Category Archives: commercial disputes

Top Tips for Building Contracts

From a complete build to a new porch whatever your building project there is going to be some measure of hassle and upset; it is the nature of the beast but careful planning and preparation can reduce the aggravation and stress.

One of the more regular problems we encounter is problems and issues with the building contractor so before a sod is turned, a brink laid or a nail hammered you need to drill down in to your agreement with them.

Here are our top tips to make sure you get the build you agreed at the price you agreed.

1.      Put everything in writing. Everything means everything. If you have a meeting with your builder and variations or additions to your contract are agreed, follow this up with an email or text which sets everything out. If a dispute were later to arise and not everything was written down, then it would be the job of the Court to find as a matter of fact who to believe – this is determined by looking at the contemporary evidence, witness statements and cross-examination. Many barristers pride themselves on their ability to successfully undermined another parties case, if you have contemporary written evidence supporting your case, the chances of them being able to do that are greatly diminished.

2.      Check whether the builder has insurance. This will give you reassurance should any issues arise later on.

3.      Be clear on price. Many builders give estimates or quotes for the work. It is important to establish whether the price given is a fixed price or an estimate. If it is an estimate you may want to get the builder to give a more accurate quote or an estimate of what other work they foresee with the project so that you can budget accordingly.

4.      Be clear on the scope of the works. This is easily achievable by having everything set out in a written contract. However, if you do agree things verbally, make sure that it is very clear what you have asked for, otherwise you may get a lot more (and pay a lot more) than you bargained for.

5.      Know your rights. Getting advice early is important. If you are unsure as to your rights, are in dispute with a builder, or are having problems with a new build property, then get in touch at:

7th August 2018

Harassment and the Law

 

Following a recent case we dealt with it is a useful exercise to review some of the law relating to harassment.

What is harassment?

Harassment claims are governed by the Protection from Harassment Act 1997.

To be regarded as harassment the conduct complained of must:

  • occur on at least two occasions for one person; or
  • one occasion where the conduct is against two or more people.

The conduct, which can include speech, must be objectively assessed “as conduct targeted at an individual which is calculated to produce the consequences described in s.7 and which is oppressive and unreasonable.”

The ‘ordinary banter and badinage of everyday life’ is not conduct which can be considered ‘oppressive and unreasonable’ under the Act.

The Truth Hurts

Harassing behaviour is not limited to false degrading comments.

Comments that are true but repeated in such a way over-and-over could fall within the meaning of ‘oppressive and unreasonable’. The Courts have said:

“The fact that the statements are true, and could and would be justified  at trial, would not necessarily prevent the conduct from being harassment.The real question is whether the conduct complained of has extra elements of oppression, persistence and unpleasantness.”

 Following someone down the street whilst shouting ‘adulterer’ through a megaphone can still amount to harassment within the Act regardless of the truth of the statement.

Online harassment

Due to the nature of online publication the target of the comments is likely to have their attention drawn to it on more occasions than on other media. As a result the publication of material online can amount to harassment even when it only published on one site.

In one case online publication meant the harassment could be inferred to be ‘continuous’ due to it being likely to come to the claimants attention on more than one occasion thereby causing them distress on each occasion. A warning for people who operate on a number of social media websites.

A Right to Privacy and Freedom of Expression

Claims often involve arguments the right to your family life being private and the freedom to publish anything.

The test the Court uses involves scrutiny of the comparative importance of each right, with a proportionate balancing of each right being central to deciding where the relative importance of each lies. The Court will weigh arguments for and against interference and restriction of each right whilst considering this.

Harassment claims are by their nature circumstantial however there is clear guidance on the scope of what does and does not amount to harassment and individuals can seek the protection of the Act when they are being subjected to oppressive and degrading treatment, even if such conduct is under the guise of free expression.

Harassment or defamation

In some cases it may well be easier to pursue a harassment claim as opposed to a claim in defamation due to the thresholds of each. Defamation requires a claimant to have suffered/likely to suffer serious harm as a result of statement, whereas harassment only requires there to be a statement, albeit one which is oppressive and unreasonable.

If you are the subject of harassment and need legal advice as to what we can do to help get in touch with us today:

Avoiding litigation at all costs – top tips..

 

Disputes in business are, unfortunately, inevitable for the vast majority of businesses at some point. Litigation is inherently risky, stressful and time consuming and more often than not, expensive. With the recent (further) increase in Court fees, litigation should be the last resort and whilst the majority of disputes can be resolved before you ever have to appear before a Judge, there are a number of practical and simple tips that all businesses, small and large alike, would be advised to follow to try and minimise the risk of disputes arising in the first place. If it is necessary to litigate, it may also increase your chances of getting an early and favourable result.

