January 6, 2017 | Aston Bond

New Year’s Resolution: Writing a Will

Posted on January 6, 2017January 6, 2017 by Jenna Dunstall

Writing a Will for your New Year’s Resolution…

Happy New Year one and all! We hope you enjoyed the festivities and that you are now focused on the year ahead and the New Year resolutions are underway!

2016 was a year to remember for many people around the world: The UK voted to leave the European Union, Britain smashed the Rio Olympics and brought home 67 medals (27 golds!), Donald Trump won the Presidential Election, the Queen turned 90 and much more.

One thing that 2016 will also be remembered for, is the shocking amount of celebrity deaths that took place; some great people and legends that will be truly missed, including David Bowie, Alan Rickman, Sir Terry Wogan, Paul Daniels, Ronnie Corbett, David Gest, Prince, Muhammad Ali, Pete Burns, George Michael, Andrew Sachs, Liz Smith, Carrie Fisher, Debbie Reynolds and sadly many more. Our thoughts go out to all their loved ones.

When we hear about so many deaths, we tend to reflect. We cannot avoid death, but when it comes it is helpful if we can be as prepared as possible. One thing that we can do to help us prepare is put a Will in place. This will ensure that when we are gone and no longer have a voice, that our wishes are carried out and our loved ones are well looked after. Not having a Will can create uncertainty and confusion for our loved ones, which is completely avoidable. So make a resolution to get your Will done this year.

Should you wish to discuss your situation and would like to put a Will in place, or simply wish to review your Will, then we shall be pleased to assist. Please do not hesitate to contact Jenna Dunstall, the head of our Wills and Probate Department, to arrange a convenient appointment.

Interpretations of Exclusion Clauses

Posted on January 6, 2017January 6, 2017 by Gurpreet Dhillon

Contracts: Update on Interpretations of Exclusion Clauses between Commercial Parties

Exclusion clauses are contractual provisions restricting or excluding liability for a specific event. The Court of Appeal has recently deliberated on the construction of exclusion clauses and more particularly how the principal of ‘contra proferentem’ should apply. Contra proferentem is the principle were ambiguous clauses in a contract should be interpreted against the interests of the party seeking the clause to be included in the contract.

Background

In the case of Transocean Drilling UK –v- Providence Resources PLC [2016] EWCA Civ 372, Transocean hired a semi-submersible drilling rig to Providence. After initiating the work, it came to Providence attention that the rig was faulty, namely a misalignment of part of a blowout preventer. As a result of the faulty rig, work was suspended for a period of five weeks. Providence refused to pay the hiring fees of the rig, Transocean brought an action for the hire costs, and consequently Providence sought to set off the hire costs against their losses plus $10,000,000.00 paid for goods and services which were wasted (spread costs). The contract between the parties had various exclusion and indemnity clauses. The main clause in dispute in this case, was the clause excluding ‘consequential losses’. The consequential losses in this matter referred to the spread costs. The High Court Judge, Popplewell J, took the view that contra proferentem should apply to the construction of the exclusion clause at the first instance, therefore, deciding with Providence. Transocean appealed the matter, and the Court overruled the Judge’s decision and applied three distinct principles.

New Principles

Contra proferentem should only be used as a last method and only apply to cases dealing with ambiguous clauses.
Secondly, that this is a separate principle to the principle that there is a presumption that neither party intends to abandon any remedies for its breach in the absence of clear words [Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689]. Therefore, parties if they wish to do so can abandon remedies, but the language used in the construction of the clause must be clear and unambiguous.
Contra proferentem principle has no part to play if the clause affects both parties equally and more importantly were both parties have equal bargaining power. Therefore, the Court will place weight to the individual facts of each case depending on how the clause affects the parties and how much bargaining power the parties have.

The findings of the above case place extra burden on the parties to agree to robust exclusion clauses, as the Court are minded to take the literal meaning of the clause rather than use their own interpretation for commercial purposes. Therefore, it is imperative that the each and every exclusion clause is constructed carefully and precisely to demonstrate each party’s intentions, as it will be difficult to escape from liability if any unfavourable exclusion clause is agreed.

– Gurpreet Dhillon

Feel free to contact us and get in touch with our experienced dispute resolution department today. Our dynamic team think outside the box to assist you in finding the best solution based on your needs and circumstances.

Break Clauses and Vacant Possession

Posted on January 6, 2017January 6, 2017 by Sumeet Shangari

Break Clauses – When is vacant possession not considered to be vacant possession for the purposes of a break clause in a business lease?

Break clauses can be a useful tool which can allow a tenant to end a lease before the contractual term provided that any pre-conditions noted in the lease are satisfied. When negotiating a break clause, a landlord may try to impose a condition which provides that the tenant must give vacant possession on the break date. Tenants should be cautious of agreeing to such a pre-condition, as satisfying this pre-condition can cause difficulty. In the case of NYK Logistics (UK) Ltd v Ibrend Estates BV [2011], it was held that vacant possession is not as simple as just leaving the property. In the event that a tenant was to leave chattels or goods or demountable partitioning at the property, this could lead to a potential argument that the property is not being left with vacant possession even though the tenant, and its sub-tenants and licensees (if applicable), may have physically left the property itself.

The landlord could argue that the pre-condition has not been satisfied, and therefore prevent the tenant from exercising the break clause, which in turn could then have significant implications for the tenant and its business. The break clause needs to be carefully drafted to ensure that the tenant does not find themselves in difficulty when trying to exercise this, and therefore advice needs to be taken before any such clauses are agreed.

For any assistance in dealing with break clauses in business leases, whether this is in terms of drafting a break clause, or reviewing it, then please feel free to contact our commercial property department.

Day: January 6, 2017