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New Consumer Contract Regulations – Do Your Business Practices Comply?


Paul Trincas

Paul Trincas

The Consumer Contract Regulations came into force on 13 June 2014 and contain a number of pitfalls for unwary traders. Paul Trincas, a litigation specialist with Charles Lucas & Marshall, covers the headline points.

The Consumer Contract Regulations apply to all qualifying contracts made after the 13 June.
They supersede the Distance Selling Regulations and Doorstep Selling Regulations. They regulate ‘on-premises’, ‘off-premises’ contracts and distance selling. Distance selling includes online sales, telesales or sales via a catalogue but is outside the scope of this article.

Q – Will the Regulations apply to my business’ activities?

The Regulations cover contracts for the sale of goods, digital content and / or supply of services where the seller is a trader and the buyer a consumer. Most tradesmen and professional services providers will be caught. Exceptions do apply and these are worth checking.

Q – Why is it important to identify where the contract was made?

The Regulations distinguish between contracts made ‘on’ the trader’s business premises and contracts made elsewhere (e.g. a consumer’s home). Different rules apply to each type of contract. In practice, identifying whether a contract is on- or off-premises can prove difficult: for example, a contract concluded on the business premises of the trader after the consumer has been ‘personally and individually addressed’ by the trader elsewhere might be treated as an off-premises contract.

Q – What is the significance of the contract being ‘on-premises’?

The Regulations require the trader to (1) provide to the consumer certain pre-contract information; (2) seek express prior consent for additional payments; (3) deliver goods within 30 days unless otherwise agreed; and (4) charge the consumer no more than the basic rate for any telephone calls about the contract.

Q – What is the significance of the contract being ‘off-premises’?

The requirements detailed above still apply and in addition (1) the trader must provide the consumer with a copy of the contract; (2) in some cases, the consumer will have a right to cancel and must be told as much; (3) if applicable, the trader must not begin the service before the end of the cancellation period unless requested to do so.

Q – How does the right to cancel work?

The cancellation period begins either the day after the consumer has received the goods or (if a services contract), from the date on which the contract is entered into. The cancellation period ends after a period of 14 days from the date on which the consumer is given the pre-contract information (up to a period of 12 months from the last day of the ‘normal cancellation period’). A consumer can cancel by making an unequivocal statement to the trader to that effect. If the consumer cancels, no contract is formed and the consumer will be entitled to reimbursement of monies paid.

Q – Is there any way of overcoming the cancellation period?

In relation to services contracts, the consumer can make a written request that the services begin during the cancellation period. If the consumer has done so, he must pay for so much of the services as have been performed up to cancellation provided certain conditions are met. In practice, the trader is advised to provide the consumer with a carefully drafted ‘instructions to proceed’ form for completion.

Q – There appears to be a number of traps for the unwary trader!

Indeed there are! Failure to provide the consumer with the pre-contract information will mean that the trader is in breach of an implied term of the contract. In relation to off-premises service contracts, the consumer might escape payment altogether by exercising cancellation rights within 12 months of the normal cancellation period, despite the services having been provided. Failure to provide the pre-contract information in relation to off-premises contract is also a criminal offence.

For further information contact Paul Trincas on 01635 521212 or paul.trincas@clmlaw.co.uk

Written by Paul Trincas

October 21st, 2014 at 10:00 am

New ‘Pre-Action Protocol for Debt Claims’


For a number of years now, parties have been expected to comply with Pre-Action Protocols before they resort to litigation. There are different Pre-Action Protocols for a range of disputes, and then finally the Practice Direction – Pre-Action Conduct for those not subject to a specific Pre-Action Protocol.

James Woodhouse

James Woodhouse

The Protocols explain how the court expects the parties to behave at the pre-action stage and encourage them to consider other methods by which they might resolve their disputes. Failure to comply might result in the court imposing cost sanctions on the offending party. In practice the court is unlikely to do so unless one party makes an issue of the other’s non-observance.

The Civil Procedure Rule Committee is now consulting a new Pre-Action Protocol for Debt Claims. It will apply in circumstances where a business (including sole trader) is claiming payment of a debt from an individual, or where both parties are sole traders. The draft Protocol requires the Claimant to include certain ‘initial information’ within its letter of claim whilst enclosing copies of specified documents (including a copy of the Protocol itself). The Claimant’s letter of claim ‘must’ contain a prescribed statement, essentially outlining the requirements of the Protocol and encouraging the debtor to take independent advice.

As the draft currently reads, the defendant will then have at least 28 days to obtain advice. The Protocol encourages the defendant to respond using a form attached to the Protocol at Annex 1. This will explain whether or not the debt is admitted or disputed.

