Blog posts - contracts agreements

For the past few years the Civil Justice Council ADR Working Group has been looking at the role of Alternative Dispute Resolution (ADR) and considering how it can and should be used in the future. The main question posed was whether it should be compulsory.They published their Final Report in Novemb...

Last August I blogged about the perils of trying to rely on a hotly disputed contract where the contract was based on an alleged conversation in a pub.The spat between Jeffrey Blue and Mike Ashley ended up in the High Court which found that no contract had been made.But this also applies to any any ...

You havegiven a Personal Guarantee to a creditor of a debt payable by another personcompany or organization, the creditor has made a formal demand and followed itup with service of a Statutory Demand. What should you do?First ofall you must act quickly. To avoid a bankruptcy petition you must make p...

The recent high profile case between Jeffrey Blue and Mike Ashley has brought a reminder from the High Court on how a contract is formed in English law and why it is so important to record any agreement in writing.On 26 July 2017 Mr Justice Leggatt gave his judgment in a claim brought by the investm...

On 21 March 2017 the Ministry of Justice published thenew and long anticipated Pre-Action Protocol (“PAP”) on debt recovery . It willcome into force on 1 October 2017.So what will this mean in practice? It has long beenthe requirement of the Civil Procedure Rules that parties should foll...

Sometimes you cannot help but think that the internet of things is moving so fast that it is difficult for old established laws and customs to adapt and keep up with innovations.The global explosion of short term lets via organisations such as Airbnb is a prime example. It is a huge challenge to the...

Many written contracts contain a clause stating that only the written terms will apply and that they can only be varied by agreement in writing.So what happens when the written terms do not reflect what has happened during the performance of the contract? Is it possible that terms could have been va...

This blog looks at the use of exclusion clauses to limit liability or perhaps the scope of performance under contracts between businesses. It does not apply to exclusion contracts between businesses and consumers, which are now governed by the Consumer Rights Act 2015. Many businesses have their own...

Step 1 - Identify your position • Prepare a chronological statement dealing with all the issues and identify all key documents such as any relevant contract, terms and conditions, correspondence and e-mails. • Identify your key personnel who would be called upon to give evidence. Get writt...

In legal circles it is called the "Battle of the Forms".Contracting parties usually have their own standard terms and conditions which they will wish to incorporate into any contract they have with the other party. Most commonly these can be found in supply contracts. But they are often forgotten ab...

So Gordon Ramsay got himself into a bit of a pickle and came off worst.It was all about a Personal Guarantee on a lease of a restaurant and hotel held by his company Gordon Ramsay Holdings International Limited.He challenged the personal guarantee on the basis that he did not personally sign it. His...

A commercial lease often contains a covenant by the tenant to keep the premises in repair and deliver them up in repair at the end of the lease. In some cases the lease also requires the tenant to “put” them in repair, whatever their state at the commencement of the lease, which is a far...

As we start 2015, it does look as though the prospects for commercial landlords in opposing lease renewals under Part II of the Landlord and Tenant Act 1954  has become a lot easier as a result of the Court of Appeal decision in Youssefi v Musselwhite.To recap on the law, a landlord who do...

In my last blog in the series on personal guarantees, I will look out how you can bring a personal guarantee to an end, and what to do if the creditor takes action against you under the personal guarantee. Discharging a personal guarantee The only sure way to bring your liability under a personal gu...

Whilst most solicitors will advise that you should always enter into a written contract when undertaking a major project, often you’re better off signing no contract at all. In English law, a contract does not have to be a formal written contract; it does not even have to be in writing. Most c...

It is useful for both landlords and tenants to remember the possibility of applying for an interim rent at the end of the business lease, to take effect during the period from the end of the current lease until a new lease is either agreed or ordered by the court. This is because in the meantime the...

In my last blog I looked at the nature of personal guarantees, explaining what they are and how they work. In this blog I will consider what you should do if asked to give a personal guarantee, the advisability and requirement for legal advice before signature, and the position where legal advice wa...

A personal guarantee is a security given by one person or company for a loan or other obligation of some other person or company (the “debtor”). The personal guarantee is given to a creditor or potential creditor (usually a bank, trade supplier, or landlord) of the other person or compan...

