Andrew Savage/Nigel Thomas

1
Some aspects of English Contract Law

• Andrew Savage/Nigel Thomas

2
Introduction

• Constituent elements of a binding contract
• The interpretation of contracts
• Direct and Indirect (or Consequential) loss
• Liquidated Damages clauses (or Penalty clauses?)
• Force Majeure
• Termination

3
Binding Contract offer and acceptance

• Offer and acceptance are required.
• The offer can be revoked at any time up until
  acceptance.
• An offer which must be kept open must be
  supported by consideration (e.g. an option).
  That is then a binding contract.
• No culpa in contrahendo. Revocation must be
  communicated.
• Unqualified acceptance only otherwise there will
  be a counter offer, which implies rejection.
  Following a counter offer, the original offer may
  no longer be accepted by the original offeree.

4
Binding Contract consideration

• A gratuitous promise does not amount to a
  contract.
• Places a limit on the enforceability of
  contracts which would otherwise be valid and
  binding.
• Something of value must be given by the
  promissee in exchange for the promise can be a
  benefit to the promisor or detriment to the
  promisee.
• Consideration need not be adequate A peppercorn
  does not cease to be good consideration if it is
  established that the promissee does not like
  pepper and will throw away the corn.
• Past consideration is not good consideration.
  Though Williams v Roffey Bros exception
  factual benefit to promisor of performing
  existing contractual duties.

5
Consideration

• Part-payment of a debt is not good consideration
  the rule in Pinnels Case.
• Can avoid this rule by e.g. repayment at earlier
  time.
• Pinnel does not apply if payment of part of the
  debt is undertaken by a third party.
• Lack of consideration is rarely the fatal blow
  to a contract.

6
Consideration

• It might be thought that guarantees would be
  particularly exposed, but this is very rarely the
  case
• Bear in mind that the consideration must move
  from the promisee, it need not move to the
  promisor.
• Consideration may be nominal.
• A unilateral promise unsupported by any
  consideration can be made binding by way of a
  deed.
• More thought is required where a guarantee is
  given after the transaction i.e. past
  consideration.
• Nb/ Contract (Rights of Third Parties) Act 1999.

7
Binding Contract intention to create legal
relations

• Starting point is that this is not of great
  relevance in commercial context as regards most
  contracts. It is presumed commercial parties
  intend to reach binding legal relations.
  (Contrast with domestic relations).
• However, the issue can take an express form in
  respect of contracts made, e.g
• subject to contract, subject to details,
  subject to documentation. Usually this is a
  clear indication that the contract is not
  intended to be binding.
• The issue is more difficult in contracts where it
  is unclear if the terms are intended to be
  binding or indicative (e.g. Heads of Terms).

8
Binding Contract intention to create legal
relations

• There is a surprisingly large amount of
  litigation between commercial parties where there
  is disagreement as to whether commercially
  negotiated terms are intended to be binding. It
  should be simple to avoid this problem with clear
  language. Two danger areas are
• incompleteness of agreements. Here so called
  essential terms are not agreed and thus the
  whole contract is said to be too uncertain to be
  enforceable. E.g. commencement or duration of a
  lease. English Courts prefer to find that
  parties have made binding agreements, but this
  can be a real issue.
• Linked to the above is the issue of negotiation
  clauses.

9
Binding Contract certainty

• An agreement to negotiate a price in good faith
  would be unenforceable. A fundamental principle
  in English law is that one cannot agree to
  agree. Such a clause is unenforceable. Has been
  justified in various ways the issue of good
  faith in English law, lack of certainty. (Walford
  v Miles)
• However lock-out agreements (supported by
  consideration) (Walford v Miles) are
  enforceable. (Because there is certainty).
• Knock-on effect is that where terms would be
  complete but for certain (essential) aspects of
  the putative contract being to be agreed in good
  faith or subject to further discussion and
  agreement, there is a very real risk of the
  entire contract being held to be unenforceable.
• Courts tend not to like such a result and will
  try where possible to implement objective
  machinery to ascertain unresolved matters where
  the parties fail or refuse to do so.

