Training

I have been a regular speaker at national and international conferences on a range of subjects connected to Technology and Commercial Law.

training

Providing training is one of my main focuses – after all, no-one wants to instruct a lawyer after things have gone wrong, you need to know what to do in advance. That is what my training is aimed at – providing content-full, helpful, practical sessions for delegates.

Training can be aimed at different categories of people – from lawyers who want the latest case updates to business people who want practical guidance. In all cases, I don’t just read out slides, I go further and provide valuable learning points from the legal principles I discuss.

I provide a number of different training packages – here is a brief discussion of what I do. I’d love to talk to you about how I could provide some training in your organisation – please email me to find out the details.

TRAINING PACKAGES

Update on the Law of Contract: latest cases and their implications

A Masterclass on Contract Law for Non-lawyers

A Masterclass on Service Level Agreements: Law and Drafting

A Masterclass on Contractual Indemnities: Law and Drafting

A Masterclass on Limits and Exclusions of Liability: Law and Drafting

An Introduction to Drafting Commercial Agreements: Law and Best Practice

A Masterclass on Cloud Contracts: Drafting and Pitfalls

UPDATE ON THE LAW OF CONTRACT: LATEST CASES

I am probably best known for this, and it would be no exaggeration to say that hundreds and possibly thousands of lawyers and others listen to this update every year. However, I never give the same talk twice – it is kept up to date constantly to take account of the latest developments and to highlight emerging themes.

This is chiefly aimed at lawyers – though when I deliver it to bodies like the Society for Computers & Law, it always attracts a goodly number of business people who welcome its practical focus. In fact, it sells out every year – and attracts many of the same people back year after year. It is not focused on any one particular industry sector – though it draws on developments in general commercial, corporate, construction and engineering and property. There is material for anyone in just about any area of business – and it gets delegates from across the board.

This one comes in three flavours:

  • A half-day session of three hours looking at important themes over the last five to ten years, picking out the leading cases, showing how the law of contract is developing and what the major practice points are for anyone involved in drafting, negotiating or litigating contracts
  • A two hour session focusing mostly on the last 12 to 18 months of legal developments
  • A one hour session focusing on the last 6 to 12 months of legal developments

I don’t have to sing its praises – the feedback speaks for itself. Here is what some delegates have said about recent 2018 presentations of this course:

  • Richard’s encyclopaedic review continues to amaze. He managed to cover an astonishing breadth with insight and humour. Thank you to Richard and all in support.
  • Fascinating and frightening in equal measure (as always)!
  • Great session – 10+
  • Very impressed by the scope and depth of Richard’s presentation – very useful. Excellent slides!
  • Very engaging and was able to hold the attention of his audience. Very well organised, relevant content and timing was spot on

Here is another selection of what delegates have said in past years:

  • A well-prepared, lean, useful, relevant and excellently presented seminar. Richard was superb – thanks very much!
  • A very comprehensive, thought-provoking and engaging presentation. Highly recommended.
  • Excellent as always. Great delivery and content. Thorough and incisive. Exactly what’s needed.
  • This event is excellent. I have been to the last four and rely on the brilliant notes throughout the year.

The last reference to notes is important – I believe in providing content-full events. Don’t you just hate those sessions when you come away with a slide deck full of clip art and inscrutable bullet points? I believe in providing copy slide decks you can read and actually use rather than just gaze at bullet points and wonder what they mean. Delegates have told me that they take the slide decks and use them during the year when problems come up!

A MASTERCLASS ON CONTRACT LAW FOR NON-LAWYERS

This course lasts a day, and is ideal for four up to a dozen delegates. It is aimed at IT professionals, perhaps people with a technical background who are now working in a commercial environment and expected to draft or negotiate contracts. It is also aimed at people who are thorough-going commercial people with perhaps years of experience but who have never had any formal training in what contracts are – what are the buzz words? What do legal words and phrases mean? People come with lots of questions, and I try to answer them, questions like:

  • When someone holds out for best endeavours and you are offering reasonable endeavours, what are the implications?
  • What does “subject to contract” mean?
  • What do I need to know about using Letters of Intent? How are they different from MOU’s or Heads of Agreement?
  • What is the “battle of the forms” and how do I win it?
  • What about lots of other expressions and clauses that you see in contracts – “good faith”, “without prejudice”, orders of precedence clauses, what do they mean and what are the pitfalls?
  • How can I avoid turning my customer’s obligations into meaningless and unenforceable “agreements to agree”?
  • What is behind limitations and exclusions of liability – when does the law intervene with the Unfair Contract Terms Act 1977? What happens then?
  • When am I justified in terminating an agreement?

These and many more points are all covered in a busy day. It is not just lectures – I provide realistic scenarios based on my real-life experiences and the decisions of real cases in the IT sector. The aim is to teach you the basics and let you work out the answers to the questions posed by the scenarios. I then provide the answers and give guidance on best practice to avoid problems in future.