Tenants often ask the question “Can I assign my lease?” There are 3 possible scenarios: 1. The lease is silent. There is no written condition preventing assignment. In this case the tenant can assign or underlet to whoever he pleases and does not need the consent of the landlord. 2. The ...

The new system of commercial rent arrears recovery (CRAR) comes into force on 6 April 2014.All the necessary regulations have now been published. So from 6 April landlords will not be able to send in the bailiffs without notice to recover arrears. A whole new system of rent enforcement comes into pl...

One question that I get asked a lot is: “When I’m dealing with a dispute by email, when should I use the phrase without prejudice? Many business people know they should use the term but are not sure when and what it means. Some write “without prejudice” on all correspondence ...

 The law of Defamation has finally in the 21st Century arrived in the on-line media and social networking age.The Defamation Act came into force in England and Wales on 1 January 2014. It is designed to modernise the law of defamation and strike a fair balance between competing interests w...

On 6 April2014 there will be a new dawn for commercial rent recovery. The new regulations abolishing the ancient law of distress come into force on that date. For details see my blogs of 3 March 2013 click here and 17 September 2013 click here.It will no longer be possible to send in the Baliff...

Back in March I did a blog on the end of distress and the introduction of a new system of commercial rent recovery. We now know that the new system will come into force on 6 April 2014. Regulations have been made and commercial landlords and tenants, and commercial  bailiffs, will need to brush...

Are you bound by a contract and need to get out of it? The options available to you depend on the terms of the contract and any relevant legislation. You must first look carefully at the terms of the contract and identify the type of contract and any provisions for termination. Is it a fixed term co...

The first question to ask yourself when you are thinking about making a claim is who you are going to claim against. And sometimes the answer might not be as straightforward as you think, and particularly when dealing with company groups.Imagine the following common scenario. You are approached by a...

The government came to power in 2010 promising to get rid of unnecessary red tape, or at least not to increase it through its ‘one in one out’ policy. The Department for Business Innovation and Skills (BIS) invited business leaders to tell them what regulations they wanted scrapped as pa...

It now looks likely that the ancient law of distress will be abolished this summer. But what does this mean for commercial landlords and tenants? The proposal was first made 22 years ago, and the legislation passed back in 2007, but it was never brought into force. But the government has recently an...

It often happens in business: you signed a contract that you later regret. Sometimes it’s because the other party is not performing as expected but, at other times, it’s just because you’ve changed your mind. It’s usually not easy to get out of a contract but what follows are...

Cloud computing has been around for some time, but it is now becoming more widely used. Many businesses not already using cloud services are considering doing so for at least part of their IT needs. The selection of a cloud service to use will depend on a range of factors – cost, risk, technic...

As a litigation lawyer dealing with disagreements between businesses, I frequently find I’m called upon to help business owners who have broken or ignored the terms of a legally binding contract. As with anything concerning the law, there’s a right way and a wrong way of going about this...

Having read my colleague Sue Mann’s blog last week (New customer or supplier? How to manage your risks), I realised I might be missing an opportunity to advise clients who ought to be reviewing their standard contract terms or their terms of business. As someone who tends to work with business...

There are many times that work is carried out where no price has been fixed. Does this leave the workman without a claim? Not a bit of it. It has long been a principle of English law that someone should not have the benefit of unjust enrichment. There are 3 possible scenarios: 1. Work has been done ...

One thing that struck me about the recent news story when the Prime Minister, David Cameron, said that comedian, Jimmy Carr, was “morally wrong” in trying to reduce his tax bill legally was the fact that he had to resort to a plea for morality. As a commercial dispute lawyer, I often com...

The failure of Greece to form a government following elections has led to many believing that a Greek default and exit from the Eurozone is now more likely than not. If this happens, then it is probable that other countries in difficulty, such as Portugal, Italy and Spain, will soon follow, and poss...

The Disability Discrimination Act (DDA) came into force in October 2004. Many people have assumed that it deals only with how disabled people access buildings and services. But it does in fact also apply to the accessibility of websites. Web owners and designers should be aware that they are highly ...

