Madonna Defends Herself From fans’ legal lawsuit

Representatives for Madonna have stated that she will “vigorously defend” against legal action brought by two fans after she missed a show by more than two hours in New York in December 2023. They have claimed that they would not have paid for tickets if they knew that the concert would finish that late.  The concert was on Wednesday 13th December 2023 at 8:30pm EST, but it did not start until after 10:30pm which then ended at 1am.

Spokespeople for the American artist and promoter Live Nation claimed that the delay was due to a technical problem. “The shows opened in North America at Barclays in Brooklyn as planned, with the exception of a technical issue during soundcheck on December 13th,” the joint statement stated.

“At the time, press accounts amply recorded the delay caused by this. We plan to mount a strong defence in this matter.”

It was also underlined that the tour’s latest European leg had “received rave reviews”. However, the two fans, Michael Fellows and Jonathan Hadden, have argued that “Many ticketholders who attended concerts on a weeknight had to get up early to go to work and/or take care of their family responsibilities the next day”.

“False advertising, negligent misrepresentation, and unfair and deceptive trade practices” are the reasons they are suing Live Nation and the Barclays Centre, who have not responded to the lawsuit as of yesterday (25th January 2024).

“Defendants failed to provide any notice to the ticketholders that the concerts would start much later than the start time printed on the ticket and as advertised, which resulted in the ticketholders waiting for hours,” according to the paperwork. The lawsuits also claimed that on other nights at that exact venue around the 13th, concerts started more than two hours late.

Plaintiffs have not indicated the damages they are suing for.

As this took place in the US, the claim being brought is subject to US law of course.  This differs markedly from UK law. The US legal system is primarily based on common law, which is developed through judicial decisions and precedents. Each state has its own legal system, and there is also a federal legal system that governs certain matters.

The UK legal system is a combination of common law and statutes. The legal system in England and Wales is distinct from that in Scotland and Northern Ireland.

However the most relevant and marked difference between the two is the levels of compensation which can be claimed (and on what basis).   The claim will no doubt interest other artists however and will be one watched closely.

Apple settles lawsuits alleging it purposefully slowed down iPhones

In response to allegations that it purposefully slowed down some iPhone models in the US, Apple has started paying settlements in a protracted class action case.

The $500 million (£394 million) settlement will be divided among the complainants, amounting to around $92 per claim. Apple stated at the time that it denied any wrongdoing but was concerned about the cost of pursuing legal action, and as a result, it agreed to settle the complaint in 2020.

In the UK, a lawsuit similar to this one is suing for £1.6 billion in damages.

The US case began in December 2017, when Apple acknowledged that it had purposefully slowed down some iPhones as they aged, confirming a long-held fear among phone users. It claimed that when batteries grew older, their efficiency dropped, resulting in a “slowdown” that extended the life of the phones. However, following accusations that it had secretly throttled the performance of some iPhone models, Apple responded to the outcry by providing a low-cost battery replacement.

The US legal action resulted from it. It was projected at the time of the settlement that each individual might receive as little as $25, but it looks like the real payout is nearly four times that amount.

Apple failed in its attempt to stop a comparable class action case in the UK last November. Justin Gutmann initially filed the lawsuit in June 2022, on behalf of an estimated 24 million iPhone users.

“We have never – and would never – do anything to intentionally shorten the life of any Apple product, or degrade the user experience to drive customer upgrades,” Apple said in response to the case, labelling it “baseless.”

However, the UK complaint additionally demands damages for owners of iPhone 8, 8 Plus, and X devices, in contrast to the US settlement, which only extended to handsets in the iPhone 6 and 7 range.

In the UK, the Consumer Rights Act 2015 states that goods purchased must be as described, fit for purpose and of satisfactory quality.  There are additional rights when items are purchased online.

If you have had any problems with goods or services that you have purchased, our litigation department can help.  Get in touch today with our head of department, James Dyche on or call us on 01753 486 777.

