Contract at Scots Law 2025

We are delighted to be returning to the Hilton Glasgow* for the first in our Scots Law 2025 Conference Series, exclusively available to delegates in person on the day.

Contract law is ever evolving and our new conference, chaired by Michael Upton of Themis Advocates, will take an in depth look at the most important developments, as well as considering those issues that impact on your practice and providing some key drafting tips.

The conference will include presentations from Professor David Cabrelli of The University of Edinburgh, Alastair Dunn from BTO, Ross Taylor of Gillespie Macandrew, Ross Simpson from Shepherd & Wedderburn and Liam McKay of Anderson Strathern.

What's being covered?

Implied terms: the growth in ‘good faith’ and ‘rationality’ review of commercial decision-making

In recent years, the exercise of commercial decision-making by contracting parties has been subjected to a heightened degree of judicial scrutiny. Implied contractual terms of ‘good faith’ have been recognised and used by the courts to second-guess the behaviour of parties who have entered into commercial relationships via commercial contracts. And more radically, any power or discretion that a contracting party reserves to itself in a commercial contract will attract a rationality standard of review. This enables the courts to unpick and question the process that the commercial contractor adopted leading up to any decision, together with a review of the actual decision itself. In this seminar, David Cabrelli will set out the basic principles and explore the far-reaching ways in which the courts have harnessed the common law to subject commercial decision-making to enquiry.

Professor David Cabrelli, University of Edinburgh

Transfer of undertakings: the common law

Is a new partner liable for pre-existing debts of a firm?  If a change in persons who are partners creates a new firm, is the new firm liable for the debts of the old?  What if a sole trader takes on a partner; is the new firm liable for the trader’s debts?  What if a partnership transfers its business to a company?  Or one company transfers its business to another?  In the law of succession on death, a general successor succeeds to the debts of the deceased.  Does the transferee of a business stand in the relation of a general successor to the transferor?  Does it make a difference if the business is broken up into parts?

Michael Upton, Themis Advocates

Drafting tips and common errors

Among other things this talk will cover getting the right information and how to avoid common mistakes.  Interpretation and the courts will also be considered with particular reference to drafting and notice periods, issues with intellectual property, and drafting and exclusion clauses. Some solutions to these issues will be offered.

Alastair Dunn, BTO

Is there something I should know”: Duran Duran and conditions precedent

Ross will look at the decision of the Court of Session last year in FES Ltd v HFD Construction Group, considering the function of conditions precedent in contract, their requirements for fulfilment and their consequences.  He will ask: “what’s changed since 1986?

Ross Taylor, Gillespie Macandrew

Prescription: key cases from 2024

There have been quite a few decisions on prescription over the past year. Some of the highlights will be considered:

• A C Morrison & Richards LLP -v- Souter [2024] SC ABE 19 – when does the clock start to run in an action for damages?
• EH1 Properties Ltd -v- MacLean and Others [2024] SC INV 17; [2023] SAC (Civ) 35 – what constitutes a “relevant claim” to interrupt the prescriptive clock?
• Leonardo Hotel Management UK Ltd -v- Galliford Try Building 2014 Ltd [2024] CSOH 43 - when does the clock start to run in an action for damages?
• John McIvor (AP) -v- RBS [2024] SAC Civ 15 – what constitutes a “relevant acknowledgement” to interrupt the prescriptive clock?
• Centenary 6 Limited -v- TLT LLP [2024] CSIH 13 - when does the clock start to run in an action for damages?
• Tecjet Limited -v- Kier Construction Limited [2024] CSOH 60 – another case looking at what constitutes a “relevant claim”
• Tilbury Douglas Construction Ltd v Ove Arup and Partners Scotland Ltd [2024] CSIH 15 - when does the clock start to run in an action for damages?

Liam McKay, Anderson Strathern

The basics of breach: what we all think we know

This session will provide a refresher of some core concepts of breach of contract. It will explore the circumstances in which a breach can be said to have occurred and some in which it explicitly cannot. Recognising that not all breaches are not equal, we will move on to discuss materiality and then finish by considering the ‘self-help’ remedies which can be exercised by an aggrieved party without the assistance of a court.

Ross Simpson, Shepherd & Wedderburn

*A reduced parking rate of £10 per car is available onsite at the hotel. A code will be issued during the conference which can be entered into the pay station when paying before leaving the car park.