The Government has announced plans to begin a major cut back of health and safety red tape. It will begin an immediate consultation on the abolition of large numbers of health and safety regulations and intends to have removed the first rules from the statute book within a few months. It seems David...

The new regulations relating to cookies which came into force last year basically requires website owners not only to provide information about cookies they use and a mechanism to opt out, but to obtain consent from users of the site before a cookie is used. The only circumstances where this does no...

In my last blog (Website owners are warned by Information Commissioner) I mentioned that the ICO had issued updated guidance on compliance with the new cookies regulations introduced last year. This new version of the guidance is much more detailed than the original version and, along with the repor...

Whilst most of us were preparing for the Christmas and New Year festivities, the Information Commissioner issued his half term report about the preparations for complying with the cookie regulations which came into force last year. Details of those new regulations were given in my blogs at the time ...

Businesses are constantly juggling resources to survive and grow. One of the decisions they have to make is when to take legal advice when entering into contracts. The reason they may choose to do without advice is the perceived cost. But the consequences can in many cases be more costly than the in...

With all the criticism and praise of David Cameron using his veto at the EU last week, as an expert in resolving commercial disputes, I know that sometimes walking away is the right thing to do. In negotiations and mediations, one of the ‘killer’ tactics available is the threat of walkin...

If you’re an e-commerce solutions provider or a website developer, there are now various aspects of law and regulation you need to be aware of. Of course, all businesses have things to watch out for but arguably e-commerce business has more to watch out for than most. As an adviser, often to t...

There are many misconceptions, often by ‘experts’, on the real legal and practical implications of selling over the web. Do bear in mind that, if you sell over the web, you are bound by any terms of business just as much as if they are on the back of an order form. Because web sites are ...

The only people who needn’t read any further are those who are the sole shareholder in their company - unless you might be issuing shares to someone else at some stage, in which case carry on so that you will be prepared. Everyone else should have a shareholders’ agreement in place. Read...

Navigating my way around Linked In recently I spotted a question in one of my groups which highlighted a real misunderstanding about the important issue of copyright. From the answers given I suspected the questioner would be no clearer, as many seemed to be contradictory. So I thought I’d ded...

There’s no escaping the law just because you’re trading on the Internet. If anything, you need to be more cautious and really understand the rules of contract law so that you don’t make expensive mistakes. Many people have no idea when a contract is actually made. Trouble can come ...

When we draw up contracts intended to limit liability for our business clients, we normally suggest that our clients either: Check their present business insurance covers the work anticipated in the contract Or get a quote to ensure they are covered. “So, what’s the point of a contra...

Despite initiatives such as the government’s Red Tape Challenge , all businesses seem to have increasing amounts of red tape that they have to comply with in order to keep on the right side of the law. Solicitors certainly aren’t immune – in fact we are affected by a whole new set ...

One of the consequences we have seen as a result of the current recession is a rise in the number of people who have come out of employment and set up as independent consultants in their chosen field. You may be one of them. If so, then you will also have had a whole range of issues to deal with fro...

It is quite often the case that the most valuable assets of a business are its intellectual property such as trademarks and copyright, but do not overlook the important value of trade secrets. Trademarks and copyright are out in the open, and any infringements can be protected by appropriate court a...

Working with a lot of IT companies and web developers I’ve realised over recent years how many leave themselves open to potential legal difficulties. It goes without saying that most modern businesses rely heavily on their IT systems to run their business and on their websites for showcasing t...

There are certain things all businesses can do to right now to reduce the possibility of litigation arising (even years before you have a dispute). And they just happen to be the same things that will reduce your legal costs if litigation does occur, and also make it more likely that you will win. G...

Any business owner who’s been approached by a potential investor or partner is always initially pretty flattered. It’s great to have someone else show an interest and see the potential of your business. But if you’re talking to a potential investor, partner, licensee, buyer or supp...

More than you might think and yours might be one of them! Now I’ve got your attention, let me explain. Every website should have a set of policies, designed to protect you and also the visitors to your site. If you sell products or services via your website, the requirement is even greater; no...

It never fails to surprise me how many small businesses appear to have been misinformed when it comes to how they use their standard terms of business. I’ve seen them printed on the reverse of an invoice, included with a delivery note, even a payment reminder. If you have gone to the trouble o...

