Commercial analysis: The High Court has given judgment in a contract dispute involving a defence of waiver by election. The court found that the claimant did not have actual or blind-eye knowledge of its right to terminate, so could not have elected to waive the right. In reaching its finding, the court noted that the claimant’s instruction of solicitors to draft and advise on the contract gives a rebuttable presumption of knowledge. However, the court found this to be rebutted, since evidence of advice sought and received showed the right was not advised on at the relevant times. While not being able to simply turn a blind-eye, the expectation not to avoid making suitable enquiries will require suspicion that a right may exist first, but mere awareness of a clause underpinning that right is not sufficient. This case will be of interest to those instructed in drafting contracts and those advising on whether a contractual right has been effectively waived, when knowledge is disputed.Written by

Commercial analysis: The doctrine of waiver by election holds that, in a situation where a person is entitled to alternative rights inconsistent with one another and, with the knowledge of the relevant facts, acts in a manner which is consistent only with his having chosen one of those rights, the law holds him to his communicated choice. Election generally requires knowledge of the facts giving rise to the choice. In Peyman v Lanjani, the Court of Appeal held that it also requires knowledge of the legal right being waived. In URE Energy Ltd v Notting Hill Genesis, the Court of Appeal considered the important question of what knowledge is necessary where the right arises under the express terms of a signed contract. Is the waiving party deemed to have knowledge of those terms (so that actual knowledge of them does not have to be expressly proved)? Written by Seb Oram, barrister at International Construction Chambers.

Where an artist commissions artisans (for example, a ceramicist and a metalworker) to do parts of a work for him and then sells the final piece: 1. Are there subsisting copyrights in the works done by each of the artisans (which would need to be transferred to the artist by contract)? Potentially, there are subsisting copyrights in the works done by each of the artisans. The artists and artisans may be ‘joint

This Practice Note sets out when and how an innocent party can rescind a contract for misrepresentation, why they would wish to do so and when rescission is not permissible. For guidance on when a party may recover damages for a misrepresentation or seek to limit/exclude liability for misrepresentation, see Practice Notes: • Misrepresentation—damages as a remedy • Misrepresentations—excluding and limiting liability for them The remedy of rescission in misrepresentation claims A party who was induced to enter into a contract by a misrepresentation may elect to rescind the contract. If the rescission is challenged, that party may seek the assistance of the court to give effect to the rescission. The effect of rescission, where available, is to put the parties back in the position they were in before the contract was made. It is sometimes referred to as rescission ab initio to distinguish it from termination or cancellation that does not nullify the contract, but brings it to an end. Rescission is available as a remedy whether the misrepresentation was fraudulent, negligent or innocent,

For information on the decision in Brazel v Harpur Trust generally, see the section of Practice Note: Holiday pay entitled Term-time and seasonal workers. A payment by way of pension is specifically excluded from the statutory definition of wages under section 27(2)(c) of the Employment Rights Act 1996 (ERA 1996). Employer’s pension contributions do not fall within the definition of wages, not because of ERA 1996, s 27(2)(c), but because (under ERA 1996, s 27(1)(a)) wages means any sums ‘payable

This Practice Note considers the requirement for the representor both to have intended to and actually to have induced the representee, by their misrepresentation, to enter into the contract. For details of the other key elements of an actionable misrepresentation, see Practice Notes: • Misrepresentation—what statements will establish a claim? • Misrepresentation—falsity (fraudulent, innocent or negligent misrepresentation) The main elements of inducement in misrepresentation claims The claimant must show that they were induced by the representation to enter into the contract. The main elements of inducement were summarised by the Court of Appeal in Dadourian v Simms: • whether the representee was induced to enter a transaction by a material misrepresentation is a question of fact (Barton v County NatWest) • inducement will be presumed if the misrepresentation was of a nature likely to have played a part in the decision of a reasonable person to enter into a contract (Dadourian) • the misrepresentation need not have been the sole inducement, ie it is sufficient that the misrepresentation was

