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What to think about before bringing a private competition action—checklist

What to think about before bringing a private competition action—checklist Is there an actionable claim? Note: private competition actions remain largely regulated by national law and procedural and substantive rules across the EU may vary significantly, therefore assessments in individual jurisdictions will need to be made when planning competition litigation. Possible causes of action • Consider if there is an infringement of UK competition law (or EU competition law prior to the end of the Brexit transition period). ◦ Consider whether the loss suffered can be attributed to an agreement or concerted action between undertakings, especially competing undertakings (see further, The prohibition on restrictive agreements). ◦ Consider whether the loss might have been caused by an entity that is arguably dominant typically with a large share of a relevant market, and could be said to have abused its dominance contrary to Chapter II of the Competition Act 1998 (and/or Article 102 TFEU if prior to the end of the Brexit transition period) (see further, The prohibition on abuse of dominance)....

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Remedies for connected lender liability in consumer credit

Remedies for connected lender liability in consumer credit This Practice Note examines a purchaser’s causes of action and remedies where the credit in a supplier-purchaser agreement is financed by a third party. The Consumer Credit Act 1974 (CCA 1974) provides that in certain instances where there is a connection between the supplier of goods and services and the creditor, the borrower will be able to seek a remedy against the creditor under CCA 1974, s 75 where the supplier has made a misrepresentation or is in breach of contract. This Practice Note looks at the main requirements of section 75 and the circumstances in which it might be applied when purchasing goods or services with a credit card. Overview Under a contract for the sale or supply of goods or services as between a supplier and purchaser, the purchaser’s causes of action and remedies are well known. However, what is the position where the transaction is financed by a third-party creditor? In certain debtor-creditor-supplier (or DCS) relationships, a consumer...

Penalty interest rates in commercial contracts

Penalty interest rates in commercial contracts Introduction This Practice Note discusses the rule against penalties and how it applies to interest rates in commercial contracts, including a discussion of the late payment legislation in the UK. As part of the freedom of contract in business to business contracts, parties can prescribe the consequences of a breach of contract. Whether the courts will uphold those provisions in a given factual setting is a different matter. Where the parties choose to do so, those consequences are commonly an obligation to make a payment of an agreed sum. The sum may be a fixed amount or determined by reference to a formula. Penalty interest rates are an example of the latter. A drafter of a penalty interest rate clause must ensure that the clause complies with the doctrine of penalties, and, in the context of the supply of goods or services, the Late Payment of Commercial Debts (Interest) Act 1998 (LPCD(I)A 1998). It should also be considered whether an interest...

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Ireland—Letter of claim—breach of contract

Ireland—Letter of claim—breach of contract General This Precedent and its accompanying drafting notes are for use where your client is seeking to bring a basic claim for breach of contract. The hypothetical factual scenario used is simply for illustrative purposes and practitioners should adapt the text to reflect their instructions. This letter of claim does not operate to stop time for the purposes of preventing the defendant from relying on a limitation defence. The usual limitation period for bringing a contractual claim is six years from the date of the breach of contract. [ON THE HEADED NOTEPAPER OF THE CLAIMANT’S SOLICITORS] Addressee of the letter of claim It is important to make sure that the letter reaches the recipient. You should therefore address the letter so that it has the best chance of reaching the prospective defendant. Where the other party to the contract is a company, the letter should be addressed to a specific person where possible (usually a director or senior employee). The letter should be sent to...

Legal opinion letter: for a ship finance transaction

Legal opinion letter: for a ship finance transaction [Headed notepaper of law firm issuing the opinion] [insert name and address of Lender] [insert date] Dear [insert name of Lender] Facility Agreement dated [insert date] between [insert name of lender] (the Lender) and [insert name of borrower] (the Borrower) (the Facility Agreement) We refer to [insert number of clause which requires delivery of legal opinion] of the Facility Agreement. This opinion is given in satisfaction of that clause. Unless otherwise defined in this opinion, defined terms in the Facility Agreement shall have the same meanings when used in this opinion. This opinion is governed by English law and is subject to the exclusive jurisdiction of the English courts. 1 Background 1.1 This opinion is given in relation to the English law aspects of a transaction (the Transaction) by which [insert description of transaction]. 1.2 We have acted as English law legal advisers to [insert name of clients] in relation to the Transaction. 1.3 This opinion is...

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Should internal staffing costs be deemed indirect or direct losses?

Should internal staffing costs be deemed indirect or direct losses? 'Direct loss' and 'indirect loss' 'Indirect loss' is most frequently considered in the context of assessing quantum of damages and in interpreting exemption clauses. The normal function of damages for breach of contract is compensatory but is limited by the principles of causation and remoteness. Damage which is too remote is not recoverable even if there is a causal link between the breach of contract and the loss. Hadley v Baxendale established the 'two limb test' for assessing whether damage resulting from a breach of contract is or is not too remote. Damages may only be recovered for: • losses arising naturally—the defaulting party is liable for any losses, which may fairly and reasonably can be considered as arising naturally from the breach of contract. The court will take into consideration the type of trade or transaction in question (direct loss), or • potentially foreseeable losses—those which were in the reasonable contemplation of the parties at...

What is the significance of the words ‘warrants’ and ‘undertakes’ in a contractual obligation?

What is the significance of the words ‘warrants’ and ‘undertakes’ in a contractual obligation? An undertaking is a promise that one party will do something in the future whereas a warranty is a promise that a present fact or circumstance is true. Unlike a breach of a warranty, the breach of an undertaking may give rise to a claim for specific performance and injunctive relief. Background The words ‘warrants’ and ‘undertakes’ are often used as a single grouped concept. However, they are not interchangeable. Each has different temporal characteristics and different remedies. Understanding the differences between them and using them appropriately can be important to ensure that the correct remedies attach to the appropriate terms in an agreement. (For more details and other key terms, see Practice Note: Contract interpretation—conditions, warranties and intermediate terms). In essence, an undertaking is a promise that one party will do something in the future whereas a warranty is a promise that a present fact or circumstance is true. In a real...

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Construction weekly highlights—29 May 2025

This week's edition of Construction weekly highlights includes a case in which the High Court enforced a loan agreement under the Contracts (Rights of Third Parties) Act 1999 (HNW Lending v Lawrence), commentary on the creation of the National Infrastructure and Service Authority (NISTA), a case in which the High Court provided guidance on renunciation and affirmation of contracts, and the interpretation of guarantees (Chugga Chugg v Privinvest), and the launch of a consultation by the Ministry of Housing, Communities and Local Government (MHCLG) on the introduction of a statutory build out framework for eligible residential developments.

Supreme Court affirms developer’s right to bring negligence, DPA 1972 and contribution claims for repair costs against structural engineer (URS v BDW)

Construction analysis: This is the latest instalment in a series of decisions arising out of claims by a developer (BDW) against its structural engineer (URS) in respect of structural defects in two residential developments, where the repair works were carried out at a time when it no longer had any proprietary interest in the developments and no claims had been intimated by the any third parties. In its much-anticipated judgment, the Supreme Court affirmed the decisions of the Technology and Construction Court and the Court of Appeal, holding that: (i) the repair costs fell within URS’s scope of duty and were not too remote; (ii) the retrospectively extended limitation period in section 135(3) of the Building Safety Act 2022 meant that there was no relevant time bar at the time of the repair works; (iii) URS owed a duty under section 1(1)(a) of the Defective Premises Act 1972 (DPA 1972) to BDW as the developer; (iv) BDW was entitled to claim a contribution from URS when it had paid compensation...