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avoiding contractual pitfalls

Avoiding Contractual Pitfalls

Avoiding contractual pitfalls. In light of the fallout from the European Super League and the possible contractual implications for those teams which had signed up to the League and have since pulled out, we set out below five tips to ensure you are protected when it comes to contracting with another party.

An agreement may be required for anything from loaning money – whether commercially or to family/friends to agreeing to carry out a service in return for payment, for example, building an extension or decorating your home. Whatever the agreement, and no matter how formal or informal it may be, you should take steps to protect yourself in the event of fallout.

Verbal or Written – a contract can be formed whether verbally or in writing, however, it is always best to record the terms of the agreement in writing. This will help minimise any fallout should either party default on the agreement as you can refer to the contract terms as to how to deal with the breach. If a contract is made verbally, it will be difficult to prove what terms were agreed to then prove if that term has been breached.

Take professional advice – where possible, it is always best to take professional advice when drawing up a contract or agreement. A professional adviser can help incorporate terms into the contract to protect your position in the event a party doesn’t comply with the agreement.

Plan for the worst – whilst it can feel a bit awkward agreeing on what will happen in the event of fallout, it is easier to agree on what would happen whilst still on good terms. For example, should interest be charged on any unpaid sums?; do you have the right to withhold payment until defects are sorted?; can you terminate the contract without penalty? If these are discussed and agreed at the outset, in the event of a fall out you will be able to take speedier action to resolve the dispute.

Negotiate – a contract is normally for the benefit of all parties, whether that be paying a builder for their services to carry out work to your home, or loaning money in return for a payment in full with interest over a specified period. Having a clear agreement in which your interests are best protected on the best terms possible, means you shouldn’t shy away from negotiation. If it transpires at a later date that the agreement isn’t quite as beneficial as you thought, you are unlikely to be able to address this at a later date.

Due Diligence – we see time and time again people entering into agreements without carefully checking out the company or individual they are reaching an agreement with. Whilst it is not always easy to establish the financial position of the person you want to contract with, you should undertake as much research as possible to satisfy yourself that you are contracting with who they say they are; that they will be able to carry out the work you have paid for; or that any loaned sums can be repaid.

How we can help

We are often brought in to help clients at the point of the fallout of a contract. By taking into account the above steps, whilst we cannot guarantee you will not find yourself in the position of having to seek legal advice because a contract has been breached, it makes it easier to resolve any dispute if the above steps have been taken at the outset.

If you have any concerns over a contract or agreement you have entered into, about to enter into, or you are already at the stage where the contract has been breached and you are no longer benefitting from the contract, please get in touch on 0113 224 7808 or disputes@cohencramer.co.uk to discuss how we can help further.

 

Gemma Bowkett (Associate Solicitor) 5th May 2021

 

Avoiding contractual pitfalls

Section 22 Applications and Your Pension

Section 22 Applications and Your Pension. The POCA team was recently instructed in a case where the defendant, who had a Confiscation Order in 2010, was identified as having further assets available to him, including three pension funds. We were able to successfully negotiate a deferred payment for our client to maximise the money paid towards the Order and avoid paying penalty fees for realising the pension prematurely.

It is not uncommon for pensions to be included within Section 22 Applications. The question as to whether it is ‘just’ within the Proceeds of Crime is not straightforward and will depend on the individual circumstances. It is certainly a tough prospect for a defendant to face losing their nest egg that they were anticipating relying on in the future, especially when the money was saved from an early career, sometimes decades before any offending took place. This can be a particularly harsh reality when a conviction against a defendant’s name has the potential to limit future employment prospects.

The defendant, in this case, was also self-employed meaning that job security and retirement, particularly during Covid, was going to be very challenging without these funds.

The law in relation to S22 Applications

Case law shows us that there are many factors to be taken into account when considering Section 22 Applications to determine what is ‘just’, such as how long ago the Order was made; the amount outstanding; and the impact on the defendant (Padda). However, there has been no successful challenge in the Court of Appeal as to pensions specifically.

Pensions are also subject to strict tax rules. Save for exceptional circumstances, any withdrawal from your pension before turning 55 is classed as an ‘unauthorised payment’. While technically the pension can still be withdrawn – it will be subject to an eye-watering 55% tax which goes to HMRC as a penalty. For example, a pension worth £100,000 in total would see £55,000 being paid to HMRC and only £45,000 being paid towards the Confiscation Order.

