is to be constructed and how ?it should be done. [Continue Reading]

Contractual discretion: how should it be exercised?

June 2015. By Cooley and Joanne Elieli

Contractual terms granting discretion for a party to determine unilaterally the outcome of a matter in prescribed circumstances are not an uncommon feature in commercial contracts. In fact, such clauses can be immeasurably helpful in enabling the contracting parties to operate on a day-to-day basis without the need to refer continually to the other for agreement. [Continue Reading]

Conduct or contract?

May 2015. By Cooley, Sascha Grimm, and David Young

In our March article, we looked at the decision in Raymond Bieber & ors v Teathers Ltd [2014], where an e-mail in response to an offer simply saying ‘noted’ was interpreted as indicating acceptance of the offer. The legal principles relating to offer and acceptance have again been put under the spotlight in the Commercial Court’s decision in Reveille Independent LLC v Anotech International (UK) Ltd [2015]. In this case, the crux of the issue was not the written communication between the parties but the opposite: the lack of written communication set against the parties’ conduct. [Continue Reading]

Legal Developments in the UK

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