hello and welcome to this data. Lower webinar would be haven't fulfilled from contract will chambers. We're looking at states not to make in drafting settlement agreements. It's very important if you're a litigator, not to mess it up at the end. And I think there is a profile of losing concentration because where we've got there, Herrera is the relief that kicks in, and sometimes it stops the brain from really checking on whether or not what you dropped. It is, in fact, correct. That's what we're covering this eight boxes in front of you parties definitions. Have we got this shield, which is the scope of these Stop. In other words, have you managed to settle it correctly? Then we're looking at obligations the beating heart of any contract, especially a settlement agreement. We're looking at Misra, preserving Miss Track or not allowing any Miss rep and excluding any come back after the settlement agreement. We're looking at indemnities as well on. That's interesting because the indemnity can sometimes add an extra string to your bow. Should the settlement agreement fail in some way, boiler plates to you need to spend any time on those boring parts of the contract at the back on, then finally have arrived yet. Or are we still traveling? In other words, half we got a settlement agreement or is it in fact, still subject to contract? And we haven't arrived. Let's just keep it simple, folks. I think that's always the best thing is now you know. So here we have the ways in which we're going to sort of take on those big mistakes. Andi managed to understand them so that they kind of come back to brain when we're drafting. Let's start with, um, which card would you like, please? A. Tomlin, a consent order on agreement, a deed of agreement, undertakings or and admissions? Now one of those in terms of the form of the agreement are different ways of achieving more or less the same thing. I'm a big fan of Tomlin orders. The front sheet just suspends the agreement. It stays it. The litigation department stays the litigation, and in the back end of it is a contract. So that gives a really lovely hybrid where you're sort of fitting nicely into the court system. There's always has been implied, if not an express liberty, to apply as he can go back in on complain. If there's a problem, you don't feel as though you've been cut adrift. The big kicker with Tomlin orders is that if the agreement isn't clear, so in other words, we had quite a good example of this where they were transferring right to Contin characters on. The idea was that you transfer the rights, we pay the money and they didn't pay the money. But that meant that it wasn't clear who had the ownership of the rights, because the failure of the payment in the settlement agreement didn't necessarily mean that the other side making taking those rights there was a dispute about it on. So the whole Tomlin had to be put to one side on the matter re litigated. In other words, I can get back in and get this over the line in the event of failure. I am drafting, as I always do, for a worst case scenario. Consent orders. They are properly CPR, 40 on the list of things you can and can't do in CPR. 40 is legendary. You can't ask people to move the Leyland I six point form in centimeters to the right or cut it down. There are some things that just will not fit into the framework off a consent order and needed Tomlin. So it's always worth looking at CPR. 40. Just checking the list to see if the content of your settlement agreement actually fits in with the content off CPR. 40 on agreement, of course, is a simple agreement. We what we mean by that is not a description off. How many lines it's got, we mean, is not a deed, and that means it only needs to be signed by one party for it on behalf off. Whoever it is indeed is different. A deed is very different on there couldn't be more different in terms of the execution and late at night. If you're tired. If you've been through a long mediation, maybe a deed could be a little bit of a bridge too far. You won't always need. Indeed, it, you know completely be transferring land at that hour of the night. If you do, you do on. You might need one for powers of attorney, but obviously the law of Property Act stuff some trust. But generally finding a pound payable is not too difficult. We really don't have a lot of cases on problem consideration provided you've got something which I can wave around and say, Well, it's more than a peppercorn. I'm all right with that. Undertakings to the court, Not to you. Admissions to you? Of course. I always remember the rule undertakings to the court. Not to you. Admissions to you. Good. Okay. I've put in a table of the difference between tomans and consents just because off the idea that what's contractual wants? No. Can you have a little look at that with me, Tom, and stays the case where the consent order discontinues the case. And there was an awful case a while ago where one national famous listers agreed to discontinue the case, which was great, except that if you discontinue, you know this litigators CPR 38. So the discontinuance on the payment obligation fell through CPR 38 on day. Had to pay the costs on. In fact, the contract wasn't clear. It said discontinue what they meant. Waas No. One of the costs which would have shifted the presumption in CPR 38 but unfortunately it didn't. So that does need thinking about it is very different between the stand. Discontinuance watch CPR 38 schedule is more contract. Three orders order on CPR. 40 is not to contractual. It's it's It's not a contract. It reflects A contract, of course, by consensus is agreed, but that would stop the court from messing around with it. It will, you know, stop your consent order if it falls outside CPR. 40. Difficult to achieve confidentiality with consent orders. The Harry Difficult people can get in. Go have a look at it. It's a master of record. Where's with this? Tomlin is that this is quite good tip. If you're working in price sensitive areas