Category: Litigation

Sanctions for Delaying Detailed Assessment Proceedings

Posted on by Gurpreet Dhillon

Costs: Sanctions for Delaying Detailed Assessment Proceedings

Detailed Assessment is the process where parties costs are assessed, normally by a Cost officer at the conclusion of proceedings unless otherwise ordered by the Court. The Cost officer will determine the costs payable by the paying party to the receiving party. The Civil Procedure Rules (CPR) provides a breakdown of the time limits and procedures for commencing Detailed Assessment.

CPR Time Limits

In accordance with CPR 47.7 Detailed Assessment is to be commenced within 3 months of any Judgment, direction, orders, discontinuance under Part 38 or an acceptance of a part 36 offer. Furthermore, once the Detailed Assessment has been commenced and the receiving party receives the points of dispute, the receiving party must request for a Detailed Assessment hearing within a 3 month period (CPR 47.14(1)).

Sanctions for not complying with Time Limits

The general rule is if the receiving party does not comply the above deadlines the Court will only disallow part or all of the interest payable, CPR 47.8(3) and 47.14(4). However, in more serious circumstances, the Court has the powers to make an order for the disallowance of part or all of the receiving party’s cost pursuant to CPR 47.8(2) and CPR 47.14(3).

For the latter sanction, the Court may make such an order if the paying party makes an application under CPR 47.8(1) or 47.14(3) and (4) to the Court requesting the receiving party to commence Detailed Assessment or request for a hearing within a set time period. If, then the receiving party fail to comply with the deadlines following the paying party’s application, then they are subject to disallowance of part or all of their costs.

The Court will also take into consideration other factors when determining the sanctions to impose on the receiving party, namely their conduct and reasons for their delay in commencing Detailed Assessment or requesting a Detailed Assessment hearing. The Court will look at all the facts of each individual case before making such determination.

Summary

The Court in most instances will only apply a disallowance of interest if the receiving party have failed to comply with the deadlines, however, if the paying party takes advantage of the mechanism in 47.8(1) or 47.14(3) and (4), the Court may allow for disallowance of costs.

Therefore, it is imperative that the receiving party commences proceedings within the above time limit as they may face sanctions, and similarly if there is a delay, the paying party is strongly encouraged to make the relevant application. Failing to make an application the Court will be minded to disallow only interest, unless there are exceptional circumstances for the Court to impose further sanctions.

– Gurpreet Dhillon

Feel free to contact us and get in touch with our experienced dispute resolution department today. Our dynamic team think outside the box to assist you in finding the best solution based on your needs and circumstances.

Interpretations of Exclusion Clauses

Posted on by Gurpreet Dhillon

Contracts: Update on Interpretations of Exclusion Clauses between Commercial Parties

Exclusion clauses are contractual provisions restricting or excluding liability for a specific event. The Court of Appeal has recently deliberated on the construction of exclusion clauses and more particularly how the principal of ‘contra proferentem’ should apply. Contra proferentem is the principle were ambiguous clauses in a contract should be interpreted against the interests of the party seeking the clause to be included in the contract.

Background

In the case of Transocean Drilling UK –v- Providence Resources PLC [2016] EWCA Civ 372, Transocean hired a semi-submersible drilling rig to Providence. After initiating the work, it came to Providence attention that the rig was faulty, namely a misalignment of part of a blowout preventer. As a result of the faulty rig, work was suspended for a period of five weeks.  Providence refused to pay the hiring fees of the rig, Transocean brought an action for the hire costs, and consequently Providence sought to set off the hire costs against their losses plus $10,000,000.00 paid for goods and services which were wasted (spread costs). The contract between the parties had various exclusion and indemnity clauses. The main clause in dispute in this case, was the clause excluding ‘consequential losses’. The consequential losses in this matter referred to the spread costs. The High Court Judge, Popplewell J, took the view that contra proferentem should apply to the construction of the exclusion clause at the first instance, therefore, deciding with Providence. Transocean appealed the matter, and the Court overruled the Judge’s decision and applied three distinct principles.

New Principles

  1. Contra proferentem should only be used as a last method and only apply to cases dealing with ambiguous clauses.
  2. Secondly, that this is a separate principle to the principle that there is a presumption that neither party intends to abandon any remedies for its breach in the absence of clear words [Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689]. Therefore, parties if they wish to do so can abandon remedies, but the language used in the construction of the clause must be clear and unambiguous.
  3. Contra proferentem principle has no part to play if the clause affects both parties equally and more importantly were both parties have equal bargaining power. Therefore, the Court will place weight to the individual facts of each case depending on how the clause affects the parties and how much bargaining power the parties have.

The findings of the above case place extra burden on the parties to agree to robust exclusion clauses, as the Court are minded to take the literal meaning of the clause rather than use their own interpretation for commercial purposes. Therefore, it is imperative that the each and every exclusion clause is constructed carefully and precisely to demonstrate each party’s intentions, as it will be difficult to escape from liability if any unfavourable exclusion clause is agreed.