In this case, the defendant had not yet turned 55. Nonetheless, the pensions were pursued by the Prosecution as an available asset as the money could be withdrawn, even though the defendant would have to pay a significant tax penalty for doing so.

How we helped

We were able to successfully propose a Variation to the Restraint Order allowing the funds to remain in his pension accounts until age 55. This had the effect of preserving the full amount of money to be later contributed towards the Order with no tax payable. Rather than the tax going to HMRC, the full amount was used to pay the Confiscation Order reducing the amount owing in future.

The Section 22 Application was withdrawn, and all other assets were removed from the proceedings. A Variation to the Restraint Order was drafted and sealed by the Judge.

We can assist our clients in reaching a practical, common-sense resolution to any POCA issue to ensure that their interests are protected.  If you need assistance with a Proceeds of Crime matter, contact us today.

We can help you with your Section 22 Application and your pension

We will deal with confiscation cases anywhere in England and Wales.

For the help and assistance you need to get in touch with us today:

  • Call: 0113 244 0597
  • Email: poca@cohencramer.co.uk
  • Request a call back by entering your details into the form at the bottom of this page

 

John Goodwin’s submission to the Justice Select Committee on Private Prosecutions (2)

RSPCA has submitted evidence to this inquiry, which outlines how it approaches prosecutions and the measures it has put in place to improve its transparency and accountability.

The Committee has also received a number of submissions that are critical of the RSPCA’s prosecutorial activities.

The Countryside Alliance suggests that it is inappropriate for the RSPCA to remain the principal prosecutor of animal welfare offences and that it should instead be the responsibility of public bodies.

John Goodwin, a solicitor for Cohen Cramer Solicitors who defends prosecutions brought by the RSPCA, highlights concerns over the way in which the RSPCA operates at the pre-trial stage, the issues surrounding the obtaining and execution of warrants, the

Confiscation Proceedings in a Nutshell

At Cohen Cramer, the dedicated POCA Department specialises in all proceedings under the Proceeds of Crime Act 2002 and associated legislation.  We have the expertise and knowledge to deal with the most complex of matters and can assist with any issue you face. Leah Arksey, our expert Paralegal, offers her overview of POCA, to explain what exactly you could find yourself facing during the proceedings. Continue reading

Debt recovery for businesses and SME’s

Debt recovery for businesses and SME’s. Whilst many of us are acutely aware of the threat to health that Covid-19 (Coronavirus) has brought in 2020, we are also aware of the threat it has brought to our companies and small businesses.

The business landscape of today shows a picture of uncertainty, due to reduced consumer/client engagement which has resulted in reduced profit margins and cash flow, with many companies simply unable to stay afloat.

It seems that with the instability in gaining revenue that companies are currently facing, they may have to look internally to increase cash flow. This could involve an assessment of their debt recovery procedures and whether they have outstanding debts owing.

Internal debt management

Businesses should of course look to manage overdue payments internally and can do this by keeping communication clear and on a regular basis with their clients. This will ensure a full understanding of any contracts entered into and payments to be made and can help to reduce disputes.

Businesses must also have a recovery procedure in place that is consistent and adhered to, but that is also flexible in any potential recovery arrangements that can be put in place. When an invoice is unpaid, act quickly, and be willing to think alternatively to come to an agreement with your debtor.

When debts remain unpaid

Maximising debt collection should be a priority to many businesses; to recover owed debts would increase available means to your business and would make for a happier balance sheet.

The recovery of money owed can be a sensitive area and it is important that the process is managed promptly and with skill, especially during the current Pandemic.

Cohen Cramer can provide a fast and cost-effective debt collection service to your business.

Do not let Coronavirus put your business off taking debt recovery any further. Cohen Cramer is experienced in establishing which debtors are in difficulty and truly unable to make payment and which ones may be simply looking to avoid making payment.

For your free and confidential initial discussion to see how we can help your business run in an effective, efficient, and economical way, please get in touch with us on the following details.

How we can help with debt recovery for businesses and SME’s

To get the help you need get in touch with us today:

  • To speak to a member of our Disputes Team on the phone please call 0113 224 7808
  • To send a member of our Disputes Team an email please use disputes@cohencramer.co.uk

 

 

The Big Freeze – The Rise of the Account Freezing and Account Forfeiture Order’s.

