Category Archives: Legal practice

Telling the court how to interpret a contract

For the last two days, IP Draughts has been attending a very interesting conference, organised by the UCL Faculty of Laws and titled The Contents of Commercial Contracts: Terms Affecting Freedoms.

The conference mostly consisted of academic lawyers at UCL and elsewhere giving 15-minute summaries of papers that they had written, on topics relevant to the overall theme of the conference. After each summary, another person, often a practitioner, gave a 5-minute response, and then the subject was opened to questions and comments from the audience. In this way, 18 diverse topics were discussed, ranging from implied terms of good faith under English law, to negative covenants in loan agreements.

Two discussions particularly engaged with IP Draughts and prompted him to ask questions. The first was a paper from Richard Calnan of Norton Rose Fulbright, on the subject Controlling Contract Interpretation. He circulated a one-page set of interpretation clauses of a kind that is rarely seen, some of which instructed the court to ignore some of the general principles of interpretation that they usually apply. For example, one of his clauses stated that where party was given a discretion, he could exercise that discretion in his own unfettered interests.

IP Draughts’ question to Richard was why he had selected some of the principles of interpretation but not others. Could there not be a 20-page set of terms that more thoroughly overrode or confirmed the general principles of interpretation that the English courts apply? Richard’s slightly unsatisfactory response was that this set of terms was a ‘teaser’.

The second talk that caused IP Draughts to raise his hand was given by Professor Sarah Green of the University of Bristol, on the subject Distance and Discretion: The Implications of Smart Contracting for Freedom of Contract. IP Draughts was keen to know the panellists views on whether the (future) rise in smart contracts was likely to affect how contracts generally were interpreted. Might the courts follow the lead of smart contracts, where terms were rigidly applied, rather than find ways around the strict adherence to contract terms, using long-established principles of interpretation?

IP Draughts gave the example of a contract that provided that, on termination of the contract, one party (the principal) could require the other (the distributor) to sell him certain equipment that had been used by the distributor in the course of performing the contract, but only if notice to buy was delivered to the seller within 28 days of termination. IP Draughts had been involved in a case with similar facts to these, where it was suggested that, in practice, the court would ignore the 28 day condition. Surely this was a situation where the time limit would be strictly enforced if it formed part of a smart contract?

The speakers for this session agreed with IP Draughts’ premise that there would be a general move towards a stricter enforcement of contract terms by the courts, even where the contract was not ‘smart’.

IP Draughts is grateful to the speakers for delivering such thought-provoking material, and to Professor Paul Davies and Dr Magda Raczynska at the UCL Centre for Commercial Law for organising the conference. It seems that the organisers hope to run similar conferences in future and that they would like suggestions on topics.

IP Draughts would like to put in a plea for a conference that focuses mainly on high-tech contracts and those where IP is important. Much as he enjoyed this conference, at times he found its focus on traditional ‘City’ subjects such as insurance, shipping and banking rather remote and, dare he say it, slightly old-fashioned.

 

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The unwritten rules of legal practice: dare you ignore them?

You are at the start of a career in one of the branches of the law. In the UK, the main branches are barrister (or, in Scotland, advocate), solicitor or academic. Whichever branch you choose, it is important to learn the rules of the game.

There are the formal rules, which are mostly written down, such as rules of conduct and rules of procedure in court. And there are the unwritten rules. While there is no legal requirement to follow the unwritten rules, it takes a brave person to ignore them, particularly at the start of their legal career. Some of those ‘rules’ are useful guidance on best practice; others are pointless and tribal.

There is the dress code, which for barristers is rather formal, and sometimes makes very junior barristers look like they have been dressed by their mothers. In court, IP Draughts was taught to wear a dark, three-piece suit, or a double-breasted one with the buttons done up. In 1983, his rather avant-garde pupil master praised him for his balance of conformity and modernity when IP Draughts wore a plain, mid-grey flannel suit, double-breasted, but with conventional lapels rather than the pointy ones.

In later years when working in a firm of solicitors, IP Draughts was criticised by a partner (when both were in a lift soon after arriving at work) for wearing a padded, fawn coat, nearly new, that looked a bit like an anorak. It was a cold winter’s day. But the coat wasn’t acceptable to this partner. Such are the pressures of life and the attention to detail in a stuffy legal environment.

Dress code may be thought superficial, but the pressure to conform runs much deeper.

If you are at a certain point in your career and want to advance to the next stage, it would do you no harm to write a book. (Just the one, mind. Writing six books, like IP Draughts has done, doesn’t send the right signal at all.) IP Draughts can think of two judges and the head of an international IP body that followed this rite of passage shortly before their promotion.