I have been developing and running this course for the past 8 or 9 years and feedback has been fantastic! Take a look at what some of the delegates have said in testimonials after attending at techUK:

  • I found the Contract Law course very useful. The course highlighted that all employees are able to impact the ability of the business to protect itself from legal challenges, not just those who negotiate the original contracts. Directors, managers, project teams, sales teams and operations managers particularly within SMEs would greatly benefit from attending this course. Highly recommended. (Michelle Hulse – Head of Finance, Securestorm Ltd)
  • I work with contracts on a daily basis, and this course has given me a more thorough understanding of the basics of English contract law. Richard Stephens is incredibly experienced and pitches this course at just the right level and tempo. (David Shaw – Mapping Specialist, Paragon Software Systems plc)
  • The contract law course was concise, well-structured and clear. It was exhilarating to have covered so much in so short a time. Attention was usefully drawn to the points of most relevance to commercial practitioners who did not have the benefit of a legal background. (Josh Berle, Government Sales DirectorVocaLink Limited)
  • An engaging and very interactive course offering a one-of-a-kind look at contracts within the context of the information technology landscape. Richard is an approachable and user-friendly presenter and the course is well worth attending for professionals involved in the contract negotiation process. (Laura Poole, Bid & Contracts Advisor – Iken Business Ltd)
  • The training class was slick and insightful; with knowledge gained being directly applicable to a working environment. Richard has an outstanding understanding of the subject matter, but it was his ability to construct and communicate a well-paced, digestible and inclusive course that I was truly thankful for. (Graeme Lea – General Dynamics)
  • A great course, well presented and aimed at the manager with no specific law training. Would recommend as an introduction to the pitfalls and simple mitigations to prevent contract disaster. (Chris Eldridge – Director of Operations, Mayden)

A MASTERCLASS ON SERVICE LEVEL AGREEMENTS: LAW AND DRAFTING

Why should you attend this course?

Service Level Agreements (SLA’s) are a part of both modern business and modern government: many businesses and government departments (central and local) claim to offer compliance with SLA’s, and SLA’s lie at the heart of many agreements in the tech sector: cloud services, software support, outsourcing, help desks – really anything where one party provides a service to another.

Considered “technical”, they may not be drafted by lawyers or others with lengthy drafting experience in the first place – but of the entire contractual suite of documents, the SLA may well turn out to be the one piece of documentation the parties have most recourse to in the lifetime of a contract.

Getting an SLA right at the outset will save the parties much pain later and prevent arguments over what the SLA actually means or how it applies to what has happened in practice. Despite this basic fact, many SLA’s fail either because they are too complicated or because they exist in a theoretical world divorced from reality.

In developing this course, I have drawn on my experience of drafting and negotiating SLA’s over many years and I will provide practical examples from my own experience as guides to good drafting and negotiation practice.

Who should attend?

Most people in a modern business will have some contact with an SLA – from the commercial management team drafting and negotiating one to the IT Department which is trying to understand and operate it. Just about anyone in your organisation will want to learn how to draft and operate an SLA.

What is the course outcome?

The course will take delegates logically through the process of establishing and drafting an SLA, focusing on the impact of SLA’s on the tech sector and how they are used in, for example, cloud service agreements or helpdesk or other support agreements.

Delegates will come away with knowledge of how to go about setting up an SLA, what to include and what to exclude, an understanding of key expressions including the all important TLA’s so beloved of the tech sector (SLA is itself a TLA …), an appreciation of the key negotiation areas and the major pitfalls to look out for.

The course includes plenty of opportunities for Q&A using worked examples as a basis for discussion.

What is the agenda?

The course looks at the following areas among others:

  • How are SLA’s put together
  • Relationship to the main agreement
  • Who should do the first draft?
  • How to measure the various services – which ones to include
  • What remedies should be proposed for non-compliance with service levels
  • What is the right balance to strike when making an SLA:
    • The provider wants to describe its normal service
    • The customer which wants a big stick to beat the provider with
  • How to make sure your drafting works – aim for precision and simplicity
  • What does the law say about SLA’s – there has been a movement in the law’s approach to these things

A MASTERCLASS ON CONTRACTUAL INDEMNITIES: LAW AND DRAFTING

Why should you attend this course?

It used to be the case that a typical commercial agreement contained only one indemnity – the IPR (intellectual property rights) indemnity. Now they proliferate and a typical draft nowadays will contain many individual indemnities for a whole range of misdemeanours – from missing an SLA to individual breaches of contract.

