Local Government analysis: The Court of Appeal has ruled that a local authority (and on appeal, the First-tier Tribunal (‘FTT’)) did not fetter their discretion when applying a policy in order to calculate fines imposed on a landlord by civil penalty notices (‘CPNs’) served under the Housing Act 2004 (HA 2004). The Upper Tribunal (‘UT’) had been wrong to interpret a provision in the policy as being so unduly rigid as to amount to an unlawful fetter of discretion. The provision was concerned with a percentage adjustment to the penalty in light of aggravating and mitigating factors. Written by Tara O'Leary, barrister at Cornerstone Barristers.

Insurance & Reinsurance analysis: The Court of Appeal applied ordinary black letter contractual interpretation in construing a non-assignment clause in a contract for sale. As the Court of Appeal stated: ‘At its core, this appeal raises a single issue of contractual interpretation’. The appeal considered whether a party who entered into an insurance contract to protect against the late delivery of two planes which resulted by reason of Japanese law in the automatic assignment of its interest in the planes could be considered to have violated a non-assignment clause in the sale contract. The Court of Appeal applying the usual rules of construction found that the non-assignment clause was only engaged where a party was responsible for the assignment and not where assignment occurred independently of the party, on the facts of this case by the operation of Japanese Law. Written by Lauren Godfrey, barrister at Gatehouse Chambers.

This Practice Note outlines the approach to be taken in construing or interpreting post-termination restrictions (restrictive covenants). It considers the relevance of timing, the need for clarity and precision, the fact that words are to be given their ordinary and natural meaning, the importance of context and the intentions of the parties (ie a purposive approach), and the ‘contra proferentem’ rule. It also looks at when the corporate veil may be pierced, whether a restriction will be re-written and severance. The construction, or interpretation, of post-termination restrictions essentially follows the same rules of construction as are used in interpreting any other type of contractual term. The starting position is that a restriction in restraint of trade is generally unlawful and a post-termination restriction will only be reasonable, and lawful, if it does no more than the minimum necessary to protect an employer's legitimate business interests (see Practice Notes: Restraint of trade in employment, Post-termination restrictions—reasonableness and Legitimate business interest). This means that restrictions should be drafted by reference to the employer’s specific business and the employee’s role

Commercial analysis: How does one interpret the meaning of a judicial order? What materials are admissible as part of that process? Applying existing authority, the Court of Appeal held that the construction of a judicial order or injunction is an objective exercise, depending on what its language would convey, in the circumstances in which the court made it, so far as these circumstances were before the court and patent to the parties. An order granting an injunction, having penal consequences, is to be restrictively construed. In either case, the reasons given by the court for making its order are always admissible as part of the process of construction. But it is doubtful whether the intentions of the judge making the order, or the submissions made by the parties, can usually or ever be relevant. Written by Seb Oram, barrister at 3PB Barristers.

Restructuring & Insolvency analysis: In this case the court had to construe paragraph 3(1) of Schedule 6 to the Electricity Act 1989 (EA 1989) in connection with an application to restrain the advertisement of a winding-up petition. The court held that there was no justification for construing the word ‘premises’ within that paragraph to mean ‘the entire premises’. Consequently, the deemed contract (or contracts) that arise(s) under that paragraph of EA 1989 must arise between the supplier and the party (or parties) using the supply. The ‘owner’ of the entire premises (here, there freeholder) would only be liable for the cost of the supply if the premises are unoccupied. This provides clarity to practitioners and property owners about the liability that arises automatically under EA 1989, in particular in the context of premises divided up into multiple units—such as shopping centres (as was the case in this decision). Written by Isabel Petrie, barrister at Selborne Chambers.

Law360: Insurers could risk a reduction in business, higher claims frequency, and investment and operational losses due to the world's major geopolitical upheavals, a consultancy warned on 26 June 2024.

This playbook provides guidance for drafting and negotiating a consultancy agreement where the consultancy company contracts to provide an individual consultant’s services to the client company (a ‘loan-out’ agreement or arrangement), from a pro-client or hirer position. This playbook includes a preferred position and a fallback position for the most commonly-negotiated clauses. It may not, however, address every issue that may arise in the negotiation of a particular consultancy agreement. This playbook template can be used by lawyers acting for the client or hirer (whether working in-house or in private practice). Users should modify the playbook as necessary to address client-specific issues and ensure the client’s interests are fully protected. The level of risk noted in the playbook may vary depending on the client. Note that this playbook does not include fallback positions for all boilerplate clauses, where confidential information includes personal data or detailed provision for intellectual property rights. For a template agreement, see Precedent: Consultancy agreement—company and company—pro-client. Note that Precedent: Consultancy agreement—company and company—pro-client should be used in conjunction with

