Issues involving whether a worker is engaged under a contract of service (as an employee) or a contract for services (as an independent contractor) occur in a wide range of different legal contexts and have been the subject of many decisions handed down by various bodies over the years. Now, for the first time in recent years, the Irish Supreme Court has delivered a judgment on this issue in the case of Revenue Commissioners v Karshan (Midlands) Limited trading as Domino’s Pizza. Triona Sugrue, knowledge consultant, Dearbhla O’Gorman, senior associate, Colm Byrne, solicitor, and Dharitri Datar, solicitor, at A&L Goodbody examine the case.

In this scenario, it is assumed that a property was held initially by two parties as joint tenants in law and as tenants in common in equity. It appears that one of these parties has died. This means that the survivor has become the sole legal owner of the property. The beneficial interest of the deceased owner will have vested in his estate. It is not clear whether the surviving trustee lacks capacity. HM Land Registry records the ownership of the legal estate and not the beneficial interests, and the registrar is not affected with notice of a trust (section 78 of the Land Registration

Looking at key cases in the world of commercial and contract law in England and Wales and from the Court of Justice between 2013 and 2016. For cases after 1 January 2017, see: Commercial Tracker. For case law relating to public procurement, please see the detailed: UK public procurement case tracker and EU public procurement case tracker run by our colleagues in Lexis® Public Law. High Court Case Key date Where we are 118 Data Resource Ltd v IDS Data Services Ltd: [2014] EWHC 3629 (Ch), [2014] All ER (D) 57 (Nov) Judgment date: 5 November 2014 Contract: the claimant (licensor) and the respondent (licensee) operated rival businesses compiling and exploiting databases of UK business contact details. Despite being competitors, in April 2009 the licensor licensed use of its database to the licensee. The licensor came to suspect that the licensee had breached the terms of the licence agreement. It sought summary judgment for orders based on specific performance to inspect the licensee’s premises and records. The High Court held that the orders sought by the

This Practice Note provides practical guidance in respect of the execution of documents by third parties acting under a power of attorney, with a focus on the key provisions of the Powers of Attorney Act 1996 (Ireland) (POAA 1996 (IRL)). What is a power of attorney? A power of attorney is an instrument (generally a deed) signed by or on the direction of the donor which grants another individual (the attorney), the authority to act on the donor’s behalf in accordance with the terms of the instrument. POAA 1996 (IRL), which came into force on 1 August 1996, outlines the legal requirements for the creation of a valid power of attorney. It is important for practitioners to understand the requirements for the appointment of attorneys and for the execution of documents under a power of attorney. There could be unintended consequences for contracting parties if an attorney is not validly appointed, does not act within the scope of its authority or fails to execute documents correctly. A

This Practice Note provides practical guidance regarding the execution of simple contracts and deeds by limited partnerships formed under the Limited Partnerships Act 1907 (Ireland) (LPA 1907 (IRL)). It considers the requirements for contracting with a limited partnership. It also considers the authority of general partners to execute simple contracts and deeds as well as the formal requirements of execution of simple contracts and deeds by a limited partnership. It looks at when a document should be executed as a deed and other practical considerations for limited partnerships entering into contracts and deeds. What is a limited partnership? The LPA 1907 (IRL) provides for the creation of a partnership in which some partners have limited liability for the debts of the firm. Their liability is limited to the extent of their contribution. LPA 1907 (IRL), s 4 provides that a limited partnership must consist of at least one general partner and one limited partner. The partnership should not generally consist of more than 20 persons or, if carrying on the business of banking, of more than ten

Contractual words and phrases such as the term 'defend, indemnify and hold harmless' have no single meaning and must be construed in the context in which they are used. Accordingly, the meaning of this term will ultimately depend on the specific circumstances. However, it can be helpful to look at decided cases for a general idea of how the courts may approach interpretation. This Q&A is divided into three sections: • ‘defend, indemnify and hold harmless’ and the meaning given to that phrase in a Supreme Court case in 2010 • ‘defend’ and its potential meaning, and • further reading Defend, indemnify and hold harmless The phrase ‘defend, indemnify and hold harmless’ was considered by the Supreme Court in Farstad Supply AS v Enviroco Ltd. The court found that the words operated as both: • an indemnity against third party claims, and • an exclusion clause against direct liability from the other party to the contract This finding was heavily influenced by the way in which

