CPD Hours Level
Conference expert panelInformation 6 UpdateInformation
SRA Competency B


From a review of recent case law through to the latest developments in relation to liquidated damages, electronic signatures and duress, this conference covers a wide range of topical issues, identifies the problems and pitfalls and explains how best to avoid them.

Delivered by a panel of highly experienced experts it will appeal to all those lawyers who need to keep up to date with all the latest developments in law, tactics and practice.

Conference Agenda

This conference will cover the following:

9:30am - 10:15am: Opening Address: Update on the Leading Contract Cases of 2019

Richard Stephens, LORS - The Law Office of Richard Stephens

The judges continue to pour out their judgments, many of which have profound implications for the way we draft, mark up or litigate our contracts. This session will distill the very best of the last year's case-law.

This session will cover:

  • Contract or not - what happens when parties just get on with the work without signing the contract?
  • The death of freedom of contract (or not) - what is the latest state of play with good faith? What should we be doing with our drafting in the light of the latest cases?
  • The flourishing of freedom of contract - how much pressure can you apply during negotiations? When will economic duress come into play?
  • 'Reasonable endeavours' - the latest thinking from the courts on how to apply this all too common expression

10:15am - 11:00am: Electronic Signatures

Keith Markham, Solicitor

The increasing use of electronic signatures continues to generate a degree of confusion and uncertainty, especially in respect of contracts that require specific formalities to be complied with.

Guidance is available from case law, the Electronic Communications Act 2000 and also in Regulation (EU) No 910/2014 (the eIDAS Regulation) but the best summary is now found in the Law Commission's Report on the Electronic Execution of Documents.

This session will review the content of the existing law as summarised in the Law Commission's Report and will cover:

  • An overview of different types of electronic signatures that can be used
  • Key provisions of the eIDAS Regulation
  • Issues of admissibility under the Electronic Communications Act 2000
  • A summary of the relevant case law

11:15am - 12:00pm: Practical Tips on Effective Mediation

Andrew Hildebrand, Hildebrand Mediation

This session will cover:

  • How to decide which commercial disputes to mediate
  • How to get your dispute into mediation
  • How to get the mediator you want
  • How to prepare the team
  • Do's & Don'ts on the day

12:00pm - 12:45pm: Economic Duress & Undue Influence - The Pitfalls for Commercial Lawyers

Dov Ohrenstein, Radcliffe Chambers

Parties increasingly argue that contracts are ineffective because of improper pressure. This session considers those arguments from a commercial lawyer's perspective and will cover:

  • The importance of Times Travel v Pakistan International Airways and other developments in the doctrine of duress
  • The essentials of a successful duress claim
  • How to ensure contracts cannot be set aside for undue influence
  • Inequitable bargains
  • Interaction with arguments based on public policy and statutory remedies

12:45pm - 1:00pm: Questions on Morning Session

2:00pm - 2:50pm: Settling Disputes through Negotiation

John Trimbos

Negotiation is a key skill for lawyers in settling disputes on behalf of clients, and of course a key skill in business life generally.

This session will cover:

  • Self-assessment questionnaire - are you naturally a red or a blue negotiator?
  • Essential planning steps
  • How to project confidence and authority
  • Negotiation case study

2:50pm - 3:40pm: Liquidated Damages

Keith Markham, Solicitor

Liquidated damages clauses are commonly found in commercial contracts but question marks always exist as to their enforceability. Since the landmark decisions in Cavendish v El-Makdessi and Beavis v Parkingeye in 2015, the courts have now sought to apply the principles set out by the Supreme Court in a series of cases.

Drawing on all the recent case law, this session sets out an overview of the key issues to be borne in mind when drafting such a clause.

This session will cover:

  • What does 'liquidated damages' mean?
  • How do the courts distinguish between a liquidated damages clause and a penalty clause?
  • What is a 'legitimate interest'?
  • How do I ensure that the amount inserted is not 'extravagant, exorbitant or unconscionable'?
  • Will liquidated damages always be subject to limitation of liability provisions?
  • To what extent will a liquidated damages clause apply to work that has not been completed?
  • Will a default rate of interest be treated as a penalty?

3:55pm - 4:45pm: Liabilities and Indemnities

Richard Stephens, LORS - The Law Office of Richard Stephens

Lawyers come into their own when it comes to these clauses. Closely linked in terms of the overall risk profile of a contract, much confusion has arisen about their drafting. Especially in the case of indemnities, which have become so common in modern commercial contracts, the cases show that they do not necessarily mean what lawyers think they mean.

This session will cover:

  • What exactly is the difference between a breach of contract liability and liability under an indemnity?
  • How are the modern courts applying the law on liabilities - both under UCTA and in commercial contracts not governed by UCTA?
  • What can you do to minimise liability under an indemnity?
  • What are the key points to look out for in indemnity drafting?

4:45pm - Close: Questions & Answers

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Conference | 11.05.2020

London | 9:30am - 5:15pm

Commercial Contracts - Conference 2020

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9:30am - 5:15pm
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