Commercial attorney threat

first_imgLawyers in England and Wales could soon face competition from commercial attorneys, a group of legal representatives operating mainly in the field of construction law whose origins lie in Scotland. The Association of Commercial Attorneys recently won a near 20-year battle for rights of audience in Scottish courts and rights to conduct litigation, under provisions extending such rights beyond the existing legal profession. Four association members have been granted practising certificates. From this week they are permitted to appear in the sheriff courts, as Scottish solicitors are able to do. The liberalisation measures were originally enacted in 1990 but lay dormant on the statute book until 2007 when they were formally commenced. A spokesman for the association said it is now considering opening a branch in England. He added: ‘We plan to make an application to the bar in England and Wales for the right to instruct counsel in construction arbitration and adjudication matters.’last_img read more

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Developments in RTA claims process and third-party litigation funding

first_imgThere were significant developments at both ends of the litigation spectrum last week. The three-week delay in launching the new road traffic claims process might not seem much, but it gives law firms some breathing space to get to grips with the reams of new rules (the simpler the system, the more detailed the rules need to be, says the Ministry of Justice) and the technology that underpins the system. However, it is still less than two months away, so there is no time at all for firms to waste. Meanwhile, third-party litigation funders – who by contrast are interested in big-ticket commercial disputes – came together to progress a voluntary code of conduct for their sector. The forum, hosted by the Civil Justice Council (CJC), highlighted clear reluctance among some funders to bother with any of this, but it seems a small price to pay to receive the blessing of Lord Justice Jackson and the courts for what they do. When the CJC first identified third-party funding as another way to back litigation, it had in mind group actions, where funding is badly needed, rather than business disputes, where in some cases the claimant company can afford to litigate but chooses to lay off the risk. The sector’s credibility as a method of achieving access to justice – which is how this work started – would be enhanced considerably if it were more prepared to take on group actions.last_img read more

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Contract

first_imgConstruction – Contractual term – Claimant claiming breach of contract for marketing ­benefits by defendant – Whether breach occurring Playup Interactive Entertainment (UK) PTY Ltd v Givemefootball Ltd: QBD (Comm) (Mr Justice Walker): 28 July 2011 Edmund Cullen (instructed by Wiggin) for the claimant; Duncan McCall QC (instructed by Clarke Willmott) for the defendant.center_img The proceedings concerned an action for breach of contract arising out of a sponsorship agreement. The claimant company operated an interactive gaming business providing mobile telephone and internet-based interactivity. Its games involved the player predicting the outcome of a sporting event or particular occurrences within the event. The defendant company was a joint venture between the Professional Footballers Association and an online media company, Sports New Media Ltd. A contract was entered into between the claimant and the defendant in February 2008 (the sponsorship agreement). Under the sponsorship agreement, the claimant was required to pay £1,034,000 in four tranches, and in return the defendant was required to provide the claimant with a range of marketing benefits. Among such benefits were certain data rights (data programme rights) which concerned, inter alia, monthly programmes of at least a million emails (email programme) and bi-monthly programmes of at least 250,000 short message service (SMS) messages (SMS programme). In November 2008, the claimant gave notice of termination of the sponsorship agreement on the basis that the defendant had breached its obligations in relation to the data programme rights. The claimant claimed certain repayments under clause 8.2.5 of the sponsorship agreement which provided that, in certain circumstances following a valid termination of the sponsorship agreement, the claimant would be entitled to a repayment from the defendant. It also claimed damages for breach of contract. The defendant counterclaimed for the remaining instalment due from the claimant in the sum of £342,000 plus VAT. The principal issues that fell to be determined were: (i) whether on the true construction of the meaning of ‘data programme rights’ there had been a breach of the sponsorship ­contract by the defendant; and (ii) whether the claimant had been ­entitled to terminate the sponsorship agreement and the consequences of any such termination. There was no dispute as to the legal principles regarding breach of contract (see [34] of the judgment). The court ruled: (1) Applying settled principles, the email programme had been delivered by the defendant to at most 260,000 qualifying recipients rather than the million promised, and the SMS programme to at most 39,450 qualifying SMS message recipients rather than the 250,000 promised in the sponsorship agreement. Accordingly, the defendant had failed to perform its obligations in relation to the data programme rights and there had been a breach of the sponsorship contract (see [34] of the judgment). (2) It was established law that the common law test for ability to terminate for a repudiatory breach of contract involved the application of the test of whether a failure in performance ‘substantially’ deprived the innocent party of what was bargained for or ‘frustrated’ the innocent party’s purpose in making the contract. On the facts, the combination of ­failure to provide both what the claimant had contracted for as ­regarded email recipients and what it had contracted for as regarded SMS message recipients pointed clearly to the conclusion that the common law test for repudiatory breach had been met. While the claimant had gained some benefits from the performance of the sponsorship agreement, it appeared that it had lost a major ­proportion of what it had been fully entitled to regard as a vital benefit. Accordingly, the claimant had been entitled to terminate the sponsorship agreement. In the circumstances, the claimant would be entitled to payment of £340,251.14 plus VAT under clause 8.2.5 of the sponsorship agreement and damages in the amount of £53,000 for failure of the defendant to supply what was promised. The counterclaim would be dismissed because the claimant had been entitled to terminate the sponsorship agreement.last_img read more

