In Brief – Walker Morris Legal Update – October 2019


Newsflash: Change to response time for data subject[...]
On 15 August 2019, the Information Commissioner’s Office (ICO) issued updated guidance on the timescales […]
On 15 August 2019, the Information Commissioner’s Office (ICO) issued updated guidance on the timescales for responding to a data subject access request (DSAR) following a recent ruling of the Court of Justice of the European Union.
The general rule is that DSARs must be complied with without undue delay and at the latest within one month of receipt. The day of receipt of the DSAR will now be counted as day one, instead of the day after receipt. In the ICO’s example, this means that an organisation receiving a DSAR on 3 September has until 3 October to comply.
If there is no corresponding calendar date in the following month, the date for responding will be the last day of the following month. In the ICO’s example, this means that an organisation receiving a DSAR on 31 March has until 30 April to comply.
It makes no difference to the calculation as to whether the day of receipt is a working day or a non-working day. However, where the calculated date for complying with the DSAR falls on a weekend or public holiday, the organisation has until the end of the next working day to respond.
Practical advice
In light of this change, data controllers should review and revise their data protection and DSAR policies and any other documentation/notifications that reference the timescales for a response, including privacy notices. Relevant staff within the organisation will need to be notified of the change. Controllers should also review their arrangements with any data processors to ensure that the change is suitably addressed.
Should you have any queries or require any assistance, please do not hesitate to contact Jeanette Burgess or Andrew Northage, who will be very happy to help.

What is a ‘reasonable endeavours’ obligation, and is[...]
Gwendoline Davies, Head of Commercial Dispute Resolution at Walker Morris explains what a party needs to do […]
Gwendoline Davies, Head of Commercial Dispute Resolution at Walker Morris explains what a party needs to do to comply with a ‘reasonable endeavours’ obligation, and considers whether endeavours clauses are always a sensible solution.
What are endeavours obligations?
Many commercial contracts contain obligations on a party to use its best or reasonable endeavours to do something or to bring about a certain outcome; but what does that really mean, and are such clauses really the best option for your contracts?
It is trite law that the phrase ‘best endeavours’ imposes the highest endeavours obligation on a party. In the words of a case dating back to 1911, the term ‘best endeavours’ “means what the words say; they do not mean second-best endeavours” [1]. A party that has assumed a ‘best endeavours’ obligation (the obligor) should take steps which a prudent, determined and reasonable obligee (that is, the beneficiary of the obligation), acting in its own interests and desiring to achieve that result, would take and so must exhaust all of a number of reasonable courses which could be taken in a given situation to achieve a particular aim. This is not an absolute obligation, nor is it tantamount to a guarantee, however a ‘best endeavours’ obligation may require the obligor to incur expenditure (albeit not to the extent that would lead to its financial ruin, undermine its commercial standing or goodwill, or have no likelihood of being successful).
The line between a ‘best endeavours’ obligation and an ‘all reasonable endeavours’ obligation can be blurred. For example, whilst an ‘all reasonable endeavours’ obligation does not necessarily equate to a ‘best endeavours’ obligation, an ‘all reasonable endeavours’ clause can require a party “to go on using endeavours until the point is reached when all reasonable endeavours have been exhausted.” [2]. In many practical scenarios, there will be little difference between what a party is required to do under a ‘best’ or ‘all reasonable’ endeavours clause.
An obligation to use ‘reasonable endeavours’ generally means that a party should adopt and pursue a reasonable course of action in order to achieve the desired result, bearing in mind its own commercial interests and the likelihood of success. Where there might be a number of reasonable courses which could be taken to achieve a particular aim, an obligation to use ‘reasonable endeavours’ probably only requires a party to take one reasonable course, not all of them [3]. This is a notably lesser obligation, which is defined by reference to an objective standard of what an ordinary competent person might do in the same circumstances and which implies a reasonable balance to be struck between a party’s obligation to others and its own financial interests.
Quite apart from the drafting of the endeavours obligation itself, and whether it is certain enough to be contractually enforceable, what such a clause actually demands of a party will inevitably depend on the facts of a particular case. Such questions can therefore often fall to the court to decide.
What can be learned from recent endeavours obligation cases?