10
Binding Contract certainty

• ..the hire shall be equitably decreased by an
  amount to be mutually agreed between Owners and
  Charterers... (The Didymi). Held Enforceable
  equitable was an objective measure.
  Arbitration clauses can be relevant.
• Price of a van to be on hire purchase terms over
  two years. Held unenforceable hire purchase
  terms encompassed too broad a range of
  possibilities. Result would have been the same if
  the words to be mutually agreed had been
  inserted.
• For each type of crude oil will be applied the
  pricing which will be more or less the common
  practice at the time of nomination. E.g the
  average of the means of 3 or 5 quotations after
  B/L date. A certain number of quotations
  before/after or around NOR at discharge port etc.
  The precise pricing will be given by Seller to
  Buyer together with the nomination of cargo.
  Buyer has the right not to accept the proposed
  pricing and suggest an alternative. Held
  binding clause. The (10 year) contract had
  already been performed for a number of years when
  the point was raised and the Court found there to
  be a sufficient objective basis for price
  determination in the absence of agreement.
  (Mamidoil).

11
Binding Contract certainty

• Plaintiffs had the right to buy under the MOA
  to be finalized as per terms and conditions
  stated herein. It was argued to be finalized
  meant to be agreed but it was held that it
  meant to be formalized. (Global Container
  Lines).
• Lessons.
• Where terms are in summary form, always consider
  whether the document is intended to binding or
  not and expressly state the position.
• Avoid leaving any terms subject to negotiation.
• Adjustment provisions need to be related to some
  form of objective criterion. This can be quite
  loose.

12
Interpretation of Contract the traditional
approach

• Traditionally English courts have favoured the
  literalist approach to construction.
• The intentions of the parties should be
  ascertained by reference to the words set out in
  the contract.
• The court should look to the natural ordinary
  meaning of the words used.
• The court should avoid looking beyond the four
  corners of the contract except in cases where
  there is significant ambiguity.

13
Interpretation of Contract the modern approach

• Modern purposive approach to construction was
  reaffirmed by Lord Hoffmans five principles in
  Investors Compensation Scheme
• Meaning which a reasonable person would
  understand.
• Look to the matrix of fact. Prior negotiations
  excluded still the case?
• Dictionary definitions of words used do not
  necessarily show the true intention of the
  parties.
• Courts can re-interpret terms of a contract where
  it is clear that the words used can not show the
  true intention of the parties given the factual
  matrix ambiguity no longer required.

14
Interpretation of Contract

• Reasonable person is a person in possession of
  the information reasonably available to the
  person or class of persons addressed by the
  contract.
• Reasonable person may or may not consult a
  lawyer depending upon the context.
• In some circumstances it will be assumed that the
  parties were familiar with relevant case law
  e.g where standard form contracts are adapted to
  take account of developing law.
• A lawyers approach of construing a contract as
  a whole may be inappropriate.
• Ambiguity not required. This is an important
  point.

15
Interpretation of Contract

• .the sum actually paid by the Reinsured in
  settlement of losses or liability House of
  Lords said actually paid meant actually
  payable.
• The Applicant agrees to accept the terms set
  out in the documents attached in full and final
  settlement of all or any claims whether under
  statute, common law or in equity of whatsoever
  nature that may exist House of Lords said this
  wording to not preclude later claims by the
  Applicant for stigma damages. Lord Bingham
  The clause cannot be read literally.

16
Interpretation of Contract

• Subsequent statements and conduct of the parties
  are also excluded.
• The rule that prior drafts can not be used to
  ascertain the intention of the parties is
  well-established. Principle is that underlying
  (and changing) intentions crystallise at the
  moment the contract is entered into.
• But not a hard and fast rule for example,
  private dictionary exception Proforce, Court
  of Appeal 2005 Preferred Supplied Status.

17
Direct and Indirect Loss and Exclusion Clauses

• Critical to appreciate rules on the
  recoverability of losses in order to draft
  effective exclusion clauses.
• Contract damages aim to put a party into the
  position it would have been had the contract been
  performed. However, some losses so assessed may
  be too remote.
• Remoteness the rule in Hadley v Baxendale
• 1 Losses flowing naturally from the breach
  (i.e. those which would have been reasonably
  foreseeable to the reasonable man at the time of
  entering into the contract) will not be too
  remote. In general, a profit is foreseeable and
• 2 If special circumstances mean that losses
  beyond those that naturally flowed from the
  breach are incurred by the defendant, such losses
  will only be recoverable if the possibility of
  their being incurred was in the reasonable
  contemplation of both parties.

18
Direct and Indirect Loss and Exclusion Clauses

• Exclusion/limitation clauses often seek to
  exclude liability for (a) direct losses (b)
  indirect losses (c) consequential losses.
• Direct losses means losses under the 1st limb.
• Indirect losses means losses under the 2nd limb.
• Consequential losses means losses under the 2nd
  limb.

