This Checklist of resources sets out some of the considerations when drafting, reviewing and negotiating construction contracts in the light of the Corporate Insolvency and Governance Act 2020 (CIGA 2020). Corporate Insolvency and Governance Act 2020—the impact for construction lawyers The Corporate Insolvency and Governance Bill received Royal Assent on 25 June 2020 resulting in CIGA 2020. Among other reforms to insolvency law, CIGA 2020 introduced new provisions into the Insolvency Act 1986 (IA 1986) to ensure the continuity of essential supplies and restrict contractual termination provisions on insolvency (so-called ‘ipso facto’ clauses). The effect that will be of most relevance to construction practitioners when drafting and negotiating contracts is that a contractual right to terminate for an insolvency event, or to do ‘any other thing’ as a result of a customer’s insolvency in contracts for the supply of goods and services, will no longer be effective. In the construction context, the customer will be the party ‘up the line’, ie the employer under a main contract or a consultant’s appointment, or the main contractor under a

This Practice Note looks at the key parties typically involved in a PFI or PF2 project. It considers the roles of parties in the public sector, of private sector partners, finance parties and sub-contractors, support providers and other professionals. In the 2018 Budget (delivered on 29 October 2018), it was announced that the government would no longer use PF2 on new projects (see News Analysis: Budget 2018—what does it mean for infrastructure and housebuilding?). However, existing PFI and PF2 projects continue to run, and given the typical lifespan of such projects are likely to for many years. Public Sector Authority/Trust This is the public sector body that initiates and procures the PFI project and who wants the asset built and maintained (the term 'Trust' is used only in the case of NHS projects). The public sector body will typically be a local authority (including fire and rescue and (formerly) police authorities), an NHS Trust or a government department or non-departmental public body. The Authority/Trust enters into a long-term contract known as the Project Agreement which will

This Checklist sets out points to consider when drafting and agreeing a retention bond for a construction project. For more on retention bonds, see Practice Note: Retention bonds. • Parties—a party with a registered office outside of England and Wales may be required to specify an address for service within England and Wales. Think carefully before accepting a surety based outside the UK and (where appropriate) check that the surety is duly authorised to issue bonds in the UK. Always insert company registration numbers so companies can be identified in the future. • Retention—specify the amount, representing the total retentions covered by the bond, for which the employer would otherwise have been entitled to make retention under the building contract. • Maximum bond amount—consider whether this will be reduced on practical completion and/or at other stages of the works. • Expiry date—consider whether this will be the date of practical completion or certification of making good of defects or other date, or the date when bond is

Losing guarantee covenants At any point in the economic cycle, landlords will want to protect themselves against tenant default, particularly in the case of potentially high risk tenants such as a recently incorporated small company or an insignificant subsidiary, or where the cost of enforcement is likely to be high (as in the case of a foreign corporation). In times of recession (or credit crunch) the need for protection is a factor in every letting. Landlords frequently ask for a guarantee covenant from a guarantor as ‘principal debtor’ or ‘primary obligor’; this ensures that the guarantor’s liability is direct and not merely secondary to that of the tenant. The extent of the guarantor's liability is a question of construction of the contract of guarantee, but it can never exceed the liability of the principal debtor. It is unlikely that a covenant given in those terms will displace the essential nature of the guarantor’s liability, which is secondary to and generally co-extensive with that of the tenant. The general law of guarantees continues to apply and so landlords must ensure

This Flowchart sets out the consumer cancellation rights that must be made available to consumers entering on-premises contracts, off-premises contracts and distance contracts for the sale of digital content. It should be used where a practitioner wants to check the available cancellation rights for consumers purchasing digital content in compliance with the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, SI 2013/3134 (CCR 2013). Note 1—a consumer is an individual acting for purposes which are wholly or mainly outside of their trade, business, craft, or profession. Note 2—there are certain sector contracts that are subject to their own regulation, such as financial services contracts, rental contracts, and package travel contracts, which are excluded in their entirety from the CCR 2013. For more information, see Practice Note: Distance, doorstep and on-premises sales—Excluded contracts. Note 3—‘Off-premises’ includes the following: • ‘a contract concluded in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader

It is important to understand what terms are permissible in consumer contracts (eg business to consumer agreements (B2C) as opposed to business to business agreements (B2B)). The room for manoeuvre in B2C agreements is considerably less than in B2B agreements given that B2C agreements must be in 'plain and intelligible' language under the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR 1999). Simply using boilerplate provisions from a B2B agreement (which are often written in legalese) in a B2C agreement is risky as in many cases it is likely that they would not comply with the above 'plain English' requirement. Accordingly, such provisions could be held to be unfair under the UTCCR 1999. Moreover, unfair contract terms can also amount to unfair commercial practices, see Practice Note: The Consumer Protection from Unfair Trading Regulations 2008 (pre-6 April 2025) [Archived]. If you need to draft boilerplate provisions in a B2C agreement, firstly see Practice Note: Unfair terms in consumer contracts (pre 1 October 2015) [Archived]. This Practice Note summarises the law, guidance

