This Practice Note considers what liquidated damages clauses are and briefly when and how they are used. It then focuses, in particular, on the court’s approach when determining whether a purported liquidated damages clause is, in fact, a penalty and therefore unenforceable; tracing the authorities through to how the question should be approached in light of the 2015 Supreme Court Makdessi/ParkingEye decision and considering, in particular, issues such as when contractual provisions for accelerated receipt, default interest, or positive incentives may be considered as a penalty. Consideration is also given to whether liquidated damages survive termination and their relationship with partial performance. What is a liquidated damages clause? A liquidated damages clause is a clause whereby the parties to a contract fix in advance a sum of money to be paid by the defaulting party to the innocent party in the event of a breach. The sum payable represents agreed damages (called liquidated damages) and is recoverable without the innocent party needing to prove the actual loss suffered. Liquidated damages clauses

The aim of contractual damages is to put the innocent party in the same position as they would have been had the contract been performed, in so far as money is able to do so (See: Robinson v Harman). The loss suffered by the innocent party therefore has to be identified and quantified. For more information, see Practice Notes: • Contractual damages—general principles • Contractual damages—pecuniary losses In deciding whether to award damages, the court will consider the principles of causation and remoteness and whether an innocent party has mitigated its loss. In considering remoteness, the court will have regard to the

Without prejudice save as to costs [Insert name and address of other party's solicitors] [Insert date] Dear [insert organisation name] [Insert case heading]—Mediation Notice Our respective clients have failed to resolve the dispute by [informal] negotiation [between their respective senior executives]. Our client requests that the parties attempt to settle the dispute by mediation [in accordance with the

What does this Practice Note cover? This Practice Note forms part of our suite of detailed guidance on the main terms of the standard form Contracts for Difference (CfDs) issued to low carbon electricity generators pursuant to the CfD Allocation Rounds held to date. The focus of this Practice Note is the terms of the CfD contract relevant to the period from the point at which the project is commissioned (and therefore payment under the CfD contract begins) to expiry (or early termination) of the CfD. Our other relevant Practice Notes on the CfD and its key terms include: • Detailed guidance on the terms of the standard form Contract for Difference (CfD): from signature to commissioning—this Practice Note provides complementary guidance on the contractual provisions of the CfD relevant up to the point a project is commissioned (such as the contractually specified deadlines up to project commissioning) • Contracts for Difference (CfD)—key features—this Practice Note provides a detailed overview of the CfD

Agreement in relation to [insert brief details of the works/project] at [insert address of works] (incorporating (inter alia) the JCT Standard Building Sub-Contract Agreement 2024 (SBCSub/A 2024) and JCT Standard Building Sub-Contract Conditions 2024 (SBCSub/C 2024) as modified and supplemented in the manner indicated in this Agreement and the Schedules hereto). This Agreement is made on the [insert number] day of [insert month] 20[insert year]. Parties 1 [insert name of the Contractor] (company registration number [insert number]) whose registered office is situated at [insert address of the Contractor] (‘the Contractor’); 2 [insert name of the Sub-Contractor] (company registration number [insert number]) whose registered office is situated at [insert address of the Sub-Contractor] (‘the Sub-Contractor’). Now it is agreed that: 1 Interpretation In this Agreement words and expressions shall have the meanings that are respectively assigned to them in the JCT SBCSub/A 2024 and the JCT SBCSub/C 2024, referred to in and modified and supplemented in Schedule 1 and/or Schedule 2. 2 The contract This Agreement, together with the following documents, constitute the ‘contract’ and are in the following order of priority in the event of any discrepancies contained

Agreement in relation to [insert brief details of the works/project] at [insert address of works] (incorporating (inter alia) the JCT Design and Build Sub-Contract Agreement 2024 (DBSub/A 2024) and JCT Design and Build Sub-Contract Conditions 2024 (DBSub/C 2024) as modified and supplemented in the manner indicated in this Agreement and the Schedules hereto). This Agreement is made on the [insert number] day of [insert month] 20[insert year]. Parties 1 [insert name of the Contractor] (company registration number [insert number]) whose registered office is situated at [insert address of the Contractor] (‘the Contractor’); 2 [insert name of the Sub-Contractor] (company registration number [insert number]) whose registered office is situated at [insert address of the Sub-Contractor] (‘the Sub-Contractor’). Now it is agreed that: 1 Interpretation In this Agreement words and expressions shall have the meanings that are respectively assigned to them in the JCT DBSub/A 2024 and the JCT DBSub/C 2024, referred to in and modified and supplemented in Schedule 1 and/or Schedule 2. 2 The contract This Agreement, together with the following documents, constitute the ‘contract’ and are in the following order of priority in the event of any discrepancies

