Does your dispute resolution clause work?
It is now standard in commercial contracts to include a dispute resolution clause setting out the hoops the parties must jump through in the event that a dispute arises under the contract.
To petition or not to petition, that is the question
Against the backdrop of the insolvency of Scottish companies carrying on business in India, a recent decision of the Inner House of the Court of Session has considered the competency of seeking declaratory orders in petition procedure.
The price is right – or is it?
Key pricing provisions are often hidden away in the schedules to commercial contracts. This article highlights the importance of ensuring they are properly drafted at the outset, to avoid later disputes as to how they should be interpreted.
Expert witnesses - impartiality and balance
In two recent but very different cases, there have been unusually strong criticisms of expert witnesses. They highlight the need for any expert witness to be seen to be independent and impartial and for their evidence to be balanced and not one-sided.
Failure to follow procurement rules rendered development agreement ineffective
The Court of Appeal has given its long awaited judgment in the case of Faraday Development Ltd v West Berkshire Council
Dyson court 'clean up' - secret injunction as Tesla learns electric car plans
In a curious turn of events, a Court of Appeal court judgment (Dyson Technology Ltd v Pellerey  EWCA Civ 87 (12 February 2016)) was released which reveals Dyson secured an injunction to stop an employee from joining rival Tesla back in 2015.
New Year's resolutions for litigators: will the new Disclosure Pilot succeed in reducing legal costs in 2018?
The Disclosure Working Group has announced a new pilot proposal for disclosure in civil proceedings in England and Wales which is open for consultation until February 2018.
New Court of Appeal guidance - Defamation claims and proving 'serious harm'
This article looks at the new Court of Appeal guidance resulting from the decision of Lachaux v Independent Print Ltd, Evening Standard Ltd & AOL (UK) Ltd  EWCA Civ 1334
Mediation: dragging your feet will cost you
Parties receive considerable encouragement by the courts to mediate. Recent Court of Appeal decisions reinforce that approach.
Penalty Clauses - not so fashionable after all?
Liquidated damages clauses (LDs) are used to protect an innocent party's position by quantifying damages payable for a specified breach of a contract. They are routinely used by businesses to protect their position in the event of a breach.
Apologising: defamation and beyond
Reputation, both personal and business, has always been everything, but no more so than in today's social media savvy world, where scrutiny and commentary is widespread with many topics being 'open season'.
Brexit: Jurisdiction and Enforcement - all change?
The UK has formally triggered Article 50. Time is ticking to negotiate the best deal possible for the UK. It is expected that most EU laws will be transferred into our legislative framework but what does this mean for businesses?
Reporting on payment practices and performance regulations - unlimited fines
This article looks at the new reporting on payment practices and performance regulations and the unlimited fines in place for non-compliance.
Watch what you tweet! 'Serious harm' test clarified
Katie Hopkins has been ordered to pay £24,000 in damages together with costs following tweets about food blogger and writer Jack Munroe.
Strict compliance with contractual notice requirements: not so pink and blue
A recent decision of the Inner House of the Court of Session suggests that the law on strict compliance with contractual notice requirements might not be quite so black and white (or pink and blue) as perhaps thought.
Motor Ombudsman launched with the help of Shoosmiths
The Motor Ombudsman is the impartial dispute resolution body focussed on the automotive sector.
Insurer v insured - certainty is king
The Court of Appeal has provided useful insight into the meaning of the phrase 'as soon as possible' in relation to insurance policy notification obligations. How will this decision impact upon both insurers and insured parties?
Incomplete contracts - can implied terms fill the gap?
The Court of Appeal has held that gaps in contracts cannot be filled by implied terms, where a contract would otherwise be unenforceable because of a failure between the parties to agree an essential term.
Litigation funders ordered to pay costs on an indemnity basis
The Court of Appeal has confirmed that litigation funders face the same costs liability as the funded litigant.
Health and safety fines - Scotland
How should Scottish Courts apply the Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences: Definitive Guideline?
'Modified universalism' considered for the first time in a Scottish corporate insolvency case
An opinion issued this week is the first examination by a Scottish court of the principle of 'modified universalism' and the requirements for an enforceable floating charge where all the company's property is situated in a non-UK jurisdiction.
Insurance fraud: when settlements can be overturned
The Supreme Court has set aside a settlement entered into by defendant liability insurers, despite the fact that the insurers had suspected that the claimant's personal injury claim was dishonestly exaggerated.
Autonomous vehicles: what next?
There have been significant recent developments in the autonomous vehicle sector.