  1. Keep it in writing

Whilst all forms of communication are necessary to be successful in business, it really is crucial that any agreements or discussions that take place in meetings or over the telephone are subsequently confirmed in writing.  Documentary evidence of this nature can often be the key to unlocking a dispute in your favour. As good as your memory may be, a Court will always find contemporaneous written documentation to be more compelling evidence during a trial than a witness’ recollection of events that took place during a telephone call several years prior.

  1. Carry out due diligence with customers/suppliers

In this day and age, there is no excuse for not carrying out checks in respect of other businesses that you choose to deal with. Information in respect of all limited companies (which includes the latest filed accounts) is currently available free of charge via the Companies House website. Similarly, you can also check out company and director insolvency statuses free of charge online.

  1. Review your terms of business

Make a point of reviewing your terms and conditions at least every 6 months to ensure that you are compliant with all of the necessary rules and regulations relevant to your business sector in addition to ensuring that you are protected in the event of disputes in the future. For example, inserting a clause within your terms of business which provides that the parties to a dispute agree to explore ADR (Alternative Dispute Resolution), such as mediation, can dramatically reduce the amount of time you spend in the Courts.

  1. Read the small print

All businesses in every sector enter into commercial agreements on a regular basis whether it be for a simple contract employing cleaners or more complex property leasehold arrangements. Whilst it may appear to be time consuming, there is no excuse for signing a document without reading it first. It is not uncommon for parties to believe that they understand the nature of the agreement they have entered into before a dispute arises at which point it may be too late to obtain a favourable resolution.

  1. Review your internal processes

All successful businesses run based on a number of underlying processes. In addition to implementing these processes, it is crucial to ensure that they are reviewed regularly. For example, having a clear credit control process in place for collecting outstanding debts is crucial to the cash flow of a business and further, being able to identify risks such as complaints and dealing with them early and effectively will minimise the possibility of disputes arising.

  1. Don’t delay / take advice

If it looks like a dispute may be on the cards and you are unsure as to your position, it is sensible to obtain professional advice at the earliest possible opportunity. As clichéd as it may sound, prevention is often better than cure. If a potentially litigious situation appears likely, there may be simple steps that can be taken at an early stage which result in valuable costs and time being saved in addition to the stress of litigation being avoided altogether.

  1. Remain objective and professional

Maintaining relationships is a crucial part of running a successful business. It is not uncommon for relatively small issues to escalate to full blown litigation which becomes disproportionate. Before picking a fight, take a step back and consider the consequences of threatening the use of lawyers or Court proceedings. Often, disputes can be resolved without the need for lawyers and Courts to be involved at all. It is often difficult to repair relationships once parties have entered into the litigation process, even if the result is amicable.

  1. Never pursue litigation out of principle

It is very unlikely to end well. If in doubt, take advice as to the best and worst case scenarios of taking a course of action. If neither seem particularly appealing, your decision should be made up for you.

If you are involved in a commercial dispute, or having regard to the above, are interested in knowing more about how to avoid getting in to one, please do not hesitate to contact David Hall, Partner in Cohen Cramer’s Dispute Resolution department on 0113  224 7808.

 

Medical misfortune is a reason to miss Court, as long as it’s sufficient

 

A recent Court of Appeal decision involving a professional negligence claim against a Yorkshire based financial advisor has provided useful guidance as to the tactical considerations required of parties where one side applies to adjourn trial at the eleventh hour based on “medical grounds”.

In this particular case (Mohun-Smith v TBO Investments) Mr and Mrs Mohun-Smith succeeded in obtaining a Judgment against TBO at trial in June 2014 and were awarded damages in excess of £2M. Shortly before trial TBO found themselves in the unfortunate position of being unable to continue to fund their representatives and therefore had to represent themselves at Court.

In a further twist of ill-fortune before the trial started the director of TBO who had dealt with the case for its entirety had very unfortunately fallen ill, and an application was filed seeking an adjournment of the trial, supported by medical evidence from the director’s GP (stating family stress and stress due to the impending proceedings). At trial, with no representatives of TBO present, the Judge dismissed the application for an adjournment, struck out the Defence and awarded the Claimants significant damages as referred to above. The reasons given by the Judge were that TBO had not shown that one of the other directors could not have represented the company and further, that the medical evidence supplied was wholly insufficient.

TBO proceeded to seek an application to have the Judgment set aside. However, this application failed on the same basis that the Judge had refused the adjournment.

TBO appealed the decision and the Court of Appeal has now overturned the Judgment, stating that the Judge at first instance had adopted a “too rigorous approach” in dealing with the application to set aside Judgment. The Court of Appeal found that this was a complex case where the director in question needed to be present partly due to the fact that that director had been dealing with the case for its entirety (18 months) and partly due to the fact that the other director of TBO had very little knowledge of the case and was not in a position to take the case forward both factually and legally. It was also held that whilst it would have been better if the medical evidence had been more comprehensive (as suggested by the trial Judge) it was sufficient.