It has been a shock to many to receive a demand for compensation for unlawful reproduction of images, such as photographs and other artistic and design work. Usually this comes in the form of a written demand from a stock image house such as one of the world’s biggest agencies Getty Images, wh...

I talked in an earlier blog (New rules on the use of cookies) about the new rules affecting website owners which came into force on 26th May 2011. Since writing the Information Commissioner’s Office (ICO) has provided a little more clarity about how the new rules will be policed. The good news...

Details about new rules on the use of cookies by website operators have recently been published. There’s not much time to get to grips with them as they come into force on 26th May 2011. Initial guidance from the Information Commissioner’s Office (ICO) issued only last week provides a fe...

The age of emails has blurred the boundaries of what is a contract and what is not. It’s very easy to fire off an email quickly, but do you realise that such an email has the same status as a proper legal contract? Without expert legal input and advice on terms, businesses could be leaving the...

Acts of war, extreme weather conditions or a terrorist attack might seem like good enough reasons not to be held to deadlines or the precise terms of a contract. But this is not always so. Volcanic ash clouds, prolonged severe winter weather and flooding, the terrible impact of the earthquake, resul...

If you run an e-commerce business and sell goods online new EU rules could have a significant impact. The rules in question would be under a planned EU Consumer Rights Directive which concerns contracts for the sale of goods by businesses to consumers (B2C). The draft Directive is not a new proposal...

Business owners often dismiss the need for formal contracts with their customers or suppliers, seeing them as a barrier to getting on with their day-to-day activities. But maybe if they viewed them as a form of insurance their opinion would be slightly different. Business people often say to me that...

What surprised me most about the news story of MP Phil Woolas losing his seat for lying is the number of politicians who came forward to say that lying is just a part of the “rough and tumble” of electioneering. Do we, as a society, really think it’s OK to lie in public? As a litig...

The costs of the Icelandic volcano which bought UK airports to a standstill over the past weeks are still being counted. Not only were travellers affected but also all businesses engaged in importing and exporting goods by air. Ryanair tried and failed to renege on their contractual duties by claimi...

I was fascinated to read Emma Wimhurst’s article in the Independent small business section. Her views are, to say the least, controversial:"We’re all fed up with the R-word, but I believe the economic downturn has done many business owners a favour. It’s grabbed us by the prof...

To help business owners and managers prevent and manage commercial disputes law firm Cousins Business Law has published a free guide entitled “The Definitive Guide to Solving Business Disputes”. The guide stresses the significant cost to business of badly managed disputes and provides pr...

In the wake of anti-terrorism and laundering initiatives and in response to the growth of cyber crime, Companies House is attempting to help company directors bolster their protective armoury. Two initiatives should be of interest to any company that wishes to protect itself against company hijackin...

Data Protection sounds, understandably, a very boring - some may say largely irrelevant - subject to small business owners. But it can cost you many thousands of pounds to ignore it. Many business owners are not aware of the effect the Data Protection regulations may have on how much they can sell t...

According to a recent Nat West Bank Survey 82% of SMEs now use email – up from 14% in 1996. 50% of businesses now have a networked system and access to shared files and information and of the 2/3rds of businesses that have a website 20% of them take payment on-line. All of this is great news f...

I am sure that all buyers (and most sellers) will want to make sure that goods sold are of satisfactory quality and do the job intended. But what is the remedy when things go wrong, for example the steel supplied is not up to the job, the cattle food makes the cattle ill, the computer does not ...

In the past 2 weeks I have been the victim of large scale internet fraud on 2 credit cards, and so I have taken a keen interest in liability and in ways to protect against future fraud. I have been very careful to use only on line stores who encrypt customer details, but fraudsters have still manage...

The latest issue of the Cousins Business Law ezine with a feature article entitled 'Should you rely on a gentleman's agreement'  is generating lots of interest.  It is amazing how many business owners and managers fall foul of the fact they didn't have the details of a commercial deal ...

The Government is considering reducing the time limit for debt collection from 6 years to 3 years.At the moment, firms have 6 years in which to issue court proceedings to collect debts. This is set to change and an announcement is expected to be made in the Queen's speech to Parliament in December.W...