COVID-19 & Residential Possession

The impact of COVID-19 has had a marked impact on Landlords of residential property. The large number of tenants facing financial uncertainty from either job losses, the furlough scheme or wage reductions has meant that a considerable number of tenants are unable to pay their rent. This has and will no doubt create some uncertainty for landlords. 

The Government has introduced a number of emergency measures to protect tenants during the pandemic, below is a general synopsis of the position. 

  1. During the period commencing on 26 March 2020 and ending on 30 September 2020 the minimum notice period is now no less than three months; this includes a number of different types of tenancies and includes the most common being assured shorthold tenancies. You will note that the usual notices periods are 2 months or eight weeks (depending on how rent is paid) for notice under section 21 and 14 days under section 8. The change will only affect those notices that are served within the relevant period, any notices served prior to the relevant period are not caught by this extension. 
  2. Ongoing possession proceedings, meaning those that were commenced before the relevant period, have been suspended for 90 days irrespective of what stage the proceedings are at. This includes the enforcement of any writs or warrants of possession.
  3. The courts will not process any new possession claims during this period, but please note that this does not apply to excluded tenants which includes those currently in interim accommodation and lodgers. 

It is uncertain whether these measures will be extended but the legislation does allow them to be extended further should this be necessary.

Wrongful Trading Part 2 – Is There Really a Suspension?

In the last blog post on this topic we discussed the effects of the government suspension on wrongful trading under section 214 and 246Z insolvency Act 1986 and the pitfall under section 172(3) Companies Act 2006.

We suggested that the suspension, although welcome, should be taken with caution as a result of section 172(3). There are a number of other provisions within the Insolvency Act that Directors should be cautious of, these are:

  1. Misfeasance – section 212 of the insolvency Act 1986 provides a liquidator a summary remedy in the liquidation of the company, thus allowing it to seek the restoration of company property or funds and assess compensation or damages against its previous directors.

Misfeasance is a broad concept and encompasses the following:

  • The retention and or misapplication of company funds or property;
  • Becoming accountable for property or funds that belong to the company;
  • Being in breach of your fiduciary duties to the company (sections 170-177 Companies Act 2006).

The Companies Act 2006 states that directors duties are generally as follows:

    • To act within powers.
    • To promote the success of the company.
    • To exercise independent judgment.
    • To exercise reasonable care, skill and diligence.
    • To avoid conflicts of interest.
    • Not to accept benefits from third parties.
    • To declare an interest in a proposed transaction or arrangement.
  1. Fraudulent Trading – these rules can impose a civil liability on directors where it evident that the business of the company has been carried out so as to defraud company creditors, creditors of any other person or for any other fraudulent purpose. It should also be noted that this is a criminal offence.

The offence is committed by anyone who is knowingly party to the carrying on of the business and can extend to non-directors and third parties also. To evidence this, a person must have taken steps in the carrying on of that business.

An intention to defraud creditors occurs where a director or others do things that he knows will result in the existing creditors not being paid e.g. dissipating assets for less than their worth so creditors cannot be paid. It could also be where someone is induced to become a creditor where they were not already so at a time where the company is or is likely to become insolvent, e.g. purchasing goods on credit who are unaware of the state of the company’s finances.

  1. Office holder claims – these claims relate to transactions made by a company before it enters administration or liquidation whilst it is insolvent (transactions at an undervalue and preferences). The Court has the power to make an order restoring the position as if the company had not entered into the transaction. The court could also order that he director be personally liable to compensate the company if the transaction was entered into where he was also in breach of his directors duties under the Companies Act 2006 (see above).
  2. Transactions Defrauding creditors – if a transaction at an undervalue or a gift is made section 423 Insolvency Act 1986 allows an insolvency officer or a victim of the fraud to seek the Courts intervention to unwind the transaction if it was entered into to put assets beyond the reach of the creditor. This could also be deemed a breach of directors duties and as such a Director could be held liable personally.

