Corporate and commercial | 13 November 2015

The remedies available for misrepresentation depend on whether the misrepresentation was fraudulent, negligent or innocent. If a misrepresentation is fraudulent or negligent, the claimant may claim both rescission and damages under s2(1) of the Misrepresentation Act 1967 (the Act). If a misrepresentation is negligent or innocent, the court has the discretion to award rescission or damages in lieu of rescission under s2(2) of the Act. In the recent case of Geoffrey Alan Salt v Stratstone Specialist Ltd [2015] the Court of Appeal confirmed that the courts have no discretion to award damages for innocent or negligent misrepresentation under s2(2) where the remedy of rescission is not in fact available.
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Corporate and commercial | 09 October 2015

Cases involving the proper approach to contractual interpretation only infrequently warrant determination by the Supreme Court as the ‘rules’ have been comparatively settled for some time. There have, however, been indications of a growing tendency 
of the courts to resolve unattractive interpretations based on the strict wording of contracts by reference to ‘commercial common sense’ that requires an alternative interpretation. In response to these decisions, the Supreme Court’s decision inArnold v Britton & ors [2015] has re-established the supremacy of the principle that the intention of the parties to a contract should, with 
very limited exception, be derived from the natural meaning of the words they have chosen to use. 
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Corporate and commercial | 01 September 2015

A classic battle of forms has ended in the faintly ignominious conclusion that neither party had done enough to have their standard terms and conditions (Ts&Cs) incorporated into the contracts in dispute. The High Court’s decision in Transformers 
& Rectifiers Ltd v Needs Ltd [2015] provides an instructive summary of key authorities and serves as a warning that parties 
in long-term commercial relationships 
must remain vigilant when it comes to asserting and, crucially, maintaining their contractual position.

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Corporate and commercial | 01 July 2015

An essential part of any engineering or construction contract will be the contractor’s warranties as to the quality and standard of the works to be performed. Warranties are contractual assurances 
that aim to apportion risk and liability between parties, and give rise to a claim for damages if breached. They are often key points of negotiation as the employer pushes for certainty through absolute, or performance-based, objectives, while the contractor seeks to restrict their commitment to exercising reasonable skill and care (as is the limit in standard professional indemnity insurance). To complicate matters further, these warranties will frequently sit alongside a design specification containing details of exactly what is to be constructed and how 
it should be done.

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Corporate and commercial | 01 June 2015

Contractual terms granting discretion for a party to determine unilaterally the outcome of a matter in prescribed circumstances are not an uncommon feature in commercial contracts. In fact, such clauses can be immeasurably helpful in enabling the contracting parties to operate on a day-to-day basis without the need to refer continually to the other for agreement. [Continue Reading]

Corporate and commercial | 01 May 2015

In our March article, we looked at the decision in Raymond Bieber & ors v Teathers Ltd [2014], where an e-mail in response to an offer simply saying ‘noted’ was interpreted as indicating acceptance of the offer. The legal principles relating to offer and acceptance have again been put under the spotlight in the Commercial Court’s decision in Reveille Independent LLC v Anotech International (UK) Ltd [2015]. In this case, the crux of the issue was not the written communication between the parties but the opposite: the lack of written communication set against the parties’ conduct.

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Corporate and commercial | 01 March 2015

The High Court’s judgment in Raymond Bieber & ors v Teathers Ltd [2014] has made waves as a result of its interpretation by some as a recognition of a binding settlement agreement concluded with an e-mail that simply stated: ‘Noted, with thanks’. This interpretation ignores an inconsistency in the judgment as to the precise point at which the settlement became binding. However one interprets this issue, the judgment provides a helpful summary of the principles of interpretation in respect of the conclusion of settlement agreements and a reminder of the importance of clarifying both expressly and impliedly what one considers the status of the negotiations to be throughout the course of negotiations. 
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Corporate and commercial | 01 February 2015

The High Court’s decision in Richard Edwards v Jahit Ahmet Ashik [2014] has provided useful guidance on what is required to rebut the presumption that fraudulent pre-contractual representations are taken to have induced the recipient into entering a contract. Timothy Fancourt QC, sitting as a Deputy High Court Judge, held that positive evidence that the representee was not in fact induced to act by the misrepresentation is required for such purposes and merely proving on a balance of the probabilities that the representee would have proceeded in the same manner anyway would not be enough. The Deputy Judge also confirmed that, in order to rebut the presumption, a representor does not need to go as far as demonstrating that the misrepresentation played no part at all, but they have to show that it did not play a real and substantial part in the decision to enter the agreement. [Continue Reading]