The parties to commercial contracts sometimes agree that exclusion and limitation of liability provisions will not apply if one of the parties has deliberately breached the contract or been so negligent that it would be unfair to protect them from liability. Over the years, a range of contractual language has been used to describe such conduct. None of the common terms have an established legal meaning (and are often not defined in the contract) and the courts are left to decide what exactly the parties intended. This Q&A explains how the courts have interpreted three of the most common formulations: • gross negligence • wilful misconduct • deliberate default It also explains the default position in relation to deliberate breaches if the contract is silent. Gross Negligence Although negligence is a term which is clearly understood in tort, there is no English law concept of gross negligence (other than in criminal law) and so the courts will seek to give meaning to the term based

This Practice Note provides guidance on terms that may be included in a cohabitation contract or agreement, including financial provision, property rights, provision for children and variation. It also details provisions which are likely to be unenforceable. When drafting a cohabitation contract, regard should be had to the ordinary requirements of a contract. Depending on the nature of the parties’ assets, they should consider whether or not a deed of trust should be entered into at the same time—see Practice Note: General principles—cohabitation contracts. The following Precedent letter may be sent to clients considering entering into a cohabitation contract/agreement: Cohabitation agreements—client guide. See also Precedent: Cohabitation contract. Terms While the terms of a cohabitation contract can be very wide, terms such as how much time the parties should spend with each other are unlikely to be enforceable (see Balfour v Balfour). Cohabitation contracts entered into overseas may have been prepared with other considerations in mind but the same issues as to enforceability will apply if a dispute is litigated in this jurisdiction. More practically focused

For information on permanent health insurance (PHI) schemes generally, see Practice Notes: • Insurance in employment • Dealing with long-term or chronic sickness—Consider any Permanent Health Insurance (PHI) scheme • Contractual notice—Dismissal during long-term incapacity Does the employee transfer? The first question to ask is whether the employee in question transfers. Where there is a relevant transfer, subject to an employee's right to object to the transfer, the contracts of employment of those employees employed by the transferor and 'assigned to the organised grouping of resources or employees that is subject

Yes, in the sense that under the Small Business, Enterprise and Employment Act 2015 (SBEEA 2015) the arrangements under which the mystery shopping service operates were put on a legislative footing. Now referred to as the Public Procurement Review Service, SBEEA 2015, s 40 created a legally binding duty on public authorities that are within the scope of the service to respond to issues lodged with the review service. The service is available where an in scope contracting authority is involved in the procurement or contract awarded and the complaint lodged appears to demonstrate a potential deviation from best practice in the manner that a regulated public procurement has been undertaken. SBEEA

1 Sub-Contractor warranties and undertakings 1.1 The Sub-Contractor warrants and undertakes that 1.1.1 the Sub-Contractor has observed and performed and shall continue to observe and perform all the terms and obligations of the Sub-Contractor under the Sub-Contract 1.1.2 to the extent that the Sub-Contractor takes responsibility for the design of the Sub-Contract Works under the Sub-Contract, the Sub-Contractor has exercised and shall continue to exercise all the reasonable skill, care and diligence to be expected of a properly qualified and competent architect or other appropriate professional designer experienced in projects of similar scope, type, size, nature and complexity as the Works 1.2 The Sub-Contractor's duties under this Memorandum shall be no greater and of no longer duration than the duties which it owes to the Contractor under the Sub-Contract, and the Sub-Contractor shall be entitled in any action or proceedings to rely on any limitation in the Sub-Contract and to raise the equivalent rights in defence of liability as it would have against the Contractor had the Beneficiary been named as joint employer with the Contractor under the Sub-Contract, save that