In Astor Management AG v Atalaya Mining Plc [4] the defendant submitted that an endeavours clause is only enforceable if the object of the provision is sufficiently clear and there are objective criteria against which to measure the reasonableness of a party’s endeavours [5]. However the High Court disagreed and the following points arise:
- The role of the court is to give effect to what the parties have agreed where that is at all possible, not to refuse to do so just because the parties have not made the task easy. To hold that an endeavours clause is unenforceable for uncertainty should therefore be a last resort.
- It should almost always be possible to give effect to an obligation to use reasonable endeavours (or any incarnation of that obligation) because whether a party has complied with an obligation is a question of fact for the court to decide by making a value judgment as to whether the endeavours undertaken (if any) were sufficient.
- The burden of proof is on the party alleging that the other has failed to comply, but the fact that that may be difficult to prove does not mean that the obligation itself is invalid.
In the even more recent Gaia Ventures v Abbeygate Helical (Leisure Plaza) [6] case Mr Justice Norris neatly summed up the crux of the case in the first paragraph of his High Court judgment when he asked: “[h]ow hard do you have to work to make yourself liable to pay £1.4 million?”
The case centred on whether a developer complied with its contractual obligation to satisfy certain conditions, upon the fulfilment of which it would become liable to make an overage payment of £1.4 million. As is commonly the case, the development project involved a network of complex transactional arrangements, of which the developer’s obligation to use reasonable endeavours to bring about satisfaction of conditions which would result in overage becoming payable was only one small part. For no doubt entirely proper commercial reasons, the developer retained considerable influence over the arrangements – not least so as to ensure that the final development would fund all underlying transactions. However, there was a tension between the flexibility and control that the developer had retained for itself on the one hand, and its obligations to deliver an overage payment liability on the other.
When the requisite conditions were eventually satisfied – some 4 days after the longstop date had passed and any contingent liability to pay overage had been extinguished – the landowner alleged breach of the reasonable endeavours/overage payment obligation. The High Court had to decide whether the developer had used ‘reasonable endeavours’ to achieve satisfaction of the relevant conditions ‘as soon as reasonably practicable’ as required by the contract.
The High Court (with whom the Court of Appeal subsequently agreed) referred to both the law – in particular, the Rhodia case which confirmed that an obligation to use reasonable endeavours requires a party to take just one out of what may be many reasonable courses; and to the facts – finding that some of the developer’s actions were taken at times which were convenient for it or suited its funds flow, and that others were deliberately taken late with a view to avoiding overage liability. The developer was found not to have used reasonable endeavours.
WM Comment and practical advice
A key takeaway from these recent cases is that endeavours clauses will, in the majority of cases, be legally enforceable, but that they may not always be the best and most helpful solution for the parties. Endeavours clauses are great for getting draft contracts agreed quickly and for giving ‘wiggle room’ to the person with the obligation, but they can significantly increase the potential for dispute and can simply delay the argument from the contractual negotiation stage to the dispute.
Instead, in the interests of avoiding any dispute, it may be preferable in many cases to expressly set out in the contract specific obligations and measurable objectives. Ideally, provisions should include clear and specific timescales within which steps are to be taken (and what those steps should be), conditions are to be met, obligations are to arise, and payments are to be made. Where appropriate, consideration should be given as to whether there should be included formulas for ascertaining values, mechanisms for enforcing obligations and for resolving disputes, and longstop dates.
Even in cases where the drafting is comprehensive, commercial contracting parties should take care to ensure that obligations are complied with, strictly and in a timely fashion, and that evidence of that compliance can be adduced if necessary. As the Gaia case demonstrates, even where there are legitimate commercial reasons for an imbalance of power or control within the contractual arrangements, the courts are unlikely to countenance sharp practice in an attempt to avoid compliance with endeavours obligations.
