This Practice Note on how to avoid civil litigation proceedings outlines the factors to consider and steps to take when a contractual dispute is evolving, to minimise the risk of the dispute resulting in court proceedings (litigation) in England and Wales. For related guidance, see Practice Note: Resolving a dispute—initial considerations. Why avoid litigation?(the ‘litigation cost’) It is a truth not always acknowledged by litigation lawyers that, for many clients, if a contract dispute results in it being litigated (ie if ‘we go to court’) then, to a degree, you have already failed. This is because the ‘litigation cost’ can be monumental in terms of: • financial cost—both the client’s own legal costs with you (and any experts required to aid their case) and, potentially, those of the opposing party (see Practice Note: Costs orders—the general rule) • wasted management time—with senior personnel and other staff distracted from their productive work in the business while they respond to the demands of the litigation process (the disclosure exercise, the drafting of witness statements, giving evidence in

Provisions relating to an employee’s holiday entitlement, including entitlement to paid holiday for public holidays, and how holiday entitlement accrues, will usually be included the contract of employment (see for example, Precedent: Employment contract basic version (clause 7), and the accompanying drafting notes). The Working Time Regulations, SI 1998/1833 (WTR 1998) provide for a statutory minimum number of annual days’ paid holiday, and set out a formula for calculating the rate at which such holiday accrues during the first year of employment, should the employee’s contract not make provision for more favourable accrual arrangements. It will be relevant to determine when the employee’s leave year begins. Where the contract doesn’t stipulate this, WTR 1998, SI 1998/1833 provide that, in relation to statutory holiday entitlement, the leave year begins on the date on which the employee’s employment started (in the case of those first employed

Summary Insofar as the reference to residential property 'owned by a director' indicates that the borrower is an incorporated entity, the short answer to this question is ‘no’. What is a regulated mortgage? A regulated mortgage (or ‘regulated mortgage contract’) is a category of secured lending specifically defined by Article 61 of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001, SI 2001/544 (RAO). Article 61 was amended from 21 March 2016 and now defines a regulated mortgage contract by reference to four characteristics: • a contract under which a person provides credit to an individual or to trustees (the borrower) • the contract provides for the obligation of the borrower to repay to be secured by a mortgage on land in the EEA • at least 40% of the land is to be used: ◦ in the case of credit provided to an individual, as or in connection with a dwelling ◦ in

Instructions for cancellation Right to cancel You have the right to cancel this contract within 14 days without giving any reason. The cancellation period will expire after 14 days from the day of the conclusion of the contract. To exercise the right to cancel, you must inform us of your decision to cancel this contract by a clear statement (eg a letter sent by post, fax or e-mail). You can use the attached Cancellation Form, but it is not obligatory. Our contact details, to inform us of your decision to cancel, are: [insert your name,

This Q&A considers the situation when a trader wants to include additional terms into a secondary debt trade confirmation which were not agreed on the trade call. In short, the additional terms will not be incorporated into the trade, unless the counterparty agrees to amend the terms of trade in the way the trader suggests. This is because established secondary market practice in the UK is that a binding contract is formed at the point of the trade call, and any subsequent additions to this contract will constitute an amendment or variation to the terms of the contract which will need to be made in accordance with the established principles of contract law. When is a trade binding? This Q&A is written on the assumption that the trade is being documented using the Loan Market Association's (LMA) recommended documentation

Sections 138–146 of the Employment Rights Act 1996 (ERA 1996) set out a fairly complex mechanism for the employer to offer the employee, and for the employee to accept, new or renewed employment as an alternative to a statutory redundancy payment. The mechanism is explained in some detail in Practice Notes: • Renewal of contract, re-engagement and trial periods, • Suitable alternative employment, and • Unreasonable refusal of alternative employment Under ERA 1996, s 138(1), for the purposes of the entitlement to a statutory redundancy payment (under ERA 1996, Pt 11), an employee is not regarded as dismissed by their employer by reason of the ending of their employment under the previous contract if: • either their contract of employment is renewed, or they are re-engaged under a new contract of employment

If one company has loaned money to another, it will be the terms of the contract that provide the legal restrictions on whether the loan may be repaid earlier than the ten years initially envisaged. If the lender company goes into liquidation or administration, this will not of itself change the terms of the contract. The office-holding insolvency practitioner should, however, check the terms of the contract to see if the contract provides for the loan to be repaid sooner or under different terms in the event of the lender company going into liquidation or administration. This may seem unlikely, but it is possible and the officeholder should pursue all options to achieve earlier repayment of the loan. The office-holding insolvency practitioner would appear to have an appointment that has to be held open for at least ten years before

Preparatory steps • Obtain a copy of employee’s latest contract of employment, any amendments or correspondence which form part of the contract and any company handbook that may be deemed to be part of the contract. • Confirm details of the continuous service of the employee (start date of employment and dates of any amendments to the contract made during the employment). • Obtain information regarding the employee’s pension: ◦ is it a defined benefit or defined contribution, and ◦ are all of the employer pension contributions paid up to date? • Consider the basis on which the settlement is being paid, ie is it in settlement of a Workplace Relations Commission (WRC) claim, a redundancy payment, payment in settlement of a personal injury claim or other legal claim? • It is important to agree that where multiple claims are being settled, the relevant proportion of the entire settlement sum applicable to each claim with the employer and that any tax

This week's edition of Property Disputes weekly highlights includes: High Court cases on the use of an expert determination procedure under a contract for sale of land, variation of an express declaration of trust, and an unsuccessful claim for an interest in properties on the basis of a partnership or joint venture, and an FTT decision on a cladding defects remediation order.

Mitigation applies to all damages claims The concept of the claimant ‘mitigating their loss’ applies to all civil claims for damages, regardless of whether the claim is pursued in contract, tort or in other specified situations (although much of the caselaw on mitigation has been developed in contract law cases). Therefore, even once causation and remoteness have been established (see Practice Notes: Causation and remoteness in contractual breach claims and Causation and remoteness in tort and negligence claims), any recoverable damages can be affected if the claimant has failed to mitigate their loss. That is, the innocent party cannot recover damages for any loss which they could have avoided but failed to avoid through unreasonable action or inaction. Central to the issue of mitigation is the question of what steps were reasonable or unreasonable for the claimant to take? This has been termed as ‘the duty to mitigate’ or the ‘rule on mitigation’. What is the rule on mitigation? The rule on mitigation comprises three distinct components: • the innocent party must take all reasonable

The Scottish Building Contract Committee (SBCC) has announced that it will be revising the majority of Joint Contracts Tribunal (JCT) 2024 contract suites in the upcoming year to ensure compliance with Scottish law so that they can be used in Scotland. The SBCC has requested that projects continue to use the current editions until these are released. The SBCC has asserted that it will be focusing on modernising and streamlining the contract suites, for example by using gender-neutral terminology throughout and future proofing updates.

An agreement for lease is a contract and it will be freely assignable unless it contains an express prohibition on assignment. Most commercial agreements for lease will incorporate the Standard Commercial Property Conditions (SCPCs)(either the Second or Third editions). The SCPCs provide that the buyer (or tenant) may not assign the benefit of the contract