Account Freezing and Forfeiture Orders. Over the last year, there has been a substantial rise in the use of Account Freezing Order (AFrO) and Account Forfeiture Order (AFO) schemes under the Proceeds of Crime Act 2002 (POCA).

Increased use of AFrO and AFO

A Freedom of Information request showed that 166 orders to freeze accounts were issued by HMRC in 2019/2020 which is up 177% from the previous year.  The reasonably low threshold for authorities to obtain an AFrO makes them an obvious choice in the Prosecution tool kit to investigate potential proceeds of crime, without a criminal conviction.  However, there are ways to challenge them and the instruction of a specialist POCA lawyer is the best method.

For many years, prosecuting authorities have had the power to seize cash from anyone they suspect to have obtained it unlawfully.  It is then forfeited unless evidence can be adduced to satisfy the Court that the cash has in fact come from a legitimate source.  These powers have been extended under the Criminal Finances Act 2017 with the implementation of the AFrO and AFO scheme.

Reasonable Grounds for Suspicion

For the prosecuting authority to obtain an AFrO under Section 303Z1 of POCA they must have ‘reasonable grounds’ for suspecting that money held in a bank account is recoverable property or that it is intended for unlawful conduct.  ‘Reasonable grounds’ must be on an understandable and proper basis.  The application is usually made, without notice, to the Magistrates’ Court and the prosecuting authority must also inform the court of any reasons why the money in the account may be legitimate.

If the Court agrees to make an AFrO, the intended recipient will then be informed and the AFrO served on them.  One of the most significant decisions will then be whether the appellant wishes to challenge the order.  There may be a number of different ways to do this and instructing an expert POCA lawyer will assist in making an informed decision on how to proceed.

Challenging an Order

There is no Legal Aid funding to challenge an AFrO or AFO.  The Respondent is not facing criminal proceedings and so may find that all of their money is tied up in the frozen account.  If that is the case a specialist lawyer can seek a variation to release money to cover reasonable living expenses, legitimate business expenditure, and legal expenses if necessary.  The appellant should be able to obtain a ‘no quibble’ initial sum so get the ball rolling.

If the Respondent does not challenge the AFrO within the allotted time period an application may be made to forfeit the money in the bank account by the prosecuting authority.  They must satisfy the Court that the money held in the bank account is recoverable property or intended for unlawful conduct and if so, the money will be forfeited.  It is then distributed under the Asset Forfeiture Initiative Scheme.

There is currently no easy route to appeal an AFrO.  The legislation does not provide for this and so it is absolutely paramount that the moment you receive an AFrO you seek specialist advice.

Get the Help You Need with Account Freezing and Forfeiture Orders

How Lauren and her specialist team of lawyers can help you:

  • Exclude funds for living expenses.
  • Challenge the lawfulness of any AFrO.
  • Challenge the AFrO or AFO.
  • Advise third parties.
  • Reach a settlement.

For the help and assistance you need get in touch with us today:

  • Call: 0113 244 0597
  • Email: poca@cohencramer.co.uk
  • Request a call back by entering your details into the form at the bottom of this page

For the Quality Legal Service that You Deserve

 

Covid-19: Personal Injury Protocol

While Cohen Cramer solicitors are dedicated to ensuring an effective and speedy resolution of personal injury claims, we are very much aware of the impact that the current COVID-19 virus is having upon the way in which claims can be dealt with.

It would be wrong and unfair to seek to take advantage of the situation in any way shape or form and accordingly we have today, as a practice, added our name to the “Covid-19: Personal Injury Protocol”.

The revised Protocol, which is in place for a month with provision for a further review thereafter, provides for the following:

  • all limitation dates in personal injury cases are frozen and for claimant solicitors to respond constructively to any request for extensions for the service of any defence.
  • the establishment of an escalation process so that any issues can be resolved in a forthright and effective matter. This includes setting up an email and telephone hotline especially for such purpose.
  • a commitment to manage the email and hotlines to ensure that any issues are dealt with as quickly as possible.

We are living and working in unprecedented times but it is essential that justice not only continues to be done but is seen to be done in an appropriate and understanding fashion that recognises the situation in which we find ourselves.