or just you don't want people to know once you can do is just pop a sheet between the staying part of the order on the contract, which says, confidential, sensual, and then do your schedule eso if it if it was, if it was ever requested from the court records, who knows when these things are there, out of your gift By then somebody will think. Actually, we can't disclose this to anybody. It is confidential. I've had some practice litigation where that's been a real issue on we wanted to preserve the I. P R. Onda. Know how within a confidential's perspective. Yeah, the supervisor reinforcement I made that point. You're dropped for the negative enforcement path is generally clearer. That's a good thing about consent orders, because you get into the execution off them. Buyer. It's more to control etcetera because it's a consent order, so fits nicely. And there's no oh, well, what have you drafted linked to it? There's no question of you suing again under the contract. It's all in the consent order on, of course, as I say, scope, which is a big word for me. It's a big world in contract litigation. Scope is always an issue beyond the scope of the litigation or limited to the scope of the litigation. The parties. You can't agree to do something that is not pleaded, but you can. With a Tomlin, which is beautiful. You can send us all out for pizza. What a nice idea. But you can't. You can't do that with a consent order. I hope that gives you some clarity on the difference. Oh, now we have to get to the Bahamas skins. Here we go, tripping over them. Whoops. there's another one bites the dust every year. I do contract nor update for the great and the good. Andi, I can't tell you how many people like me have been caught out by the latest one, which is that if the document doesn't make it clear on the face of it that it is a deed, in other words. But when you get to use that find and replace tool the first time you hit the D word deed is in the block. It's not, indeed, because it fails the face value requirement so along construction professionals using any scene three Another point that they are like it is may because we can choose in those damn informs. We really do need to papa front cheat on it, saying Deed of agreement, Deed of attorney, deed of variation, Dida Termination deed of settlement If you're going to use. Indeed, you must care, right? So than problem in is that at the bottom of that, everybody fights me on it, which is why I put the is the case. If it goes wrong, is it a capable of rectification? Be a simple contract or see void from the beginning, a capable of rectification be a simple see void from the beginning. It see breaks and bleeds. It's see, it's void from the beginning is really tough, isn't it? You know, you kind of stuck with abuse of process there. You can't go back and relitigate but indeed has completely let you down. That will not be a a nice place to be litigators if you're gonna use. Indeed. Make sure you know what you're doing. In fact, hover over people brandishing the pen so that they will get that deed right At the point of execution, it must be complete. You can't do that thing where you have the witness statement exhibits later on. The correct execution is also an issue. Who signs? It's one of three rules. I've put them there. If you're a director, LLP, uh, limited plz and then the companies that kicks in on that gives you directions in those sections 44 to 46. I'll leave you research them. The lower for miscellaneous provisions Act 1989 is dedicated to deeds so short statute, but only for individuals. And obviously the individual had sex with a witness. If you're acting for the scouts or somebody who's an unincorporated association or one of these new charity entities, That would be so I generous. And it is a really intelligent question to ask. Who are you? Have you sign? Have you got a protocol? Have you got a stump? If it goes wrong, as I say, it's it goes wrong big time. I love this slide. I put it on not for lawyers, but I thought you might enjoy it. Which of these people have authority? Careful to bind the company they work for. This is a bizarre principle, isn't it? And I was just saying Who are you? Is a really intelligent question. Clearly you've done the retainer with decline. So you should know your client is mind you, they don't always you be surprised, especially in sort of Jamey's and things that don't always have the authority divined the company or the entity. But the other side, the counter party to the settlement agreement. Who were you? Have you got on the slide is about ostensible or apparent authority is a bizarre prince Simple. It comes at lower while I love, but it's very it's doing the rounds spray popular on did. It's very popular with the court. There's only a couple of people who definitely ruled themselves out in that slide. Can you spot now, too? Photographs rule themselves out in that slide. Yes, it's the bartender. There were. It is amazing mixing a cocktail or coffee. I'm not sure on the girl on the phone because they obviously would not have authority. Everybody else is fair game, especially the man in the green hat, because they all wear them and you never know. So ostensible authority would convey authority was not ideal. It is better to do the due diligence. I got this one in ships that passed in the night. Do you know that expression? It means that I didn't know that you were making an offer and you didn't know that I was accepting it. So that's a waste is not. This is a Barbara Jane. Frightened. I have that. I think most people know what they're doing. But in case you don't, I owe you 10 Quit. I'm offering you £5 so I say £5. If you cash the check, it's in full and final settlement, and you say thank you for your £5 which we have en cashed on account off £10. And this is a issue that happened here on the court said no. Your ships that pass in the night, there was a little bit of kind of the days, the postage with the revenue here. But there's no active acceptance