CPD Hours Level
Conference expert panelInformation 6 UpdateInformation
SRA Competency B


Chaired by Mark Weston, this conference will examine a selection of hot topics and difficult issues ranging from how to avoid entering into a contract via negotiation, through to limitation issues.

Conference Agenda

This conference will cover the following topics:

9.30am - 10.15am: Forming Contracts & Negotiating - Avoiding Accidental Contracts

Chair: Mark Weston

To set the scene, this session will consider the latest developments in negotiating contracts:

  • Ingredients to form a contract
  • Classical:
    • Offer
    • Acceptance
    • Consideration
    • Battle of the forms
    • Other elements in formation
  • Sui generis formation
  • Distinctions between negotiations and contracts:
    • Have you accidentally formed a contract while negotiating?
      • The 6 steps of Pagnan Freres
      • ‘Subject to contract’
      • ‘Without prejudice’

10.15am - 11.00am: The Latest on Limitation Clauses

Shantanu Majumdar, Barrister, Radcliffe Chambers

This session will explore the key provisions of the Limitation Act together with recent case law and how this applies in practice in the areas most relevant to commercial practitioners:

  • Key provisions of the Limitation Act
  • The relationship of the provision
  • An update on recent case law

11.15am - 12.00pm: Limiting Liability

Helen Swaffield, Contract Law Chambers

Together with the latest cases find out what is ‘unreasonable’ and the new meanings to consequential loss. This session will explore:

  • Exclusion of direct/indirect liability
  • New meanings to ‘consequential loss’
  • UCTA standard terms and conditions
  • Caps and aggregates
  • What is unreasonable?
  • Case update

12.00pm - 12.45pm: The Latest on Boilerplate Clauses

Keith Lewington, Excello Law

This session will provide the latest update on boilerplate clauses including:

  • Do we need to say that?
    • When boilerplate is needed (and when it isn’t)
  • Entire agreement
    • Latest thoughts on excluding liability for misrepresentation
  • Force majeure
    • Why can’t you?
    • Could you avoid the force majeure?
  • Variation of contract
    • How do you deal with variations in the light of Rock v MWB Business Exchange?
  • Notices
    • Working out when the notice must be served: Nobahar Cookson v Hut Group
    • Not serving the notice at all: Zayo Group v Ainger
    • Not serving the right notice: Teoco v Aircom Jersey 4

12.45pm - 1.00pm: Questions on Morning Session

2.00pm - 2.50pm: All About Indemnities - Drafting Techniques & More

Helen Swaffield, Barrister, Contract Law Chambers

This session will cover all you need to know about drafting indemnities including:

  • How to maximise the indemnity
  • Using drafting techniques to reduce the power of the indemnity
  • Reverse indemnities
  • Public policy exceptions which prevent the indemnity from operating
  • Data protection and compliance

2.50pm - 3.40pm: Duration and Termination Clauses - The Latest

Alison Berryman, Partner, Waterfront Solicitors

An important consideration when drafting a contract is how long the parties will be bound by its terms. The intended duration could be anything from mere moments to forever, depending on the subject matter. In many cases, particularly with longer term agreements, the parties will also want the option to terminate early if things are not going to plan - and careful consideration of when one or both parties should have the right to do this will be needed.

This session will cover some of the most common means of drafting duration and termination clauses.

  • Duration
    • Perpetual
    • Fixed term
    • Until terminated
  • Termination
    • Termination for convenience
    • Termination for cause
    • Effects of termination

3.55pm - 4.45pm: Contract interpretation Update - Brexit, Ambiguity & More

Mark Weston

This session will explore the latest on contract interpretation including:

  • Systems of law
  • Civil law v common law approaches
  • Precedent (and some Latin)
  • Clarity and ambiguity: Arnold v Britton, Capita v Wood
  • Ambiguity: Investors Compensation Scheme v West Bromwich
  • Classical contract interpretation (6 canons)
  • Modern contract interpretation (10 principles)
  • The effect of Brexit on contract drafting and interpretation
  • Admissible background
  • Private dictionary principles

4.45pm - Close: Chair’s Close and Questions & Answers

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Conference | 28.10.2019

London | 9:30am - 5:15pm

Drafting Commercial Contracts - 2019 Conference

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9:30am - 5:15pm
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