19
Direct and Indirect Loss and Exclusion Clauses

• The Company will not in any circumstances be
  liable for any indirect or consequential loss,
  damage or liability arising from any defect in or
  failure of the System or any part thereof or the
  performance of this Agreement or any breach
  hereof by the Company or its employees. Hotel
  Services Ltd v Hilton International Hotels. Held
  this did not exclude a loss of profits claim for
  ordinary profits.
• in no event shall DAVY by reason of its
  performance or obligation under this CONTRACT be
  liable .for loss of any anticipated profits,
  catalyst, raw materials and products or for
  indirect or consequential damage. Held lost
  profits excluded, but only because of express
  reference to anticipated profits.

20
Direct and Indirect Loss and Exclusion Clauses

• The Seller will be liable for any loss, damage,
  cost or expense incurred by the Purchaser arising
  from the supply by the Seller of any such faulty
  goods or materials or any goods or materials not
  being suitable for the purposes for which they
  are required save that the Seller's liability for
  consequential loss is limited to the value of the
  contracts. Held only second limb losses
  excluded. Here, that meant very substantial
  losses claimable for increased costs of
  production. (British Sugar).
• In order to effectively exclude liability for
  loss of profits or other direct losses, the
  clause should make express reference to the
  exclusion of such.
• Contra proferentem rule applies and see Canada
  Steamship in relation to the exclusion of
  negligence.

21
Direct and Indirect Loss and Exclusion Clauses

• "once a phrase has been authoritatively construed
  by a court in a very similar context to that
  which exists in the case in point, it seems to me
  that a reasonable businessman must more naturally
  be taken to be having the intention that the
  phrase should bear the same meaning as construed
  in the case in point."
• In short, in this context, Investors Compensation
  Scheme wont help !

22
Liquidated Damages Clauses

• Liquidated Damages or Penalty Clause?
• If a liquidated damages clause, the sum specified
  will be payable no more no less even if the
  loss suffered is greater or smaller. Attractive
  for commercial parties as it gives certainty.
• If a clause is a penalty, the loss recoverable
  according to ordinary principles is still
  recoverable. What if the contract stipulates that
  only contractual remedies are available to the
  parties? problematic. Arguably such term will
  fall away if there are no such remedies because
  the liquidated damages clause is held to be an
  unenforceable penalty.
• If a clause is a liquidated damages clause,
  claiming sums in addition will only be possible
  if the clause can be so construed.

23
Liquidated Damages Clauses

• Traditional approach set out in Dunlop Pneumatic
  Tyre
• The sum must not be extortionate and
  unconscionable in comparison with the greatest
  loss that could conceivably be proved to have
  resulted from the breach.
• It is no obstacle that the consequences of the
  breach are such as to make precise pre-estimation
  of the costs an impossibility.
• But, the essence of liquidated damages is a
  genuine covenanted pre-estimate of damage. This
  can be impractical and gives rise to argument.

24
Liquidated Damages Clauses

• Philips Hong Kong Ltd the fundamental
  requirement is that the clause does not aim
  principally to deter the counter-party from
  breaching i.e. inequality of bargaining position.
• .. the court has to be careful not to set too
  stringent a standard and bear in mind that what
  the parties have agreed should normally be
  upheld. Any other approach will lead to
  undesirable uncertainty especially in commercial
  contracts
• This decision was a significant departure from
  the traditional rule and gave significant leeway
  to liquidation clauses.

25
Liquidated Damages Clauses

• 10.03(A) In the event of default by the
  Borrower in the payment on the due date therefor
  of any sum expressed to fall due under this
  Agreement (or on demand in respect of any sum
  expressed to fall due under this paragraph (A)),
  the Borrower shall pay interest on the
  participation of each bank in each unpaid sum
  from (and including) the date of such default to
  (but excluding) the date on which such sum is
  paid in full (as well after as before judgment)
  at a rate per annum equal to the aggregate of (i)
  one per cent. (1), (ii) the Margin and (iii) the
  cost as determined by such Bank of obtaining
  dollar deposits (from whatever source or sources
  it shall think fit) to fund its participation in
  the unpaid sum for such period or periods as the
  Agent may from time to time determine.
• Penalty interest enforceable? the borrower in
  default is not the same credit risk as the
  prospective borrower with whom the loan agreement
  is first negotiated. Lordsvale Finance

