I was asked to give a paper in Adelaide last week on the topic of “Drafting Indemnities: Getting the Details Right”. It was part of a marathon one day session where Legalwise Seminars enabled practitioners to collect 10 CPD points in a single day. It is a pretty fair guess that the delegates (there were quite a number of them) were there because they needed the CPD points, and not so much because they were lying awake at night worrying about how to draft their indemnities.
I have had bigger challenges. It’s not long ago that I was asked to give an after dinner speech on the subject of insolvency in the construction industry. It was a topic of interest because there has been quite a lot of insolvency in the construction industry around here recently. The challenge was that I was told to try to make it funny!
Anyway, I did my best to make this rather dry topic of drafting indenity clauses as interesting as I could, and as far as I could tell, no one actually fell asleep.
After these events, the conference organisers, Legalwise Seminars, collate and send round the evaluation forms that the delegates are asked to fill in, so that speakers can get some feedback on how the session was received. I thought my comments were okay:
- Entertaining and informative as usual.
- Great paper and practical examples.
- Well explained.
- Very entertaining style.
- Made the best of a comparatively dull/dry topic as well presented, and learnt how better to draft such clauses.
- Informative explanation of the legal previsions under the regulations.
They (i.e the delegates who can be bothered to fill in the evaluation forms at all) also give you the actual marks, delegates being asked to rate every presentation from one, which is poor, to 5, which is excellent. Again, this was not too bad:
But hold on! Someone gave me “poor”. What’s that about? My presentation was not poor all. It was really rather good. If you don’t believe me, you can check out the paper Drafting Indemnities Getting the Details Right. So who gave me “poor”? Someone I had unwittingly offended at some time in the past, perhaps? Someone I had given a hard time in court one day? Or perhaps it was someone who simply didn’t agree with my analysis that compensatory indemnities are generally more effective than preventative indemnities?
Who knows? Well, someone obviously knows, namely the person who gave me “poor”. But since I don’t know who gave me “poor” that is not really any help.
The following day, I flew up to Brisbane to join some colleagues of mine from Keating Chambers in London (they happened to be in Australia) Marcus Taverner QC, Adam Constable QC and Jennie Wild. It was a Society of Construction Law event, very well attended and really rather fun. Marcus did the general introduction, then Jennie gave a faultless and neutral explanation of the recent English Supreme Court case on penalties – Cavendish v El Makdessi – and the recent Australian cases on the topic. Then, to give it some spice Adam presented the view that these cases haven’t changed anything very much at all, and I then presented the opposite view that there was a bit of a revolution going on, there now being much wider scope for legal challenges to these clauses.
Happily, it all went down rather well; everybody seemed to enjoy themselves and a number of people were kind enough to say that we had given them useful food for thought. Being a member of the best and most prestigious set of construction and energy law barristers in the world is both a privilege and a pleasure.
There is a link to the paper on my Papers and Articles page. I wrote the Wider View section.