Why is this? If you ask most lawyers what an indemnity will give over and above a straight claim for damages, most will struggle to provide a satisfactory explanation (there are some differences …). Again, if you ask a lawyer why they are using expressions like “save and hold harmless” or “indemnify and keep indemnified” they will normally be at a loss to describe what these phrases (and other typical indemnity drafting) actually mean (there could be better ways of expressing these thoughts …).

Cases are starting to come through on indemnities simply because they have become ubiquitous, and there are important lessons to be learned from the cases – lessons which should translate into better drafting and better strategies when it comes to disputes or claiming under an indemnity.

In developing this course, I have had recourse to numerous cases and done original research. Some of the older cases still form the basis of the law in this area even though they go back some time but there is also a good deal of modern law on the subject too. There is hardly any published material available on contractual indemnities and, as far as I know, no other course which looks specifically at this topic and which offers drafting and litigation tips.

Who should attend?

This course is aimed at lawyers – commercial people could attend but the legal content is high. This course is aimed primarily at any lawyer who is involved in the drafting of commercial agreements or involved in resolving commercial disputes – since just about any modern agreement comes replete with indemnities, almost every lawyer will benefit.

What is the course outcome?

Attendees will understand the origin of indemnities, how the courts typically interpret and apply them nowadays and what the benefit is of having them (if any). Attendees will also benefit from learning drafting tips from the cases which they can apply in their day to day work of drafting, marking up or resolving disputes about contracts containing contractual indemnities.

What is the agenda?

There is much to cover and over half a day the course will look at:

  • When is an indemnity not an indemnity? When it’s a guarantee!
    • Origins of guarantees and how to spot whether a clause is a guarantee or an indemnity
    • Law applicable to guarantees
    • Emergence of indemnities and the different law applicable to them
  • Conduct of indemnity clauses: how strictly are conditions to recovery under an indemnity enforced?
    • If you give sole conduct of a dispute to a party, just what are you letting yourself in for?
  • Construction of indemnities: what legal principles apply to the construction and application of indemnities
    • Understanding applicability – just what do indemnities apply to?
    • What if the indemnified party is responsible for its own loss?
  • Scope – how the courts apply indemnities to concrete claims
    • How do the courts apply rules of causation to claims under contractual indemnities?
    • What about concurrent causes of loss – do they invalidate the indemnity?
    • What if losses are not reasonably foreseeable or in the contemplation of the parties?
    • What where loss is mitigated? What about where it is not?
    • Can the indemnified party claim its legal costs?
  • Enforcement – how does the indemnified party go about enforcing a claim under a contractual indemnity?
    • Does the Unfair Contract Terms Act 1977 apply?
    • What loss can be claimed?
    • Apart from damages, is there any other remedy?
    • When exactly can a claim be made under an indemnity? Does the indemnified party have to wait for the loss to accrue first? Must the indemnified party pay out before making a claim?

In short, this fascinating and original course will at last throw much light on what has become a staple of modern commercial contracts and provide the tips and pointers for success in drafting – and making claims under – contractual indemnities.

A MASTERCLASS ON LIMITS AND EXCLUSIONS OF LIABILITY: LAW AND DRAFTING

Why you should attend this course

This is the one most lawyers both love and fear in equal measure: during the drafting stage or in negotiations, most clients will go quiet while the lawyers battle it out over limitations and exclusions of liability. It seems to be the special preserve of lawyers, who use their own special jargon. But what does it all mean? In a sense, the whole of an agreement relates to the allocation of risk and potential liability, so why should lawyers monopolise just one clause dealing with caps and exclusions?

In fact, the law is moving away from technicality and more recent cases emphasise the role that limits and exclusions of liability have as part of an overall deal. So drafting liability provisions should be something lawyers engage with their clients on.

However, the risks remain – and the law moves at a dizzying pace, and those of us who watch the law reports look out for the subtle changes in approach adopted by the courts when it comes to interpreting and apply liability provisions.

After all, when it goes horribly wrong, you need liability clauses you can rely on.

(NB: this course looks at B2B contracts only, it does not consider consumer law)

Who should attend?

This half-day is really aimed at lawyers, though interested commercial managers might find it of use to understand the jargon and the background to the law.

What is the course outcome?

You will understand the history of how the courts approach clauses limiting or excluding liability and, most importantly of all, appreciate the current approach taken by the courts. At the same time, some understanding of the history should make you aware that the judicial attitude could still change again …

You will be able to consider the factors to be taken into account when drafting, tips for effective drafting of liability provisions and a thorough background in the law applicable to your work.

What is the agenda?

