Scottish and English & Welsh Contract Law: already independent

Scotland may have voted to preserve the Union, but Scottish civil law is (and always has been) distinct from the law of England & Wales. In fact there are some quite drastic differences in law, as well as more subtle variations in process and procedure.

If you are an English business trading North of border you need to be aware that it is possible to unintentionally conclude a contract in Scotland (in the eyes of the law), which would make it subject to Scottish law.

Where will the contract be concluded?

To form a contract there must be an offer and acceptance. The general rule is that a contract is made at the time and place where the offer is accepted. This can throw up some surprising results where the offer is made by phone, email, letter or online.

There are some specific rules affecting each of those, but it is possible that if the acceptance of the contract takes place within Scotland you could be entering into the contract under Scottish law, regardless of where you, or they, routinely do business.

Accordingly the terms you have in place will not necessarily have the effect that you are expecting and if a dispute begins, you may face uncertain litigation in the Scottish courts.

How to avoid the problem…

To avoid this uncertainty you can contractually agree that the relevant jurisdiction is England and Wales and any dispute should be resolved by the English Courts.  That way the Court should interpret and enforce the contract in the same way that your (English) lawyer has drafted it and advised you on.

A ‘jurisdiction clause’ should be included in your contract with each client from the outset, as it is too late to do so once the contract is underway. You should also include a jurisdiction clause as a standard term, regardless of where you normally trade, as then you will be covered for new contracts moving forward.

This is just one of many issues that can arise when trading across borders, even within the UK or EU. If you would like us to review your standard terms or a specific contract, please get in touch.


Contractual disputes

  • Breach of contract
  • Trade disputes
  • On-line traders
  • Supply of defective goods/services
  • Claims under personal guarantees
  • Debt & asset recovery

Property disputes

  • Ownership disputes
  • Development disputes
  • Option agreements
  • Boundary disputes
  • Adverse possession
  • Easements
  • Rights of way
  • Enforcing securities
  • Charges
  • Restrictions & encumbrances
  • Land Registry applications
  • Property/estate management
  • Service charges

Construction disputes

  • Payment/certification disputes
  • Building defects
  • Sub-contractor disputes
  • JCT, NEC, RIBA & similar design/build agreements

Landlord & Tenant disputes

  • Rent arrears
  • Guarantor’s liability
  • Forfeiture/termination
  • Recovering possession
  • Dilapidations
  • Protected lease renewals
  • Breach of covenant
  • Disrepair claims
  • Unlawful assignment/sub-letting
  • Break clauses
  • Rent reviews

Professional Negligence

  • Solicitors
  • Surveyors
  • Accountants
  • Architects
  • Liquidators
  • Administrators & receivers

Recruitment disputes

  • Recovery of recruitment fees
  • Disputed cause of introduction
  • Candidate suitability
  • Dual introducers
  • Conduct of Employment Agencies and Employment Businesses Regulations 2003

Shareholder/partnership disputes

  • Ownership and transfers of equity
  • Unfair prejudice claims
  • Derivative actions
  • Partnership dissolution & winding up

Financial Mis-selling

  • Bank mis-selling
  • SWAPS/LIBOR claims

Protection of Intellectual Property rights

  • Domain name disputes/cyber squatting
  • Passing off
  • Breach of confidentiality
  • Copyright and trademark infringement

Making a claim for negligent advice

The client asked us to consider and advise on the conduct of their former solicitors during both of the cases.  We careful analysed many files and documents, including the former solicitors’ files, and concluded that the client had a claim.

We pursued the solicitors for negligent advice and handling of the cases, with a view to recovering our client’s losses.  This involved extensive dealings with the firm, through their professional indemnity insurers and city lawyers. 

They refused to pay the claim, despite being provided with considerable supporting evidence and legal argument during various attempts to negotiate and settle the dispute.

Pursuing the professional negligence case in the High Court

We started High Court proceedings, which the former solicitors defended by denying the allegations and raising a number of technical legal points. 

Ultimately we exerted sufficient pressure in the litigation to force a settlement before the case reached trial, resulting in our client recovering a six-figure sum. This represented the vast majority of all legal costs they had paid, as well as Verisona Law’s legal fees.

Individual Property Owner

“Verisona Law dealt with a complicated dispute with a former manufacturing supplier forced into administrative receivership. Their clear, calm advice never wavered: their tenacity and diligence provided our company with a successful result”.

MD of Textile Wholesaler

"Having recently used Verisona Law to help recover a commercial debt due to us, I would highly recommend them.  Jeremy was very professional and helpful, giving information throughout the case, and he was also very calm which really helped us."

Anonymous

"I would like to thank you for the first class service we have received from you. Your advice and the professional way you treated us throughout culminated in a result which, prior to your appointment, seemed a long way away."

Mr Herridge


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