The Committee has received objections to certain parts of the draft Protocol. It is hoped that everything will be finalised and the new Pre-Action Protocol for Debt Claims implemented by April 2015.

Businesses will be used to issuing proceedings themselves, or instructing their solicitors to do so, in order to pursue debts. Currently, it is necessary to comply with the Practice Directions – Pre-Action Conduct before issuing, but once a specific Pre-Action Protocol for Debt Claims has been adopted clearly a new set of requirements will need to be adhered to. If businesses are uncertain as to what sort of steps they should take in the run-up to issuing proceedings for a debt claim they should take advice from their legal advisor.

For further information please contact James Woodhouse on 01635 521212 or james.woodhouse@clmlaw.co.uk.

Written by James Woodhouse

October 7th, 2014 at 10:55 am

Misleading Statements From Directors – Actions Available to Shareholders


When directors have made misleading statements there are a number of potential penalties and remedies available to minority shareholders. Rupert Wright, a corporate lawyer with Charles Lucas & Marshall explains.

Rupert Wright

Rupert Wright

Misleading statements by directors mainly relate to information and projections which are presented to investors which are false or misleading and which never had any hope of ever being fulfilled.

There are a number of options for redress by shareholders – whether under criminal law, common law or under the Companies Act 2006.

The first consideration in any potential criminal prosecution is the Code for Crown Prosecutors.  Any prosecution must comply with the evidential stage and the public interest stage.  A person is only charged with allegations of crime where both tests are met.  Potential criminal offences might include misleading statements in relation to investments, fraud by false representation, fraud by abuse of position and conspiracy to defraud.

Under Section 397 of the Financial Services and Markets Act 2000, there are three elements which the prosecution must prove to make out an offence: namely that a misleading statement was made, that there was a requisite state of mind and also that the defendant must have acted with the purpose of inducing any person to act or refrain from acting in a way specified or was reckless.  The maximum sentence for an offence contrary to Section 397 is seven years in prison although this would be reserved for the worst cases of its kind.

As well as a criminal claim, there are potential civil remedies for making a misleading statement.  In the case of a civil claim, the following matters need consideration: deceit, conspiracy, dishonest assistance, breach of fiduciary duties, unjust enrichment and knowing receipt.

The Companies Act lays down the various fiduciary duties for directors.  In particular, a director must act within its powers, promote the success of the company, exercise reasonable skill, care and diligence and avoid conflicts of interest.

It is also open to minority shareholders to make a derivative claim which applies where shareholders have suffered or may suffer damage to their shareholding as a result of the conduct of a director.  A derivative claim is an action commenced by a shareholder seeking relief on behalf of the company in respect of wrong done to the company.  It is also open to members to make an unfair prejudice claim under Sections 994 to 999 of the Companies Act 2006.  A claim under this section can be made where the company’s affairs are being or have been conducted in a manner that is unfairly prejudicial to the interests of members.

In summary, there are a number of avenues open to shareholders to make a claim where misleading statements have been made by directors.  Directors can potentially face a wide ambit of potential criminal and civil claims and should consult their lawyers on a regular basis before making statements which could be potentially misleading.

For further information contact Rupert Wright on 01635 521212 or rupert.wright@clmlaw.co.uk

Written by Rupert Wright

August 25th, 2014 at 3:31 pm

Corporate Services Team – Spring Seminar – 8th May 2014


Finding Solutions to Everyday Business Problems

Corporate Services Seminar - Invite - 8th May 2014

Corporate Services Seminar – Invite – 8th May 2014

 

 

 

 

 

 

 

 

 

 

 

 

Written by Paul Trincas

March 27th, 2014 at 5:03 pm

Posted in News,Seminars

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Top Ten Tips for Businesses On How To Deal With Commercial Disputes


Paul Trincas

Paul Trincas

Dealing with a commercial dispute can significantly disrupt the smooth flow of a business. Paul Trincas, corporate services lawyer with Charles Lucas & Marshall gives his top ten tips on how best to handle them. 

It is a fact of life that, from time to time, a business will be faced with having to deal with some form of commercial dispute.

It can be expensive – not forgetting the soft costs of wasted manpower time – as well as the hard costs such as lawyer’s fees and other costs which might arise if the dispute is not resolved in the business’ favour.