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[1] Sheffield District Railway Co v Great Central Railway Co [1911] 27 TLR 451
[2] Yewbelle v London Green Developments [2007] All ER (D) 379 (May)
[3] Rhodia International Holdings v Huntsman International [2007] 2 All ER (Comm) 577
[4] [2017] EWHC 425 (Comm)
[5] The defendant sought to rely on Dany Lions Ltd v Bristol Cars Ltd [2014] EWHC 817 (QB)
[6] [2018] EWHC 118 (Ch) and [2019] EWCA Civ 823

Law Commission report on electronic signatures
The Law Commission has been considering legal and practical issues associated with the electronic execution […]
The Law Commission has been considering legal and practical issues associated with the electronic execution of documents, and whether current law is fit for purpose and for modern commercial practice. The Commission’s conclusions were published in a report on 4 September 2019. Walker Morris’ specialist highlights the key points to note.
What perceived problems prompted the Law Commission’s review?
Walker Morris has reported previously on the Law Commission’s recent consultation which sought to address legal uncertainty surrounding the electronic execution of documents which has been causing practical problems in today’s fast-paced, technology-driven business world.
One of the key issues is that, whilst basic contracts can be validly formed without any documentation or formality [1], other contracts and legal documents must comply with certain formalities in order to have legal effect. In particular, contracts for the sale of land must be in writing, contain all agreed terms and be signed by all parties; and transfers, charges and some leases must be made by deed (which involves signing, witnessing and attesting). Whilst EU legislation [2] and the UK courts accept electronic signatures as valid; and whilst HM Land Registry is, as a matter of policy, moving towards digital conveyancing [3], the relevant UK statute, the Electronic Communications Act 2000, does not expressly allow electronic signatures. Neither does the law of England and Wales clearly or comprehensively confirm the validity of electronic execution in the context of deeds.
Law Commission conclusions: Electronic signatures are valid…
In line with its provisional view published back in August 2018, the Law Commission has now concluded that electronic signatures are valid; and the law as it currently stands allows documents, including land contracts and deeds, to be executed with an electronic signature. In particular, the Law Commission has confirmed:
- An electronic signature is capable in law of being used to execute a document (including a deed) provided that the person signing the document intends to authenticate the document and that any formalities relating to execution of that document are satisfied.
- Such formalities may be required by legislation, or may be laid down in a contract or other legal instrument under which a document is to be executed. Examples of formalities that might be required include that the signature be witnessed; or that the signature be in a specified form (such as being handwritten).
- An electronic signature is admissible in evidence in legal proceedings. It is admissible, for example, to prove or disprove the identity of a signatory and/or the signatory’s intention to authenticate the document.
- Save where the contrary is provided for in relevant legislation or contractual arrangements, or where case law specific to the document in question leads to a contrary conclusion, the common law adopts a pragmatic approach and does not prescribe any particular form or type of signature. In determining whether the method of signature adopted demonstrates an authenticating intention, the courts adopt an objective approach considering all of the surrounding circumstances.
The Commission goes on to explain that the courts have, for example, held that the following non-electronic forms amount to valid signatures, and that electronic equivalents of these forms of signature are likely also to be recognised by a court as legally valid:
- signing with an “X”
- signing with initials only
- using a stamp of a handwritten signature
- printing of a name
- signing with a mark, even where the party executing the mark can write
- a description of the signatory if sufficiently unambiguous, such as “Your loving mother” or “Servant to Mr Sperling”.
The courts have also held that the following electronic forms amount to valid signatures:
- a name typed at the bottom of an email
- clicking an “I accept” tick box on a website
- the header of a SWIFT message.
Despite the Commission’s conclusions that the current law is sufficient, concerns raised by consultees as to its lack of clarity and its inaccessibility [4] compelled the Commission to consider possible approaches to codifying the law via legislative reform, and to recommend that further consultation would be required.
The Commission’s report even goes so far as to propose a draft legislative provision which: confirms that an electronic signature can be witnessed and attested; is intended to be technology neutral (to prevent it becoming outdated or obsolete, or favouring or excluding particular technologies or types of electronic information); would apply to the execution of deeds (as it applies to all situations where a signature is required); and which reflects the Law Commission’s view that an electronic signature can be witnessed in the same way as a handwritten signature and that, in addition to the signatory, a witness can sign electronically.
The Commission has also recommended that an industry working group be set up to specifically consider practical and technical issues associated with the electronic execution of documents. The Commission suggests that the group should consider how different technologies can help with identification and authentication and should produce best practice guidance for the use of electronic signatures in commercial transactions and by individuals, including focusing on issues surrounding security and reliability.