This case highlights the approach taken by a Court when considering whether to set aside a Judgment for failure to attend. It is clear that so long as the applicant makes a prompt application, has a good reason for not attending (illness being a good reason) and reasonable prospects of success, it would be a very exceptional case where the Court would not set aside Judgment.

From a practical point of view, parties faced with an application from the other side to adjourn a trial at the eleventh hour should think one step ahead and consider whether or not any Judgment obtained in the other party’s absence would remain standing should a subsequent application be made to set aside that Judgment. It may well be a better tactical decision to agree to an adjournment of the trial rather than risk the prospect of a further application being made to set aside previous Judgments, thereby wasting further costs and time. Whilst Mr and Mrs Mohun-Smith may eventually succeed in their claim, the fact is that this is going to be at least two years after the date of the original trial and presumably with them being considerably out of pocket as a result of the last two years of litigation.

The All-Suing Eye.

 

The recent case of ParkingEye v Beavis just goes to show that it can take a lot of time and a lot of money just to be proved wrong. Mike McDonnell of Cohen Cramer Solicitors tells it like it is.

This recent Supreme Court decision relates to the imposition of a fine on a driver who left his vehicle for longer than the two hour free limit in a car park in Chelmsford.  The car park was owned by British Airways Pension Fund and managed by ParkingEye Limited.

Clearly displayed throughout the car park were signs which stated “ParkingEye Car Park Management – 2 hour maximum stay – Failure to comply will result in parking charge of £85”.

Mr Beavis having parked his car, overstayed the two hour limit by nearly an hour and accordingly ParkingEye issued a fine against him.

Despite chasing him on several occasions, Mr Beavis ignored all requests for payment and eventually Court proceedings were issued.

The Judge hearing the matter decided that a contract was formed between the motorist and the car park operator when he entered the car park.  The terms of the contract were clearly displayed on the notices within the car park.  On that basis one would think that Mr Beavis would be liable for the parking charge of £85.

Considering the matter the Judge accepted that ParkingEye had not suffered any identifiable financial loss when a motorist overstayed.  If the motorist had left when he should have then the space would have been either empty or filled by another vehicle using it for a two hours of free parking.

Despite this the Judge still felt that the fine was neither improper nor manifestly excessive and was commercially justifiable.  The Judge found in favour of ParkingEye.

The matter then went to the Court of Appeal who supported the original decision as they did not regard the fine as being ‘extravagant or unconscionable’.

While it may seem like using a sledgehammer to crack a nut the matter proceeded to the Supreme Court who ultimately found the parking charge levied by ParkingEye was neither unfair nor penal and that ParkingEye had a legitimate interest in seeking such payment from motorists who exceeded the two hour limit.  The Court also agreed with the earlier comments offered in the initial hearing and in the Court of Appeal that the sum of £85 was neither ‘extravagant nor unconscionable’.

The moral is if there is a sign saying parking restricted to two hours do not stay any longer than two hours.

 

 

Consumer Rights Act 2015

 

30-day refund becomes law and includes digital purchases

The Consumer Rights Act, which has been labelled the biggest shake-up in consumer rights law in a generation, came into force on 1st October 2015. The Act consolidates key consumer legislation and introduces clearer remedies and timeframes for consumers to claim a refund, repair or replacement.

Why were the changes needed?

UK Consumer law is unnecessarily complex, unclear and fragmented. A lot of consumer legislation has developed piecemeal over time and has not been amended to keep up with technological changes; thus creating out-dated laws and overlaps and inconsistencies with other legislation.

Consumer Rights Act 2015

The Act is in three Parts:

  • Consumer contracts for goods, digital content and services;
  • Unfair terms; and
  • Miscellaneous and general

Standard and remedies – all products must be of satisfactory quality, fit for purpose and as described. If the product falls short of the standard then a ‘tiered’ remedy system is available.

Six months rule – if the consumer discovers that the product is faulty within six months of receiving it, it is to be taken as being defective on the day it was supplied.

Goods

30-day right to reject – a specific timeframe has been created in which consumers can reject a faulty item and get a full refund. The consumer has to inform the trader that they are rejecting the goods and treating the contact as at an end. The trader has a duty to give the consumer a refund, pay the reasonable costs of returning the item and give the refund promptly and within 14 days.

Delivery of goods – unless there is an agreed time or period, the trader must deliver the goods without undue delay and in no more than 30 days.

Who bears the risk during delivery? – the goods remain at the trader’s risk until received by the customer or someone chosen by the customer.

Mixed contracts – for the vast majority of sales, digital content is supplied with goods that can be physically handled (e.g. a car, CD, DVD). The digital content and goods are mixed together as a ‘mixed contact’. The CRA makes it clear that if either the digital content or physical product are faulty, they are treated as a whole item that is defective.