because you can, you know, accepting five quit, because I'm offering less than the amount. Andi, you're kind of making a bit of a counter offer in a way, and I'm not really accepting that either. So you're saying will cash it on the basis of an amount your £5 has not been converted into an interim payment. My didn't make an offer on that bases, so basically, you have nothing there. You have a bit of a mess. And the problem is that you really do want to avoid the presumption that you've accepted it. Because if you've accepted it, the only basis upon which I made the offer was in full and final, and you've accepted it. What, do you like it easy on me? So you really have to think about how you gonna deal with that? The best thing to do My afraid is to send them the check back because you rejected the offer off a full of Ironman final settlement on the basis of £5. That's the clearest contractual sign posting you have. So who are you party or third party sitting here? Some training with the law firm on this on. But it's obviously getting in a bit of a kind of pickle really on. And I think chilled. I think it is. I think it's because we have a lot of assignment of litigation ist litigations passed. Round losses will parts apart. So either and I've got one case has been assigned to two different claimants after went after the other, you know? So what do you want to know? Not really. Do you fancy this now? I'll give it a go. Come on. This Give it a go fits it's bazaar. So the party or third party point is quite important because if you're not in it to win it, then you're said party and you could be 1/3 party by assignment, all by sub contracting or by being somebody who's mentioned as a beneficiary in the agreement. But you're not actually a party to it, and we often see that because the place where most third parties cropper if they're going to crop up, he is in the indemnity. So I'm going to give you an indemnity for me Onda Group and the sub subs and the affiliates and the directors and the employees and my grandmother and everybody else that are not part of the agreement. But they might gather in, Come on, lean in and have the benefit off that agreement on DSO Um, they have a sort of met sinning status. So what we normally do and you'll find it in the most precedence that the end is exclude rights under the contract rights of third parties at 1999 which we referred to his scripter. Now you go crypto to get the lingo A. Normally, if you're not in it, you can't win it. So you're out. Third Party Rights Act says you're in, but only a little bit. So we say no ask of using get out. We exclude any rights of third parties. Trouble is, if you're gonna do that, and you also then name them as beneficiaries in somewhere to the agreement than that close needs a bit of amendment. So you have to say, subject to Helen's indemnity holes over that body rights were excluded because these people clearly aren't because these people are having the benefit of the indemnities. You have to kind of check your party is now. Everything is a little bit of a tense moment in agreement. The rule. You know the rule. You will remember the road. I'm going to start you off and you will surprise yourself. Have quickly you remember the rule. If you're a certain party to an agreement, you get the benefit, but not the burden. Where did that come from? There's hope yet, so the problem is that they get the nice bits, but not the nasties, Which is great, if that's what you want, to sit quietly getting the benefit than name them as beneficiaries to the agreement, but not parties to the agreement. But don't exclude them. So say, for the indemnity, a person who is not a party. I am carving the map because I want them to have the benefit on. I don't want to totally exclude them what I quite like, though I think it's easier is it just put them in his Party's So It's, You Know Helen Substance. The group's list of this partition problem in a shed job that really does put the matter beyond doubt. Let's have a look. Our definitions now. This is a very simple and sort of stupid point, really. But it's devastating, absolutely devastating. If you get it wrong, you know that the beginning of an agreement will often have something called a recital on a recital says where, as we've agreed to settle the dispute. Brackets bone inverted into bold capital. D dispute close brackets cause of medical boat Brilliant. So we've now defined dispute on dispute. Could bay the claim meaning mm 1 to 4 for one. Or it could be that you define it there and then, with little sentence, you might do dispute. You might do parties. They're all capable off being defined in the first part, the top part of the page on. Then after the recitals, you'll then say now the parties agree as follows. If you don't put the definition in the body of the agreement, you have not created a definition, so the definitions must be below the operative line. Not in the recital, and there's been a case about this. The reason is that the recitals not legally binding. So when we're looking at what? And I put it in red there, we've talked about who, when we've talked about how. But this is the what? How do you know what's in and what's at the scope of the agreements of very important word? And the Black Hole Football Club case confirmed that the definitions were messed up because they were in the recitals on The word we have for definitions is that of a private dictionary. So the private dictionary is the name given to the interpretation of the definition. We ignore whatever it might mean generally in the ordinary, reasonable way of things on. We look at what you've defined attends but the problems. You have to be consistent with your capital letters. It's persuasive, but it's not binding, and that's not what you want. The whole point of this, the whole What is this settlement agreement about? What are we settling? Is often scoped by the definitions and you've just messed it up. You put it in a recital on what we can't use it or we