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Tabak: without prejudice

first_imgJudging by the mood on Twitter – not to mention comments on newspaper websites – the public is seething. People are obviously appalled by Vincent Tabak’s crime, but they are equally livid at the law – and, specifically, the judge who deemed inadmissible so much of the evidence about his character. A suspect’s record is generally not disclosed to a jury during their trial, and for good reason. The person in the dock may have a string of convictions for similar offences, but that is not proof of guilt for this one. A change to this practice (although similar fact evidence is admissible) could only harm the rule of law and interests of justice, tempting police and prosecutors in search of a conviction to rely on an individual’s past to secure an otherwise unwinnable case. Yet so much of Tabak’s background and character was withheld from the public that many will struggle to comprehend how it was not deemed relevant to his prosecution. Tabak was convicted on Friday by a majority verdict of murdering Joanna Yeates. He strangled the young woman in her flat before dumping the body on the side of the road. The judge in the case decided jurors would not be told of Tabak’s use of sex workers on business trips to Los Angeles, despite his pleas as a committed boyfriend forming part of his defence. They were not informed that Tabak’s computer had numerous links to hardcore pornography sites, with images of men having sex while holding their hands around the neck of a woman and one picture in particular of a woman resembling Yeates. With the outpouring of this nature, we can be thankful the jury recorded the verdict it did, but should this information have been allowed to be presented in court? There is a fine line between information that prejudices a case, and the case itself. Tabak’s fondness for pornography does not make him a pre-meditated killer, but the nature and content of the material he enjoyed – and the obvious parallels with elements of this case – do point to information that was relevant. Certainly we can expect a degree of revulsion from the public at the withholding of this information. The jury deliberated for two and a half days, and there will be anger that Tabak was seemingly in with a chance of being acquitted of murder. But the level of public interest in the case is probably the biggest reason why the judge rightly erred on the side of caution. This was a case that provoked extreme emotion and would surely have been familiar to members of the jury. It is understandable that the judge sought to separate conjecture from fact. His job was to ensure a fair trial, and the evidence against Tabak was overwhelming enough to convict without the jury seeing the contents of his computer. If they had known, there is almost no doubt that 12 rather than 10 would have been convinced of his guilt. But how many would have assumed Tabak’s guilt on account of his behaviour rather than his actions? The law will be deemed an ass by many, but in this case it seems to me that justice has been done.last_img read more