As can be seen, it is certainly not plain sailing and although the headline grabber may give you some cause for comfort you should still be cautious in entering in to any transactions that could be called into questions at a later date.

*This blog is intended to provide the reader with a general understanding of things to consider and should not be relied upon as specific legal advice. Each matter will be fact specific and you should take advice if you are concerned about any of the matters raised in this article.

Wrongful Trading – An Update and Analysis of the Recent Government Suspension

These are certainly unusual times and no doubt most businesses have been or will be affected by the effects of the lockdown caused by Covid 19. In the past three weeks the government has announced a plethora of measures designed to protect the economy, companies and workers.

As a part of those measures the government has recently announced a number of protective measures in order to provide some protection to companies and their directors that have been affected by Covid 19. A significant measure was that of the temporary suspension of wrongful trading provisions for a period of three months starting on 01 March 2020. Although the detail has yet to be revealed it is certainly some cautiously welcome news to directors at these difficult times. 

As you may know Directors can be held liable for wrongful trading by a court pursuant to section 214 and 246ZB of the Insolvency act 1986. This is triggered where prior to the commencement of insolvency of a company (liquidation or administration) a director knew or should have known that there was no reasonable prospect that the company would avoid going to into insolvent liquidation or entering insolvent administration and did not take every step with a view to mitigating and or minimising the potential loss to the company’s creditors. 

Although the suspension of the wrongful trading rules is generally welcome, directors should still remain cautious. There remain alternative ways that the wrongful trading rules can be triggered, these are:

  1. Section 172 (3) of the Companies Act 2006; and
  2. Common law duties. 

It must be remembered that these go hand in hand and the common law duty is preserved by section 172(3). This route to triggering a claim has not been suspended, can be triggered more easily than those entrenched in the insolvency act and care should be taken that you are not in breach.

The test under the s172(3) trigger is ‘is likely to become insolvent’ rather than ‘no reasonable prospect that the company would avoid going to into insolvent liquidation or entering insolvent administration’ making it less onerous than the wrongful trading trigger.

Further, the duty under s172(3) will be engaged where a director knows or ought to have that the company is or is likely to become insolvent on either the cash flow or balance sheet basis. Whereas under the wrongful trading trigger a company goes into insolvent liquidation if it goes into liquidation at a time when its assets are insufficient for the payments of its debts, other liabilities and the costs of the winding up; i.e. it is balance sheet insolvent. Once again the s172(3) trigger is an easier route to trigger a wrongful trading claim.

There are a number of other related areas that have not been suspended by the government that are of equal importance and these will be discussed in our blog over the coming weeks. 

What can you do?

  1. Ensure that you hold regular meetings with directors to discuss the financial position and viability of the company, this of course should be undertaken in line with the governments social distancing recommendations;
  2. Keep a close eye on the company’s financial position by regularly reviewing the state of affairs, keeping accurate records and by speaking to your internal and external accountants; 
  3. Keep records and meeting minutes of decisions made and why those decisions have been made, it would be a good idea to ensure that any evidence relied upon in coming to that decision is also kept.
  4. Talk to your creditors, this may well be to simply touch base with them so that they understand the position of the company, can alternative agreement be reached.
  5. Most importantly, you should take appropriate legal, financial and insolvency advice.

*This blog is intended to provide the reader with an understanding of things to consider and should not be relied upon as specific legal advice.

If you’re looking to understand whether this applies to you or your business, please don’t hesitate to contact 01753 486777

Can Coronavirus ( Covid-19) trigger a Force Majeure Clause in your contract?

What is Force Majeure ?

Force majeure is chance occurrence or unavoidable accident scenario – a  common clause in contracts that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as a war, strike, riot, crime, epidemic or an event described by the legal term act of God (hurricane, flood, earthquake, volcanic eruption, etc.), prevents one or both parties from fulfilling their obligations under the contract.