…but the law of deeds should be reviewed
Also in line with its provisional view, however, the Law Commission has concluded that the requirement under the current law that a deed must be signed “in the presence of a witness” requires the physical presence of that witness; and that that remains the case even where both the person executing the deed and the witness are executing/attesting the document using an electronic signature.
Following on from that conclusion, the Commission has now recommended that there should be a review of the law of deeds generally, and that such a review should consider issues such as efficiency; whether the concept of deeds is fit for purpose in the modern commercial world; and whether technological alternatives and/or a concept of acknowledgement might work as an alternative, both for paper and for electronic deeds.
Where does that leave parties and practitioners for now?
It is clear that the issue of electronic execution is ‘one to watch’ and all indications are that we may soon have some clarified and codified legislation and good practice guidance which, together, will offer speedy but safe options for parties wishing to execute contracts or other legal documents.
However, in the meantime, section 91 of the Land Registration Act 2002 (LRA) does allow for certain electronic documents to be regarded as a deed; and section 91 LRA and Land Registry policy and practice together provide that certification of electronic signatures (which involves the stringent verification [5] of the identity of the person providing the digital signature) can take the place of the traditional ‘wet’ signature and attestation process. That therefore seems to provide a practical ‘workaround’ – at least in the context of e-conveyancing.
In other contexts, the Law Commission’s reports comprehensively explains the existing law relating to electronic execution, electronic signatures and deeds. That, along with its considered conclusions that the law does allow documents including land contracts and deeds to be executed with an electronic signature, should go some way to providing comfort to clients and practitioners who wish to proceed with electronic execution in the interests of ease and efficiency, pending any further action or legislation from the Government.
Walker Morris will continue to monitor and report on key developments.
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[1] See our earlier briefing for further information and advice about the basic principles for formation of contracts
[2] Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market
[3] On 6 April 2018 the Land Registration (Amendment) Rules 2018 made it permissible for a disposition of land to be registered at HM Land Registry using digital documents with electronic signatures
[4] by virtue of relevant provisions being spread across different statutory and common law sources
[5] using the government’s ‘Verify’ service

Classification of contractual terms: What businesses need to[...]
Gwendoline Davies, Head of Dispute Resolution at Walker Morris explains why businesses need to understand the […]
Gwendoline Davies, Head of Dispute Resolution at Walker Morris explains why businesses need to understand the different categories of contractual terms. In light of the recent Court of Appeal case of Ark Shipping v Silverburn Shipping [1], Gwendoline clarifies the correct approach to the classification of terms, and offers practical advice for anyone involved in contract drafting or interpretation.
What do businesses need to know about the categories and classification of contractual terms?
In the fast-paced world of commercial negotiations, contractual language is often deployed without parties necessarily appreciating the correct legal meaning, and practical impact, of certain words. However, whether a contractual provision is classed, as a matter of law, as a ‘condition’; a ‘warranty’; or an ‘innominate’ (or ‘intermediate – these latter two are interchangeable) term is a technical issue which can have very significant practical and financial implications. The classification of a contractual provision is crucial because it can determine the remedies that will be available in the event of breach.
- If a provision is a condition, then the innocent party will, in the event of a counterparty’s breach, be entitled to both terminate the contract and to claim damages.
- If a provision is a warranty, then an innocent party will only be able to claim damages – it will not be entitled to terminate the contract.
- A provision will be an innominate term if it is neither a condition nor a warranty. Where an innominate term is breached, the remedy or remedies available to the innocent party will depend on the nature and effect of the particular breach. Pursuant to case law [2], if the breach substantially deprives the innocent party of the benefit of the contract overall, then the remedy will be as for a breach of condition (that is, entitlement to terminate and to claim damages). If, on the other hand, the breach is not so significant as to undermine the contract as a whole, then the remedy will be as for a breach of warranty (that is, entitlement to claim damages only).
It is essential that anyone involved in the negotiation, drafting or interpretation of commercial contracts understands the different categories of contractual terms. In particular, where appropriate, it is important that parties are able to decide upon their requirements and then to provide for conditions, warranties and/or innominate terms accordingly within their contractual arrangements.
