This Q&A is intended as a guide to the functioning of retained EU law, rather than the specifics of Regulation (EU) 1215/2012 (Brussels I (recast)) and the Lugano Convention. There are transitional provisions which are relevant to the application of Brussels I (Recast) in this context under the EU-UK Withdrawal Agreement (see Article 67). It is also possible that the terms of any future relationship between the UK and the EU may have some bearing on the position in relation to Brussels I (recast) and the Lugano Convention. Again, this response does not deal with that aspect, but focuses instead on retained EU law. Section 3 of the European Union (Withdrawal) Act 2018 (EU(W)A 2018) makes provision for EU regulations such as Brussels I (recast) to be saved in domestic law after IP completion day (subject to certain conditions and caveats). However,

Where a contract contains a reference to legislation, the question may arise as to which version of the legislation is meant. The default position is that the standard rules of contract law for determining the meaning of a contract apply. These examples illustrate that the European Union (Withdrawal) Act 2018 (EU(W)A 2018) does not displace this position. Example 1 ‘In this contract, the term “rest period” shall have the meaning given in the Working Time Regulations 1998.’ In this example, the reference is to EU-derived domestic legislation. It is a non-ambulatory reference (unless there is anything in the rest of the contract or context to indicate otherwise). For an explanation of ambulatory and non-ambulatory references, see Q&A: What are the rules on the interpretation of ambulatory and non-ambulatory references to EU-derived legislation in UK legislation post-Brexit? There is a provision in EU(W)A 2018

Since 22 April 2014, when section 12 of the Children and Families Act 2014 (CFA 2014) came into effect, the terms 'residence' and 'contact' have no longer been used in private law children proceedings. CFA 2014, s 12 amended section 8(1) of the Children Act 1989 (ChA 1989) by removing the definitions of 'contact order' and 'residence order' and inserted instead a new single order called a child arrangements order (CAO). A CAO means an order relating to: • whom a child is to live, spend time or otherwise have contact with, and • when a child is to live, spend

On 4 November 2015, the Supreme Court handed down its judgment in ParkingEye v Beavis and Cavendish Square v El Makdessi, two associated cases on penalty clauses in commercial contracts. In the cases, the court reviewed the development of the law of penalties and clarified a new 'true test' which must be considered when assessing whether a clause is an unenforceable penalty. The new broader test, which incorporates the concept of 'legitimate interest', means that businesses may now seek to impose charges in more circumstances, such as where a customer or client is late or doesn't turn up. What is the new 'true test'? The court set out its 'true test' for penalties in contract law. The questions under this new, broader test are as follows: • is the penalty rule engaged at all? • is there a legitimate interest served and protected by the clause? • if so, is the provision purporting to serve that interest disproportionate (by being extravagant, exorbitant or unconscionable)? If

Pursuant to section 306 of the Insolvency Act 1986 (IA 1986), all assets which the bankrupt owned or in which they had an interest as at the date of the bankruptcy order automatically vest in their trustee in bankruptcy, who will either by the official receiver, or an insolvency practitioner. Where a bankrupt owned a property jointly with another, then the property itself does not vest in the trustee in bankruptcy; rather it will be the bankrupt’s interest in the property that will so vest. Usually, where the property is co-owned with one other, the bankrupt’s interest will represent 50% of the equity in the property. The value of that interest is typically valued by reference to the property value (commonly valued by way of a ‘drive-by’ or desktop valuation by a property agent), less the amount due to any mortgagees or chargeholders, and with the

Assumptions/limitations Generally, the question of whether a buyer can rely on searches procured by the seller will depend on the terms and conditions of the search itself and also of the search provider. It is assumed for the purposes of this enquiry that there is no term in the contract for sale that excludes the buyer’s right to rely on such searches. Date of searches Firstly, while something of an obvious point, the buyer should check the date of the searches to establish how recent they are and whether they should be refreshed prior to exchange or completion. As a general rule of thumb, buyers should not rely on search results which are more than three months old, although the decision whether or not to refresh the search results will depend on a number of factors including the type of search that

Generally, whether or not a contractual term operates after termination is a question of construction (Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Australia) Pty Ltd). As such, each case will turn on its facts, and is dependent on how the contract was terminated, the respective obligations of the parties and any explicit wording in the agreement that addresses survivorship. Termination of contracts In determining the whether or not a clause can survive the end of the agreement in which it was contained, it is important to consider whether the agreement has expired or been terminated early, and if terminated early, on what grounds. Practice Note: Termination and expiry of contracts provides an overview of the different ways which a contract may be brought to an end, and this may impact the availability of remedies after an agreement has come to an end. It also should

A contracting authority might wish to invite a bidder to correct a mistake in a tender submission for a public contract. Such a correction might serve to ensure that a bid which would otherwise be inadmissible, remains in the tender process, or it might result in the authority receiving a better offer if the tenderer has erroneously submitted a higher price than it intended to. Both cases are consistent with the objective of promoting the widest possible competition. However, the discretion of contracting authorities to approach tenderers in this way is potentially open to abuse and is therefore is tightly controlled. It goes without saying that a contracting authority cannot invite a bidder to amend its tender in a way which would not be permitted if the bidder approached the contracting authority. 'Mere clarification' to correct obvious errors, which was discussed in SAG ELV Slovensko v Urad, should be

Section 232 of the Companies Act 2006 (CA 2006) contains a general prohibition against exempting or indemnifying directors against liability that could arise as a result of their acts (or omissions) carried out during the course of business of the company under statute, contract or tort. However, there are statutory exceptions to the general rule providing that directors can be protected from liability by: • the acquisition and maintenance of insurance by the company for its directors against liabilities, and/or • the company giving qualifying indemnities to its directors against certain liabilities Directors can also be relieved from liability by the shareholders ratifying their acts of misconduct, subject to such conduct being capable of ratification. The range of any insurance cover will depend

In approaching this, the steps to consider are as follows: • are the affiliates made party to the agreement by incorporating them in the definition? • if so, does the signatory have authority to sign on behalf of each affiliate? • if not, is there privity of contract or would the affiliate be able to enforce the terms of the contract? Are the affiliates made a party to the agreement by incorporating them in the definition in this manner? In an ordinary commercial context, it is not normally necessary to prove that the parties to an express agreement in fact intended to create legal relations. Absent proof to the contrary, it will be presumed that the parties did have such intention. The onus of proving that there was no intention is on the party who asserts that no legal effect was intended and that onus is a heavy one. The test as to contractual intention is to be assessed objectively: the fact

Pursuant to the Leasehold Reform, Housing and Urban Development Act 1993 (LRHUDA 1993), a tenant of a long leasehold interest of a flat has a statutory right (subject to satisfying various qualifying criteria) to a 90-year lease extension on broadly the same terms as the existing lease for a peppercorn rent, upon payment of a premium. LRHUDA 1993, s 57 provides that the new lease may be

For these purposes, we assume that the amendments are either: • with the court’s permission, or • without the court’s permission and that they have not subsequently been disallowed We also assume that they have been verified by a statement of truth and that no objection is being raised to the amendments themselves. As to all of these assumptions, we refer you to Practice Note: Amending a statement of case—introduction. Once served, a statement of case may only be amended with the consent of all other parties or with the permission of the court. Even if the permission of the court is not required and even if all the other parties consent, the court may subsequently disallow any amendment. Whenever making an amendment to a statement of case, a party should remember that the content of the original statement of case will have been verified by a statement of truth