ARCHIVED: this archived Practice Note is not maintained and is for background information purposes only. Further, some of the links may not direct you to the provisions as at the date the guidance in this Practice Note was published. Key litigation funding cases 2016—what do you need to know? Some of the key points which have arisen out of decisions in the commercial or third party litigation or funding arena in 2016 are: • the Supreme Court has considered the construction of an exclusion clause in a solicitor's professional indemnity insurance contract (Impact Funding v AIG), see below • the Supreme Court has agreed to hear three appeals seeking to balance rights under the European Convention of Human Rights (ECHR) against the ability to recover costs associated with third party funding (Frost v MGN, Miller v Associated Newspapers Limited and Times Newspaper v Flood) which will determine these matters in the context of post-Jackson reform funding arrangements. Currently the courts are treating the ability to recover additional liabilities

Disclaimer Under sections 178 and 315 of the Insolvency Act 1986 (IA 1986), a liquidator or a trustee in bankruptcy (trustee) has the power to disclaim property belong to the company or bankrupt which they consider to be onerous. This Practice Note considers the position of a liquidator, but the principles are the same a trustee. For more detail on disclaimer, what it is and what the process is for invoking it, see: • Disclaimer—overview • Practice Note: The process of disclaimer by a liquidator or trustee in bankruptcy under sections 178 or 315 of the Insolvency Act 1986 • Practice Note: The effect of disclaimer by a liquidator or trustee in bankruptcy on property and third parties . This Practice Note covers what is considered in practice as ‘onerous’ in this context. What is onerous property? IA 1986, s 178(3) defines onerous property as: • any unprofitable contract, and • any other property of the company which is unsaleable or not readily saleable or is such that it may

This Practice Note considers the enforcement options available to lenders where they hold fixed security. In particular, it covers: • the options available when taking enforcement action, and • a list of specific considerations when enforcing over specific asset types Secured lenders will normally aim to ensure that as much of their security is fixed as possible. It is generally not possible to take fixed security over all asset types because the level of control that is required to ensure that the security is fixed is incompatible with the borrower running its business effectively, eg stock and cash in current accounts. A lender will often, therefore, take a debenture to enable it to take both fixed and floating security over all the assets of the company. A debenture may include legal and/or equitable mortgages over land and shares, fixed charges over assets such as cash deposits and goods and chattels, assignments of intangibles such as contract rights and a floating charge over all remaining assets. For information on debentures, see Practice Note: Key features of debentures.

This Practice Note provides guidance on choosing the most appropriate form of alternative dispute resolution (ADR) to resolve a civil dispute. It should be read in conjunction with Practice Note: What is ADR?, which considers the main types of ADR and their similarities and differences. For information on the parties’ obligations to consider ADR and the courts’ powers with respect to ordering or encouraging the parties to consider ADR, both before and during any litigation, see Practice Note: Court powers to order or encourage ADR in civil proceedings. Forms of ADR Mediation is one of the most commonly recognised and used forms of ADR process but it may not be the most effective for every dispute. If the parties wish to consider ADR, or it is ordered by the court, the parties have control over which form of ADR they use, subject to any contractual requirement if the dispute arises out of a contract or to any order made by the court. They can agree to try whichever process they think will work best for their dispute

This Checklist is applicable for the sale and purchase of a vessel by a company when acting for a corporate buyer and where the ship will be registered in the UK. The key when acting for the buyer is to ensure that the documents received from the seller are sufficient to obtain good title and effect permanent registration of the ship and provide confirmation that the parties have the power and authority to enter into the transaction. • Obtain a Transcript of Registry from the UK Ship Register to confirm the identity of the current owner and establish the existing security position in relation to the ship. A fee is payable in respect of this (as well as a number of the other documents below), a full list of which is available on the UK Ship Register website. This should be done as early as possible on receipt of instructions and carried out again on the date of closing. • Ensure that any class inspection or other survey as stipulated in the sale contract is carried out and

Definitions [CA 2006 • means the Companies Act 2006;] [Company • means [insert name of target company] Limited incorporated in England and Wales under number [insert company number];] Director • means a director of any Group Company, including a shadow or de facto director; Employee • means an employee, within the meaning of section 230(1) of ERA 1996, of any Group Company; EqA 2010 • means the Equality Act 2010; ERA 1996 • means the Employment Rights Act 1996; [Group • means the Company and each of the Subsidiaries and Group Company means any of them;] [Subsidiaries • means the subsidiaries of the Company;] [subsidiary • means [a subsidiary as defined by section 1159 of CA 2006 OR a subsidiary undertaking as defined by section 1162 of CA 2006]; ] Contractor • means any individual working in a Group Company’s business who is not an Employee or a Worker; TUPE 2006 • means the Transfer of Undertakings (Protection of Employment) Regulations 2006; and Worker • means a worker, within the meaning of section 230(3) of ERA 1996, of any Group Company who is not an Employee. 1 Employees 1.1 Terms and conditions Please provide the following details or copy documents in anonymised form: 1.1.1 any standard contract of employment or particulars of employment under section 1 of ERA 1996