This Agreement is made on [date] Parties 1 [Name of Company], a company incorporated in England with registered number [insert company number] whose registered office is at [address] (the Company); and 2 [Name of Consultancy], a company incorporated in England with registered number [insert company number] whose registered office is at [address] (the Consultancy). Background (A) [The Consultancy is in the business of [insert description] and has certain services of use to the Company.] (B) The Company wishes to engage the Consultancy to provide [insert description] services to the Company on the terms and conditions of this Agreement. (C) The Consultancy is willing to provide [insert description] services to the Company on the terms and conditions of this Agreement. the parties agree: 1 Definitions and interpretation 1.1 In this Agreement, unless the context requires otherwise, the following words and phrases have the meanings set opposite them: Agreement • this Agreement[ including the Schedule]; Board • the board of directors from time to time of the Company[ or any committee of the board duly appointed by it]; Bribery Legislation • the Bribery Act 2010, associated guidance published by the Secretary of State for Justice under the Bribery Act 2010 and all applicable

This Agreement is made on [insert date] Parties 1 [Name of Company], a company incorporated in England with registered number [insert company number] whose registered office is at [address] (the Company); and 2 [Name of Consultancy], a company incorporated in England with registered number [insert company number] whose registered office is at [address] (the Consultancy). Background (A) [The Consultancy is in the business of [insert description] and has certain skills of use to the Company.] (B) The Company wishes to engage the Consultancy to provide [insert description] services to the Company on the terms and conditions of this Agreement. (C) The Consultancy is an independent contractor willing to provide [insert description] services to the Company on the terms and conditions of this Agreement. the parties agree: 1 [ Definitions and interpretation 1.1 In this Agreement, unless the context requires otherwise, the following words and phrases have the meanings set opposite them: Agreement • this Agreement including the Schedule; Board • the board of directors from time to time of the Company[ or any committee of the board duly appointed by it]; [Bribery Legislation • the Bribery Act 2010;] Business Day • a day other than a Saturday or Sunday, on which banks are open for normal business

This Agreement is made on [insert date] Parties 1 [Name of Company], a company incorporated in England and Wales with registered number [insert company number] whose registered office is at [insert address] (the Company); and 2 [Name of consultant], of [insert address] (‘you’). Background (A) You are in the business of [insert description] and have certain skills of use to the Company. (B) The Company wishes to engage you to provide [insert description] services to the Company on the terms and conditions of this Agreement. (C) You are an independent contractor willing to provide [insert description] services to the Company on the terms and conditions of this Agreement. the parties agree: 1 Definitions and interpretation 1.1 In this Agreement, unless the context requires otherwise, the following words and phrases have the meanings set opposite them: Agreement • this Agreement[ including the Schedule]; Board • the board of directors from time to time of the Company[ or any committee of the Board duly appointed by it]; Bribery Legislation • the Bribery Act 2010, associated guidance published by the Secretary of State for Justice under the Bribery Act 2010 and all applicable UK legislation, statutory instruments, regulations, codes and sanctions relating to anti-bribery and anti-corruption[,

[ON HEADED NOTEPAPER OF CLIENT COMPANY] [Insert consultant’s name] [Insert consultant’s address] [Insert date] Dear [insert consultant’s name] [ Consultancy agreement OR Insert name of project ] Further to our recent discussions, I am pleased to confirm the terms of our agreement regarding the provision of your consultancy services to [insert name of client company] (Company). 1 Term 1.1 [Subject to the terms set out in this letter, your engagement [will commence OR commenced] on [insert date] and will continue unless or until either party gives to the other not less than [insert number] [weeks’ OR months’] prior notice in writing. OR 1.2 Your engagement will be for a fixed period of [insert number] months from [insert date], subject to the terms of this letter and subject to the right of either the COMPANY or you to give to the other not less than [number] [weeks’ OR months’] notice in writing during such fixed period terminating the engagement. OR 1.3 Your engagement [will commence OR commenced] on [insert date] and will continue, subject to the terms set out in this letter, until[ the earlier of [insert date] and] completion of the Services to the satisfaction

This Agreement is made on [insert date] Parties 1 [Name of Company], a company incorporated in England and Wales with registered number [insert company number] whose registered office is at [insert address] (the Company); and 2 [Name of consultant], of [insert address] (‘Consultant’). Background (A) The Consultant is in the business of [insert description] and has certain skills of use to the Company. (B) The Company wishes to engage the Consultant to provide [insert description] services to the Company on the terms and conditions of this Agreement. (C) The Consultant is an independent contractor willing to provide [insert description] services to the Company on the terms and conditions of this Agreement. the parties agree: 1 [ Definitions and interpretation 1.1 In this Agreement, unless the context requires otherwise, the following words and phrases have the meanings set opposite them: Agreement • this Agreement including the Schedule; Board • the board of directors from time to time of the Company[ or any committee of the Board duly appointed by it]; [Bribery Legislation • the Bribery Act 2010;] Business Day • a day, other than a Saturday or Sunday, on which banks are open for normal business in [England]; [Chief Executive • the [Chief Executive] of [the Company as