26
Liquidated Damages Clauses

• It is perfectly true that for upwards of a
  century the courts have been at pains to define
  penalties by means of distinguishing them from
  liquidated damages clauses. The question that
  has always had to be addressed is, therefore,
  whether the alleged penalty clause can pass
  muster as a genuine pre-estimate of loss. That is
  because the payment of liquidated damages is the
  most prevalent purpose for which an additional
  payment on breach might be required under a
  contract. However, the jurisdiction in relation
  to penalty clauses is concerned not primarily
  with the enforcement of inoffensive liquidated
  damages clauses, but rather with protection
  against the effect of penalty clauses. There
  would therefore seem to be no reason in principle
  why a contractual provision, the effect of which
  was to increase the consideration payable under
  an executory contract upon the happening of a
  default, should be struck down as a penalty if
  the increase could in the circumstances be
  explained as commercially justifiable, provided
  always that its dominant purpose was not to deter
  the other party from breach. (Lordsvale)

27
Liquidated Damages Clauses

• 17.1 In the event of a Wrongful Termination by
  way of liquidated damages the Company shall
  forthwith pay to the Executive a sum equal to one
  year's gross salary, pension contributions and
  other benefits in kind . In the event of a
  dispute as to the value of any benefit in kind
  the amount payable shall be determined by the
  Company's auditors.
• 17.2 Subject to any rights accrued at the date of
  termination of the Executive's employment under
  the provisions of any pension scheme, option
  scheme or bonus or benefit plan of the Company,
  any payment of liquidated damages by the Company
  shall be made in full and final settlement of all
  and any claims arising out of the Executive's
  employment, its termination, or ceasing to hold
  the office of director of the Company or any
  associated company

28
Liquidated Damages Clauses

• Defendant gave 8 weeks notice. Was the clause a
  penalty ? Clause did not take account of
  claimants duty to mitigate and find another job
  and the same sum was payable irrespective of how
  much notice was given.
• Although the clause was arguably not a genuine
  pre-estimate, the Court of Appeal found the
  clause was not so extravagant as to act as a
  deterrent. Therefore it was not penalty clause
  and served a legitimate commercial purpose.

29
Liquidated Damages Clauses

• Caution still better to try to tailor the
  estimate if possible. Compare the extravagant
  results of such clauses in Duffen v FRA.BO and
  Murray v Leisureplay.
• Upon the termination of this Agreement by the
  Agent pursuant to clause 6.3 the Principal shall
  immediately become liable to the Agent for and
  shall pay to the Agent forthwith the sum of
  100,000 by way of liquidated damages which sum
  is hereby agreed by the parties to be a
  reasonable pre-estimate of the loss and damage
  which the Agent will suffer on termination of
  this Agreement by reason of the failure of the
  Principal to pay the sums which but for the
  Principal's breach hereof would have been payable
  to the Agent under the terms hereof.

30
Liquidated Damages Clauses

• Contract was a 4 year sales agency. Court of
  Appeal found that since the loss suffered by the
  agent could range between 180,000 and 10,000
  depending on when the contract was terminated,
  the clause was a penalty.
• An obvious risk the clause would be
  disproportionate if the sales agency was
  terminated with a month or two to run.

31
Liquidated Damages Clauses

• Some clauses provide that a fixed sum will be
  payable on certain events. It has been argued
  that since the claim will then be for a debt
  rather than damages resulting from a breach,
  penalty rules do not apply.
• Take or pay clauses will generally not fall
  foul of the rule as will be commercially
  justifiable - M J Polymers.
• Clause stated purchaser will pay for the minimum
  quantities of Products as indicated in this
  Article even if they have not ordered the
  indicated quantities during the relevant monthly
  period.
• Court decided penalty rule could apply, but judge
  decided case on basis that clause was
  commercially justifiable.

32
Liquidated Damages Clauses

• Forfeiture of deposits are open to challenge.
• A clause providing for a payment to be made on
  the breach of a confidentiality agreement is
  likely to be a penalty clause as it would be hard
  to argue that it was not included primarily as a
  disincentive to breach.

33
Force Majeure

• Not a common law concept. Frustration bears
  some similarity (supervening events outside the
  parties control) but is rather different
  automatic discharge of the contract.
• Frustration is draconian and not generally
  applicable. Events must not be contemplated by
  the contract (so a force majeure clause would
  tend to preclude the possibility of frustration).
  Matters merely making performance difficult or
  very expensive are highly unlikely to comprise
  frustrating events.
• Thus if it is desired to relieve performance in
  the event of significantly changed circumstances,
  it is prudent to use a force majeure clause.