There is much to cover and over half a day, the course will look at:

  •  The need for liability provisions
    • What happens without them?
    • Should the customer limit its own liability?
    • How should a lawyer approach the drafting process? What factors need to be considered?
    • How else can risk be mitigated? After all, if you can take reasonable steps to avoid risk, then there is less need to rely on liability provisions …
  • Approaching the problem
    • What liabilities do you exclude? Which liabilities do you cap? Are there any you should accept?
    • Can’t you just exclude all liability?
    • Are there some liabilities you can’t exclude?
      • the position of fraud
      • death or personal injury – but what if my wording excludes these liabilities anyway?
  • Misrepresentation
    • What do entire agreement and non-reliance clauses achieve?
    • Do they have risks? How do I mitigate those risks?
  • The interpretation of liability provisions
    • The “classical” approach
    • The modern (and current) approach – and how different it is from just a few years ago
      • the death (or at least life-support) of contra proferentem
    • Other ways to exclude liability – time-limits and notices
  • “Traditional” exclusions
    • Just what is indirect loss? Is it different from consequential loss?
    • Why should I exclude loss of profits? Or maybe not …
  • What law is applicable?
    • The role of the Unfair Contract Terms Act 1977
      • what are “written standard terms of business”
        • what are “unusual” or “onerous” terms and how should I deal with them?
      • when else will UCTA intervene in my contract
      • when will UCTA not apply – international contracts and other cases
    • How do the courts now approach UCTA – is it a big risk when drafting standard form contracts?
      • what is reasonableness under UCTA and how do the courts approach the typical commercial case?
    • What other statutory provisions or other common law principles should influence my drafting?
      • negligence – and what is gross negligence?
      • fraud
      • deliberate wrongdoing
  • Drafting points
    • How to choose a suitable cap – and the different ways a cap can be formulated
    • The role of insurance
    • Allocating responsibilities under a contract
    • The interplay with indemnities – do indemnities come within the cap?
    • The interplay with termination clauses – what about claims for costs following termination?
    • The interplay with liquidated damages – do they count against a cap?
    • “paid” versus “payable” – drafting tips
    • What other clauses should I be thinking about?
    • Do I have one big cap or list out lots of little caps?

In short, attendees will get a good grasp not only of the law applicable, but also the points to watch out for when drafting and negotiating clauses excluding or limiting liability.

 

COMING SOON – A GUIDE TO DRAFTING COMMERCIAL AGREEMENTS

A MASTERCLASS ON CLOUD CONTRACTING – ESSENTIAL COMMERCIAL TERMS

Why you should attend this course

Cloud computing has long (in IT industry terms) since ceased to be a buzz expression and is now a reality for many businesses. Indeed, after the hand-wringing in the early days when few businesses trusted the amorphous cloud, nowadays many businesses depend, at least to some extent, on cloud computing. Some even run their businesses on it.

In the early days, there was little experience of the potential pitfalls and lawyers were uncertain in their approach to drafting – with many users especially opting for full-blown outsourcing terms. Since then, it is clearer what commercial considerations apply and both providers and users should now be aware of the contracting pitfalls and what points are to be negotiated.

Obviously, a negotiation will not necessarily yield everything either party wants, it comes down to a compromise, but a knowledge of what are the desirable points to negotiate is an essential starting point for both parties.

Who should attend?

This course is aimed at both lawyers and commercial managers. As for the lawyers, it would be ideal for junior lawyers who are starting out in a department where they will encounter cloud contracts or for more senior lawyers who are approaching cloud contracts for the first time.

Commercial managers will all benefit, especially when they are acquiring cloud services for the first time and are looking at a contract and not sure of what they should be negotiating.

What is the course outcome?

Delegates will come away with a knowledge of the different types of cloud service and the different types of contract used for each of them. More importantly, delegates will appreciate the commercial risk areas and what are consequently the key terms for each side to negotiate and what the ideal outcome is for a negotiation.

What is the agenda?

There is much to cover and the agenda for this half-day session is as follows:

  • Understanding Cloud services – getting some definitions and TLA’s out of the way
    • SaaS vs PaaS vs IaaS
    • Cloud models in practice
    • Cloud deployment types
      • private
      • community
      • public
      • hybrid
    • Pro’s and con’s of using Cloud – the basic commercial risks to understand
  • Going into a Cloud contract – due diligence
    • What issues should a user typically want to subject to DD?
    • Standard terms – when are they ever acceptable and when should a user seek to negotiate? What impact does the Unfair Contract Terms Act 1977 have?
  • Terms that need special attention – and what to negotiate and where each should party should try to end up
    • What is the relationship to outsourcing
      • is TUPE a relevant consideration?
    • Charging models
      • usage-based vs periodic
      • indexation
    • Service description
    • Service levels
      • going for gold – or should it be silver or bronze?
      • availability
    • Security
    • Audit
    • Data protection (NB: this is not another GDPR course, only the essentials will be considered)
    • IPR and licensing
      • what needs to be included in the licence
      • the IPR indemnity
    • Liability clauses
    • Jurisdictional issues

This course will also consider key clauses taken from a Cloud contract and provide opportunities for discussion as well as the chance to consider further more detailed drafting points.