The doctrine of contractual estoppel has been utilised in a umber of commercial scenarios but most noticeably in more recent times in disputes in the financial sector. This Practice Note identifies some of the key cases since the 2006 Court of Appeal decision in Peekay v ANZ Banking Group. It should be read in conjunction with Practice Note: Contractual estoppel. Peekay v ANZ Banking Group (2006) The Court of Appeal's decision in Peekay v ANZ Banking Group is seen as the leading authority on the doctrine of contractual estoppel. The claimant had signed a 'Risk Disclosure Statement' in relation to investments it was making through the defendant bank, which included an acknowledgment that the signatory fully understood the nature of the transaction and the contractual relationship into which it was entering. The Court of Appeal concluded that, given this, the claimant could not subsequently assert that it was induced to enter into the contract by a misrepresentation as to the nature of the investments it was entering into. See Practice Note: Contractual estoppel—What is contractual

On 4 April 2016, building information modelling (BIM) level 2 became mandatory on all centrally-procured UK government projects. This means that, increasingly, the use of BIM will need to be reflected within contractual documentation throughout the construction supply chain and within the professional team. See Practice Note: What is BIM? It is important not to look for changes for the sake of change and at each stage of the contract it makes sense to consider what has changed, from the status quo, in contractual terms as a result of the introduction of BIM into a project. There are a number of areas, however, where amendments are likely to be required to ensure that the additional requirements of BIM are dealt with. This can be achieved with 'light touch' amendments to administrative clauses of the contracts or by more extensive amendment to include any early engagement and reflect the collaborative working requirements, depending on parties' preferences and the extent to which (and purposes for which) BIM is to be used—as a design and construction tool only or as something

Commercial analysis: The court held that RDA Television LLP (RDA) was entitled to terminate its contract with European Processional Club Rugby (EPCR) as a result of the postponement of matches due to the coronavirus (COVID-19) pandemic. The court held that the contract provided for the matches to be arranged within the season and EPCR’s delay in hosting these matches entitled RDA to terminate the contract pursuant to its force majeure provisions. The decision turned on the court’s interpretation of the contract and will be of interest to both non-contentious and contentious practitioners. Written by Nicole Bollard, barrister at 3PB Barristers.

Construction analysis: The Technology and Construction Court held that liabilities arising from breaches of obligations under a pre-construction services agreement (PCSA) survived the execution of a subsequent Joint Contracts Tribunal (JCT) building contract, notwithstanding contractual wording providing that rights and liabilities under the PCSA were to be ‘subsumed into and be subject to’ the later contract. The judge concluded that an adjudicator had been wrong to find that the JCT contract superseded liabilities arising under the PCSA. The decision provides guidance on the distinction between contractual obligations and liabilities, and on the transmission of liabilities from a PCSA to a subsequent building contract. It also illustrates the court’s willingness to correct adjudicators’ contractual analysis through Part 8 proceedings where short points of construction arise.

Construction analysis: The Technology and Construction Court (TCC) granted declarations sought by an employer in relation to unlawful suspension and termination of a design and build contract and the contractor’s consequent repudiatory breach. The TCC held that suspension and termination notices served by the contractor, in relation to an alleged prevention of work by the employer by its failure to provide instructions in relation to asbestos removal work and structural repairs, were not valid.

Commercial analysis: Faced with a complex contract where from the language it was apparent that there was some error in the drafting of the contractual terms, the court was able to look to worked examples for guidance as to the contract’s true meaning and the intention of the parties.

Restructuring and Insolvency analysis: The High Court held that the joint administrators of a collapsed peer-to-peer lending company, FundingSecure Ltd, were not permitted to pay the company five percent of any security asset realisation on defaulting loans before monies were repaid to lenders (investors). This case provides a summary of the principles of contractual construction and an insight into judicial approach to arguments based on commercial common sense. In construing the contract, the judge held that internal ambiguities were to be read against the company, as was the fact that the investors’ interpretation led to a sensible outcome which fit better with the commercial reality of the situation as reflected by the parties’ respective abilities to assess the risks involved in their dealings. This result was crucial to thousands of investors who stood to lose millions where FundingSecure Ltd had overvalued the security on their loans meaning there was not enough money to pay back investors. It will also be relevant to other similarly failed schemes. Written by Mo Haque QC, partner at CANDEY, who together with other lawyers at CANDEY acted for the investors.

Construction analysis: The Technology and Construction Court (TCC) examined the scope of a Tomlin Order/Settlement Agreement following a settlement of enforcement proceedings of an Adjudicator’s decision, and considered whether its terms prevented the commencement of a threatened second adjudication. The TCC was also required to decide whether the threatened second adjudication concerned a ‘dispute’ that had already been determined by the first Adjudication This case highlights the importance of precise language in settlement agreements and the potential for subsequent claims if not explicitly settled. Written by Michael O’Connor, partner at Charles Russell Speechly LLP.

Banking & Finance analysis: Following a raft of capital markets cases in 2014, Matthew Waudby, Harriet Jones-Fenleigh and Adam Sanitt, from Norton Rose Fulbright, discuss some of these cases which feature issues of contractual interpretation.

Construction analysis: The Technology and Construction Court considered the interaction between bespoke and standard form contractual provisions, in a contract based on a Joint Contracts Tribunal (JCT) Design and Build Contract 2016. The contractor sought several declarations relating to the scope of its responsibilities under the contract, and the limits of an adjudicator’s power to fix the completion date for the works. The TCC found that, among other things, a schedule of derogations qualified the contractor’s design responsibility, pending certain conditions being met. However, it declined to grant a declaration relating to the allocation of planning risk under the contract, concluding that this was not a matter that could be decided without a fact-specific application. The TCC further confirmed that adjudicators have power under the Scheme for Construction Contracts to review and revise extensions of time, including by fixing an earlier completion date than one established through the contractual extension of time process.

A joint venture that is based around contractual or informal agreements between the parties, that does not entail structural changes. Such joint ventures will often involve collaboration on a particular project rather than creating a long lasting business relationship. Such agreement may also be known as a commercial, unincorporated, co-operative or collaborative joint venture. See also Co-operative joint venture.

This Practice Note sets out the advantages and disadvantages of using a contractual joint venture, as well as setting out the common types of contractual joint ventures. Advantages of a contractual joint venture The three main advantages of a contractual joint venture are: • independence—as a contractual joint venture does not involve any structural changes: ◦ the parties remain as entirely independent contractors, with less likelihood of a participant being liable to a third party because of the act or omission of a co-participant—compare with partnership joint ventures, where the statutory agency rules apply (each partner is an agent for the partnership—section 5 of the Partnership Act 1890) ◦ the arrangement is tax transparent—each participant is liable to pay tax on its own profit from revenue share and gets the direct benefit of any tax reliefs, unlike corporate joint ventures (see sections 34–201 of the Corporation Taxes Act 2009 (CTA 2009)) or partnership joint ventures (see sections 848 and 850 of the Income Tax (Trading and Other Income) Act 2005 and CTA 2009, ss 1258, 1262)