can use. It is it's admissible for contextual interpretation, but it's not slam dunk. It's not a private dictionary, so it's simple, isn't it? If you want to put dispute or parties in the recitals, pop them back in at clause Number one definitions the party's means. The party set out of the top of the agreement number to the dispute is defined in the recital number three. It's easy but Mitchell, that they did their toes into the heart off the agreement into the operative part. Now the parties agree as follows. Semi colon, Drop a line. Off we go. Okay. Where the Children were small, they were carsick on bond. They would, um, find it. When we got started, the car would make them even ill killer. So, you know, the thought of going on a long journey was just a nightmare on one of things that they would say Justus, we were leaving the dry was Are we nearly there yet? We say we're well on the way, which was probably not true of that stage. But when I think about looking at litigation and I look at a fair amount ruling off litigation where the settlement agreement has gone wrong than what we're doing is looking at whether or not the agreement has Bean has been formed on this. Formation of an agreement is a real problem for litigators, I think because there's an idea in people's head that there are two stages. One we're gonna settle. We've got the guts of a settlement here. We've got a number or we've got the the wheels. There were still some details, but with on secondly, the idea that there's two stages so we can stop drafting the witness statements cause you won't need them now, but we haven't yet got it over the line. We're still travelling towards Theodore E Mint. So are we nearly there yet? Is expressed in contractual terms, a subject to contract. And if you put subject to contract on anything, you can't arrive because it's subject to contract. You have to lift it now you can lift it express, Lin said. Can you just re off re issue the order? The sir can you just reissued the offer, but without subject to contract or you can act. Just read vise, and you can send the offer and say, Do you want to accept it because I'm sending it to you without subject to contract. This has got nothing to do with without prejudice. That's a totally different thing altogether. So without prejudice won't change anything contractually, without prejudice, all that's doing is putting you behind the curtain, but contractually the ideas of the same. So we're still measuring. Are you traveling? What are we needing that are really there? Or have we arrived on the case? I wanted to have a look at as an example, and there are so many I could have picked about Another fall is global asset, but we're doing ideas in this weapon are not sort of stuffing full of cases. Global Asset Capital and our bar block is a case where there is an exchange off correspondence. Andi it'll WP great, and it's subject to contract. What I might have done WP savers to costs actually, Ba'aliya so you can see there's a timeline here. And on the sixth of May, there's a telephone call and they say, Well, I think we're there to resend the offering open. I, without subject to contract on, will accept it. OK, but you have to provide satisfactory evidence that you've got the money to pay for this, but with their six of May 7th of May. This is a case I must tell you of 250 million euro and they send them a text in Mylar forded an email binding terms on funding commitment. They'll be able to provide them super. We're well on the way here with 24 hours and was traveling towards our destination, ninth of May. They send another offer letter, which repeats the key commercial terms but includes additional on different terms are we were almost there, but we stopped. We've now turned right. In other words, what have they done? Fix? They've sent it in open. They've repeated what was previously the subject off the end of the negotiation, but they've included additional terms, which means they've made a It's on the tip of your tongue counter offer. As soon as you move the goalposts, you are still troubling. You're never gonna arrives that because unless they accept the counter offer, But then it all falls apart on What they try to do is get declaratory relief, which is one of my favorite remedies in contract litigation. Declare that the contract is this all the declare that the contract has been entered into between the sixth and seventh of May by the Knights of May. There, rowing back and the courts. And no, they haven't because they've made a counter offer in that counter offer. Include stuff that you don't want and you're not prepared to agree to. Your still traveling thinks you have not arrived. It's a lovely example. Off formation litigation You should know the status of what you're trying to achieve without prejudice is one thing. But are you subject to contract or are you not? In other words, and there'll be a moment when you have to let it go and say, This is the offer. Hey, accept it or not And I think you need to be clear about whether you're holding the agreement back or causing it to fall forward on being accepted. And I was acting for somebody on. We just got lucky. We just got lucky and they made an offer on. We needed to move on it pretty quickly, so we wrestled, hurt from to the ground. We just said, No idea. Tell you I copied using my email blocker. You know the thing that you can block the text with on. Then I pasted. We accept your offer in the following terms based. So there could be I had a feeling they would try and row back, which they did but were unable to because there was no not a scintilla of difference between my acceptance on their offer. There was no room for a counter offer. I hope that I hope that's clear. Oh, my goodness me. What a shock. Some be investigation. I love zombie films. Actually, some really funny ones on the die. No, they keep coming back. That's the fun of a zombie film. They try and kill it various different ways. That it just keeps coming back doesn't