Having specialised in the area of commercial disputes over many years, here are my top 10 tips on managing them: 

1. Do not ignore the fact that a commercial dispute has arisen.

2. Don’t let the dispute fester.

3. Don’t put the dispute on the ‘back-burner’ in the hope that it will simply go away.

4. Face up to the dispute head on at an early stage as this may very well help ‘nip it in the bud’.

5. Engage in early dialogue with a view to resolving the dispute. Time and again, I deal with clients who have simply not bothered to speak to the other side, with the result that this simply adds to the problem, and a dispute which could have been resolved with early dialogue, drags on, often, unnecessarily.

6. If early dialogue does not resolve matters, then you may need to seek legal advice. If so, seeking legal advice at an early stage can pay dividends. A lawyer, entering the forum afresh and unbiased, may see ways in which the dispute can be resolved without proceeding any further.

7. If you do need to seek legal advice, then preparation, in advance, for the lawyer, of a bundle or file of relevant documents in strict chronological date order, can save an enormous amount of time and money. There have been too many occasions to mention when I have received a file of papers from a client with papers jumbled up and out of order. This means I have to make sense of them, sometimes at a significant cost to the client, before I can even embark on a consideration of the factual and legal issues involved.

8. If the commercial dispute does end up in court, then it is paramount that you, as the client. comply with all deadlines set, as failure to do so can nowadays have serious consequences to the proper conduct of your case, not to mention potentially serious adverse cost consequences.

9. If some form of alternative dispute resolution is offered in an attempt to resolve matters, then do not turn down such an opportunity, no matter how strong you may feel your case is. Statistics show that some 80 per cent of cases that proceed to some form of dispute resolution are successful in resolving the dispute.

10. Always be aware and mindful of the fact that no matter how strong you may feel your case is, if the matter ends up in court it is not your view that counts, but the view of the judge, who may not agree with your assessment.

For further information contact Paul Trincas on 01635 521212 or paul.trincas@clmlaw.co.uk

Written by Paul Trincas

January 9th, 2014 at 8:30 pm

Directors’ Guarantees – A Warning


In today’s current climate when a company is able to secure bank lending, it is common practice for the bank to ask for a personal guarantee from directors. Rupert Wright, a corporate services specialist with law firm Charles Lucas & Marshall, explains the implications of signing a personal guarantee.

A Court of Appeal decision earlier this year should act as a warning to directors who sign personal guarantees.

The Court of Appeal ruled that a director was liable for more than £330,000 almost seven years after he had resigned from the company. The lender provided the company with a significant amount of credit. After the company fell into arrears, the lender sought personal guarantees from the directors which they at first declined to give. When the lender threatened to withdraw the company’s credit, the directors signed a written guarantee giving rise to joint and several liability for all sums due to the society by the company. At the time of signing, the personal guarantee was limited to £200,000.

In 2006 when the director resigned as one of the directors of the company and sold his shareholding, the company’s debt to the lender stood at approximately £400,000. This increased so that at the time when the company ceased to trade, the debt to the lender had increased to £700,000.

The director challenged the lower court ruling on a range of issues, but the court held in favour of the lender.

The case illustrated that the courts will look at the wording of a document and if it is clearly an all monies type of guarantee, the credit limit can be varied and the director’s liability would not be limited to the credit limit at the time the guarantee was given or the limit in place when they resigned from the company. Directors when resigning from a company should ensure that they secure their release from any personal guarantee given, or at the very least, seek an indemnity from remaining directors.

Generally directors should seek legal advice when committing themselves to guarantees, particularly when guaranteeing someone else’s debt. They need to know if the person asking for the guarantee has the ability to service and repay the loan. They need to check this person’s credit history and they need to be sure that this person can meet all the borrower’s obligations.

Also, the guarantor should note that generally lenders are not obliged to notify guarantors of a borrower’s financial difficulty. In fact, the bank would be in breach of its duty of confidentiality to the borrower if it did so.

Guarantors should also note the bank does not have to pursue the borrower for the debt. Once the borrower is in default, the bank has a right to pursue the guarantor. If more than one guarantor has guaranteed the borrower’s debts the bank can choose who to pursue.

In summary, it is vital that legal advice should be sought at all times before directors enter into guarantees so that they are aware of its implications.

For further information contact Rupert Wright on 01635 521212 or rupert.wright@clmlaw.co.uk

 

 

Written by Rupert Wright

January 9th, 2014 at 8:20 pm

Posted in Banks,Debt

Tagged with ,

Can Tenants Withhold Rent?


James Woodhouse, a litigation specialist with law firm, Charles Lucas & Marshall, asks if tenants in residential property can withhold rent if their landlord is in breach of repair obligations? 

James Woodhouse

James Woodhouse

This is an area of some complexity and both tenants and landlords should take advice as to firstly, whether the landlord is in breach of its repair obligations and secondly, remedies which might available to the tenant.