In the recent Ark Shipping case, the Court of Appeal provided a cautionary reminder of the different categories of contractual terms. The court also clarified the correct approach for classifying terms.
What are the key takeaways, and what practical advice arises?
Overall, in the absence of express wording, the categorisation of contractual terms is a balancing exercise. In accordance with prior authority, the court should generally find that a term is innominate unless it is clear on the face of the contract that the term is a condition or a warranty; and in making that assessment, the court will take into account the language, structure and scheme of the contract, together with business common sense.
A key point for contract negotiators and drafters to appreciate is that, in many cases, a judgment call will be needed as to whether a contractual term should be expressed to be a condition or a warranty, or whether the terms should be innominate. There is, of course, the advantage of certainty on the one hand; but the flip-side is that it can be undesirable for trivial breaches to carry the consequences of a breach of condition.
As a general guide, where a point is absolutely critical to your business and to the success of the contractual arrangement, such that you would require termination to be an option in the event of breach, it may be best to expressly state within the contract that the term is a condition. Where, however, flexibility will be preferable, the contract should perhaps remain silent as to classification of the term.
What happened in the case?
Ark had leased, by way of an industry standard charterparty contract, a vessel from Silverburn. The contract included, amongst other terms, certain obligations on Ark for the ongoing maintenance of the vessel. Several disputes arose between the parties and, in December 2017, Silverburn argued that a specific maintenance obligation was a condition and that Ark had breached it. Silverburn therefore sought to both terminate the contract and claim damages. The Court of Appeal was asked to determine (solely) whether the obligation was a condition or an innominate term. In doing so, the Court of Appeal confirmed that the correct approach as to the classification of contractual terms is as follows:
- Questions as to the classification of contractual terms are a matter of contractual construction and interpretation.
- As Walker Morris has reported in an earlier briefing, the correct approach to contractual construction and interpretation is that the starting point must be the wording of a contract itself. The court’s task is to ascertain the meaning of the language which the parties have chosen to express in their agreement when read in the context of the factual background known or reasonably available to the parties at the time of the agreement; but where a term might be interpreted in different ways, the court is entitled to prefer the interpretation which is consistent with business common sense.
- In accordance with earlier Court of Appeal authority [3], the court should find that a term is innominate unless it is clear on the face of the contract that the term is a condition or a warranty.
- Undertaking a step-by-step analysis in the current case, the court took the following factors into account:
- Wording: The provision in question was not expressed to be a condition.
- Time/Interdependence: The provision was not a ‘time clause’, a ‘condition precedent’, nor any other form of interdependent clause on which other contractual obligations relied.
- Drafting: Looking at the drafting as a whole, the particular provision was part of a wider clause. It was unlikely that the parties’ intention could have been for just that one element within the wider clause to be a condition; but it would be too extensive and commercially illogical if all other elements within the clause were also conditions, and that could not have been the parties’ intention.
- Drafting – Industry Standard Contract: Further considering the drafting as a whole, the provision was within an industry standard contract, which one would expect to expressly specify where a term was meant to be a condition.
- Consequences of Breach: The consequences of breach of the provision could range from trivial or very serious. Such a wide range of possible consequences is consistent with a provision not being a condition.
- Ongoing obligation: The provision dealt with an ongoing maintenance obligation. Typically within the industry, continuing obligations as regards the maintenance of vessels are not conditions.
The Court of Appeal concluded on this occasion that the provision was an innominate term. Consequently, albeit this was not a matter for the Court of Appeal to decide in the current proceedings, an assessment must be made as to whether the remedies available in the event of breach will be as for a breach of condition (termination and damages) or as for a breach of warranty (damages only). Any such assessment will depend upon on the particular facts and circumstances of any individual case.
If you would like any advice or assistance with the negotiation, drafting, interpretation or application of any of your contractual terms, or if you would like any further information or advice relating to the classification of contractual terms, please do not hesitate to contact Gwendoline or any member of the Commercial Dispute Resolution Team.
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[1] [2019] EWCA Civ 1161
[2] Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1961] EWCA Civ 7
[3] Spar Shipping AS v Grand China Logistics Holdings (Group) Co Ltd [2016] EWCA Civ 982

Alternative dispute resolution and pre-action conduct in professional[...]