Digital Content

For the first time, the Act covers contracts between a trader and consumer in relation to digital content, as distinct from goods and services. The law here had been unclear and this change has brought us up to date with how digital products have evolved.

Damage to a device – if a trader supplies digital content to a consumer and the digital content causes damage to a device, such as a virus, then the trader will have to compensate the consumer. The consumer must show that the digital content caused the damage and that the trader had not exercised reasonable care and skill.

Services

There are also new clear rules for what should happen if a service is not provided with reasonable care and skill or as agreed.

Standards for a contract for service – the standard is an update to existing law however, the CRA introduces a new statutory right that if the trader provides information which is said or written it is binding where the consumer relies on it.

Remedies – if the service does not meet the standard above then the consumer has two remedies available: 1) a right to request repeat performance, and

2) a right to a partial or full price reduction.

If the consumer requests repeat performance then the trader must provide it within a reasonable time and without significant inconvenience to the consumer and bear any necessary costs. If repeat performance is not adequate then the consumer has a right to a partial or full price reduction.

Unfair Terms

The CRA consolidates the legislation governing unfair contract terms in relation to consumer contracts, which is currently found in the Unfair Contract Terms Act 1977 (UCTA) and The Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR), into one place. It also removes anomalies and overlapping provisions in relation to consumer contracts. UCTA continues to apply to B2B contracts.

Fairness – the CRA makes it clear that contract terms relating to price and subject matter are only exempt from the fairness test if they are prominent and transparent.

Unfair term – an unfair term of a consumer contract is not binding on the consumer.

The Grey list – the CRA contains a list of contract terms that may be considered unfair.

Miscellaneous and general

Enforcement – the CRA sets out provisions on reforming enforcement powers and consolidates and simplifies the investigatory powers of consumer law enforcers in relation to more than 60 pieces of legislation.

Competition – the act establishes the Competition Appeal Tribunal (CAT) as a major venue for competition actions in the UK and changes the way in which judges are able to sit as chairs in the Tribunal.

Alternative Dispute Resolution (ARD) – the Act promotes ADR for competition cases.

Letting Agents – the Act imposes a new duty for letting agents to publicise fees and whether they are a member of a client money protection scheme and which compensation scheme they have joined.

The Higher Education Act 2004 – the act expands the list of higher education providers which are required to join the higher education complaints handling scheme.

Secondary ticketing – the act requires that specific information such as, the seat or standing area, any restrictions and the face value of the ticket, be communicated in a clear and comprehensible manner and before the buyer is bound by the contract.

 

The Consumer Rights Act 2015 stands alongside Regulations to create a greatly simplified body of consumer law. Taken together, they set out the basic rules which govern how consumers buy and businesses sell to them in the UK.

 

The Perils of the Litigant in Person

 

Michael McDonnell of Cohen Cramer Solicitors looks at the perils that await those who chose to represent themselves in court.

Recent cuts in the level of funding for legal aid and assistance has, not surprisingly, resulted in many people being unable to access affordable legal advice and the representation they need.

This has led to an increase in Litigants in Person (LIPs) basically, those who represent themselves in court. While a seemingly sensible response to the problem this can often result in problems and delays due to the individuals, understandable, lack of knowledge of procedure and law. As a result, and the need for the courts to function, Judges have tended to be much more lenient when it comes to enforcing procedural compliance against LIPs.

However, such benevolence comes with provisos, as seen in the recent case of

Akcine Bendore Bankas Snoras v Yampolskaya [2015] EWHC 2136 (QB) (02 July 2015),

This involved the freezing of assets stated to be 482 million euros, and the applicant’s (Mrs Y) failure to file documents with the court leading to her case being struck out.

Mrs Y made an application for the matter to be reinstated. Her application was, in essence, that she really didn’t know what she was doing and hadn’t really understood the need to file the documents, nor had she sought independent legal advice.

The court was not overly impressed by such an argument and rejected her application for the matter to be reinstated.

In reaching their conclusion the court applied the Denton test for determining what, if any, sanctions should be imposed in relation to the breach:

  • Was the breach serious or significant?
  • Why did it occur?
  • When considering the above the court are to deal with the matter in a just manner.

In applying stage two of the Denton test, the court provided useful guidance on the correct approach to assessing defaults by LIP’s, emphasising that not all litigants in person should be treated the same.

The court may take into account the needs of a party who is impecunious or unable to speak the language. However, Mrs Y was a sophisticated person with sufficient access to resources to protect her interests, therefore there was no good reason for her breach. The fact that she was able to hire solicitors and barristers for her application for leave indicates that she had the money for legal advice and representation in the first place.

In short, if you can afford a lawyer then get one and don’t expect the court to be merciful and understanding if you don’t and get it wrong.

To make sure that you have well priced, experienced and qualified legal advice get in touch with Cohen Cramer solicitors.

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