Much will depend on the facts of each case, including the terms of the tenancy agreement and the nature of disrepair.

If the landlord is in breach of its repair obligation (which in itself might be in dispute) the tenant will have an action in breach of covenant. As in any claim for damages, thought will need to be given to the proper value of the tenant’s claim. In the first instance, the tenant should expect re-dress for the fact that – whilst the property is in disrepair – he is not getting proper value for the rent he is paying.

The tenant has two options: to continue to pay rent in full and pursue the landlord separately for damages or exercise a right of set-off, by withholding rent against the tenant’s disrepair claim.

The second option might appear the more attractive, as it puts the landlord under pressure to complete the repairs sooner rather than later.

Scenario One: Landlord agrees to accept reduced amount of rent whilst repairs remain outstanding – this is the ideal outcom, but the agreement should be properly recorded.

Scenario Two: Landlord insists, that despite the disrepair, rent still be paid in full – the tenant’s only option here is to withhold rent regardless and rely upon a right of set-off when responding to the landlord’s claim for rent arrears / possession.

Many tenancy agreements will attempt to exclude the tenant’s right of set-off, by requiring the tenant to pay rent ‘without deductions’. That form of wording in itself might be too imprecise to prevent the tenant exercising a right of set-off.

Further, a provision which requires the tenant to pay rent free of deductions might fall foul of consumer protection laws.

The tenant will of course need to decide how much rent it should withhold. This involves the tenant effectively attempting a valuation exercise. There is no guarantee that the Court will agree with the tenant’s assessment.

The first option suggested above (continuing to pay rent in full and pursuing a damages claim separately) involves the tenant bringing the action, rather than wilfully defaulting on rent and then responding to the landlord’s claim. The tenant avoids the two issues identified above: establishing a right of set-off and calculating how much rent to withhold.

For further information please contact James Woodhouse on 01635 521212 or james.woodhouse@clmlaw.co.uk.

Written by James Woodhouse

November 13th, 2013 at 11:49 pm

When Is A Company Insolvent


In the current economic climate, directors must be careful to check the solvency position of their company, says Rupert Wright, a corporate services lawyer with Charles Lucas & Marshall. 

In the event that a company later goes into liquidation, a liquidator can argue that a dividend payment made to a shareholder of the company could constitute an unlawful dividend which they could recover.

Rupert Wright

Rupert Wright

Also, if a director’s loan is repaid at the time the company was insolvent, this could constitute an unlawful preference and the liquidator might be entitled to recover this, depending upon the solvency position of the company.

Under the Insolvency Act, a company is deemed to be unable to pay its debts if the company is unable to pay its debts as and when they fall due –  and also if the value of the company’s assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities.

The first factor is the so called cashflow test and the second consideration is the balance sheet test.  A recent Supreme Court decision which related to Eurosail-UK concerned the interpretation of what constitutes balance sheet insolvency and in this context, the treatment of contingent and prospective liabilities.

Eurosail was set up in 2007 by Lehman Brothers which purchased a portfolio involving sub-prime mortgage loans secured on UK residential property.

As a result of the collapse of the swap agreements with Lehmans and the accounting standards to which Eurosail’s accounts were prepared, there was a deficit shown on its balance sheet.  Therefore, the question was whether this balance sheet in fact reflected the commercial outcome for creditors.

The liquidators applied to the Court for a ruling as to whether Eurosail could be considered to be unable to pay its debts and therefore whether it could be placed into liquidation, notwithstanding that the principal amounts under the loan were not yet due and payable.

The Supreme Court upheld the Court of Appeal’s Decision that the values on the balance sheet must involve consideration of the relevant facts of the case including when the prospective liability fell due.  Therefore, they did not consider that Eurosail could be considered to be insolvent.

This case shows the importance of the commercial context and reality of a company’s financial position in making an assessment as to whether a company is balance sheet insolvent.

Contingent and future liabilities should be considered in all the commercial circumstances of the case.  The larger, closer and more likely the contingency is, the more likely it is that the company will be deemed insolvent.  However, such assessment will always be dependent on all the circumstances of the case and legal advice should always be sought.

For further information contact Rupert Wright on 01635 521212 or rupert.wright@clmlaw.co.uk

 

Written by Rupert Wright

August 19th, 2013 at 1:33 pm

Posted in Business Debts,Insolvency

Tagged with

Business debts: “To Sue Or Not To Sue – That Is The Question”


Paul Trincas, a litigation specialist at law firm, Charles Lucas & Marshall weighs up how far a business should go to recover money it is owed.