IP Draughts has learnt that some of the lawyers attending his courses are reassured by references to case law, and think there is more substance in the course if it includes such references. Rather than fight this, over the years IP Draughts has upped the case citations in his talks, though his instinct is to focus on the principles that these cases follow rather than the individual manifestations of them in particular decisions.

In the world of academic law articles, it seems not to be enough to explain difficult points of law and make them easy to understand to the non-specialist reader. Instead, articles should follow the approach indicated in the Society of Legal Scholars’ guidance to would-be authors of articles in their journal, Legal Studies, and:

  • Analyse the history, development and contemporary status of law with particular reference to doctrinal, conceptual, theoretical, comparative or socio-legal analyses such that they are of interest to a general legal readership international.
  • Place current legal developments in historical and theoretical perspectives.
  • Analyse contributions to the study of law in the fields of jurisprudence, legal history, and international and comparative law.

This guidance makes IP Draughts think he would never cut it as an academic lawyer. Having said that, he sees some articles, including some in Legal Studies, where material of the kind quoted above has been added in a rather clunky fashion, almost as an afterthought. Perhaps part of the trick of being a top academic, particularly in the more applied areas of legal research, is to make the sociological and normative content look a natural part of the article, rather than a bolted-on addition. In other words, learn how to play the game.

This all may sound cynical. In fact, it is just pointing out what many lawyers and other professionals soak up and follow unquestioningly. Some of these practices didn’t come naturally to IP Draughts, and he is glad that he is reaching a stage in his career where he doesn’t need to worry so much about unintentionally putting his foot in it.

IP Draughts’ advice for non-conformists at the start of their career is: think carefully about each convention, and if it serves no useful purpose and you dislike it, ditch it unless you are in a very conformist environment. And perhaps move out of that conformist environment as soon as you have learnt what you can from it.

 

 

 

 

 

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Teaching the basics

IP Draughts has been out and about in the last few weeks, teaching practitioners. He has given in-house talks in Cambridge and London, and has further trips lined up for Oxfordshire and Southampton.

The students have been a mixture of university administrators, commercial managers and lawyers. They have  mostly seemed to appreciate the information that IP Draughts was able to impart. Over time, demand for his courses is showing a steady increase.

IP Draughts has reflected on what makes his courses successful. He puts it down to understanding the basics really well. Throughout his career, whenever he has come across a new subject, he has tried to get beneath the surface and understand not just what practitioners do, but what the underlying legal issue or principle is, and whether common practice is aligned with the legal principle. Spend an extra 30 minutes on each new subject to understand it better, and after 35 years of practice you build up a fair amount of knowledge. Surprisingly, many people get through life without that level of curiosity. Or they are in pressurised jobs where their employer doesn’t give them that extra 30 minutes.

This curiosity led him to write several books, and now leads him to teach those basics to others. He is sure that he is not unique among professionals in always wanting to learn more about his subject. Many experienced professionals have acquired a vast amount of knowledge on apparently small subjects.

Take, for example, the subject of execution of deeds, which this blog has mentioned before. In fact, we wrote a book called Execution of Documents, published by the Law Society, which is now in its third edition and covers the subject of deeds in some detail.

Students on IP Draughts’ courses have a varied knowledge of deeds, at least before they attend the course. Deeds raise many practical issues that are relevant to commercial agreements, such as:

  • what is a deed?
  • when must I use a deed?
  • when can I choose to use a deed? what are the legal advantages of doing so?
  • what alternatives are there to using a deed, e.g. by including nominal consideration?
  • what formalities are required for a deed, e.g. in the use of signature blocks?
  • when must a seal be used on a deed? where do organisations such as universities and NHS Trusts keep their seals? Who must witness their use?
  • is it possible to arrange electronic signature of deeds?
  • how does an overseas party execute a deed?
  • do other countries use deeds? what is their closest equivalent?

And so on. Usually, IP Draughts doesn’t cover all of these topics in a talk when the subject of deeds arises. But there are a few basic points that are worth making, e.g. that he has seen multiple examples of City law firms making a serious mistake when prepare deeds for execution by universities, because they fail to realise that universities must still use their seal, and that a signature block that is typically used for a Companies Act company is not appropriate.

IP Draughts also likes to get to the bottom of really complex legal issues, and he regularly writes peer-reviewed journal articles about them. Advanced-level research and writing attracts more professional or academic kudos. But he thinks that understanding and teaching the basics is what really matters.

 

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Documenting death

My article, Documenting Death is in a Time Warp, has now been published by the Law Society Gazette.

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