This Practice Note examines the nature of pay or remuneration. It considers the employer’s duty to pay wages or salary, the ‘work/wages bargain’ and the effect of factors such as sickness or other impediment, an employee’s unwillingness to work and absence from work for other reasons. It also examines regulation of the amount of wages and outlines an employee’s right to an itemised pay statement and remedies where there is a failure to pay wages. It goes on to outline the different types of statutory and other pay and signposts other relevant materials. Interaction of common law and statutory rights The essence of employment is pay in return for work; the employer's obligation to provide consideration for the individual’s work and skill in the form of a wage or other remuneration is generally regarded as a fundamental ingredient of a contract of employment, as set out in Ready-Mixed Concrete (see Practice Note: Employee status—Determining whether an individual is an employee: overview). Duty to pay wages There is a duty to pay wages whenever an employee is ready, willing and

FORTHCOMING CHANGE: When it comes to information that must be given to workers on commencing employment, a new right for a worker to be given a written statement of their right to join a trade union, at the same time as receiving a section 1 statement of employment particulars, is to be introduced under amendments to Part III of the Trade Union and Labour Relations (Consolidation) Act 1992, as provided for in section 58 of the Employment Rights Act 2025 . Details of the information that must be provided in such a statement, the form the statement must take and the manner in which the statement must be given will be set out in secondary legislation. For more information see Practice Note: Written statement of right to join a trade union. This Practice Note considers the right to a written statement of particulars of employment, under section 1 of the Employment Rights Act 1996 (ERA 1996, s 1), since 6 April 2020 when significant changes came into effect. For details of these changes,

Construction analysis: The Court of Session has dismissed an action raised by Greater Glasgow Health Board (GGHB), against Multiplex Construction (Europe) Ltd (MPX), in respect of defective cladding at the Queen Elizabeth Hospital in Glasgow, finding that the claim by GGHB had prescribed. The court (as set out in the Opinion of Lord Braid) applied the relevant provisions of the Prescription and Limitation (Scotland) Act 1973 (PL(S)A 1973) to the particular circumstances in order to determine the competing arguments of the parties as to the start date of the five-year prescriptive period for the commencement of legal proceedings in respect of a claim and whether any interruption of that period was justified to postpone the last date for the making of a claim. Written by Michael Conroy, Partner at Harper Macleod LLP.

Construction analysis: The Technology and Construction Court (TCC) dismissed a £19m counterclaim for loss of chance on the basis that causation could not be proven on the balance of probabilities.

Construction analysis: The judgement of 15 November 2023 in Canada Square v Potter [2023] UKSC 41, [2023] All ER (D) 66 (Nov) has implications for defect claims under construction contracts. Katie Lee, Barrister at Gatehouse Chambers, provides comment on the development.

Construction analysis: The Technology and Construction Court (TCC) granted a declaration sought by a contractor on how to interpret a clause stating a time limit for the employer to issue a notification relating to costs which the contractor was liable for, holding that, by issuing the notification the next day (which was a Monday) following the last date that the notification should have been issued (which was a Sunday), the employer was out of time. A major part of the reason for this was that the relevant provision did not include any reference to the period being calculated by ‘Business Days’.

This DIRECT Agreement is made on [insert date] day of [insert month] 20[insert year] Parties 1 [Insert name] (Company Number [insert number]) whose registered office is at [insert address] (the ‘Contractor’); 2 [Insert name] (Company Number [insert number]) whose registered office is at [insert address] (the ‘Lender’ which expression shall include successors in title and any permitted assignee); [and] 3 [insert name] (Company Number [insert number]) whose registered office is at [insert address] (the ‘ProjectCo’)[; and OR . OR 4 [[insert name] (Company Number [insert number]) whose registered office is at [insert address] (the ‘Guarantor’).] Whereas (A) The ProjectCo has entered into a contract dated [insert date] with the Contractor (the ‘Contract’) relating to the [design and engineering, AND/OR procurement, AND/OR supply, AND/OR construction, AND/OR testing and commissioning, AND/OR [insert other]] of [insert description of the asset] at [insert location of the asset] (the ‘Project’). (B) The Lender has agreed to provide finance in connection with the Project.