Paul Trincas

Paul Trincas

Very often, the first, and perhaps most natural reaction for a business owner faced with a customer or client who has failed to pay without good reason, is to sue for the monies owed.

However, to implement that initial reaction is not as easy or straightforward as you think it might be. Several business and economic factors need to be weighed in the balance before making the decision to sue.

Is there an on-going commercial relationship to maintain ?

It may well be that the monies owed are small compared to the overall gain to be

achieved by not pursuing it through the courts and securing future business worth significantly more, in financial terms, than the current sum owed.

Is the amount worth suing for ?

If the amount is of any significance, and all other measures to secure payment have failed, then it may well be worth suing through the courts. If you succeed in your claim, you would also be entitled to seek payment of your legal costs.

However, where the sum involved is £5,000 or less, then this will constitute a ‘small claim’, where normal costs rules do not apply. Instead, in such cases, the costs rule, subject to very limited exceptions, is that each party, win or lose, will have to pay its own costs. All the successful creditor will be able to recover are the court fee and limited fixed costs. This means that for lesser value claims, the whole exercise is not economically viable.

Will you actually get paid ?

Having succeeded in the action, you will get a Judgment, effectively ordering the customer or client to pay the money. But what if the client or customer does not pay? In this scenario, there is no magical formula for securing payment of your money. The client or customer will not go to prison for defaulting on payment on the Judgment as this is a civil debt and not a criminal matter.

You as the business owner, will then have to go back to court in order to enforce the Judgment debt in the most appropriate method, given the financial circumstances of your customer or client. However, further costs will be incurred in the enforcement process, and, you will only be able to recover limited fixed costs – normally a fraction of the total costs incurred in the enforcement process.

You can contact Paul Trincas on 01635 521212 or paul.trincas@clmlaw.co.uk

Written by Paul Trincas

August 16th, 2013 at 4:09 pm

DIY Commercial Litigation – A False Economy?


James Woodhouse, a litigation specialist with law firm, Charles Lucas & Marshall, explains why it pays to use a lawyer in commercial disputes.

James Woodhouse

James Woodhouse

Many businesses are reluctant to instruct solicitors in commercial disputes because they are concerned about the financial implications. Increasingly businesses are resorting to DIY litigation which often costs them more in the long run. This is because people underestimate just how much work is involved running a civil action and how complicated matters can become.

Here are a few examples of the advantages of using a lawyer to represent you in disputes of a certain size:

Stating your Case: At the outset of any commercial litigation, each party will be required to state their case in pleadings. Quite often litigants in person struggle to set out their position clearly. This results from ignorance of the law and / or lack of expertise and experience in legal drafting. In many cases the judge will have already formed a view based on the paperwork alone before the trial has even begun. A defendant may have the best defence in the world, but if his statement of case goes on for pages, is poorly structured and fails to adequately explain why the claimant is wrong, he has already shot himself in the foot.

Procedural Matters: The rules that govern how the civil court system operates are set out in the Civil Procedures Rules. It follows that if a litigant in person is up against an opponent solicitor or barrister well versed in procedural matters he can easily become unstuck and feel intimidated. Cost penalties might result from failure to comply properly with court directions.

Objectivity: It is all too easy to become emotionally embroiled in a commercial dispute. Whether the dispute in question involves a debt, or a claim for damages, businesses of all sizes resent having to chase payment. Hard feelings can result from the breakdown of any business relationship, which can cloud judgement. A competent lawyer should be able to take an impartial view of prospects, determine the commercial reality of the situation and advise his client accordingly.

Technical Expertise: Whilst the Internet contains a wealth of information about the law, there is no substitute for a proper training and experience. Commercial litigation can and often does result from the most basic of disputes. However, the potential for complicated legal issues to arise out of what appear to be the simplest of circumstances should not be underestimated.

Getting the Best Result: One of the most challenging aspects of litigation is addressing the issue of remedy. The legal principles in a claim for damages (as opposed to a simple debt claim) need to be fully considered before calculating the likely value of any claim. Although the tendency for the uninitiated is to over-value claims (which will not impress the court), in some circumstances litigants will find themselves claiming a sum of money less than their proper entitlement.

Generally, solicitors are keen to promote to their clients the benefits of trying to settle. Doing so is preferable to bearing the litigation risks and expense of trial. If by seeking legal representation a dispute settles in the early stages of litigation costs might be kept to a manageable level.

For further information please contact James Woodhouse on 01635 521212 or james.woodhouse@clmlaw.co.uk.

 

Written by James Woodhouse

August 16th, 2013 at 2:53 pm