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Archive for the ‘Commercial Litigation’ tag

John Wick: Chapter 2(2017)

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Written by Rupert Wright

December 7th, 2016 at 1:55 pm

Clarity for Commercial Contracts

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Disputes relating to commercial contracts can be expensive and time consuming for both parties. Rupert Wright, a commercial lawyer at Charles Lucas & Marshall, explains why lawyers should be involved at each stage to resolve ambiguities and ensure the contract contains all the main terms.

Rupert Wright

Rupert Wright

A recent Supreme Court decision has made it all the more important that commercial contracts should be unambiguous and be set out in clear terms.

Under the recent Supreme Court decision, a term would only be implied into a detailed commercial contract if it was necessary to give business efficacy to the contract or was so obvious that its implications went without saying.

The decision related to a commercial lease but has wide implications for other commercial contracts.

In most, possibly all, disputes about whether a term should be implied into a contract, it was only after the process of construing the express words was complete that the issue of an implied term fell to be considered.

In the Marks & Spencer plc case there was a powerful case for contending that it was necessary for business efficacy that the term contended for by the tenant should be implied into the contract.

In general, all contracts should be clear and unambiguous and should contain all the necessary terms including sums payable, term of contract, interest provisions, obligations of either party and confidentiality provisions.

An entire agreement provision should also be considered to prevent the matter or documents being included in the contract. In long term contracts, it is often vitally important to have a break provision allowing one or both parties to terminate the contract upon giving notice.

It is also very important that prior to a contract being negotiated, a non-disclosure agreement should be entered into which can ensure that confidential information cannot be leaked to other parties, particularly competitors who might use this information for their own purposes and undermine the current business.

Also, when negotiating a contract, an exclusivity provision should be agreed ensuring that the seller cannot deal with other third parties in connection with the contract being negotiated during the exclusivity period.

In summary, it has become all the more important that commercial contracts should have clarity and certainty to avoid disputes in the future. The Marks & Spencer case makes it all the more important that a contract should contain all the main terms and should not be ambiguous since importing clauses into an agreement can cause difficulties since it is wrong, save in very clear cases, to attribute a particular clause into a commercial agreement.

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

Written by Rupert Wright

January 18th, 2016 at 4:28 pm

DIY Commercial Litigation – A False Economy?

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

Paul Trincas

Paul Trincas

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

 

Written by Paul Trincas

December 3rd, 2014 at 11:53 am

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

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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