let you know whatever they do that the poor old zombie rises and sort of staggers towards. Um, anyway, enough of zombies. Let's have a look at, um, the congruence of the estoppel, which is much less interesting. Let's face it, the zombie movies. But I feel it here in data we should concentrate on the congregants of the estoppel, um, playing disputes there. The key conference on We talked about not putting these in the recitals, but you've got unearthly colors. Team milestone. What is the extent of the claim? What is the extent of the disputes? So the Congress of the estoppel means that we've we've killed the bull zombie. Um, Andi. It's a full and final settlement. There's usually a waiver, and there's usually an agreement not to sue. Those are the three elements by which you can create a binding settlement agreement, which kills the litigation in those terms. And, of course, if they try and rise from the dead and Stacker back after you, then CPR 3.4 to be will say it's nippy, said process. This is sort of like a double jeopardy. Haven't we done this? That was a really good film as well. Double jeopardy. Haven't we done this before? Or should this not have been dealt with in the agreement on, then you have to say, Well, it Woz and contained in the agreement and it Woz contained in the agreement. So can you reopen? Have another go? Well, no, not necessarily on the basis of the drafting, but on the basis of the facts giving rise to the drafting. It's the underlying facts that are of concern here, because if you're trying to tease a fact. Our they didn't specifically mention the email of the 12th of April. What doesn't matter it It's giving rise to the dispute, which was settled by the agreement. So the scope will Congress of the estoppel is everything to do with leading up to in connection with the agreement. The precedent. Check the precedent. This is the recoveries and Boston's. It isn't a terrible to 17 million quid's worth of mistake. Ouch. And you know they copied a precedent from a very well known information service Capital C. Claim any claim potential plane with a known oops or unknown, suspected or unsuspected, however, and whenever arising in connection with the action or the invoice. And unfortunately, they didn't know that there was a 70 million quid worth off negligence case that was sitting there quietly on was deemed to have Bean settled by the definition. That's a terrible mistake to make, because what you're doing is you're using the precedent with that, really asking the client whether it's appropriate because I know what it means. Do you know what it means? You know, I'm not sure I've got visibility of everything I'm circling here, but if I haven't got visibility of it. I still want to settle it. But do you really want to settle something you haven't got any knowledge off? Is that actually what you intend to do? It is what you intend to do. You need to have a conversation with your client about it. So any claims which the parties Hubble could have had against each other, whether in existence now or coming into existence, that sometime in the future on whether or not in the contemplation off the parties on that was the actual phrase that was used, could come into existence. And what you're doing is clearing out everything between those parties, including the intelligence that was discovered later. So, as I say, if you want to settle the unknown and you may, you may. But you do need to think very carefully about what are the risks off settling the unknown on. Make sure the client, not you, is prepared to take those risks. So this is the shield thumb riot shields and not as big as others. I would think the best riot shields and the French police there really tall, right, chilled. They go up about another foot from the height of the officer on the shield needs to be more than a dinner plate signs. You know, it's gotta be a fairly big shield, because if you're the paying party on, then you want to make sure that nothing is gonna come back and hit you. So this agreement is in full and final settlement on. Did you release discharge actions? Claims rights, demand set off jurisdiction law equity affiliates can have shall have arising out of in connection with the underlying facts relating to the claims. That's a fairly large shield on there's another one as well, which is wave settle not to sue. Come, Emily, put the ball in, you know, And it depends who you are, doesn't you see? If you're not sure, then maybe just want the full and final settlement of the dispute. That's it. Because actually, I want I don't want the big shield. They want the big shell. Not may. So a small shield. The dinner plate shield is a full on final settlement off the dispute. Which brings me onto the f word fraud. Can you can you settle fraud? Satyam on unpaid systems is the court of appeal, saying when you can, but it depends. The release, referred to as they generally do lots of prep positions or add verbal phrases in respect Off are rising out off relating in any way, directly or indirectly. I mean the point about settling something. You're not sure amount comes back with These add verbal frame phrases did not have the effect of barring claims arising out of separate agreement, which operated in parallel on had been preserved by the settlement terms. So, in other words, the the agreement The services agreement was fine. Yeah, but but not something else. So the express term would be required to deal with fraud on the court here in the Saturn cases, looking very clearly at the scope of what you have, is it did it or not? We had it with Grant Thornton as well in 2016 the relevant releases with specific not General Andi. They had compromised claims for conspiracy, malicious procurement, execution, such malicious prosecution, and those points had been referenced specifically, but there was no general release for anything else on. The problem with a list in a settlement agreement is you've got you know, you got to think about it quite carefully. If