Enforcement of Judgments: a game of cat and mouse
This article looks at the case of Merchant International Company Limited v Natsionalna Aktsionerna Kompaniia Naftogaz Ukrainy, 2016.
Modern slavery legislation: a global outlook
The UK is leading the way in the fight against modern slavery through the Modern Slavery Act 2015. Is the UK legislation the gold standard?
The potential Impact of Brexit on your commercial contractual relationships
The referendum on whether to leave the EU is fast approaching but uncertainty reigns as to the actual impact on business, should the UK vote to leave.
Cybercrime: it's a question of 'when', not 'if' for business
Businesses face an increasing number of challenges and one of the most severe and potentially damaging is that of cybercrime. Fallout from a cyber-attack can result in both physical as well as reputational damage and the loss of business and customers.
Bracing for Brexit: countdown to impact
With increasing numbers campaigning for Britain to leave the EU, ever closer union is looking ever more uncertain.
Unreasonably refusing to engage in mediation: at what cost?
The court has the power to impose costs penalties on parties who refuse to mediate.
Supreme Court guidance: Freedom of contract not open to interpretation
Two recent Supreme Court cases represent a stark warning against liberal interpretation of contracts and serve as a reminder that the plain meaning of the words is likely to be the starting point.
Modern Slavery: what does it mean for SMEs?
Contrary to expectations SMEs are finding that they are affected by the Modern Slavery Transparency Supply Chain provisions because they are required to give assurances to those they supply that they comply with the Modern Slavery Act 2015.
Business regulation - the power of the brand
There is a growing trend for naming and shaming rather than criminal penalties. Is the future of compliance self-regulation, for fear of reputational damage?
What the new ODR Platform means for consumers and traders
On 15 February 2016, the new European Union Online Dispute Resolution platform (the 'ODR Platform') will be available for use by consumers and traders.
Effective crisis management: the crucial first 12 hours
Twelve hours. Just twelve hours. That's how long an organisation has to shape the way in which a crisis is going to unfold.
Defamation - new claims statistics
Reported defamation cases in the UK fell by 27% last year, to the lowest level since 2008/2009 according to latest research.
Black Friday through to Cyber Monday: how to ensure you don't sell out
The tradition founded by our Transatlantic cousins of 'shop 'till you drop' on the weekend following Thanksgiving is becoming more popular in the UK but is your retail business ready?
Statutory guidance published: Modern Slavery - Transparency in Supply Chains provision
The transparency in supply chains provisions came into force on 29 October 2015. The long awaited statutory guidance has been published. This briefing sets out the key points for business.
Modern Slavery Compliance and the Immigration Bill 2015
The Government plans to introduce new measures under the Immigration Bill 2015. We examine the proposed changes and how they will impact business particularly in the light of the Modern Slavery Act.
Independent anti-slavery commissioner publishes strategic plan including engagement on supply chain transparency
The UK has its first Independent anti-slavery commissioner, Kevin Hyland OBE.
Act now to gain further time for ESOS compliance
With the new energy saving regulations fast approaching, businesses are at risk of financial penalties for non-compliance if they fail to take action now.
Still unclear how controversial 'Peeple' rating app will guard against increase in defamation on-line
Imagine a world where at the push of a smart phone button other people could rate you. Yes, rate YOU - between one and five stars. You... personally. On the internet.
Signing your life away? Legal pros and cons of electronic signatures
As it becomes increasingly common for contractual documentation to be concluded electronically, we examine the pros and cons of e-signatures against traditional wet ink signatures.
Record retail fine - sign of things to come?
Revised guidelines for the sentencing of corporate manslaughter and health and safety offences will be published shortly, but does the recent case against Hugo Boss UK give retailers a sign of what to expect?
Alternative dispute resolution - change afoot
The obligations imposed by new ADR Regulations will come into force on 1 October 2015, followed by the Online Dispute Resolution ('ODR') on 9 January 2016.
Has the law concerning rescission for misrepresentation been made clearer?
When a contract has been entered into as a result of a misrepresentation, the predominant question nearly always asked is whether the contract can be rescinded or is the party limited to claiming damages?
Modern slavery and supply chains: steps to take now
The government's stated approach to transparency in the supply chain provisions is to strike a balance between improving transparency in the supply chain whilst ensuring that businesses take appropriate and proportionate action to tackle modern slavery.
The court considers 'serious harm' in the context of a defamation dispute
In Lachaux v Independent Print Ltd, Evening Standard Ltd, AOL (UK) Ltd, the high court considered the construction of 'serious harm' under section 1 of the Defamation Act 2013 (the Act).