– Gurpreet Dhillon

Feel free to contact us and get in touch with our experienced dispute resolution department today. Our dynamic team think outside the box to assist you in finding the best solution based on your needs and circumstances.

The importance of providing prescribed information after statutory periodic tenancies arise: Gardner v McCusker

Posted on by Amarjit Atwal

court-hammer_thumbWhen a landlord wishes to evict a tenant from his property, he can do so by serving a notice under section 21 of the Housing Act 1988. However, the landlord may be prevented from serving a section 21 notice if he hasn’t correctly secured the tenant’s deposit in a Tenancy Deposit Scheme (as discussed in our earlier blog here) or provided the tenant with specific prescribed information.

The latter is the issue that arose in the recent case of Gardner v McCusker. The Claimant let a property for a 6 months fixed term to the Defendant, who paid a £600 initial deposit. The Claimant secured the deposit and provided the Defendant with the relevant prescribed information under section 213 of the Housing Act 2004.

In 2010 the fixed term tenancy expired, leading to a statutory periodic tenancy. The landlord then served a section 21 notice in March 2013 requiring the tenants to vacate the property, however the tenant argued that the notice was not valid as the landlord had not provided the tenant with the relevant prescribed information upon the commencement of the new statutory periodic tenancy.

The landlord, meanwhile, claimed that the fixed term tenancy had rolled over into the statutory periodic tenancy, therefore the prescribed information would also ‘roll over’ and there would be no need for it to be provided again.

The court held that the statutory periodic tenancy was technically a new tenancy and therefore the landlord had a duty to provide the tenant with the prescribed information again. This rendered the section 21 notice invalid, and the court ordered the landlord to pay the tenant damages of twice the amount of deposit paid. This case supports the seminal decision of Superstrike Ltd v Rodrigues and means that a landlord will not be able to serve a section 21 notice if he has not provided the tenant with the relevant prescribed information within 30 days of the expiry of the fixed term.

When attempting to serve a section 21 notice it is always sensible to take the advice of a solicitor. Our team of lawyers here at Aston Bond are experienced in dealing with section 21 notices. Come down to our offices at Windsor Crown House, Slough, SL1 2DX today for some advice or alternatively give us a call on 01753 486 777.

Aston Bond are holding a Landlord and Tenant seminar in late September, if you wish to attend please send your details to ndarby@astonbond.co.uk and we’ll be in contact. 

Amarjit Atwal, Paralegal

Notice of court proceedings

Posted on by Jagdeep Sandher

When we receive correspondence entitled ‘Notice of Court Proceedings’ we often feel shocked, worried and distressed. ‘What does this mean?’ and ‘how will it impact me?’ we ask. If you find yourself in a situation like this, our litigation solicitors are here to guide you through the entire process. Come down to our offices at Windsor Crown House, Slough, SL1 2DX to chat to one of our friendly solicitors. Meanwhile here is a quick guide as to what steps need to be taken before court proceedings.

Life is full of ups and downs and often we find ourselves stuck in situations that are far from ideal. Whether you’re behind on loan repayments or you haven’t paid a penalty, you may receive a notice of court proceedings from your creditors threatening legal action if the fine isn’t paid.

The first step is to try and achieve a resolution without having to go to court. The Practice Direction on Pre-Action Conduct (PDPAC) of the Civil Procedure Rules explains the need to try to mediate prior to going to court, and any sanctions the court can impose for failing to do so. For example, failure to comply with the pre-action protocols can be taken into account by the courts when making orders as to costs and case management directions.

A claimant’s letter before claim should give concise details about the claim, including but not limited to:

  • Their full name and address.
  • Why the defendant is liable.
  • A clear summary of the facts on which the claim is based.
  • What the claimant wants from the defendant.
  • A list of the essential documents that the claimant intends to rely on.

If a defendant cannot provide a full written response to the claimant’s letter before claim within 14 days of its receipt, he must instead provide an acknowledgment of letter before claim within the 14 day timeframe, which should include but is not limited to:

  • Should state the date by which a full written response will be provided.
  • If this date is longer than that set out in the letter before claim, the defendant should give reasons why a longer period is required.
  • May request further information to enable the defendant to produce a full written response.
  • Should, where the defendant cannot provide a full written response within 14 days of receipt of the letter before claim because they require advice, state:

o    that the defendant is seeking advice;

o    from whom it is sought; and

o    when it is expected to be received, to allow a full response to be given.

The claimant must allow a reasonable time (up to 14 days) for this advice to be obtained.

The defendant’s full response should either:

  • Accept the claim in whole or in part.
  • State that the claim is not accepted.

