Dispute Resolution analysis: The Court of Appeal in this case addressed whether the so-called ‘Costello principle’ precluded a claim in unjust enrichment by an agent for an introduction fee where an oral contract governed the arrangement. The court’s analysis turned upon the precise interpretation of the remuneration terms and provides a valuable lesson on the failure of parties to cover all possible outcomes by way of express agreement. The court allowed the agent’s appeal and granted the claim in unjust enrichment. Davis LJ concurred but preferred a contractual implied term analysis. Written by James Saunders, barrister, at New Square Chambers.

This Practice Note considers contractual service provisions including process agent clauses. It considers agreements between the contractual parties to an agreement as well as between a party and the process agent and the irrevocability of both. It explores whether a contractual service clause is exclusive or permissive, whether a service clause will survive termination of the contract and the interaction between service of process clauses and jurisdiction clauses. It also explains how to determine the date on which service is effected using a contractual service clause. Service of the claim form by a contractually agreed method of service must comply with the requirements in CPR 6.11. For guidance, see Practice Note: Service of the claim form by a contractually agreed method (CPR 6.11). Terminology • Process agent—the person or entity contractually appointed to accept service of proceedings on behalf of a party. The process agent is part of the contractual service machinery. For example, a party to a contract outside the jurisdiction may appoint an entity in England to act as its agent for service of process

This is one of the groups of regulated investments defined in the Regulated Activities Order (the other groups being identified as securities and others).

TM analysis: Artificial intelligence (AI) has rapidly become an essential tool in delivering technology services, yet defining its performance within contracts often proves challenging. Unlike traditional software, AI solutions can adapt over time, rely on large volumes of data from diverse sources, and involve complex objectives, such as transparency and avoiding bias. Below, we analyse how to measure and maintain AI performance in contracts, focusing on practical market solutions and core contractual clauses that help ensure consistency and compliance in a quickly evolving sector. Written by Marcus Bagnall and Mark Deem, partners at Wiggin LLP.

Dispute Resolution analysis: Kemball had a container haulage contract with K Line. K Line was the subject of a takeover, following which it indicated that it would not be able to place future business with Kemball as required by the contract. Kemball served a notice of breach under the contract and then terminated the contract and sued for its anticipated losses. The court held that both the notice and the termination were confined to the contractual term relied upon in those documents, but that the term relied upon did not in fact cover the factual circumstances which had arisen. Accordingly, the claim was dismissed because it failed on the question of liability. This analysis is confined only to the issue of liability notwithstanding that quantum was also in issue. Written by Charles Joseph, barrister, at Tanfield Chambers.

An investor who takes a position in the market contrary to the majority.

ARCHIVED: This Practice Note has been archived and is not maintained. From 6 April 2025, the Consumer Protection from Unfair Trading Regulations 2008, SI 2008//1277 have been revoked and replaced by the Digital Market, Competition and Consumers Act 2024 (DMCCA 2024). However, CPUTR 2008, SI 2008/1277 will still apply to any conduct occurring prior to 6 April 2025. For information on contravening professional diligence under DMCCA 2024, see Practice Note: Contravening professional diligence under the Digital Markets, Competition and Consumers Act 2024 . The offence of contravening professional diligence The offence of contravening professional diligence is one of the criminal offences contained in the Consumer Protection from Unfair Trading Regulations 2008, SI 2008/1277 (CPUTR 2008). See Offences under the Consumer Protection from Unfair Trading Regulations 2008 [Archived]. CPUTR 2008, SI 2008/1277 reg 3 prohibits unfair commercial practices. An unfair commercial practice includes, amongst others, a commercial practice that: • contravenes the requirements of professional diligence, and • materially distorts or is likely to materially distort the economic