Modern Slavery Act supply chain compliance: turnover threshold for businesses lowered
The UK government's commitment to anti-slavery and supply chain transparency was confirmed in a speech given by prime minister David Cameron in Singapore.
CMA publishes response to 'super complaint' - is it a bang or a whimper?
The Competition and Markets Authority (CMA) has completed its initial investigation into consumer confusion over promotions offered by supermarkets.
Energy audit requirement for large organisations: Action required
Our recent experience is that many companies are either still not aware of their obligations or are not putting steps in place to satisfy the new rules.
Modern slavery and supply chain reporting obligations
The new Modern Slavery Act (2015) will apply to all commercial organisations who carry on business or part of a business in the UK.
The limits of using common sense to interpret commercial contracts
Scotland's senior civil appeal court has reiterated that commercial common sense is only relevant to interpreting the terms of a contract if those terms are ambiguous.
Retailers' responsibilities on carrier bags: changes from 5 October 2015
In a move designed to reduce waste, carrier bag charges come into force in England on 5 October 2015.
Could the UK follow America in prosecuting FIFA officials?
There has been widespread speculation for a number of years about bribery and corruption being endemic within FIFA. America has lead the charge in prosecuting FIFA officials but could the UK follow suit?
Commercial Court sets out impact of successful mitigation on damages for breach of contract
In Thai Airways International Public Company Ltd v KI Holdings Co Ltd  EWHC 1250 (Comm) the Commercial Court has provided guidance on how a claimant's mitigation efforts affect the damages it can recover for breach of contract.
Commercial property - landlord's consent to transfer of lease
It is common practice for leases of commercial properties to contain a prohibition on the tenant being able to assign or otherwise transfer their interest in the lease to another party without the prior written consent of the landlord.
Employment interdicts - a cautionary tale
If in the course of an action the pursuer applies for and obtains an interim interdict preventing the defender from carrying out a particular activity, it is said that the pursuer obtains that order at their own risk.
The Supreme Court on asbestos cases
The Supreme Court has reversed the ruling of the Court of Appeal in respect of insurers' liability in mesothelioma claims in the case of Zurich Insurance PLC UK Branch (Appellant) -v- International Energy Group Limited (Respondent)  UKSC 33.
How each political party's policies may affect retailers
With just hours to go before the election, the Conservatives and Labour remain neck and neck.
Google v Vidal-Hall: how the cookie crumbled in the Court of Appeal...
Last month saw the Court of Appeal upholding the judgment of the High Court that 3 claimants resident in England could bring claims in England against US-based Google Inc for misuse of private information and breach of the Data Protection Act 1998 (DPA).
SARAH to the rescue - The Social Action, Responsibility & Heroism Act 2015
On Monday 13 April 2015, the SARAH, or Social Action, Responsibility and Heroism Act 2015 ('the Act'), came into force in England and Wales.
Negative declarations for insurers and the meaning of 'Product' in construction policies
The Court of Appeal has expressed reservations about dealing with applications for declarations of non-liability by insurers in circumstances where the factual interpretation of the claim is contentious.
Commercial property - dilapidations at termination of a lease
The extent to which the tenant of a commercial property requires to maintain and repair the premises will invariably be regulated by the terms of the written lease.
The price of justice: mitigating the impact of the new court fees
On 9 March 2015 significant increases in the cost of issuing proceedings for money claims in the civil courts came into force. It is likely that money claims of mid to high value will be most affected.
Arbitration torpedoed? The impact of Brussels 1 (Recast)
On 10 January 2015, new EU rules on jurisdiction and enforcement of judgments in civil and commercial matters came into effect as a result of the Brussels Regulation (recast) (Regulation (EU) 1215/2012) (the recast Regulation).
Court fee increases in force on 9 March 2015
The motion to implement the Civil Proceedings and Family Proceedings Fees (Amendment) Order 2015 was debated and approved by the House of Lords last night.
The arrival of the Groceries Code Adjudicator
The Groceries Code Adjudicator, Christine Tacon, has announced that she is to investigate Tesco for its conduct under the Groceries Supply code, after reports of accounting irregularities.
Party like it's 1-999: New Years Eve fire provides reminder of proof requirements under the Consumer Protection Act 1987
When Mr Hufford invited his parents around for a celebratory lunch on New Years Eve 2009, he couldn't have envisaged it would bring product liability notoriety.
