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Seller's SPA drafting guide (unconditional completion)—checklist

Seller's SPA drafting guide (unconditional completion)—checklist This Checklist serves as a guide of certain key matters for the seller’s solicitors to consider when drafting, or commenting on, a share purchase agreement (also known as SPA or share sale agreement) recording the sale and purchase of the entire issued share capital of a private limited company, where the transaction involves simultaneous exchange and completion. Parties The drafter should: • check to see if the legal and beneficial title to the sale shares is split, ie check to see if the seller's sale shares are held in the name of a nominee, requiring the beneficial owner to: ◦ be named as the seller in the SPA instead of the registered holder, and ◦ procure the sale of the sale shares to the buyer • check to see if the transaction involves any parties connected with company directors, which may constitute substantial property transactions requiring certain approvals (see Practice Note: Substantial property transactions—requirement to obtain members’ approval) • resist proposals to include in...

Key provisions in a consultancy agreement—checklist

Key provisions in a consultancy agreement—checklist This Checklist sets out the key provisions to consider in a consultancy agreement. This Checklist highlights issues which are relevant to the customer, issues which are relevant to the consultant and issues which are relevant to both parties for inclusion in a consultancy agreement. This Checklist will assist both the consultant and the customer when reviewing and negotiating a consultancy agreement. See also: Taking instructions for a consultancy agreement—checklist. For Precedent consultancy agreements, see: • Consultancy agreement—company and individual—pro-client • Consultancy agreement—company and company—pro-client • Consultancy agreement—individual and company—pro-consultant • Consultancy agreement—company and company—pro-consultancy • Consultancy agreement—company and individual—pro-client (short form) • Side letter to consultancy agreement—company and company—pro-client For further related guidance, see: Consultancy services—overview and Practice Notes: • Managed service companies and the anti-avoidance legislation • Deciding appropriate employment status • Personal service companies—the key benefits and key tax considerations • Securing intellectual property rights from employees and contractors • IR35—the large and public client off-payroll regime—practical considerations for the end client...

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Passing off—flowchart

Passing off—flowchart Passing off action Passing off is a common law action that is used to protect unregistered trade mark rights in the UK. The stages of the Flowchart cover establishing a claim for passing off covering: • the three essential elements of goodwill, misrepresentation, and damage • sending a letter of claim, issuing proceedings and applying for an injunction • commencing proceedings in the general Intellectual Property List or the Intellectual Property Enterprise Court sub-list in the Business and Property Court, in the Chancery Division at the High Court • case management including allocation, the case management conference and directions • disclosure and evidence including inspection, additional disclosure and survey evidence • trial preparation and post-trial activities such as election between damages or an account of profits • applications to appeal Stage 1—preparing to bring a claim and pre-action matters Claim preparation and pre-action matters—Practice Notes • Passing off—goodwill, misrepresentation and damage • Trade mark and passing off disputes—a practical guide • How to run an IP dispute...

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Misrepresentation—what it is and similar claims

This Practice Note describes what an actionable misrepresentation is and the key ingredients required for bringing a claim for misrepresentation, the role of the Misrepresentation Act 1967 (MA 1967) and provides a comparison with other similar claims. For related guidance on the key elements required to establish a claim for misrepresentation, see Practice Notes:•Misrepresentation—what statements will establish a claim?•Misrepresentation—what is inducement?•Misrepresentation—falsity (fraudulent, innocent or negligent misrepresentation)For a summary of the practical considerations in misrepresentation claims contrasted with negligent misstatement claims, see Practice Note: Claiming negligent misrepresentation or negligent misstatement—practical considerations.What is a claim for misrepresentation?A claim for misrepresentation arises where one party to a contract (the representor) made an untrue statement that induced the other party (the representee) to enter into the contract.A claim may be made where the representation is made by one contracting party's agent or even, in limited circumstances, where it is made by a third party, see Practice Note: Who can be a party to a claim for misrepresentation?Where there has been a misrepresentation, the representee...

Misrepresentations—excluding and limiting liability for them

This Practice Note sets out when and how parties can seek to limit or exclude liability for misrepresentations by reference to section 3 of the Misrepresentation Act 1967 (MA 1967) and the reasonableness test under section 11 of the Unfair Contract Terms Act 1977 (UCTA 1977).Note: as from 1 October 2015, UCTA 1977 applies only in respect of business-to-business contracts; for consumer contracts, see instead sections 61–76 of the Consumer Rights Act 2015 (CRA 2015).For guidance on when a party may rescind a contract or recover damages for a misrepresentation, see Practice Notes:•Misrepresentation—damages as a remedy•Misrepresentation—rescission as a remedyFor guidance on entire agreement clauses and their use in limiting or excluding liability for misrepresentation, see Practice Note: Contract interpretation—entire agreement clauses.For guidance on non-reliance clauses to exclude or limit liability for misrepresentation and the concept of ‘contractual estoppel’, see Practice Note: Contractual estoppel.What are exclusion clauses for misrepresentation?It is not uncommon (in substantial and complex contracts it is usual) for the parties to agree provisions in their contract that seek...

