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Drafting and negotiating a limitation of liability clause—checklist

Drafting and negotiating a limitation of liability clause—checklist This Checklist sets out the key issues to consider when drafting and negotiating a limitation of liability clause in a business-to-business (B2B) contract. It provides practical guidance for negotiating and drafting limitation of liability clauses (also known as limitation clauses, exclusion of liability clauses, exclusion clauses and exemption clauses) in a commercial contract and considers the implications of common law and statutory controls, including the Unfair Contract Terms Act 1977 (UCTA 1977) and the Misrepresentation Act 1967 (MA 1967). It considers: • general drafting points for limitation of liability clauses • key issues to consider • party specific considerations • drafting financial caps • summary of the key common law and statutory controls, and • other ways to limit or exclude liability For a precedent limitation of liability clause together with detailed drafting notes, see Precedent: Limitation of liability clause. For information on exclusion and limitation of liability generally, see Practice Note: Exclusion and limitation of liability. General drafting points for limitation...

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Recklessness in criminal cases

The subjective test for recklessnessCertain statutory and common law offences allow the prosecution to prove the mens rea on the basis of ‘recklessness’. In essence, recklessness means the taking of an unjustified risk by the accused that leads to unlawful harm or damage.The subjective test for recklessness was reaffirmed by the House of Lords in R v G. Before R v G, there were two tests for recklessness, with the applicable test depending on the substantive offence charged. The two tests were for:•subjective recklessness as established by R v Cunningham. This test required the prosecution to prove that the accused had foreseen the risk themselves•objective recklessness as established by R v Caldwell. This test required the prosecution to prove that the risk would have been obvious to a reasonable person. The prosecution were not required to prove that the accused themselves foresaw the riskThe House of Lords in R v G held that the objective test could cause unfairness in circumstances where a defendant did not foresee the unlawful consequences...

Attempt

A person is guilty of attempting to commit an offence if they do an act that is more than preparatory to the commission of the offence, with the intention of committing an offence. An attempt is an offence of specific intent. It requires an intention to commit an offence. The offence itself consists of both a criminal act and a mental state. In each case it is a question of fact whether the accused has gone sufficiently far towards the full offence to have committed the act of the attempt. If the accused has passed the preparatory stage the offence of attempt has been committed and it is no defence that they then withdrew from committing the completed offence.Most attempts at committing criminal offences will be governed by section 1 of the Criminal Attempts Act 1981 (CAA 1981), although some statutory exceptions apply. These include:•burglary under section 9(1)(b) of the Theft Act 1968 (TA 1968), and•using a firearm to resist arrest under section 17 of the Firearms Act 1968 (FiA...

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Legal opinion-issuer’s counsel (US IPO)

Legal opinion-issuer’s counsel (US IPO) [Firm Letterhead] [[Insert name]] [[Insert name]] [[Insert name]] [c/o [Insert name]] [[Insert name]] Re: [Insert name of matter] Dear [insert text] We have acted as counsel to [insert name of company], a [insert nature of company] (the Company), in connection with the registration under the Securities Act 1933, as amended (the Securities Act), of (i) [insert amount of shares] shares (the Firm Shares) of the Company's common stock, par value $[insert amount] per share (the Common Stock), and (ii) up to an additional [insert number of shares]shares of Common Stock (the Option Shares), pursuant to an overallotment option granted by the Company to the underwriters listed on Schedule I hereto (the Underwriters), and the public offering thereof pursuant to an underwriting agreement, dated [insert date], by and among Company and the Underwriters (the Underwriting Agreement). This opinion is delivered pursuant to Section [insert section number] of the Underwriting Agreement. Capitalised terms not otherwise defined herein...

Litigation, advocacy and ADR policy

Litigation, advocacy and ADR policy 1 Introduction 1.1 This document sets out our policy for dealing with litigation and advocacy before any court or tribunal and any form of alternative dispute resolution (ADR). It reflects duties imposed on us by the court and the Solicitors Regulation Authority (SRA) as well as general professional duties. 1.2 Failure to comply with these duties can have serious consequences: 1.2.1 the firm or a member of staff could be in contempt of court, which is ultimately punishable by a fine or even imprisonment; 1.2.2 our reputation could be damaged; 1.2.3 the firm or individuals within the firm could be disciplined by the SRA or another regulator, which could lead to fines, disqualification or other sanctions; 1.2.4 we may receive a formal complaint from our client or another party. 1.3 We have always taken our duties to the court seriously and we will continue to do so. 2 Scope of this policy 2.1 This policy covers: 2.1.1 litigation and advocacy before...

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If a partner causes a general partnership to incur additional expenditure in breach of the duty of good faith, can those losses be claimed as damages?

If a partner causes a general partnership to incur additional expenditure in breach of the duty of good faith, can those losses be claimed as damages? Duty of good faith The question of whether a partner has breached their duty of good faith, and whether that breach is sound in damages, will depend on the particular circumstances. This Q&A looks at some of the key considerations focussing on the law relating to general partnerships (as opposed to limited partnerships or limited liability partnerships). The main source of legislative authority on general partnerships is the Partnership Act 1890 (PA 1890), which sets out default provisions that apply to a partnership in the absence of an agreement to the contrary. These default provisions, or any provision in a written agreement, may be varied by the consent of all the partners. Such consent may be either express or inferred from a course of dealing. A partner owes a duty of good faith to fellow partners in all partnership matters....

What do gross negligence, wilful misconduct and deliberate default mean in commercial law?

What do gross negligence, wilful misconduct and deliberate default mean in commercial law? The parties to commercial contracts sometimes agree that exclusion and limitation of liability provisions will not apply if one of the parties has deliberately breached the contract or been so negligent that it would be unfair to protect them from liability. Over the years, a range of contractual language has been used to describe such conduct. None of the common terms have an established legal meaning (and are often not defined in the contract) and the courts are left to decide what exactly the parties intended. This Q&A explains how the courts have interpreted three of the most common formulations: • gross negligence • wilful misconduct • deliberate default It also explains the default position in relation to deliberate breaches if the contract is silent. Gross Negligence Although negligence is a term which is clearly understood in tort, there is no English law concept of gross negligence (other than in criminal law) and...

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Broker banned for 'lack of integrity' over indemnity risk

Law360, London: Markos Markou, the director of a mortgage broker who demonstrated a 'lack of integrity' has been banned and must pay a £10,000 fine after a London appeals court ruled on 17 December 2024 that he recklessly risked his company operating without professional indemnity insurance (PII).

FCA welcomes Court of Appeal judgment in Markos Markou v FCA

The Financial Conduct Authority (FCA) has welcomed the Court of Appeal’s judgment in Markos Markou v The Financial Conduct Authority [2024] EWCA Civ 1575.  The Court of Appeal found that the FCA’s decision to ban Markos Markou from financial services was the correct one; it further remitted the matter to the FCA with a direction to impose a reduced financial penalty from that in the FCA’s 2021 Decision Notice in respect of Markou.