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Cause for complaint

first_imgSo far, my experience – as designated ‘complaints partner’ for my firm – of the role of the Legal Ombudsman in complaints-handling has been a positive one. However, I am now mystified as to how we should operate our future complaints-handling process.In accordance with guidance, we have a detailed written complaints procedure which is contained within our terms of business, and which is communicated to clients at the outset of any transaction. This requires a client to go through three stages of ‘complaint’ before referring a matter to the LeO. In short, if the client is not satisfied as a result of our complaints-handling process (which ends with me), then the client can refer the complaint to the LeO (and we provide contact details for this purpose).This policy has served us well for years and we have an extremely good complaints-handling record. I was therefore perturbed to be notified of a complaint made to the LeO, of which I had not even been notified. In this case, the client made a complaint to the fee-earner dealing with the case, who responded to the complaint by email. Thinking that the matter had been satisfactorily dealt with, the file was then closed. The next we heard was a request from the LeO for copies of various letters and emails.We took up the matter with the LeO, explaining that we had been advised on a couple of occasions by LeO investigators that complaints had initially been referred back to us where clients had not followed our clearly-set-out procedures. The LeO then confirmed – ‘for the avoidance of doubt in future’ – that clients can complain to the LeO at any stage, whether or not the firm’s complaints procedure has been followed.Surely this cannot be correct? Is this not creating a substantially larger workload for the LeO, and risking the situation whereby complaints that would otherwise be resolved by firms ‘internally’ will be allocated to investigators unnecessarily?Edward R Foster, Fosters Law, Herne Baylast_img read more

