This Practice Note provides practical guidance for general commercial practitioners on points to consider when drafting a business to business agreement to minimise the adverse consequences of unforeseen events, changes in the economic climate, crisis, disaster or other events beyond the contracting parties’ control. It is also relevant for practitioners when drafting a contract during a force majeure or other ongoing disruptive event. The Practice Note further considers illegality, hardship, business continuity, rights to terminate and key risk-mitigation clauses such as those dealing with price variation, currency exchange fluctuations, indemnities, insurance and contract review. For a summary ‘how to’ guide on preparing contracts to cover unforeseen events which signposts relevant content including links to potentially relevant issues, including clauses dealing with force majeure, and other commercial and practical considerations, see Practice Note: How to draft a contract to cover unforeseen events. Legal practitioners commonly draft contracts with a view to anticipating the ‘worst case scenario’. Typically, this may involve including standard boilerplate and commercial clauses that will favour the drafting party to protect them in the

By linking rent to inflation rather than to market rents, the rent review process is reduced to a simple mathematical formula that can be performed with a few touches of the buttons on a calculator. With no need for market analysis or comparable evidence, index-linked rent reviews should be quick and straightforward, affording little room for disagreement or argument. However, as case law illustrates, there are many potential pitfalls. The classic formula is: R = A/B x C Where: R is the revised main rent; A is the current figure; B is the base figure; and C is the main rent reserved immediately before the relevant review date (referred to in this Practice Note as the ‘classic formula’). Source: Indexed rent review—annual basis with optional cap and collar The index In theory, there is no right or wrong answer to the question of which index to link the rent to. So long as the parties are agreed and the index is readily available, any appropriate index can be adopted.

A ‘lease by reference’ is a word-saving document. Prior to the advent of word processing, leases had to be written out longhand (or typed on a typewriter). This was time consuming and labour intensive. A lease by reference imports the provisions set out in an existing (or historic) lease, avoiding the need for them to be physically reproduced in the new lease document. Leases by reference are often seen as a pragmatic way to save time and costs on a commercial lease transaction, by enabling parties easily to adopt previously agreed terms. They are therefore generally used to document renewal, reversionary or supplemental lease transactions. However, a negotiated lease represents a snapshot in time and a particular commercial deal. Except in the most straightforward of circumstances, drafting and negotiating a lease by reference can be a complex matter with traps for the unwary. This Practice Note contains practical guidance on drafting and negotiating a lease by reference in a commercial context. It outlines when a lease by reference is appropriate (and when it is not), the importance

Leaver provisions and different types of scheme When drafting a set of share plan rules or an option or award agreement, a company will wish to make clear what will happen to the relevant option or award if the employee leaves employment. Any provision dealing with this is typically referred to as a ‘leaver provision’. With most types of share incentive arrangement, any leaver provisions will be set out in the governing plan rules and/or the individual award documentation. However, where the structure of the award involves the employee becoming a shareholder from the outset, such as a growth share arrangement, the leaver provisions may instead appear within the articles of association of the company in order to deal specifically with any requirements that the employee shareholder must transfer their shares if they leave employment with the company or the group (as relevant). If the share award is being granted under a statutory tax-advantaged share scheme, the company will need to ensure that the leaver provisions in the share scheme satisfy relevant legislative

ARCHIVED: This Precedent has been archived and is not maintained. This Precedent and associated drafting notes are for use in proceedings commenced in the courts of England and Wales at any time provided that the related proceedings in the EU Member State court were commenced on or before 31 December 2020 and the transitional provisions for jurisdiction in Articles 67 or 69 of the Withdrawal Agreement have been met. Related Precedents For a precedent witness statement to support the application, see Precedent: Witness statement in support of application for stay under Article 29 of recast Brussels Regulation. For a precedent order, see Precedent: Draft order for an application to stay proceedings under art 29 of Brussels

ARCHIVED: This Precedent has been archived and is not maintained. This Precedent and associated drafting notes are for use in proceedings commenced in the courts of England and Wales at any time provided that the related proceedings in the EU Member State court were commenced on or before 31 December 2020 and the transitional provisions for jurisdiction in Articles 67 or 69 of the Withdrawal Agreement have been met. For guidance as to whether Brussels I (recast) is applicable, see Practice Note: Brussels I (recast)—application to the UK post IP completion day (jurisdiction) [Archived]. Related precedents For a precedent witness statement to support the application, see Precedent: Witness statement in support of application for stay under art 30 of recast Brussels Regulation. For a precedent order, see Precedents: Court order for an application to stay proceedings under art 30(1) of Brussels I (recast) or Court order for an application to stay proceedings under art 30(2) of Brussels I (recast). General points The

General points Application notice (Form N244) Application notice—Commercial Court (Form N244(CC)) (Word) These Drafting Notes provide guidance on how to complete an application form for a letter of request to obtain evidence under the provisions in the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970 (The Hague Evidence Convention). They should be read in association with Practice Note: Cross border evidence—requests to a foreign court for assistance. To ensure that the country, in which evidence is being sought, is a contracting state to the Hague Evidence Convention, see: Cross-border evidence—which evidence regime applies?—checklist. The application is made using form N244 and it must be made in: • the High Court, King’s Bench Division (CPR 34.13(1A). This is regardless of the division or court in which the underlying matter is proceedings and includes applications for evidence required for County Court proceedings or tribunal proceedings (CPR 34.13(3)) • accordance with CPR 23 Court details The top of the form will need to be completed with the details of the court proceedings.