This Practice Note summarises the basic considerations when executing all documents and links to associated guidance. Failure to consider these basic considerations when executing a document could make it difficult or impossible to enforce. The following topics are covered: • Formation of contracts • Authority • Capacity • Contracts and deeds • Counterparts • Testimonium clause • Witnessing • Alterations and mistakes • Location and jurisdiction • Overcoming impairments • Training materials Formation of contracts A contract is a legally binding agreement that grants rights and creates duties between two or more parties. There is a vast amount of case law on contract law principles which are not covered in depth here. In the simplest possible terms, contract law principles provide that for a contract to exist, four key elements must be present: • an offer must have been made • that offer must have been accepted • valuable consideration must be given for the promises being made, and • the parties must intend to enter into a legal relationship with one another Contracts can be made: • orally • ‘under

Nature of the clause This Precedent is a short-form clause for use in a business-to-business (B2B) commercial contract providing for mandatory mediation in the event of a dispute arising out of the agreement. This Precedent clause provides that the parties will seek to settle the dispute. Unlike litigation and arbitration clauses, the purpose of this clause is for the parties to seek to resolve the matter with the assistance of a mediator, but without the need for formal contentious proceedings. What is mediation and why have a mediation clause? Mediation is a form of alternative dispute resolution (ADR) in which a third-party mediator follows a structured process to facilitate an agreed settlement between parties to a dispute. Mediation is a non-binding dispute resolution process, ie any agreement reached in mediation will only be binding on the parties if they enter into a settlement agreement. Mediation allows the parties a high degree of control compared with litigation and provides a collaborative process for dispute resolution. Further advantages of mediation over arbitration or litigation, include: • cost • speed • confidentiality If a dispute between the parties is not

This Practice Note considers the ways in which post-termination restrictions (ie restrictive covenants) may be introduced into the contract of employment: before the start of employment, during employment (including by dismissal and re-engagement, also known as fire and rehire) and on termination. It also considers the effect of a TUPE transfer on post-termination restrictions. For a post-termination restriction to be enforceable by the employer, it first has to be a contractual term; that is, incorporated into a contract between the employer and employee. This will usually be the contract of employment, but may in some cases be a separate collateral contract (see Practice Note: Restraint of trade in employment—Indirect forms of restraint). Post-termination restrictions will often be introduced at the start of employment but may also be introduced at a later stage. The usual contractual requirements will apply, namely offer, acceptance and valid consideration. Introducing post-termination restrictions before the start of employment The most straightforward method of introducing post-termination restrictions is to do so before a contract of employment is agreed between the parties. At the time

This Checklist sets out a number of practical steps that a main contractor should consider taking where a sub-contractor it has engaged becomes insolvent during a construction project. This Checklist assumes that the contractor has entered into a written sub-contract with the sub-contractor for construction works which are not yet complete. It assumes that it is not a PFI project. The actions to be taken in any specific situation will of course depend on the terms of the contract(s) between the parties and the status of the works at the time of the sub-contractor’s insolvency, but this Checklist is intended to provide a starting point for the contractor if such circumstances occur. For guidance on how to spot potential problems with solvency and how to protect the contractor’s position at the outset of a project, see Practice Note: Construction insolvency—how to spot problems and how to protect yourself—contractors. In the event that a sub-contractor has become insolvent, the contractor needs to be proactive to protect its own financial interests and to enable it to complete

What is non-negligent damage? If damage is caused to neighbouring property by the contractor’s negligence or breach of contract, the contractor will be liable in the tort of negligence or nuisance to the owner of the property which has been lost or damaged. See Practice Note: Negligence in construction. The adjoining owner may sue the contractor or the employer as the party for whom the work is being carried out. The contractor has to provide an indemnity to the employer against claims for damage to property caused by the contractor’s negligence or breach of contract. If the employer has been sued, it can then claim an indemnity from the contractor against damages awarded. The difficulty arises when damage caused to a neighbouring property is not due to the contractor's negligence or breach of contract—non-negligent damage. The problem first arose in a 1958 case, Gold v Patman and Fotheringham, in which damage occurred to the property adjoining the site of the works. The damage suffered was caused by a loss of support to the building. The owner of the works was

The joint operating agreement (JOA) has a number of key commercial provisions. Scope The scope of the JOA is, generally speaking, to establish the respective rights and obligations of the parties with regard to operations and activities under the JOA including the joint exploration, appraisal, development, production and disposition of petroleum products from and decommissioning of the area of joint operations. The scope of the JOA will be determined through a list of identified activities which will constitute the joint operations and a list of activities which are specifically removed from the definition of joint operations, as ‘excluded activities’. Joint operations might be described as those activities necessary to exercise the rights and perform the obligations which result from the concession. Alternatively, the JOA could apply a more technical definition of what constitutes joint operations, derived by reference to the distinct operational elements of a typical petroleum project (exploration, appraisal, pre-development, development, production, disposal and decommissioning). Over the lifetime of a concession these various operational activities could occur at varying stages and the