34
Force Majeure

• Force majeure clauses are recognised, interpreted
  and enforced in the ordinary way. Hence the
  following issues can be important
• The clause must be specific about the events to
  be considered force majeure events. A general
  extension to any other force majeure events
  will cause uncertain and it is doubtful that it
  will extend the events beyond those listed. In
  British Electrical and Associated Industries the
  usual force majeure clauses was held to be too
  vague.
• English law considers an FM clause to equate to
  an exclusion clause. A party relying on such
  clause bears the burden of bringing itself within
  it. So this supports clarity.
• Event relied upon must not be self induced.

35
Force Majeure

• Uncertainty about the causative potency of FM
  events. The drafting will determine what is
  required Neither party shall be entitled to rely
  on this Force Majeure clause to the extent that
  the effects of the Force Majeure Events could
  have been avoided by a party properly performing
  all its obligations under this Contract. Issue
  can be whether FM events apply where negligence
  applies.
• Allocation of resources provisions (if a party is
  disabled from performing all its contracts due to
  limited resources).
• Notice provisions must be respected. Therefore
  it is preferable to provide clear guidance in the
  contract as to when notice of a force majeure
  event should be given as soon as possible may
  be unhelpful - and what its contents should be.
• Clause may provide that performance is hindered
  or prevented.

36
Force Majeure

• Clause must be specific about effects on the
  contract (suspension of both parties
  performance, when the effect ends, possible
  adjustment provisions though note Walford v
  Miles, agreement to agree point).

37
Termination

• An important area as regards drafting and
  considering the position when things go wrong.
  
• Starting point is to consider the position if the
  contract is silent on termination i.e. common law
  rights of termination. Time and again the Courts
  have said that they will be slow to find a party
  has given away such rights in the absence of very
  clear and express wording.

38
Termination

• Breach of contract creates right to damages
  though not necessarily to termination. Instances
  when an innocent party can terminate
• Where the Defendant has renunciated i.e. where
  by words or conduct he evinces an intention not
  to perform, or expressly declares that he is or
  will be unable to perform, his obligations under
  the contract in some essential respect. Such a
  breach is repudiatory. The innocent party may
  accept the repudiation.
• Where performance has become impossible as a
  result of Defendants actions (otherwise
  frustration).
• Where the defendant is guilty of substantial
  failure to perform i.e a breach which goes to the
  root of the contract. Breach of condition or
  sometimes intermediate term. Breach of warranty
  not enough damages claim only.

39
Termination conditions, warranties and
innominate terms

• The law may determine that a particular term is a
  condition (Sale of Goods Act 1979). Thus per SOGA
  1979, certain terms implied by that Act
  regarding title, sale by description, quality and
  sale by sample are conditions.
• A term may also be a condition by implication in
  the context of the contract as a whole (must go
  to the root of the contract). (But the Courts
  should not be too ready to interpret contractual
  clauses as conditions).
• The parties may expressly provide that a term is
  a condition usually determinative but not
  always.

40
Termination conditions, warranties and
innominate terms

• A Warranty is a less important contractual
  stipulation, breach of which entitles the
  innocent party to damages only i.e. not to
  termination.
• Again, some terms are defined as warranties by
  statute e.g. Sale of Goods Act. Thus the term
  that goods are free from any charge or
  encumbrance not disclosed or known to the buyer
  before the contract is made and that the buyer
  will enjoy quiet possession of the goods is
  classified as a warranty s12.

41
Termination conditions, warranties and
innominate terms

• In Hong Kong Fir Shipping the Court of Appeal
  came up with a middle ground. Breach of a clause
  in a time charter stating that a ship was in
  every way fitted for ordinary cargo service
  could be both trivial and so fundamental as to go
  to the heart of the contract. Whether such a
  breach would entitle the innocent party to
  terminate would depend on the consequences of
  that breach.
• Creates flexibility for courts they can look at
  the result of the breach rather than the term
  itself.
• Classification as an innominate term can lead to
  a lack of certainty.