An application can no longer be made in the courts of England and Wales for the taking of evidence under Regulation (EC) 1206/2001, the Taking of Evidence regulation. For applications made prior to IP completion day (31 December at 11 pm), the process for the taking of evidence will continue under the regulation if the transitional provisions in the Withdrawal Agreement between the UK and the EU were met by that date. For guidance on the transitional provisions, see Practice Note: Brexit post implementation period—considerations for dispute resolution practitioners including, in particular, main section: Taking of evidence. Introduction Application notice (Form N244) Application notice—Commercial Court (Form N244(CC)) (Word) These drafting notes are to be used in conjunction with Form N244 and are not designed for use with Form N244(CC). The application should be made in accordance with CPR 23. General points The first issue is to check whether this precedent is available given the impact of Brexit. For guidance, see Practice Note:

ARCHIVED: This Drafting Note has been archived and is not maintained. STOP PRESS: Form N244 was updated on 30 June 2022 and we are in the process of updating our forms accordingly. The official version of the updated form can be found here. There are a limited number of circumstances in which the claimant does not require permission to serve the claim form outside England and Wales. To check whether the claimant required permission, see Practice Note: Cross-border service—is permission required to serve a defendant who is outside England and Wales? Related Precedents Related Precedents: • Witness statement in support of an application for an order declaring that the service of the Claim Form without the permission of the Court was ineffective • Draft order declaring that the service of the claim form without the permission of the court was ineffective General points The application should be made using Application notice: Form N244. Application notice (Form N244) In

Introduction This claim form and particulars should be drafted using Form LT503A. A claim by a landlord for the grant of a new tenancy to the tenant is made using Form LT503A. These drafting notes are for use in conjunction with Form LT503A only. Relevant Precedents For other relevant Precedents, see: • Directions—unopposed LTA 1954 business lease renewal • Acknowledgment of service by tenant in unopposed claim by landlord for new tenancy • Acknowledgment of service by landlord in unopposed claim by tenant for new tenancy General points These drafting notes are designed to assist in completing Form LT503A, which is the claim form where a landlord of business premises seeks the grant of a renewal lease to the tenant. The Part 8 procedure applies. See Practice Note: CPR Part 8 claims (alternative procedure for claims). No evidence needs to be filed unless and until the court orders that it should be. The claim can be issued in any County Court hearing centre, but if the chosen court does not serve the address of the property, the court will send it to the relevant

Introduction A claim by a business tenant for a new tenancy under the Landlord and Tenant Act 1954 (LTA 1954), where the landlord is not opposing it, is made using Form LT503(LN). These drafting notes are for use in conjunction with Form LT503(LN) only. The form can be accessed here: Form LT503(LN). Other precedents For other relevant precedents, see: • Directions—unopposed LTA 1954 business lease renewal • Acknowledgment of service by tenant in unopposed claim by landlord for new tenancy: Atkin’s Court Forms, Vol 24(2) [158] • Acknowledgment of service by landlord in unopposed claim by tenant for new tenancy: Atkin’s Court Forms, Vol 24(2) [157] General points These drafting notes are designed to assist in completing Form LT503(LN), which is the claim form where a tenant of business premises wishes to apply for a renewal of the tenancy pursuant to LTA 1954 and the landlord is not opposing it. The Part 8 procedure applies to an unopposed lease renewal. See the Practice Note: CPR Part 8 claims (alternative procedure for claims). No evidence needs to be filed unless

Introduction A claim for a new tenancy under the Landlord and Tenant Act 1954 (LTA 1954), where the landlord is opposing it, is made using Form N1. These drafting notes are for use in conjunction with Form N1 only. Other precedents For other relevant precedents, see: • Directions—opposed LTA 1954 business lease renewal • Landlord’s defence opposing tenant’s claim for a lease renewal General points These drafting notes are designed to assist in completing form N1, which is the claim form where a tenant of business premises wishes to apply for the renewal of a tenancy pursuant to LTA 1954 and the landlord is opposing it. The Part 7 procedure applies to opposed lease renewal proceedings. Evidence needs to be filed as the court directs, with the landlord filing their evidence first. The claim can be issued in any County Court hearing centre, but if the County Court hearing centre where it is issued is not that which serves the address where the land is situated, the court will send it to the hearing centre serving that address.