Drafting Commercial Contracts in 2025 - An Advanced Guide with Richard Stephens

Introduction

This course delves into the complexities and potential pitfalls of drafting modern commercial contracts, with a particular focus on the impact of recent case law. Landmark decisions continue to shape the way we approach contract drafting and client advising. Key cases include:

• Soteria Insurance v IBM [2022] - exploring the issue of loss of profits
• Triple Point Technology, Inc v PTT Public Company Ltd [2021] - the Supreme Court's endorsement of modern approaches to caps and exclusions
• Barton v Morris [2023] - emphasizing the limits of implied terms and quantum meruit claims
• Plus many more - see the detailed list of cases below

The focus, as always, is on practical application rather than theory. This course will examine recent legal developments and how they influence the contracts you draft and litigate. Throughout the day, you will gain practical insights, tips for drafting, and a clear understanding of high-risk areas. Real-life examples will illustrate how things can go wrong - such as missed time limits, improper termination notices, or the use of inappropriate template liability clauses—and how to avoid these issues..

This Masterclass is a must for commercial lawyers or litigators with at least an intermediate level of experience, particularly those involved in drafting or litigating commercial contracts governed by English Contract Law (whether practising in England or elsewhere).

What You Will Learn

This course will cover the following:

• Getting into a contract accidentally
• How you can preserve your client’s position - the status of MOU’s, Heads and similar documents
• The constant risk of oral agreements, and how to avoid them
• The battle of the forms
• How it applies to framework agreements
• Incorporation of terms in the internet age
• Working ‘at risk’ - understanding quantum meruit
• Limitations of a claim in quantum meruit - and why it is usually better to have a contract in place
• Drafting obligations - do you want to set up a condition precedent or are you setting out administrative provisions for guidance?
• Why it matters and why you re-organise your materials
• Endeavours clauses
• Reasonable vs. all reasonable vs. best vs. other formulas
• When is it right to use one or other formula?
• Good faith
• How it has emerged and the status of ‘good faith’ these days
• When to use a ‘good faith’ obligation
• Liabilities
• When does/might the Unfair Contract Terms Act apply?
• What is considered ‘reasonable’ under UCTA these days?
• Indirect or consequential loss - the emerging landscape
• Loss of profits/anticipated profits
• What they might be and what they are not
• Exclusive remedies
• Liquidated damages - does the concept of a ‘penalty’ still exist? Do’s and don’ts of drafting
• Dealing with deliberate (even dishonest) breaches - what is the law’s modern approach?
• Indemnities
• What is within scope and what lies outside?
• Remoteness and causation in the context of indemnities
• Indemnities vs. other types of clause (guarantees, demands, etc)
• Notices
• The most difficult drafting you will ever do … the many pitfalls of serving a notice
• Sting in the tail - adding a time-limit
• Force majeure
• Different types - choosing the right type for your client
• Dispute escalation and resolution clauses
• Not all plain sailing - getting the details right
• Termination
• Different types of termination - what makes a breach ‘material’? What if it is repeated - a ‘persistent’ breach? What if it is ‘wilful’ or ‘deliberate’?
• Getting your termination done correctly (and what happens if you don’t)