42
Termination Clauses

• Subject to remoteness rules (Hadley v Baxendale),
  upon termination, innocent party entitled to
  claim for damages caused by breaches prior to
  termination plus loss of bargain and expenses
  incurred (though not insofar as there is
  overlap).
• Unfortunately there can be a lack of certainty at
  common law e.g. is a breach repudiatory, is a
  term a condition.
• In addition, it is well established that serving
  notice to terminate when not so entitled can be
  (and usually is) itself repudiatory and entitles
  the opposing party to terminate (whether or not
  such party is in breach). The innocent party
  thereby loses right to substantial damages.
• Parties therefore often draft bespoke termination
  provisions. Such clauses must be drafted with
  care!

43
Termination Clauses

• Rice v Great Yarmouth if the contractor
  commits a breach of any of its obligations under
  the Contract the Council may, without prejudice
  to any accrued rights or remedies under the
  Contract, terminate the Contractors employment
  under the Contract by notice in writing having
  immediate effect.
• Court of Appeal held any breach had to mean a
  repudiatory breach or cumulative breaches
  amounting to a repudiatory breach.
• In The Antaios any breach of this charterparty
  was held to refer to a repudiatory breach.

44
Termination Clauses

• National Power v UGC Either party shall be
  entitled to give notice of termination of this
  Agreement with immediate effect if the other
  party shall be in material breach of any of its
  obligations hereunder and fails to commence to
  remedy the same within seven (7) days after
  notice requiring such breach to be remedied.
• Material breach held to be a lower standard
  than repudiatory breach.

45
Termination Clauses

• Crane Co v Wittenborg Either party shall be
  entitled forthwith to terminate this Agreement by
  written notice to the other if that other party
  commits any substantial breach of any of the
  provisions of this Agreement and in the case of
  breach capable of remedy fails to remedy the same
  within 90 days of receipt of a written notice
  giving full particulars of the breach and
  requiring it to be remedied.
• Substantial breach held to mean repudiatory
  breach.

46
Termination Clauses

• Note that provisos in termination clauses (e.g.
  as to notices to remedy) must be strictly
  complied with.
• Notice to remedy clauses common, though note a
  fairly frequent issue is the meaning of the usual
  carve out that the breach must be capable of
  remedy. Consider the example of a breach of a
  confidentiality clause.
• In Loan Agreements numerous Events Of Default
  are specifically stipulated. Any term can be an
  event of default if drafted with enough
  specificity.

47
Termination Clauses

• A contractual right to terminate will not replace
  the innocent partys common law right to
  terminate unless clearly stated - Stocznia
  Gdanska v Latvian Shipping Co. Context was a
  ship building contract.
• Court of Appeal has just confirmed (Stocznia
  Gdanska v Gearbulk) that unless the contract
  expressly provides, even by terminating under an
  express termination clause, a party may not be
  restricted to the rights expressly stated to
  arise in respect of such termination.
  Terminating party may also be able to claim loss
  of bargain as if it had terminated at common law.
• Lesson is that when drafting termination
  provisions, think not just about what termination
  rights you wish a party to have, but what rights
  you dont wish the party to have which is why an
  understanding of the right to terminate is
  crucial.

48
Appendix 1 S1 Contracts (Rights of Third
Parties) Act 1999

• (1)     Subject to the provisions of this Act, a
  person who is not a party to a contract (a third
  party) may in his own right enforce a term of
  the contract if
• (a)     the contract expressly provides that he
  may, or
• (b)     subject to subsection (2), the term
  purports to confer a benefit on him.
• (2)     Subsection (1)(b) does not apply if on a
  proper construction of the contract it appears
  that the parties did not intend the term to be
  enforceable by the third party.
• (3)     The third party must be expressly
  identified in the contract by name, as a member
  of a class or as answering a particular
  description but need not be in existence when the
  contract is entered into.
• (4)     This section does not confer a right on a
  third party to enforce a term of a contract
  otherwise than subject to and in accordance with
  any other relevant terms of the contract.
• (5)     For the purpose of exercising his right
  to enforce a term of the contract, there shall be
  available to the third party any remedy that
  would have been available to him in an action for
  breach of contract if he had been a party to the
  contract (and the rules relating to damages,
  injunctions, specific performance and other
  relief shall apply accordingly).

49
Times
50

• All references to 'Watson, Farley Williams' and
  'the firm' in this presentation means Watson,
  Farley Williams LLP and/or its affiliated
  undertakings. Any reference to a partner means
  a member of Watson, Farley Williams LLP, or a
  member or partner in an affiliated undertaking,
  or an employee or consultant with equivalent
  standing and qualification.