Keeping it clean: Reflections on EU Regulations on CO2 Emissions for Automotive Manufacturers
The US Department of Justice and U.S. Environmental Protection Agency announced a substantial settlement with car manufactures Hyundai and Kia who agreed to pay 100 million (USD) penalty following over the certification of vehicles sold in the US
The 'Only Way is' Profits: High Court measures loss of profits in the wake of Sugar Hut blaze
In the recent case of Sugar Hut Group Ltd v AJ Insurance, the High Court was asked to consider the business interruption losses arising out of a fire at the now famous club 'Sugar Hut' in Brentwood, Essex.
Contractual remedies for defamation? Blackpool hotel adopts novel approach to damning Trip Advisor review
A Blackpool hotel hit the headlines this week for 'fining' a couple £100 for posting a scathing review on TripAdvisor, in breach a 'no bad review' clause in its terms and conditions.
Settling your dispute - a risky business?
The benefits of settling disputes out of court are clear, most of all in terms of the time and costs saved by not taking the dispute to trial.
What has been the most important national and European consumer-related legislation in 2014?
The landscape of UK consumer rights law is undergoing its largest reform since 1979.
Competition and Markets Authority orders shake-up of audit services for large companies in the UK
On 26 September 2014 the Competition and Markets Authority ('CMA') published the final order in relation to the Competition Commission's ('CC') investigation into the UK statutory audit market for large companies.
Commercial property - Dilapidations at termination of a lease
Damages recoverable from a tenant: the differences in England and Scotland
Guarantee or indemnity? Conclusive Evidence Clauses
In ABN Amro Commercial Finance Plc v McGinn and others  EWHC the court considered whether deeds intending to indemnify a factor's losses under an invoice discounting agreement were an indemnity or a guarantee.
Can hindsight be used when assessing losses in a breach of warranty claim?
In Ageas (UK) Limited v (1) Kwik-Fit (GB) Ltd (2) AIG Europe Ltd  where Shoosmiths acted for the claimant, the High Court examined principles relevant to the permissibility of using hindsight to value a company for the purposes of a warranty claim.
Flight delays compensation : punctuality or pay out?
Jet2 is set to appeal a Court of Appeal decision as to whether 'technical problems affecting the operation of an aircraft' is an extraordinary circumstance entitling a carrier to avoid liability to pay flight delay compensation to passengers.
We predict a riot
Court of appeal rules business interruption and other consequential losses can now be recovered from the police after London riots.
Changes to enforcement via High Court Enforcement Officers
Following the implementation of the Tribunals Court Act 2007 on 6th April 2014, the government has made a number of changes to enforcement via the High Court Enforcement Officers.
Waiving privilege? Be on guard
We consider waiver of privilege and a recent case to discuss the issue in the context of electronic information policies. What are the key factors regarding waiver of legal privilege? What protective steps can be taken to ensure privilege is maintained?
To Arbitrate or Litigate - what's your goal?
Parties should always consider what their preferred method of dispute resolution is when entering into a contract and often choose to specify either arbitration or traditional court proceedings as the relevant legal recourse.
Costs: The Hidden Truth
Legal costs are coming under close scrutiny by the Court. A party to a dispute must put itself in the best possible position to maximise costs recovery. An indemnity may be included in a contract but this doesn't always result in full costs recovery.
Employees on the march? How to protect the value in your business
The UK economy has shown positive growth over the past few months. Are you ready for the challenges that growth can bring? Are your crown jewels, whether that's confidential business information or employees, adequately protected from your competitors?
Litigation: a marathon or a sprint
Our own Kath Livingston who joined over 36,000 others, pounding the streets in the London marathon on Sunday, ponders whether litigation is a marathon or a sprint.
Why a choice of law should never be arbitrary
We take a look at the different laws governing the various aspects of international arbitration including a recent commercial court decision on determining the law of the arbitration agreement.
Silence is not golden: the real cost of ignoring a mediation invitation
In the recent case of PGF II SA v OMFS (2013) the Court of Appeal upheld a decision of the High Court to deprive a successful party of its costs on the ground that it had not responded to an invitation to mediate.
Deferred Prosecution Agreements - what you need to know
On 24 February 2014 Deferred Prosecution Agreements ('DPAs') legislation was finally brought into force in respect of a wide range of criminal conduct.
Sale of goods exclusion clauses : don't miss out on a bargain
It is crucial to cover the full range of potential losses in exclusion clauses. We consider exclusion clauses in sale of goods contracts in light of the recent Commercial Court decision of Glencore Energy Ltd v Cirrus Oil Services.
Take it or leave it? - Financial Ombudsman Service awards and res judicata
The Courts in England have ruled that accepting an award from the Financial Ombudsman Service can be a bar to any further proceedings in England & Wales. We examine whether the same principles apply in Scotland.
