DR analysis: Lord Justice Christopher Clarke has carefully traced the authorities on the issue of genuine pre-estimate of loss (liquidated damages) clauses versus penalty clauses. In so doing, he has added his own suggested (limited) guidelines to Lord Dunedin’s four propositions in Dunlop. He concluded that the forfeit of deferred consideration on breach of non-compete provisions in a share sale agreement was an unenforceable penalty clause. The deferred consideration was substantial and its forfeit extravagant, given the nature of the possible breaches that could trigger its forfeit. While consideration of whether the forfeit was extravagant and unreasonable was not determinative of whether the clause was penal, it was undoubtedly a relevant consideration. He rejected Cavendish’s submissions that there was commercial justification for the forfeit—the effect of the provisions was that Mr Makdessi stood to lose tens of millions—consequences which would occur on the first, not necessarily material, breach of any one of four different non-compete provisions, when the range of activities, which might amount to breach and of their possible consequences was likely to be very wide and to fall into different categories of seriousness many of which could not attract compensation anywhere near the value of what Mr Makdessi would forfeit or lose; thus the provision seemed ‘to go way beyond compensation and into the territory of deterrence’.

Public Law analysis: The High Court refused to strike out or summarily dismiss Bromcom’s unlawful means conspiracy claim alleging that Arbor’s responses during a public procurement process amounted to actionable implied misrepresentations about its financial standing. Although Arbor’s stated Experian score was accurate, the court held that the wider context, including its comments about that score and its response concerning audited accounts, meant that the alleged implied representations were sufficiently arguable to proceed to trial. However, the court struck out Bromcom’s alternative case alleging a freestanding duty to disclose financial information. The decision highlights the potential exposure of successful tenderers where factually accurate procurement responses may nevertheless convey misleading implied representations, and underlines the importance of ensuring that tender submissions present an accurate overall picture. Produced in partnership with Ed Williams of DWF Law LLP.

Suspension pending the outcome of a disciplinary investigation It is common for an employment contract to include the right to suspend an employee with pay for the purpose of investigating allegations of misconduct. Generally, during a period of suspension an employee is not expected to perform any work while the investigation is in progress, and, where the employee usually works at the employer's premises, to remain away from the workplace. Suspension is used as a protective measure while the employer investigates allegations of serious misconduct against an employee, and the employer has reason to believe that the employee's continued presence in the workplace or performance of duties may: • impede the investigation into the allegations, or • present a serious risk to the interests of the business, its customers, or other employees In some circumstances, employees may be able to claim that, by suspending them, their employer has breached: • the implied obligation to provide work and/or • the implied duty of

In conducting the research for this Q&A, we have focused on amending statements of case and on mistake in contract. Amending a statement of case CPR 17.1 provides that a statement of case may be amended: • at any time before it has been served on any other party • after it has been served: ◦ with the written consent of all the parties, or ◦ with the permission of the court In Thurrock Borough Council v Secretary of State for the Environment, Transport and the Regions, the court allowed permission to amend a claim form which cited the wrong section of the Town and Country Planning Act 1990 as to do otherwise would inhibit the power of the court to address the issue in the case. For guidance on amending statements of case, see Practice Note: Amending a statement of case—introduction. See further: Power to amend

Buying at auction Buying a property through auction has its benefits compared to buying on the open market: • the property may be purchased at a good price • the auction process is quick • the properties available at auction may offer opportunities for improvement and to increase value • if the property is tenanted, income can be received from completion A buyer will be exposed to funding risk if it wishes to obtain a mortgage for the completion funds. The contract is binding as soon as the hammer falls and therefore, if an unconditional mortgage offer for the purchase of the property is not in place prior to the auction, the buyer is at risk. Legal pack The seller’s legal advisors prepare a legal pack for the lot. This is prepared prior to the auction and will contain some if not all of the following: • the RICS Common Auction Conditions (Fifth Edition) (the CAC) (which can be found in Appendix A of RICS—Auctioneers selling real estate (incorporating Common Auction Conditions), 7th edition) • any special

This Practice Note examines who is protected and can bring claims under the Equality Act 2010 (EqA 2010), other than ‘employees' who bring claims under the ‘in employment’ provisions of EqA 2010, covered in Practice Note: Employment events which give rise to discrimination, victimisation and harassment claims. It considers the meaning of discriminate and detriment. It looks at whether the self-employed are protected. It considers whether prohibited conduct (discrimination) claims can be brought by various classes of worker who may not be considered to be employees. They include voluntary workers, interns, Crown employees and parliamentary staff, armed forces, contract workers including agency workers, police, those in partnerships including LLPs, barristers and advocates, office-holders (office holders), qualification bodies which confer professional or trade qualifications, employment agencies and providers of vocational training or work experience, trade organisations (such as trade unions and employers’ associations) and local authority members. Occupational pension schemes There are prohibitions against discrimination, victimisation and harassment and a duty to make reasonable adjustments which apply to various persons involved with occupational

To: [insert company name] Address: [insert address for the service of notices] Dear [insert name of party/organisation being notified of the assignment], [insert details of the development to which the assigned documents relate] (the ‘Development’) As a result of [the [sale OR purchase] of [our] interest in

The Cabinet Office has updated its standard contract document collections, templates and guidance for the government’s Model Services Contract, Mid-Tier Contract and Short Form Contract. The updated documents and guidance were issued in conjunction with the Procurement Act 2023 (PA 2023) ‘go-live’ on 24 February 2025.

ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note considers the provisions in the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters signed at Lugano on 30 October 2007 (the Lugano Convention 2007) dealing with issues of special and exclusive jurisdiction. This covers Article 5, which deals with, among other things, contract and tort claims, Article 6, which covers issues such as dealing with multiple defendants, third parties or counterclaims. It also considers the different categories of claims that fall within Article 22 under which the courts of a contracting state will have exclusive jurisdiction. Finally, this Practice Note discusses the implications for the application of Article 22 (which applies regardless of domicile of the parties) now the UK is no longer bound by the convention as a result of its membership of the EU and is a so called third state for the purposes of the application of the convention. For general

This week's edition of Commercial weekly highlights includes: a High Court decision in AFH Independent Financial Services Ltd v Baker finding that a non-solicitation covenant was enforceable but a non-dealing covenant was an unenforceable restraint of trade, analysis of the high threshold for successful procurement challenges, including guidance on manifest error, contracting authorities' margin of discretion and contract modifications under the Concession Contracts Regulations 2016; and news of Ofcom's £28 million fine against Virgin Media for breaching consumer protection rules by making contract cancellation unreasonably difficult.

This Practice Note provides a basic explanation of traditional procurement in construction. It looks at why this type of procurement is used and also considers particular issues to take into account when choosing to follow this procurement route. When an employer decides to commence a construction project, the first stage is typically for it to engage an architect to carry out a feasibility study and to prepare a very basic design. If the architect advises that the employer’s proposals are achievable within the budget that has been set, the employer will then engage the architect and, typically, a number of other consultants (engineers etc), to develop the designs for the project and provide related advice. In the early stages of a construction project, the employer, usually with guidance from its professional team, will need to make a decision on how to procure the construction. There are various procurement routes and forms of contract to choose from and the employer’s choice will be influenced by the time available for tendering and for completion of the project, the

This week's edition of Dispute Resolution weekly highlights includes: analysis of a number of key DR developments and key judicial decisions including the Supreme Court announcing amendments to its Practice Direction and that of the Judicial Committee of the Privy Council and the High Court decision in JAK Property Jersey Ltd v Together Commercial Finance Ltd (contract interpretation); dates for your diary; details of our most recently published content; and other information of general interest to dispute resolution practitioners.