Full details can be found at https://www.abi.org.uk/products-and-issues/choosing-the-right-insurance/motor-insurance/coronavirus-protocol/

Selling Assets Abroad

Advice and Assistance from Cohen Cramer 

If the Crown Court makes a Confiscation Order against you will be required to sell any assets that you own to make the payment. The onus is on you, the Defendant, to realise any assets that you have within the timeframes permitted by the Court.

Where a Defendant has assets to sell, the Court will usually allow the Defendant 3 months to pay the order. This is extendable, on application to the Crown Court, by a maximum of a further 3 months. There must be genuine reasons to justify an extension of time. After this time expires, interest will accrue on the amount owed.

Complying with your order

Complying with an order can be extremely problematic if you have assets in foreign jurisdictions. This could be a holiday home, commercial property or funds held in foreign banks.

When repatriating foreign assets it is important that you understand the required procedure so as to ensure compliance with the Country’s regulations and tax laws.

The procedure differs depending on the location of the assets. As it is the Defendant’s responsibility to pay the Confiscation Order, you are unlikely to receive any assistance from Prosecuting authorities regardless of the complexity of the matter.

Possible problems with compliance

You must also be aware of the time that it takes to realise the asset and repatriate the proceeds to the UK. This is not always a quick process and can be problematic as the Court only allows limited time for payment of the Confiscation Order. It is therefore important that the procedure is completed as efficiently as possible to avoid further interest accruing.

For clients who are detained or subject to a Serious Crime Prevention Order which restricts travel, dealing with assets overseas is always problematic. Members of our Proceeds of Crime Department have in these circumstances represented client’s interests overseas by travelling to the Country in which the assets are located to investigate legal issues, assist with completion formalities and repatriate funds.

You should also be aware that failing to realise assets and satisfy the Confiscation Order within the time limit may result in the imposition of a default sentence. It is therefore extremely important if you hold any assets overseas that you obtain advice as soon as possible. This will allow appropriate steps to be taken to realise the assets so that any delay can be justified to the Prosecuting Authorities. This will help to avoid the imposition of a default sentence.

The solution to your problems

Our specialist Proceeds of Crime Department are familiar with the complications faced by Defendant’s required to sell assets overseas. We have represented clients faced with such difficulties and successfully dealt with the realisation of foreign assets and repatriation of the proceeds following sale.

Our specialist POCA team are adept at seeking solutions to problems in relation to foreign assets, realising foreign property, repatriating funds and avoiding the imposition of default sentences.

If you are having difficulty selling assets in a foreign jurisdiction or repatriating the funds to pay your Confiscation Order we can help.

Please contact our POCA team:

call: Lauren Bowkett on 0113 2247811
email: poca@cohencramer.co.uk

Article by Lucy Ryczany (May 2019)

Damages for Loss, Stress and Inconvenience in Building Disputes

 

We are often told by prospective clients in a building dispute that as a result of the dispute they have suffered a great deal of stress and inconvenience and as such should be compensated for this by an award of damages. Dealing with issues relating to a property is undoubtedly stressful however, the question that naturally follows is whether such damages can be claimed, and, if so, what level of damages is usually awarded?

There is a long line of case law that has established that a Claimant is entitled to general damages for distress and inconvenience suffered as a result of a breach of contract (see Watts v Morrow, Ezekiel v McDade, Hoadley v Edwards). In the context of cases involving breaches of contract for the provision of building works Akenhead J in Axa Insurance v Cunningham Lindsey distilled four points from these authorities, namely:

  1.  General damages will be allowed to each of the claimants for inconvenience, distress and discomfort caused by breaches of contract
  2. The amount allowable for this will be modest
  3.  In the absence of particular physical symptoms or illnesses caused by the breaches, it is unlikely that general damages as at 2001 would exceed the rate of £2,000 per person per year. In many cases, it may be less
  4.  Allowing for inflation up to the end of 2007, the maximum for this type of general damage would not generally exceed £2,500 per person per year.”

Two recent Court of Appeal decisions have affirmed the approach taken by the Court in Axa. In West v Finlay & Associates, defective renovation works led to significant damp, defective flooring, mechanical and electrical services resulting in the West’s having to move out of the property for around 18 months whilst remedial works were carried out. The Court of Appeal awarded of £2,000 per year and £1,500 per year for Mrs and Mr West respectively and £500 per year for their young child. The Court noted that these awards reflected the fact the whilst the distress and anxiety caused was undoubtedly significant (particularly to Mrs West) it was not at the very top end of the scale.