This Q&A assumes that: • the grantor still owns the relevant land, unencumbered • the notice was validly served and gave rise to an unconditional and enforceable contract for the purchase of the land Specific performance is an equitable remedy available to compel performance of a valid and enforceable contract. No limitation period applies to

Commercial analysis: The Court of Appeal in Bains considered the proper approach to remedying material breaches of contract where contractual termination clauses are engaged and relied upon. Breach notices will require a cautious interpretation and parties would be well advised to clarify exactly what performance the contractual counter-party considers essential to remedy a breach. Bains confirms that actual performance will be necessary and merely stating an intention to perform will not go far enough. Questions of the extent of catch-up or restored performance required are left open after the decision. Written by James Saunders, barrister, at New Square Chambers.

This Practice Note is a guide explaining ‘how to’ incorporate precedent controller to processor (C2P) or processor to processor (P2P) provisions for compliance with the United Kingdom General Data Protection Regulation, Assimilated Regulation (EU) 2016/679 (UK GDPR) into a draft commercial contract. It is written from the perspective of a contract that will be governed by the law of England and Wales. Guidance on the laws of other jurisdictions should be sought where appropriate. In relation to the contract provisions required, there are significant similarities between the UK GDPR and the EU’s General Data Protection Regulation, Regulation (EU) 2016/679 (EU GDPR). This ‘how to’ guide assumes a basic level of knowledge about data protection law, including the meaning of key terms such as ‘personal data’ and ‘processing’. For introductory information on data protection law, see Practice Note: Data protection law—new starter guide and the UK data protection law collection. For information about the background to the UK GDPR and its relationship with the EU GDPR, see Practice Note: The

ARCHIVED: this archived Practice Note is not maintained and is for background information purposes only. Further, some of the links may not direct you to the provisions as at the date the guidance in this Practice Note was published. Commencing and progressing adjudication—what do you need to know? In this review of the key adjudication cases from 2016, we consider: • payment notices and final accounts—see below • contract considerations—doubts and amendments—see below • multiple adjudications and disputes—see below • jurisdiction and breach of natural jurisdiction—see below • adjudication enforcement—see below • recovering costs of adjudication—see below Payment notices and final accounts Payment notices and final accounts saw two important decisions this year, that of Mrs Justice O'Farrell in Kilker Projects v Purton dealing with adjudication and the absence of payment notices and that of the Court of Appeal in Complete Building Solutions v Brown and Brown which considered whether disputes as to the validity payment in different years were the same or different disputes. In J Murphy & Sons v W Maher

ARCHIVED: This Practice Note has been archived and is not maintained. This practical guidance relates to the pre-Procurement Act 2023 regime This Practice Note contains guidance relevant to public procurement exercises commenced before the Procurement Act 2023 (PA 2023) came into force on 24 February 2025. It captures the law as it stood at that point in time. In-scope procurements begun on or after 24 February 2025 are governed by PA 2023. Under the transitional and savings provisions for PA 2023, the previous public procurement regimes continue to apply to the extent necessary to allow contracting authorities to complete and manage procurements commenced before PA 2023 came into force (ie ongoing procurements). This Practice Note should be read in that context. For background reading, see Practice Note: Introduction to the Procurement Act 2023—PA 2023. Further practical guidance on PA 2023 is set out in a separate subtopic, see: Procurement Act 2023—overview. Application of the Concession Contracts Regulations 2016—pre-PA 2023 CCR 2016, SI 2016/273 came into force on 18 April 2016, implementing

There is no general prohibition which would prevent a landowner who is a party to a section 278 of the Highways Act 1980 (HiA 1980) agreement from bringing a claim against the highway authority with whom the agreement was entered into, for breach of the latter’s covenants in the agreement. However, such a landowner should consider the following: • as a local authority, a highway authority’s ability to contract is restricted by its statutory powers and functions. Local authorities may not enter into agreements