Walker Morris’ litigation/dispute resolution experts and specialists in the law of professional negligence provide an […]
Walker Morris’ litigation/dispute resolution experts and specialists in the law of professional negligence provide an update on the Professional Negligence Pre-Action Protocol and alternative dispute resolution (ADR) options.
The general rule
In recent years, whenever any dispute has arisen and court proceedings have seemed likely, the best advice that a legal advisor could give to a party or potential party has, almost invariably, been to explore all ADR options before issuing proceedings and to respond promptly and constructively to any ADR or settlement approaches made by the opponent. Apart from the fact that the general Practice Direction on Pre-Action Conduct states that litigation should be a last resort, case law consistently made very clear that any failure to do so may lead to costs sanctions:
“[Parties who] turn down out of hand the chance of alternative dispute resolution … may have to face uncomfortable costs consequences [even where that party goes on to win the case]” (Dunnett v Railtrack, Court of Appeal, 2002)
“All members of the legal profession who conduct litigation should now routinely consider with their clients whether their disputes are suitable for ADR” (Halsey v Milton Keynes NHS Trust, Court of Appeal, 2004)
[Costs sanctions should be imposed] “where there are real obstacles to mediation which might reasonably be overcome but are not addressed because that party does not raise them at the time.”; and “…silence in the face of an invitation to participate in ADR is, as a general rule, of itself unreasonable, regardless whether an outright refusal, or a refusal to engage in the type of ADR requested, or to do so at the time requested, might have been justified by the identification of reasonable grounds.” (PGF II SA v OMFS Company, Court of Appeal, 2013)
Professional negligence disputes
Specifically in relation to professional negligence disputes – which can be particularly sensitive because they often centre on the consequences of a breakdown in a business or financial arrangement and/or a fiduciary (or ‘trust’) relationship; because the reputation and livelihood of a professional person may be at stake; and because the legal and technical issues involved can be complex – it can be even more important to resolve complaints effectively, efficiently and privately where possible. As a result, the Civil Procedure Rules require that potential parties should, before commencing any court proceedings, consult the Professional Negligence Pre-Action Protocol (the PAP), which sets out the steps with which parties should comply with a view to resolving their dispute by alternative means.
Adjudication – a new option
There are various different ADR options which can (non-exhaustively) range from informal settlement negotiations to, say, formal mediations, arbitrations or expert determinations and more. All have different characteristics, advantages and disadvantages which should be assessed against the circumstances of each individual case so as to determine suitability.
As of June 2019, however, one ADR option – namely, adjudication – has been specifically highlighted in the context of professional negligence claims, as a result of an amendment to the PAP and the new Professional Negligence Bar Association Adjudication Scheme (the PNBA Scheme).
The amendment [1] requires potential claimants to indicate in the letter of claim whether they wish to refer the dispute to adjudication (and, if they do not, to give reasons); and the PNBA Scheme has been launched to facilitate compliance with the requirements of the PAP. (It is important to note that the scheme of adjudication with which the PAP is concerned is not the statutory scheme which applies to construction disputes [2].)
The PNBA Scheme is a streamlined dispute resolution process which is temporarily binding (unless the parties opt for finality). That means that the adjudicator’s decision, which is generally given following only limited disclosure of documents, and no lengthy hearings or cross-examination of witnesses, stands unless and until a court or arbitral tribunal gives a different ruling on the dispute in any subsequent proceedings initiated by an unhappy ‘losing’ party. Disputes are usually resolved within 56 days and if the adjudicator decides that claimant party is entitled to compensation, any award and costs must be paid within 21 days of the decision. If payment is not made the sum payable is a debt which can be enforced summarily in the courts.
Despite the PAP’s clear steer that parties should seriously consider adopting adjudication as their dispute resolution method, the scheme nevertheless remains optional. It is not mandated by legislation in professional negligence disputes in the way that the statutory scheme is mandated in construction disputes.
This new obligation to consider adjudication is therefore simply just another facet of the general obligation to consider ADR with which practitioners and parties involved in dispute resolution are already familiar, and it will be ‘enforced’ in the same way (that is, a party who unreasonably fails to consider adjudication and to comply with the PAP will be at risk of costs sanctions).