you want to use those nice ad verbal phrases that I put in red Super subject to the recoveries fosters recoveries case. Which is, Are you sure you want to go this far when you start to list very difficult with lists in a contract, you can say, including without limitation. Here we go. Here's the list, but even they will suffer from a long list. And if it's a long list, then it's a long list. And if it's a long list and it's not on the most here in a worse place, so you do have to be a little bit careful with that. What you can do. I think if you don't want to get into specific list rafting because you're not sure is put the list is part of the context in recitals and say, Where's the parties have decided to settle case in relation to listless, listless list on then your your definition. Your your settlement scope can be fairly general then, because we can see what it means, we can see that it means the context of which is set out in the recitals. But the list is beautifully, general. So that will pick up everything. If you want to drive a diva that way, rather than get fluid into a list on, it is not on the list. That's the relief if you get into trouble with it. I've just put that slide in because that's where you're gonna have. You want to catch a relief? It's dead cheap. You don't have to pay 5%. It's a single. Figures. 580 Article 525 20 on 3 80 in the county court. So it's great. I use a lot on washing. Hall is explaining to the parties what the contract means. The court made the point that, in order, staying the proceedings to enable declaration as to the settlement terms was inappropriate. Application. And 244 That's it. I think we've settled this. I need a declaration. Andi specific performance will then just pay me the money. No, just do it. Okay, Now we're going to get to the heart off this agreement on this is problem. Possibly one of the most important points to think about in the whole thing is what in your drafting look at that slide obligations should be conditions and tell me if I can't hear you. I know you can't. I can hear you. Really? You think I can't see you? But I can't tell me Which of those four would you say is the best one toe have? If you were the claimant, there's a range of obligations there on the last one. Please will have the last one. Time is off the essence as it is in this webinar. Yeah, that the point about the last one is that time is of the essence means that you are creating in condition you're badging. It is a condition. Time is not of the essence unless you say so So afraid that the 1st 1 acknowledges is really we'll see it just It's so lightweight. It's even passive in my head. I acknowledge the debt. I'm not gonna do anything about it. The 2nd 1 is the best in Dev's obligation, which is not bad, but it's still in on the nominee Nuts. That's idle. N o m a I n a t e on in nomine nut or intermediate term, that may take you back a while to your contract law. If it's in nominate then we don't treated as a condition. So the the way in which the agreement is policed changes The 3rd 1 is an agreement to pay. And again, that's a nominal from the last one is a proper condition. Now, if you're the defendant, I'll have the first floor. 2nd 1 old 3rd 1 I'd probably have the 3rd 1 because people will say, Don't use your best endeavours, you know, Give it a go. The 3rd 1 is in. Nominate agrees to pay that. So I would use 1/3 1 if I was the defendant paying on. I would use the 4th 1 if I were the claimant because it clearly says it in two minutes late, two minutes mark you we can go for you. Where is the problem is, although it says by the 23rd of October 2020 or 2021 whenever you are, we don't really know how late is late. I mean, it's not so much of a problem, to be honest with you, if you've got a case up and running in the court because you would say, Look there late, there lay. I'm just gonna enforce the order. I agree with you. The context of that contracts quite different. But where you've got a settlement agreement will not issue proceedings. It's much more off a problem for you on one of things you have to do is accept to repudiate tree bridge, which will terminate the obligation because not paying. You know, check is in the post. It never arrives. When you get into the reputed tree breach scenario. We're talking about a termination, not of the whole agreement necessarily. But I accept that you are in repudiate dream Bridge than that you got Hold that in midair. The problem is that is very difficult to get a repudiate tree bridge if they're trying to to remedy that breach. So I am trying to pay your pages some of it on that. Don't know. Don't shoot me. I'm gonna pay you another better there. It is not clean it. Then we start to panic about intermediate terms. Conditions in the court and the court of appeal is very hot on this. Is it a bird? Is it a plane? Is it anomalous? Is it against? What have you drafted? I see so many people in chambers. You tell me about the problems of their contract and I don't have a liability tree. I wish I did. I might try and plant one. Monsieur. You get out what you put in. It's like life. Really? You get out what you put in. If you haven't put in a condition, you can't get it out as a condition. So you do have to think about the beating heart of the agreement. What are you drafted? Here we go. Here's the verbs. Off you go high. Let's get some high ones in there. Yeah, undertakes his high shall is high love shouts chance Great Charles the old one. But there's a new kid on the block on high for conditions which is Will only takes shall will And if you must use it must. Now we've got some real passives. They're like acceptance acknowledges in my head. I acknowledge it. I'm not gonna do anything about it. That the low ones really are, um, endeavors. Reasonable endeavours. That's a really low one, E. I mean, best efforts is is the highest of the endeavors after the jet to case. But you know, whenever you draft within endeavors obligation, it's desperate isn't it? I