Prior consent

The JC’s guide to writing nice.™ Go Premium Index: Click ᐅ to expand: Plain English Drafting Comments? Questions? Suggestions? Requests? Insults? We’d love to 📧 hear from you. Sign up for our newsletter.

“... and will not without the prior written consent of the Provider (which consent may be withheld, in the Provider’s discretion) ...”

We take it as settled that the point of interposing a consent requirement on the exercise of this or that right under a contract, is grant an option to the Provider. In which case it need hardly be said that consent may be withheld. If it could not, what would be the point of providing it, other than to delay an otherwise unobjectionable process?

To provide notice, you might argue, and sure — but in that case the mechanism you want is notice, not consent.

“...such consent not to be unreasonably withheld ...”

You may wish to mediate the circumstances in which one can withhold consent, and this bromide is the legal eagle’s favourite tool for doing so, skirting so close to a split infinitive as it does (is it just “to be”, in which case you’re okay, or it it a passive infinitive “to be withheld”, in which case you’re not? Does the split infinitive rule, which isn’t a rule, even apply to passive infinitives?)

When can one withhold one’s consent? When your watchword is “noli mentula esse”.

That’s when. As was illustrated in the recent case of Crowther v Arbuthnot Latham & Co Ltd.

If the purpose of a covenant is for a party to achieve a certain purpose, or prevent a certain outcome, then if you use the covenant to achieve some other purpose, you’re likely to get yourself in trouble.

Prior consent, express prior consent, prior express consent, and MiFID

Is “express prior consent” — a MiFID II expression, the same thing as “prior express consent” also a MiFID II expression featuring a lot in the context of best execution?

Who can say? And what of plain old “prior consent” — also a MiFID II expression — admitting as it does, of nods, winks, raised eyebrows and putting two and two together?

Let CESR explain:

Q21 What is the difference between “consent” and “express consent”?

21.1 Where MiFID requires “prior express consent”, CESR considers that this entails an actual demonstration of consent by the client which may be provided by signature in writing or an equivalent means (electronic signature), by a click on a web page or orally by telephone or in person, with appropriate record keeping in each case.

Prior normal consent, on the other hand, does not. You can deem it by conduct — the placement of an order, for example. Or a nod, wink, waggle of the head or unambiguous bodily action.

See also

• Don’t take a piece of paper to a knife fight
• Noli mentula esse
• Barclays v Unicredit
• Crowther v Arbuthnot Latham & Co Ltd [2018] EWHC 504 (Comm)
• AP Picture Houses v Wednesbury