Practical advice
When it comes to considering whether or not adjudication (or indeed any other ADR option, or the traditional litigation process) will be suitable for a dispute, parties should seek specialist advice. This is always a nuanced issue and the best option will differ according to the particular facts and circumstances of every individual case.
The best advice is for parties to disputes/potential disputes to properly assess all ADR options and offers, taking into account both legal and commercial concerns and PAP requirements. In the cases where it is genuinely felt that adjudication, mediation or any other ADR option will not assist, parties and their advisors should keep contemporaneous records of their consideration and assessment of ADR options and proposals, and should confirm in correspondence why they believe that that form of [or any] ADR is inappropriate. Being able to evidence their deliberation and to explain their decision should reduce the risk of a court imposing a costs sanction upon a party for unreasonable conduct later down the line.
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[1] Paragraph 6.2(i) of the PAP
[2] That is, the construction dispute adjudication scheme introduced by the Housing Grants, Construction and Regeneration Act 1996.

Countdown to Brexit Series
Welcome to our dedicated webpage for our weekly Countdown to Brexit Series. …………………………………………………………………………………………………………. Week 1 […]
Welcome to our dedicated webpage for our weekly Countdown to Brexit Series.
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Week 2 – New Market Surveillance Rules for Suppliers into the EU
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Week 4 – The effect of Brexit on the food and drink sector
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Week 8 – Dispelling the dispute resolution myths of a no-deal Brexit
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Week 9 – Keeping trade moving – Can I modify a contract orally?
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Week 10 – Keeping trade moving: Electronic signatures and e-mail footers
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Walker Morris expands technology practice with appointment of[...]
Walker Morris continues investment in expertise with appointment of Sally Mewies to lead Technology Group […]
Walker Morris continues investment in expertise with appointment of Sally Mewies to lead Technology Group
Walker Morris is continuing the expansion of its technology practice with the appointment of a new Partner, Sally Mewies.
Sally is a major lateral hire for the firm and brings significant experience to reinforce and lead the firm’s Technology Group and work closely with the firm’s Commercial Group, led by James Crayton.
Sally joins from Gowlings WLG where she was head of the firm’s telecoms practice and a key Partner in its Technology Group. Sally is a recognised as a leader in her field and is ranked as a leading individual by both Chambers & Partners and Legal 500. She brings over 30 years’ expertise in helping clients on their strategic technology contracts and has worked with many significant retail telecoms clients over the years.
Sally’s appointment will reinforce the existing Walker Morris Technology Team’s capabilities. The Team is currently ranked in the top tier by Legal 500 and offers both contentious and non-contentious expertise. The Team offers a wealth of expertise, in areas such as technology contracting, corporate M&A, intellectual property, data privacy and other regulatory issues and dispute resolution.
Malcolm Simpson, Managing Partner at Walker Morris said:
“Having personally worked with Sally previously I am very excited to have the opportunity to do so again. Sally is an outstanding lawyer and one of the most experienced technology & telecoms lawyers nationally. I’ve seen first-hand how she is able to inspire loyalty from both clients and team members alike.
“Sally’s experience is a great asset to the Team and adds significantly to our bench strength in relation to technology and telecoms work, vital areas for all of our clients. Her experience, particularly in the food and drink and retail sectors, compliments our client base and enhances the expertise and experience we are able to offer to our clients. In addition, Sally brings market leading telecoms expertise to the firm.
“Technology is playing an increasingly important role in our clients’ day-to-day operations and getting this advice right is critical. Sally’s experience adds significantly to our existing technology capability which is currently spread across Commercial, Regulatory and Litigation teams and which will now be re-focused under Sally’s leadership.”
Sally added:
“It’s an exciting time to be joining Walker Morris. They have superb clients and a talented team of lawyers. Technology is high up the agenda of most businesses these days and I am looking forward to working with the team here to continue the growth of the Firm’s technology business.”
Sally’s appointment continues Walker Morris’ significant investment in technology, both in terms of its client offering and operationally. The Firm recently moved office to 33 Wellington Street, Leeds, which was the largest professional services relocation in the city for 15 years. Alongside the move the Firm invested significantly in its IT infrastructure and systems to enable its staff to work more collaboratively and efficiently.