think people would see that the A nominates there are agrees on. When you have something like indemnify eyes or guarantees or warrants, they don't fall into that at all because they're not obligations there. Something specific on indemnify eyes is an indemnity. Guarantees is a guarantee. Warrants is a warranty. So we're just looking at this slew of verbs. We're trying to give them a place in that agreement. Onda context under meaning now. Of course, it's not just a very good look at the whole sentence. I get that lately, but you can help yourself a lot by understanding how you make the obligation in that agreement. And the problem is, you read the president just free drafted, you know, make sure that you know what you agreed to in that agreement. What have you put in on dso? One of the cases which exemplifies this goes back to court. The Court of Appeal in 2016 time is of the essence Grand China. Very simple case. They let them a boat chance polity, and they wanted them to pay for it. They did what they did, but not on time. They were persistently late so and then they got fed up and they took the boat off them, which in turn caused all sorts of problems. So how late is late on? They said, Well, time is of the essence. There is no yesterday. No, it's not. You haven't drafted. Time is of the essence of the corner bills. And if you have not drafted, time is of the essence. It's not off the essence. So they drafted something similar on it. Described it in their submissions is a modern form of drafting a clear form of charting a course. Ironically, it wasn't because they hadn't used the phrase that denotes a condition. They'd said punctual payment is mounted trade. Well, I think that's pretty good. Actually, punctual payment is mandatory. But the court, with the lower court and upheld by the Court of Appeal, said, Well, it isn't a condition. And so in the end they could terminate the agreement, but only if the late nous was so much, so long, so delayed it went to the route off the contract. I know you can remember the test for repudiate tree break, George. You're of a certain age like me. Fundamental riches. So bad it goes the heart of the root of the contract. This is like meeting old friends again is no. They were moving out through the agreement to the boiler plates on. One of the things that I have to say is a question. I always, I asked myself, but not my clients. Is Are we dodgy or are they dodgy on? By that, I mean, because we haven't seen all the disclosure and me, we may want to sue them for misrepresentation. It's a bit mean to use second hand car salesman. Really? Isn't it a misrepresentation? But you know what I mean? You're signing the agreement on one basis, and then when you find out later on that, there's a different basis. And, of course, the Classic is in personal injury. When people limping on one leg really nice, they're gonna get two million quid on dance out on the other. So, you know, is it a question of upsetting the agreement, turning the agreement upside down, avoiding or is sending the agreement for misrepresentation? What happens to the contract after misrepresentation? It's never terminated. That's not on the on the books for this one. It's only ever rescinded or continues. You elect to continue with the contract, but you get damages in lieu instead of recision, which are calculated under the misrepresentation act. So let's interrogate the entire agreement clause because this is wrong. There's a big Red Cross into Ramadi. You if you haven't already got a point, look at the drafting, please. Votes on underline on your slide pack supersede. Supersedes means that it goes in front. Off on this was litigated recently, but not spot forest more. Who tried to get a summary judgment on the basis of Mr Because you can't have missed right? Look, there's a There's a bit of contract here. You can't have miss track. You can't come back in on upset. Wasn't a settlement agreement was a different contract in our example. A settlement agreement because you say we have not disclosed or we, you know, entered it into it without telling you or did something wrong. We misrepresented on the not Sparrows Football club went up to a High Court judge from a master on an interim summary judgment application on the high court, Judge said no clear words needed. That's not enough. That does not stop. That's why it's got across that does no prevent Misra. Sorry, the word supersedes doesn't do enough to show the counter party that you intend to exclude an action in Misrata. This does not operate as an execution. Floors nice drunk is the other one spot. The difference. That's a tick close. You wanted to draft to stop any come back. Is the party's acknowledged that it has not being relied upon. No reliance, nothing in this Clause. 15 excludes liability for fraud, but it might not be closed 15 in your agreement. But you know what I mean. That's quite important, too, because if you're going to exclude liability for misrepresentation, go for it. Fill your boots except you can't exclude liability for fraudulent misrepresentations. And you do need to have that. Nothing excludes liability for four because we don't have that. I'm afraid that those cases there will cause your boilerplate off protection against misrepresentation to fail for being unreasonable under the Unfair Contract Terms Act 1977. So you know you got it is a little bit tricky. I would be able get confused. So if you want, if your lot are dodgy, don't ask them just form of you. If your lot of dodgy and you never want to hear from the other side again, you want to sign up and leave? No, come back, That's what you want. If they aren't on G, and you may want to go back in and get Mr Representation because they haven't given you a lot of disclosure, you want the other one with the Red Cross? I hope that is nice and clear. Well, thanks. Spot the difference. Now, sometimes people find this whole idea off. Indemnities farty complicated to think about. And they're kind of thinking