The impact of Cornoavirus is and will continue to have a huge impact on business at all levels of the supply chain; and this is predicted to rumble on well after the lockdown comes to an end.

The impact upon all contracts shall be significant and no doubt a  number of disputes will commence on whether a Force Majeure clause can be invoked to excuse either party from performing under its contract on time or at all.

Below we raise a number of points in relation to Force Majeure and whether Coronavirus is classified as a Force Majeure event.

When considering your contracts you need to check/consider for the following?

  1. Is there a Force Majeure clause in your contract? If so:
    • How specific is it? i.e. does it list a particular set or number of events that it is limited to; or
    • Is it loosely worded? For example, plague or epidemic which in most circumstances will cover Coronavirus. Or an act of Government, this could include matters pertaining to the lockdown.
    • Does it say that the list is exhaustive or non-exhaustive? This will be key in limiting liability where there is a list of specific events;
    • You may also want to consider whether wording such as ‘beyond/outside the parties reasonable control’, this type of wording is more difficult as it will wholly depend on interpretation and will no doubt be fact specific e.g. was it as a result of the pandemic that you or another party were unable to perform the obligations in your contract? Did you attempt to mitigate?
  2. Was it coronavirus and or the lockdown that caused the non-performance or delay?
  3. Was it truly outside of your control?
  4. What could you have done differently to undertake your performance of the contract? Did you try to mitigate?
  5. Are there any mechanisms in the contract that you now need to comply with? E.g. are there any notice provisions that you must comply with? Or, did you check whether you needed to inform your contracting party before the event took place?

The question then arises as to what you can do if you can in act invoke the Force Majeure clause, normally this would mean that you are no longer obliged to comply with any obligations under the contract and therefore not be liable for any damages. There are number of other possibilities but these will of course be contract specific.

It is suggested that if you have been unable or your contracting party has or is unable to perform their side of the contract then you should consider ways within which you could comply. This can either by reducing the scope of the obligations required to be performed or alternatively in delaying the performance of it. No doubt a pragmatic approach will need to be taken by all.

This could also be a good time to extricate yourself from contracts that are no longer commercially viable and this should be considered if necessary. A word of warning here is that increased costs of performance will not be a good reason to delay or not perform; the courts do not like this.

The best way to deal with events that we face is to have sensible discussions about how each party can remedy any non-performance or delayed performance before a dispute arises.

*This blog is intended to provide the reader with an understanding of things to consider and should not be relied upon as specific advice. Each contract is different and applied in different ways to the circumstances; as such you should take specific advice.

If you’re looking to understand whether this applies to you or your business, please don’t hesitate to contact 01753 486777

Squatting: What you need to know about Adverse Possession

Adverse Possession is more legally the term to describe ‘squatting’. Therefore, it is the process of a person who is not the legal owner of the land but who can then become the legal owner, if they have been in possession of the land for a certain period of time and if they have met the criteria below. The rules have somewhat changed since the introduction of the Land Registry Act 2002, however, the principles remain the same.


  • The Land Registration Act 2002(LRA 2002), which came into force on 13 October 2003, introduced a new regime which applies to claims for adverse possession of registered land where 12 years’ adverse possession had not accrued before 13 October 2003. Therefore, the new rules require 10 years adverse possession of the land before an application can be made.
  • The old law continues to apply to adverse possession in respect of ‘unregistered land (based on 12 years’ adverse possession under the Limitation Act 1980(LA 1980)) and registered land where 12 years’ adverse possession had accrued before 13 October 2003 (under transitional provisions of the LRA 2002).