If the claim is disputed in whole or in part, the defendant’s response should:

  • Give reasons why the claim is not accepted, identifying:

 

o    which parts are accepted and which are disputed; and

o    the basis of the dispute.

 

  • State whether the defendant intends to make a counterclaim and, if so, give details of the claim equivalent to the claimant’s letter before claim.
  • State whether the defendant alleges that the claimant was wholly or partly to blame for the dispute and give details.
  • State whether the defendant agrees to the claimant’s ADR proposals, propose an alternative, or give reasons why ADR is inappropriate.
  • List the essential documents on which the defendant intends to rely.
  • Enclose copies of documents requested by the claimant or explain why they are not included.
  • Identify and request copies of any further documentation.

The claimant should supply copies of documents requested by the defendant within as short a time as practicable or explain in writing why the documents are not provided.

Similar fact evidence in Civil Proceedings

Posted on by Jagdeep Sandher

Similar fact evidence may be admitted in civil trials if:

  • the proposed evidence is probative of one or more issues in the current litigation; and
  • there are no good grounds why a court should decline to admit it in the exercise of its case management powers.

Matters relevant to this exercise of discretion include the need to weigh the potential probative value of evidence against its potential for causing unfair prejudice, and the need to consider the burden which its admission would lay on the resisting party. In addition, the court will consider the risk that the admission of similar fact evidence will distort the trial and distract the attention of the Court by expecting it to focus attention on issues collateral to the issue to be decided.

On any application, the Court will have regard to the need for proportionality, expedition and the overriding objective.

 

Reminder of Claims not Covered by a Settlement / Compromise Agreement

Posted on by Jagdeep Sandher

A brief reminder of the employment tribunal claims which cannot be waived by means of a settlement agreement (or compromise agreement).

The following employment claims can only be settled by ACAS conciliation:

  • Claims for failure to inform and consult with appropriate representatives on collective redundancies. However, it is possible to use a settlement agreement to compromise an individual employee’s right to bring a claim for failure to pay a protective award.
  • Claims for failure to inform and consult or failure to pay the compensation that is equivalent to the protective award under TUPE, as well as claims for failure to provide employee liability information under TUPE.
  • Claims under the Agency Workers Regulations in relation to regulation 5 (right to equal treatment following a qualifying period), regulation 12 (access to collective facilities and amenities), regulation 13 (access to employment vacancies) and regulation 17(2) (right not to be subjected to a detriment).
  • Claims for breach of regulations 5, 6 and 9 under the Employment Relations Act 1999 (Blacklists) Regulations 2010.

The following employment claims do not have any statutory mechanism for settlement:

  • The right to statutory maternity pay, statutory paternity pay or statutory adoption pay as there is an absolute restriction on contracting out of these payments.
  • Claims for failure to notify the right to request working beyond retirement, and breach of right to be accompanied at a meeting to discuss retirement.

If you are an employer requiring advice on drafting a settlement agreement, or, you are an employee requiring advice on entering into a settlement agreement, contact us today.

How to Choose Your Will Writer

Posted on by Aston Bond Law Firm

pen being used to write a will

A will is one of the most important documents in your life; it holds the key to your assets when you pass away and allow your family to grieve without the worry of your assets. However, despite the fundamental importance of a will, as the provision of will writing is un-regulated, there are a number of un-qualified will writers providing incompetent advice.

However, following a few simply steps and precautions you can ensure that you receive proper legal advice in order that your family members will receive your assets in accordance with your intentions and be protected when you pass on.

Always Use a Regulated Firm

Using a will writer without a regulatory body means that at any point the firm may mistreat you and you may have no option but to accept it. By using a firm which is regulated by a national body you are protected on two levels. For example, firms which are regulated by the SRA are closely monitored on how they deal with wills. Furthermore, if a firm closes for a number of reasons the SRA will take over control of your will and ensure its safety for the future. However, you must remember that there is no current regulatory body monitoring just wills.

Ask for Qualifications

While will writing does not require any official qualification, it is still wise to request some details on experience etc. A solicitor who is experienced with both tax law, property law and probate law is a safe bet in most cases. You should also ensure that the will writer has experience with inheritance tax, and trusts. However, experience may not always assure a reliable will writer. This is why it is always good to ask family and friends for recommendations regarding will writers they have used and their experience with them.

Check you Have Protection if They Make a Mistake

Ensure that the will writer has professional indemnity insurance to cover any financial losses you or your loved ones may suffer in the event of negligence.

One final tip is a fairly obvious yet optional one. We would highly recommend using a solicitor. This is because solicitors must have professional indemnity insurance.

Check tax consequences of your will

Always consider and seek legal tax advice regarding tax consequences of terms of your will. Any inheritance planning should be considered well ahead in order to obtain relevant tax benefits.

Read the Final Will!

