Energy & Infrastructure Smart Contracting Bulletin February 2019

06.02.2019 |Energy & Infrastructure

We are pleased to share with you the latest edition of the Ince Gordon Dadds Energy & Infrastructure Smart Contracting Bulletin. Our aim is to keep those working in the Energy & Infrastructure sectors up-to-date with relevant legal developments.

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Molehills not mountains: Court of Appeal puts jurisdiction applications in perspective

06.02.2019 |Energy & Infrastructure

In a recent drilling case, the Court of Appeal has confirmed that a single, three-limbed, test is to be applied when determining a jurisdiction challenge. It also confirmed that in determining such challenges, the presence of an Entire Agreement clause is an important part of the evidential mix and may be a cogent expression of intentions in respect of the contracting parties (including who those parties are).

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When is a penalty not a penalty? Commercial Court consolidates the law in GPP v Solar

06.02.2019 |Energy & Infrastructure

The High Court has found that a liquidated damages clause in an EPC contract for a solar power plant did not amount to a penalty (despite being described as one in the agreement).

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Interim contracts and limits on liability

06.02.2019 |Energy & Infrastructure

In a decision that will be welcomed by construction contractors, the Court of Appeal has overturned an earlier TCC decision and found that a cap on liability had been incorporated into an interim contract under which work had commenced.

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Privilege update

06.02.2019 |Energy & Infrastructure

Since the key Court of Appeal judgment in SFO v ENRC there has been a further flurry of privilege decisions; we examine the potential impact of a couple of the more significant ones.

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Court confirms that an express waiver for misrepresentation is still required

06.02.2019 |Energy & Infrastructure

A recent appeal judgment has confirmed that an Entire Agreement clause does not exclude claims for misrepresentation without clear words which do so.

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EU GDPR enforced against a Canadian data analytics company

06.02.2019 |Energy & Infrastructure, GDPR and UK Data Protection

The UK data protection regulator reminds non-UK businesses of the global reach of the GDPR.

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Futility resisted

06.02.2019 |Energy & Infrastructure

The Court of Appeal has considered the so-called “principle of futility” and indicated that whether a condition precedent is operative or not is a matter of construction in the light of the relevant circumstances.

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