A reminder - Employers' Liability changes - what they mean for you
Section 69 of the Enterprise and Regulatory Reform Act 2013 (the
Jurisdiction: can you be in two places at once?
Choosing and including the correct type of jurisdiction clause in a contract is important.
A new dawn for defamation?
The Defamation Act 2013 comes into force on 1 January 2014. We provide details of the new regulations that will govern website operators when on notice of a complaint about online material.
Remedies for breach of contract : Scottish courts will enforce payment and performance, not just damages
If one party to a contract threatens not to perform their obligations (i.e. repudiates the contract) the innocent party has significantly different options depending on whether they are able to raise court proceedings north or south of the border.
High Court considers new bonus in Part 36 regime
The recent case Feltham v Bouskell  EWHC 3086 (Ch) is one of the first to consider the additional sanction under CPR 36.14(3)(d), introduced on 1 April 2013 as part of the Jackson Reforms.
Dominant Purpose test proves difficult to pass
We consider litigation privilege and the dominant purpose test. Litigation privilege stems from a principle that those engaged in/contemplating litigation should be free to gather evidence without a requirement to disclose that evidence to opponents.
You will comply : The Jackson Reforms - Six months on
Many expected a revolutionary new take on the conduct of litigation, with costs budgeting taking centre stage. Six months on, and it is time to analyse the impact so far; have the Jackson Reforms been revolutionary, and what has been their effect?
Part 36 v Calderbank : Rise of the Reforms
There has been a lot of buzz about the Jackson reforms. We highlight afew considerations which demonstrate that when trying to settle a dispute, the battle still rages about which settlement mechanism (Part 36 or Calderbank) is more advantageous.
Commercial Court rules 'no riot' for insurers or business
The Commercial Court has ruled that consequential losses arising from riots cannot be recovered from the public purse.
What's it worth?
We consider the principle of unjust enrichment in light of the recent Supreme Court decision in Benedetti v Sawiris and others  UKSC 50.
Exclusion clauses: Do exactly what they say on the tin
Whilst many lawyers pride themselves on their level of precision, it is important to be accurate when drafting exclusion clauses to avoid potential contamination of the clause.
High Court rules on badger cull protestor injunction
In a ruling yesterday on application of the National Farmers Union, the High Court granted an interim injunction to restrain the activities of animal rights campaigners planning protests at next week's government-sanctioned badger cull.
Is Luis Suarez right: Does an oral agreement between parties vary the terms of their written agreement?
Last weekend heralded the return of the Premier League football season, and the spotlight for the foreseeable future for clubs, players and fans is firmly fixed on potential transfer business before the transfer window closes.
Public hearing maintained despite fear of reputational damage
When disputes escalate to court proceedings, it is not uncommon for the Statements of Case to contain pointed allegations of misconduct or impropriety.
Litigation: A bit like the Tour de France
Many of us have been avid watchers of this year's Tour de France, and it got us to thinking that this epic race is a little bit like litigation.
The Draft Consumer Rights Bill - enhanced rights for consumers
The Government has published its Draft Consumer Rights Bill, through which it proposes a significant overhaul of UK consumer protection legislation.
Counting the Cost of Time
If your business has been disrupted by a problem that later leads to litigation, you may be able to recover the cost of time spent by management and staff in remedying the problem.
All change, please: Defamation Act 2013
After considerable Parliamentary ping-pong and various political manoeuvrings in light of the Leveson inquiry recommendations, Royal Assent has finally been given to the Act that purports to balance protection of reputation and freedom of speech ...
The concept of proportionality is not new to litigation
In addition to the overriding objective, a new test of proportionality has been introduced when assessing costs.
The concept of proportionality is not new to litigation
On 1 April 2013 there will be a cultural shift in the civil litigation landscape, mostly arising out of recommendations made by Lord Justice Jackson.
Litigation in Scotland
The addition of the ACH Shoosmiths full service office in Edinburgh means that Shoosmiths can advise clients on litigation matters throughout the UK. In this article we highlight some of the key litigation considerations north of the border.
Action by ROT suppliers: Effective enforcement of your claim
A supplier wishing to assert a claim to reservation or retention of title (ROT) of stock it has supplied may be faced with a real predicament on learning that a customer has gone into administration.
Assessment of costs in exaggerated claims
A recent High Court decision in Brit Inns v BDW Trading Ltd considered the circumstances in which a successful claimant would have to pay the majority of the defendant's costs
The Effective Agent: Risk reduction in the murky, litigious water of agency agreements
In this article we explore agency agreements and consider how risk can be reduced in such agreements.
Combating spam tactics: How to stay on top
What's all this about penguins, pandas and search engine optimisation?