  1. Factual Possession of the Land – You will need to demonstrate sufficient degree of ‘exclusive physical control’. This is dependent on the use of the land; it may be sufficient grounds to mow the grass, plant flowers, and place signposts up for advertising. A major point that must be considered is that when you are exercising the said factual possession, you are in essence excluding the world at large when doing so. It is usual for someone to fence land off/erect locked gates in this regard; though this is not always determinative it can be exceptionally helpful.
  1. Intention to Possess – You need to establish for the last 10 or 12 years that it has always been the intention to possess the land exclusively.
  1. Occupation without the Owners Consent – Consent can be either formal or informal, for instance a license to occupy or a conversation confirming your use of the land.

If the above criteria are met, then you will be in a position to make an application to the Land Registry. In support of your application for adverse possession you will need to provide supporting historic evidence in the form of a statutory declaration, stating the circumstances of your occupation.

If you are considering making an application for adverse possession, contact our experienced litigation department today. Our dynamic team think outside the box to assist you in finding the best solution based on your needs and circumstances.

Solicitor’s Duties – Liability Capped?

Solicitor’s Duties – Liability Capped?

The Supreme Court has recently deliberated on a professional negligence case against a firm of solicitors in the matter of BPE Solicitors and Anor –v- Hughes –Holland (in substitution for Gabriel). The Court considered limitation of liability and recoverable losses in accordance with the SAAMCO test (South Australia Asset Management Corp v York Montague Ltd).


The Claimant in this matter instructed his solicitors in relation to a loan he intended to make to his friend’s company Whiteshore Ltd. The loan was for £200,000.00 for a period of 2 years and interest at 28% per annum. The loan was secured by way of first legal charge against the company’s development property which was due to be converted into offices. The company used £150,000.00 to pay off a loan secured on the property. It came to light once the Claimant enforced against the company and took possession of the property, that it was in fact worth only £13,000.00. The Claimant sued the firm for breach of duty in drawing up the relevant documents, namely the facility agreement.


The SAAMCO test distinguishes between the duty of the solicitor to provide information to allow the client to decide a course of action (information duty) and the duty to advise the client on the relevant course of action (advice duty).

Advice Duty: the solicitor assumes full responsibility and owes a duty to the client to consider all the relevant factors involved in the transaction. In the event, there has been any negligent advice then the solicitor will be liable for all the foreseeable consequences of the transaction entered into.

Information Duty: this is where the solicitor provides a limited part of the material on which the client relies on before entering into the transaction. The overall assessment of the commercial viability of the transaction is solely at the discretion of the client. In the event, negligent information has been provided; the solicitor will only be liable for the financial consequence of the incorrect information and not for all of the losses.


The Judge at the first instance held that the solicitors had been in breach of their duty as they failed to inform their client of the intended purpose of the loan to the company. Therefore, the Judge awarded the Claimant all of his losses.

BPE appealed the decision; the Court of Appeal overturned the decision by applying the SAAMCO test. The Court of Appeal held that the solicitors had provided information only and did not advise the client on the course of action to take. As a result of the client entering into an information retainer the Court of Appeal held they would only consider losses attributable to the information being incorrect.

The Supreme Court confirmed the Court of Appeal’s position, as the solicitor’s had only provided the Claimant with information regarding one of many issues. The Claimant had failed to investigate the commercial risk involved in providing the loan, as he did not obtain a proper valuation of the property or assess the company’s financial situation. The Court held that in any event the Claimant would have suffered losses as they arose from commercial misjudgements and such misjudgements were not in the remit of the solicitor’s control.

This case has provided further clarity on liability and recoverable losses from solicitors when providing wrong information. It has removed any doubts that solicitors are liable for full transactional losses and that their costs are only capped to consequences of the information being incorrect.

Enforcing A Money Judgment

Enforcing A Money Judgment

After spending vast amounts of time and money in obtaining a favourable Judgment, your opponent simply does not pay your damages and/or costs? What can you do? Well not to worry as there are various steps that you can take in enforcing a money Judgment, they are as follows:-

Order the Debtor to Attend Court

The debtor will be summoned to attend Court either in front of an officer of the court or a Judge to disclose all of their income and expenditure. This will allow you to ascertain whether it is appropriate to pursue enforcing a money judgment action against the debtor following discovery of their financial position. It will save a lot of time and more importantly money to ascertain the debtor’s means, especially if the debtor has no assets or disposable income. If the debtor does have disposable assets then this will allow you to target those assets that are worth pursuing.