The final precaution is vital. Always read the will and check it for any mistakes or concerns before you sign. In any legal document your wishes are the most important aspect; especially in wills. Be sure that there are no mistakes which may affect you or family members later and if you believe there is a mistake then always bring it up before signing any documents.

If you follow the steps above then you should have a clean and fully legal will written up for you. However, if you have any further questions regarding will drafting then please contact our solicitors.

 Tulin Kiranoglu, Solicitor & Tax Advisor 

tkiranoglu@astonbond.co.uk

Aston Bond’s will writers in Slough can assist clients across England and Wales with wills and probate. For more information please call us on 01753 486 777 or emailing info@astonbond.co.uk. Alternatively, you can visit our offices at 135 High Street, Slough, Berkshire, SL1 1DN.

A Guide to Assembling a Court Bundle

Posted on by Aston Bond Law Firm

When presenting a case at Court or Tribunal, it is vital that the bundle is in order. The bundle should enable all parties, and most importantly – the judge, to easily navigate through the relevant documentation. Below are some tips for preparing a Court bundle:

  • Where possible use chronological order.
  • Do not duplicate documents within the bundle.
  • Ensure your documents are relevant to the case.
  • Use a binder which is both easy to access and well fitting with the documents.
  • Ensure all the pages are the same way up.
  • Use simple ordering such as “1, 2, 3, 4.”
  • Remember not to skip or double up numbers on your pages.
  • Do not repeat e-mails; simply use one chain of all the e-mails you are using as evidence.
  • Always use A4 paper.
  • Do not highlight sections of the text yourself.
  • Do not use an excessive amount of dividers within the bundle.
  • Where possible use (an agreed) typed version of a handwritten document.
  • Avoid four-ringed binders; this makes it simpler to add extra pages in Court.
  • Do not staple documents unless necessary.

Dion McCarthy, Litigation & Employment Solicitor Advocate

dmccarthy@astonbond.co.uk

Dion McCarthy specialises in litigation and employment law matters. To contact Dion, who is based in Slough, please call 01753 486 777 or email info@astonbond.co.uk. Alternatively, you can visit our offices at 135 High Street, Slough, Berkshire, SL1 1DN.

More protection buying online than in-store?

Posted on by Aston Bond Law Firm

A majority of consumers opt to use the internet to buy goods; from cheap household items to expensive luxury items – often achieving cheaper prices than they would in-store. Plus, they have additional rights under the Distance Selling Regulations, such as a cooling off period and so on.

The rights of consumers buying online are highly protected, but, there are still businesses that thrive on unfair practices that are only established to make profits with little or no regard for consumers. So, what can a buyer do when an online seller fails to adhere to the Distance Selling Regulations or to even provide satisfactory goods?

Perhaps an aggrieved buyer may issue a County Court claim. If so, firstly the buyer will need to know who to issue proceedings against and where to serve the proceedings. This information may be difficult to obtain from a seller whose website has little or no information about the entity behind the website or the trading address (convenient for an unscrupulous seller).

Once a buyer has the details of the seller’s registered company and address, a County Court claim can be issued. The seller/defendant will have 14 days to respond to the claim. If the defendant fails to respond within 14 days, judgment in default can be entered.

Once judgment has been entered, the buyer/claimant can enforce the judgment by way of a warrant of execution to seize the defendant’s goods, which can be removed and sold. But, what happens when the bailiff informs the claimant that his or her money could not be recovered because (1) the registered address is only a postal address with no assets, or (2) the registered address of the defendant is that of a firm of accountants or solicitors? Regrettably, should this occur, the claimant, after incurring Court fees and solicitors fees, may find that he or she has effectively thrown good money after bad.

The risk of buying from an unscrupulous seller can be minimised by checking whether an online seller has disclosed all of its details online, such as its registered company number and address and so on. Searching the business name and address on a search engine may reveal reviews or articles about the business. Buying from a more established website or through established intermediary sites like Ebay or Amazon may lower the risk as they have internal dispute resolution systems in place and the sellers’ details need to be verified before an account can be set-up. Paying by credit card or by PayPal can also provide enhanced protection.

Before issuing County Court or High Court proceedings, it is advisable to consult with solicitors. Our litigation solicitors can weigh-up your prospects of successfully recovering your money from a seller and, as such, whether it is worth investing money into a Court claim.

To ascertain the prospects of success, we would first check to see whether the seller’s address is an operative address, as oppose to a postal address. Often, we instruct expert tracing agents for this purpose, who can find, for example, the trading warehouse where goods may be stored, or other assets which can be enforced against.

If there are assets to enforce a judgment against, if you have a County Court Judgment over £600 it may be advisable to transfer-up your judgment to the High Court for enforcement and instruct High Court Enforcement Officers, as opposed to County Court Bailiffs, since they normally have better recovery rates.

Dion McCarthy, Litigation & Employment Solicitor Advocate

dmccarthy@astonbond.co.uk

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