about how they're gonna get to the end of this Webinar. Yes, but if you're getting bored, do the Dr Seuss and Dr Zeus is there because it's a weasel and these are weasel words. There's two versions of an indemnity Now, Personally, if you want my honest approach to this, I don't know that you need an indemnity in a settlement agreement. I would personally spend more time thinking about the obligations I give me a shower. Time is of the essence. Any day you're working in liability rather than in the indemnity. But you do see them in the boiler plate, they say. And if this fails, you indemnify. It's a second alternative course of action in debt, but you know you can play with the indemnity on. Do you put two versions? Their spot? The difference. I hope you've been able to spot the difference in Doctor See another day. Maybe the top one is much less powerful for X than the bottom one. Andi, if your ex you you want to try and make sure that indemnity was linked to the breach of the agreement because it's not I'm not paying unless I've breached, you know, start the morning by thinking it's my fault. Why don't you? I'm not paying unless it's Bridge Party X, and the bottom one is paying. However, whatever the problem is, howsoever caused you'd be posse, wouldn't you? If you were Party X to do that, that's a really powerful indemnity on one that I think would cause a problem. Workmen of Forrester is the court of appeal cases, a relatively recent case. I use it a lot to say to people because you've got an indemnity. It doesn't mean it's a blank check. You really must look at the indemnity in that case, It was an indemnity against damages. And they turned up and said, Give us the money, please, on the court said, Go when preview damages. So the fact that it's indemnities the beginning of a journey on you can push it into one space or the other. I'm not going to give you the key to Dr Zeus, but it is weasel words. I would leave in a work in the liability the indemnities there only as a last resort. A safety measure on, if you're going to draft it, work out, which is the best version for you. Yeah, there's on. There's our boiler plates. I mean, the ones I think that are important are crypt er, because the parties are really important of the misrepresentation of boilerplate. We've talked, found the other ones. I honestly don't think I'm gonna cause your problem. I mean, foot Lauren jurisdiction. Well, if you're litigating with somebody broke would obviously it will. You shouldn't really be wanting a variation. Uh, you could do it by counterparts. There's no problem with that. Be careful. If it's indeed force magician, you should really need force measure. You know e gonna have a tsunami between now and payment. I mean, you know, they're there is boiled place for that for agreements. Think about actually, What do you need? No admissions. Good, because that's part of it. I mean, case at the moment where you know. So all sorts of things being said about the litigation result the judgment. They're not at all true. You know everything you want. We've in the same cases. May. That's not what the judge said it all for you. Mad something. Anything of people spend the tail to their own ends, don't they? And so I think no admission is good because it sort of keeps everybody behind the line. You might want to have a no publicity clause rather than just confidentiality. So there's no statement that's published, or if it is, it's an agreed statement. So some of these boiler plates work. I think the other one that I would be possibly a bit concerned about us. Well, it's good faith cooperation again. Do I never want to see you again? I don't want to cooperate with you. Just go away. We need to know it. Do the conveyancing on the back of this agreement. I do need some good face. So cooperation in good faith will be helpful because I need to keep talking to you. So I think you've got to choose the boiler plate that's appropriate to your agreement. Well, thanks. We're just about there. Let's just remind ourselves, please, about the basic rules that we've been talking about in terms of this in terms of this weapon off. First of all, we were talking about when half we got there. Have we actually arrived? Secondly, we were talking about who Who are you? Are you in it to win it? Are you 1/3 party we were talking about? How how is the agreement formed in terms off the agreement that is Tomlin, or is it a consent order? Or is it a D? Or is a simple agreement that's been executed on Dive Bean going on and on about what? What have you settled in terms of the scope of the settlement? Remember those zombies in terms of the definitions? In terms of the verbs, though, what part of the settlement agreement is often the worst part That's drafted because there isn't a precedent that fits your particular situation. You have to free draft it on. So remember verbs of vital Ondimba particular? Is it? Ah, high obligation or is it a low one? Andi, how do we police it? If it's not a condition of the agreement, you can always write. It is a condition off this agreement that that's really spending it out. So there could be no doubt that if if it's important to you, toe have equally. If you're the party paying, you can agree to do something. It will be safely in nominal. Pete. They won't spot it. OK, thanks. So I hope that's given you of settlement mistakes. After difficult sentence to say no to make on just a reminder. There's uncover sheet again. Who is a party? The importance of definitions going along the topper, the scope of the shield unknown. We've talked as well about shall dealing with Miss rap. Keep it or lose it Dear lead the indemnity. Maybe you do. If you do look at what you're the drafting. Some boilerplate suggestions. Andi, have you reached an agreement that was on car? Are we nearly there yet? Well, we are there, and I'm pleased to say where at the end of all women are so have a good day. Thanks for being with me
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