Third Party Debt Order (‘TPDO’)

You can apply for an ex-parte (without notice) application for the Court to freeze the money in the debtor’s bank account. This will be particularly useful as the debtor will be unaware of your actions. Upon obtaining an interim TPDO the Court will decide how the money from the account can be used towards clearing the Judgment debt.

Attachment of Earnings Order

You can request for the Court to deduct money from the debtor’s wages to contribute to the debt until it is cleared. If the application is successful, a copy of the Order will be sent to the employer, who will deduct the amount from the wages prior to the debtor receiving them. This is usually taken from any surplus income the debtor may have.

Send Bailiffs to Recover the Debt

You can instruct the court bailiffs to recover the debt from the debtor. They will provide the debtor with 7 days’ notice to clear the debt, and if the debtor fails to do so, the bailiffs will attend the debtor’s property and repossess the debtor’s items which they consider to be valuable. These items will then be placed into auction with the proceeds going to the creditor.

Obtain a Charging Order on the Debtor’s Property

If you believe the debtor has equity in their Property, you can make an application to Court to register a charge over the Property for the Judgment amount. Thereafter, if the debtor stills refuses to clear the debt you can apply to the Court for an order of sale of the Property.  


The relevant Court fees are listed in Form Ex50. All of the above methods of enforcement can be used in conjunction with one another. Therefore, it is dependent on the material facts of each individual case before deciding which method is most appropriate. Please bear in mind, you cannot commence enforcement proceedings until 14 days after Judgment or unless the Court Orders otherwise.

If you are considering enforcing your money Judgment, contact our experienced litigation department today. Our dynamic team think outside the box to assist you in finding the best solution based on your needs and circumstances.

Recovering Business Debts

Recovering Business Debts

So, you have a business and you want to recover an outstanding debt owed by an individual. Sounds simple enough – but where do you start? That is where our team of experienced solicitors can help you with recovering business debts. Our civil litigation team is on hand to provide you with support, so you don’t have to sweat the small stuff. Read on if you need help recovering business debts.

Pre-action protocol

Before anyone can bring a claim against a debtor for an outstanding debt, they must first comply with what is known as ‘Pre-Action Protocol’ (PAP). PAP works to encourage communication and potential conflict resolution between the parties at an early stage. It encourages both parties to make it clear what they believe is owed and why it has not been paid.

Failure to comply with the PAP can lead to the court applying costs sanctions to the non-complying party, so it vital that the PAP is adhered to.

Changes in the law

From 1 October 2017 the PAP for businesses who are owed a debt by an individual (or a sole trader) is changing. The new PAP has been designed to pave the way for discussions without the need to engage in the court procedure where possible; further, it allows the debtor to seek legal advice on their position before a claim is issued.

The new procedure

The new PAP provides for creditors to first send the debtor certain information about the debt. The debtor can then ask the creditor for any further information it requires. This saves initial costs for the creditor to a certain extent, particularly if the debtor does not respond.

After this initial information is sent, the creditor can then send a letter of claim to the debtor. This letter must be accompanied by a specified information sheet and reply form together with a financial statement form for the debtor to complete. The letter itself must set out details of the agreement between the parties, information about the debt, whether or not any instalments are currently being paid and whether or not this is acceptable, and an address to which the completed response paperwork should be sent. An updated statement of account for the debt (with details of any interest or further charges) must also be sent.

The debtor then has 30 days to respond before proceedings can be commenced.

If you are a business seeking to recover a debt from an individual, contact us here or call us on 01753 486 777 for a FREE initial consultation.

Amarjit Atwal

Solicitor Advocate ( Litigation )

Amarjit Atwal