As of 6 April 2025, the Digital Markets, Competition and Consumers Act 2024 (DMCCA 2024) revoked and replaced the consumer protection regime under the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR 2008), SI 2008/1277. This Practice Note covers the offence of contravening professional diligence under DMCCA 2024. The provisions for this offence under DMCCA 2024 largely mirror those under CPUTR 2008, SI 2008/1277. For further analysis of unfair commercial practices under DMCCA 2024, see News Analysis: The new law relating to unfair commercial practices. Note that CPUTR 2008, SI 2008/1277 will still apply to conduct occurring prior to the commencement of DMCCA 2024. For information on contravening professional diligence under the previous regime, see Practice Note: Contravening professional diligence under the Consumer Protection from Unfair Trading Regulations 2008 [Archived]. For background information on the evolution of DMCCA 2024 and a review of the key changes under the Act, see Practice Note: Consumer protection from unfair trading under the Digital Markets, Competition and Consumers Act 2024. The Competition

A right of someone to recover from a third person all or part of the amount which he himself is liable to pay.

This Deed is made on [insert day and month] 20[insert year] Parties 1 The several persons whose names and addresses are set out in the Schedule (together, Sellers and each individually a Seller). background: (A) The Sellers have entered into, or will soon enter into, the SPA with the Buyer regarding their sale of the [entire issued share capital] of the Company. [The parties have also entered into or will soon enter into the Tax Deed.] (B) The Sellers have agreed to regulate the manner in which Claims are dealt with under the SPA [and Tax Deed] and to allocate their respective liabilities arising from any Claim in accordance with the terms of this Deed. The parties agree: 1 Definitions and interpretation 1.1 In this Deed, unless the context otherwise requires the following expressions shall have the following meanings: Agreed Proportion • means as regards each Seller, the percentage set out opposite their respective name in the Schedule; Buyer • shall be as defined in the SPA; Claim • means any claim: (a) [for breach or alleged breach of the SPA made against any one or more of the Sellers]; (b) under the Warranties [excluding Warranty [insert number] (Capacity) and Warranty [insert

This Deed is made on [insert date] Parties 1 The several persons whose names and addresses are set out in the Schedule (together the Founders and each individually a Founder). background (A) The Founders have entered into, or will soon enter into, the Subscription and Shareholders’ Agreement with the Investor regarding their investment in the Company. (B) The Founders have agreed to regulate the manner in which Claims are dealt with under the Subscription and Shareholders’ Agreement and to allocate their respective liabilities arising from any Claim in accordance with the terms of this Deed. This Deed provides: 1 Definitions and interpretation 1.1 In this Deed, unless the context otherwise requires the following expressions shall have the following meanings: Agreed Proportion • means as regards each Founder, the percentage set out opposite their respective name in the Schedule and the expression Agreed Proportions should be construed accordingly; Claim • means any claim: (a) [for breach or alleged breach of the Subscription and Shareholders’ Agreement made against any one or more of the Founders]; (b) under the Warranties [excluding Warranty [insert number] (Capacity) and Warranty [insert number] (Title)]; (c) [under the indemnities contained in clause [insert number] of the Subscription and Shareholders’

This Deed is made on [insert day and month] 20[insert year] Parties 1 The several persons whose names and addresses are set out in the Schedule (together the Managers and each individually a Manager). BACKGROUND: (A) The Managers have entered into, or will soon enter into, the Investment Agreement with the Investor regarding their investment in the Company. (B) The Managers have agreed to regulate the manner in which Claims are dealt with under the Investment Agreement and to allocate their respective liabilities arising from any Claim in accordance with the terms of this Deed. The parties agree: 1 Definitions and interpretation 1.1 In this Agreement, unless the context otherwise requires the following expressions shall have the following meanings: Agreed Proportion • means as regards each Manager, the percentage set out opposite their respective name in the Schedule and the expression Agreed Proportions should be construed accordingly; Claim • means any claim: (a) [for breach or alleged breach of the Investment Agreement made against any one or more of the Mangers]; (b) under the Warranties [excluding Warranty [insert number] (Capacity) and Warranty [insert number] (Title)]; (c) under the indemnities contained in clause [insert number] of the Investment Agreement; and (d) [ [under the Tax Deed OR under the tax deed (if applicable) to the Investment