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Patent

first_img Mark Chacksfield (instructed by Bond Pearce) for the claimants; Robert Deacon (instructed by Hansel Henson) for ESPL; MH did not appear and was not represented. H was the inventor and owner of a patent granted on 1 May 2002. In July 2009, H granted EM Ltd (EML) an exclusive licence under the patent. EML was owned and run by the Black family, in particular JB and SB. In 2010, EML decided to set up a new company, ESP Ltd (ESPL) as the vehicle to buy the patent. On 5 February, H executed an assignment of the patent to his company, MAD Ltd (MAD). On 22 February, an agreement, embodied in a written agreement signed on that date, was reached between MAD and EML to sell the patent to EML. The agreement had four parties, namely MAD, EML, ESPL and H. The agreement included a provision for assignment of the patent from MAD to ESPL expressly in consideration of the payment of £80,000 (see clause 2.1) and the relevant payment terms (see clause 4.1). Clause 7.2, provided that if any three consecutive sums under the agreement remained outstanding for more than 90 days cumulatively, the assignee should, on demand by the assignor, forthwith provide to the assignor an executed assignment of the patent back to the assignor or its designate in registrable form. On the same day the agreement was signed, MS Ltd (MSL) started a claim in the Patents County Court to revoke the patent (the main proceedings), claiming ownership of it. H and MAD contended that the patent belonged to them. EML contended that the patent belonged to it as it had purchased it from MAD for £80,000. From the date of the agreement until April, all the relevant payments were made. However, the May payment was not made. On 9 June, EML wrote to H requesting a repayment holiday to enable it to continue the legal fight with MSL over the validity of the patent. In that letter, EML was saying that it could not afford to fight EML in court and pay the instalments due. H did not accept EML’s proposals. The June payment was not made and on 22 June, the matter came before the county court for a case management conference. In the course of the main proceedings, the question of who the proper parties were arose and it was ordered that the defendants were to be H, EML and JB. The judge refused to order ESPL to be made a defendant but directed that it would be named as a defendant if ESPL became registered proprietor. At that stage, the register showed H as proprietor and EML as exclusive licensee. None of the subsequent transactions had been registered. On 13 July, SB sent another email to H about the payments, proposing a way forward. H did not accept those proposals. In the event, the July payment was not made. On 5 August, MAD and H entered into an agreement with MH plc (MH), a company associated with the claimant company in the main proceedings. Under the agreement with MH, inter alia, the debt owed by EML (at that stage totalling £15,000) was assigned to MH along with the right to receive the remaining monthly payments. Consideration for the assignment of the contract debt (including the right to future instalments) was £15,000, paid by MH to MAD. On that same date, MAD sent a notice pursuant to clause 7.2 requiring ESPL to reassign the patent to MAD. On 10 August, MAD sent another notice of assignment of the debt to EML. That letter included a copy of the assignment of the debt to MH signed by H on behalf of MAD. No payment was made by EML and the patent was not assigned. Following the failure by EML to make the August payment, MH served a statutory demand on EML pursuant to section 123(1)(a) of the Insolvency Act 1986. On 17 September, EML paid the outstanding debt to MH and MH accepted the payment. After that, ESPL continued to make payments of the instalments due under the agreement. The payment due in January 2011 was three days late as a result of the weekend. However, a second statutory demand was served on ESPL by MH for that payment. ESPL never assigned the patent back to MAD. MAD’s case was that ESPL was obliged by clause 7.2 to execute a reassignment of the patent back to MAD. MAD sought specific performance of the contract to achieve that objective. On 7 April 2011, it was ordered that the question of who the correct defendant to MSL’s claim for revocation of the patent was, should be tried as a preliminary issue. There were three camps claiming ownership of the patent, namely: (i) MS Ltd (the claimant in the main proceedings); (ii) H and MAD; and (iii) ESPL and its associated companies. That issue was tried as a part 20 claim in the main patent proceedings, with H and MAD as claimants and ESPL as the defendant. By that time, MAD had settled its differences with MSL, whereas EML had not. Consequently, if MAD owned the patent and should be defendant to the main action, the revocation action would cease as those parties were agreed. However, if ESPL owned the patent and was the correct defendant, the revocation action would continue. EML contended that clause 7.2 was not engaged at all. It argued that the way in which MAD calculated the days had been wrong. It argued that by 5 August 2010, the clause had been engaged because by that time three consecutive sums under the agreement had remained outstanding and the cumulative total number of days the payments had been outstanding had been more than 90. MAD’s calculation was that by 5 August, the relevant number of days was 133, with the result that the patent should be reassigned to MAD. EML denied that clause 7.2 had been engaged at all. It contended that the way in which MAD calculated the days was wrong. If the relevant days were calculated in a manner EML contended for then the number by 5 August would only have been 11 or 12. EML further contended that even if MAD was correct about the way in which clause 7.2 worked and therefore correct that it had been engaged, there were a number of further defences. Against that background, the following issues fell to be determined, including: first, the true construction of clause 7.2, both in terms of the triggering event and its place in the contract as a whole: if EML was right, then the case did not get off the ground. Secondly, the doctrines of waiver and affirmation, as raised by EML, and in particular the effect of the acceptance of EML’s payments by MSL. In respect of those doctrines, EML contended that the right to enforce the clause had been waived or that EML’s ownership of the patent had been affirmed on the basis that, in the full knowledge that the payments had not been made, MAD had assigned the debt and the right to future instalments to MH and had stood by while MH had demanded and accepted the payments from EML. The claim would be dismissed. (1) MAD’s alternative construction of the clause was the right one. Three payments had to be outstanding, but a relevant day was a day on which a payment remained outstanding. That was what the word ‘cumulatively’ in clause 7.2 was intended to achieve. The accumulation was to aggregate outstanding days for one payment together with days for another and for a third. Once the total passed 90 days, the clause was triggered. Consequently, on that basis, MAD had the right to call for a reassignment when it had done so on 5 August 2010 (see [51] of the judgment). (2) In the instant case, on 17 September 2010, EML had proffered the outstanding sums due and they had been accepted. From EML’s point of view, it had offered to pay and had paid the money which had been due as a contract debt at that time. In substance, the party with whom it had contracted had been affirming the contract by accepting the money. At that point, the right to demand reassignment pursuant to clause 7.2 had come to an end (see [59] of the judgment). ESPL would be entitled to be named as defendant to the main revocation action (see [69] of the judgment). Petition for revocation – Validitycenter_img Horler and another v Everseal Stationery Products Ltd: Patents County Court (Judge Birss QC sitting as a judge of the Patents County Court): 21 October 2011last_img read more

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Legal letters

first_imgSubscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Subscribe now for unlimited access Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Get your free guest access  SIGN UP TODAYlast_img read more

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Knocking an opportunity

first_imgSubscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Subscribe now for unlimited access Get your free guest access  SIGN UP TODAY To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletterslast_img read more

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Furtive behaviour

first_imgStay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Subscribe now for unlimited access Get your free guest access  SIGN UP TODAYlast_img read more

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Cinderella’s new deal

first_imgStay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Get your free guest access  SIGN UP TODAY Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Subscribe now for unlimited accesslast_img read more

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