In Vyas v Goraya the Court of Appeal reiterated that “in West it was held that an award for distress and inconvenience in circumstances similar to those under consideration here should not ordinarily, in the absence of particular physical symptoms or illnesses caused by the breaches, exceed £3,000 per annum.”

The position of the Court is therefore clear, in the absence of evidence that demonstrates someone has suffered particular physical symptoms or illnesses as a result of a breach of contract in a building dispute, then the maximum that will be awarded is £3,000 per annum. This figure would only be awarded for the most serious cases.

If you have outstanding defects to your property and think you may also have a claim for compensation for stress and inconvenience arising out of the works remaining incomplete, please contact us by either:

31 July 2018

Seven New Year Legal Resolutions

 

So, the New Year is here and the time to trot out the same old resolutions about going to the gym, writing that novel or finally giving up smoking.

How about setting some goals that you may possibly be able to achieve and can have a benefit way beyond doing half a dozen sit ups before heading to the bar?

Here are a few things that you may want to do that have a legal flavour to them that may save you a lot of money and a lot of heartache:

Make a will: If no will is in place the only person who may benefit is the lawyer. Most estates can be covered by a straightforward will that will cost between £200-300. If there is no will and there is a dispute over the estate, then you can add another ‘0’ to this figure to get it sorted out. So really you have to ask yourself – who do you want to get your money? Your kith and kin or some bloody lawyer’. Thought so – so make your will today. For all the advice you need on making a will call Gail Sandford on 0113 224 7813

Lasting Power of Attorney: If you get to a stage where ill-health prevents you from making decisions about your health and financial affairs then you will want to make sure that your affairs are conducted in accordance with your wishes. A Lasting Power of Attorney gives you the power to plan for your future when you may lack the capacity to do so for yourself. For all the advice you need on making an LPA call Gail Sandford on 0113 224 7813

Thinking of buying to let ? Do it now. From April 2016, buyers of buy to let properties or second homes in England and Wales will have to pay an additional 3% on each stamp duty band.

The table below shows the difference in the rates of duty that will become payable. Take for example a buyer purchasing a property for £150,000, if that buyer acts now then he will pay only £500 stamp duty. If he waits until April then he will pay £4,500.

Given that the estimated length of a residential property transaction is between 6 and 8 weeks, if you are considering purchasing a second home then we would suggest you act now.

 

Buy-to-let and second home Stamp Duty tax bands
Brackets Standard rate Buy-to-let/second home rate (April 2016)
Up to £125,000 0% 3%
£125 – £250,000 2% 5%
£250 – £925,000 5% 8%
£925 – £1.5m 10% 13%
over £1.5m 12% 15%
Source: HMRC

 

For all your conveyancing needs call Emma Wardle on 0113 224 7815

Know Your Rights – If you are to be interviewed either on an informal basis or under caution pursuant to either S9 or S12 of the Police and Criminal Evidence Act by the police, or authorised body such as DWP, Trading Standards, Health and Safety Executive under caution then you are entitled to free legal advice. You should therefore request a solicitor be present during any questioning. For assistance with such matters call John Goodwin on 0113 390 7882.

Are you an employer? If so make sure that you have a recovery clause in all employment contracts. If an employee of yours is off work as a result of the negligent actions of a third party then you may wish to include a clause in your employment contracts that allows you to recoup from the wrong doer wages paid to an employer whilst off sick. To make sure your employment contracts work for you call Ian Steel on 0113 390 7888.

Bring that claim now – if you have a potential personal injury claim but haven’t got round to dealing with it yet then you should. There are plans a foot to increase the small claims limit of claims to £5000. This means that if your injuries are worth less than £5000 no legal costs can be recovered and so you may not get a contribution to the costs of your claim from the wrong doer, making what you have to pay more. You may even struggle to get legal representation for these type of claims. There is no date set for this increase but it is thought imminent. So best to err on the side of caution and get your claim started. For advice on a personal injury claim call Mike Massen on 0113 224 7804.

Ask Cohen Cramer Solicitors for any legal help you need – we have the skills and experience to make sure that you get the quality legal service that you deserve.