If the contract is not specific on this point, the case of Marks & Spencer plc v Paribas Security Services Trust Co (Jersey) Ltd shows the difficulty of arguing that there will be any implied term in these circumstances that the promisee will pay for such services. There the tenant exercised a break clause terminating the tenancy in the middle of a quarter but paid rent for the whole quarter. The court refused to imply a term that the rent should be apportioned. Although the court was strongly influenced by the fact that it was well-known, that rent paid in advance could not be apportioned under the Apportionment Act 1870 (AA 1870), the case reaffirmed the relatively strict approach the court takes to implying

A repudiatory breach is a breach of contract that goes to the very core of the contract or one that shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. It gives the innocent party the right to treat the contract as being disregarded and entitles the innocent party to refuse to be bound by its terms. If the employer's conduct is in breach of the implied term of trust and confidence, that will inevitably lead to a fundamental or repudiatory breach entitling an employee to claim constructive dismissal (Morrow v Safeway Stores, EAT; Horkulak v Cantor Fitzgerald International). We assume for the purposes of this response that a repudiatory breach has been

This Precedent sets out the form resolution that may need to be passed by the members of a company pursuant to statutory provisions to approve a provision in a service contract under which the guaranteed term of employment of a director is, or may be, longer than five years. The resolution should be inserted into the appropriate document, which will depend upon the type of company and how the resolution is to be proposed. If the resolution is being proposed: —as a written resolution, see Precedent: Ireland—Written resolution of members of a private company limited by shares —at a general meeting of a private limited company, see Precedent: Ireland—Notice of an extraordinary general meeting of a private limited company, and —at an annual general meeting of a private limited company, see Precedent: Ireland—Notice of an annual general

The implications of using different terminology are likely to depend on the specific circumstances as interpreted by the relevant court. This Q&A considers the implications of using different terminology in a contract in the context of both contract formation and contract interpretation. Contract formation A contract will only be capable of being enforced if it an offer has been accepted. An acceptance is a final and unqualified expression of assent to the terms of an offer. This means that the following will not generally be sufficient to constitute acceptance: • mere acknowledgement of receipt of the offer • assent to an offer, which contains two alternative

This Practice Note considers force majeure as it applies in English law and the circumstances in which a force majeure event may cause a contract to come to an end, including burden of proof, interpretation of force majeure clauses (operative verb), procedural requirements and challenging the validity of a force majeure clause. See also Practice Notes: • Force majeure clause analysis—a practical guide • Force majeure—key and illustrative decisions For assistance when giving notice of a force majeure event, see Precedent: Force majeure notice. Force majeure clauses were thrust under the microscope in light of ‘world events’, such as the coronavirus (COVID-19) pandemic in 2020 and Russia’s invasion of Ukraine in 2022. The 2026 Middle East conflict will likely give rise to more disputes involving force majeure issues, on which see: Force majeure and world events below. Force majeure—meaning and nature The key features of force majeure are: • a 'force majeure clause' is a contractual term providing for one (or both) parties to be excused from performance on the happening of a specified event

The Contract comprises the completed Standard Building Contract With Quantities for use in Scotland 2016 published by the SBCC subject to the following amendments: RECITALS Fifth Recital Fifth Recital Delete the Fifth Recital and substitute:‘The Contractor has supplied the Architect/Contract Administrator with a master programme and a Schedule of Information Requirements.’ Twelfth Recital Twelfth Recital Delete the first sentence and replace with: 'The Contractor has inspected the Site and satisfied himself as to its dimensions, location and other relevant matters, and where there is a Contractor’s Design Portion, has examined the Employer’s Requirements and is satisfied that the Contractor’s Proposals will meet the Employer’s Requirements, and has agreed to accept responsibility for the entire design contained in the Employer’s Requirements and the Contractor’s Proposals.' ARTICLES Article 6 Article 6 At the end of Article 6 insert:'The Contract Sum includes the Contractor’s price for fulfilling the duties of Principal Contractor.' Article 8 Article 8 Arbitration Delete Article 8 and insert ‘Not used.’ Article 11 Insert new Article 11 as follows: ‘Article 11 [To be added on the face of the contract] The