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Template replies to CPSE 4 (version 3.3)—Supplemental pre-contract enquiries for commercial leasehold property on the assignment of the lease

Template replies to CPSE 4 (version 3.3)—Supplemental pre-contract enquiries for commercial leasehold property on the assignment of the lease WARNING These template replies to enquiries are intended only as a framework and starting point to assist the Seller in building their bespoke replies to enquiries. They are not a recommended, comprehensive or conclusive list and should not be used without careful consideration and bespoke amendment to suit the particular transaction. Replies to enquiries form part of the contract and it is imperative that they are correctly tailored to the specific matter and do not include any false or flippant statements. They should also not contain any generic statements, such as ‘Not to the Seller’s knowledge’, unless the Seller has made an effort to discover a more comprehensive answer to the enquiry. Such a response contains within it an implication that the Seller has itself made reasonable enquiries relation to the enquiry in question. You must stress to your client the importance of reviewing the draft replies very carefully and, if...

ccTLD domain name transfer agreement (.uk)

ccTLD domain name transfer agreement (.uk) This Agreement is made on [date] PARTIES 1 [insert name], a company incorporated in England and Wales, whose registered company number is [insert company number] and whose registered office is [insert address] (Transferor); and 2 [insert name], a company incorporated in England and Wales, whose registered company number is [insert company number] and whose registered office is [insert address] (Transferee), each of the Transferor and the Transferee being a party and together the Transferor and the Transferee being the parties. Background (A) The Transferor is the legal registrant of the Domain Name[s] defined below. (B) The Transferor has agreed to [sell and ]transfer the Domain Name[s] to the Transferee and the Transferee has agreed to [buy and] accept the registration of the Domain Name[s] in accordance with the terms of this Agreement. IT is agreed as follows: 1 Definitions and interpretation 1.1 In this Agreement: Business Day • means a day other than a Saturday, Sunday or bank...

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Is there any case law on an Article 75 insurer’s ability to avoid its liability to meet a judgment in circumstances where the claimant was travelling in a stolen vehicle? The claim made is not against the insurer of the vehicle the claimant was a passenger in but against another vehicle of which the insurers have Article 75 status.

Is there any case law on an Article 75 insurer’s ability to avoid its liability to meet a judgment in circumstances where the claimant was travelling in a stolen vehicle? The claim made is not against the insurer of the vehicle the claimant was a passenger in but against another vehicle of which the insurers have Article 75 status. Article 75 is an agreement between the Motor Insurers’ Bureau (the MIB) and its members under which the motor insurer will accept liability in certain cases where they would not be liable under the Road Traffic Act 1988 (RTA 1988) (as RTA insurer). An Article 75 insurer is the insurer who is providing cover against the compulsory risks set out in RTA 1988 and will remain the Article 75 insurer notwithstanding that—(i) the insurance was obtained by fraud, misrepresentation, mistake or non-disclosure of a material fact (even if a RTA 1988, s 152 declaration of entitlement to avoid liability under RTA 1988 has been obtained), and/or (ii) the cover has been...

In circumstances where a company has been selling product which is contaminated with Japanese knotweed, what potential liability could the company face and could the directors be personally liable?

In circumstances where a company has been selling product which is contaminated with Japanese knotweed, what potential liability could the company face and could the directors be personally liable? Environmental liability The company could be liable under a number of environmental regimes, including criminal liability under the: • Wildlife and Countryside Act 1981 (as amended) (WCA 1981) • Environmental Protection Act 1990 (EPA 1990) • Environmental Permitting (England and Wales) Regulations 2016 (EPR 2016), SI 2016/1154 Civil and other liability may also arise as set out below. Potential liability under the Wildlife and Countryside Act 1981 Offence Japanese knotweed (Polygonum cuspidatum) is an invasive non-native species (INNS). It is an offence under WCA 1981, s 14(2) if any person ‘plants or otherwise causes to grow in the wild' a plant listed in WCA 1981, Sch 9 Pt II (eg Japanese knotweed). Whether or not the company has committed an offence is likely to depend on how and where its customers have used the product and whether this has...

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The Supreme Court tweaks Etridge (Waller Edwards v One Savings Bank plc)

Property Disputes analysis: English property law periodically produces epoch-making decisions of the highest court. In years to come, Waller Edwards v One Savings Bank plc may well become such a decision. It enjoys the respectable jurisprudential lineage of three famous House of Lords’ decisions: Barclays Bank v O’Brien, CIBC Mortgages v Pitt, and Royal Bank of Scotland v Etridge, but it also applies established principles in a novel way. Written by Marc Beaumont, Windsor Chambers.

V & another v K—guidance on disclosure and bias in maritime arbitrations

Arbitration analysis: This judgment will be of particular interest to maritime arbitration practitioners, and also to those in arbitration more generally (both lawyers and arbitrators themselves). The Commercial Court has provided a detailed review of apparent bias and arbitral duties of disclosure in the context of the London maritime market, particularly London Maritime Arbitration Association (LMAA) arbitrations. The court has clarified the extent of a maritime arbitrator’s duties of disclosure, recognizing the London market practice for the same arbitrators to be appointed across multiple different disputes by the same appointing party. Given the practice is well known to those in this market, there is no duty of disclosure. The court has also underscored the difficulties of making out apparent bias: the threshold test is high and not easily met. The judgment reviews factors that the fair-minded observer would consider when considering whether there was a real possibility of bias. Written by Angharad Parry KC, barrister at Twenty Essex.