Archive for the ‘Commercial Litigation’ Category

Prosecution HIghlights Need for Risk Assessment and Control

A plant hire company has been fined £7,000 and ordered to pay costs of £10,000 following an accident on a building site in which an excavator bucket filled with concrete fell off the arm of the machine supplied by the company and crushed the site foreman to death.

The plant hire firm and the man who was operating the excavator when the accident occurred were both convicted of breaches of health and safety legislation. The operator was fined £700 and ordered to pay costs of £1,000. The main contractor, which has now entered administration, also faces charges for having failed adequately to plan, manage and monitor the construction workand failing to take reasonably practicable steps that would have prevented the accident.
 
The accident happened because of the failure to insert a ‘safety pin’ necessary to enable the bucket to be locked to the arm of the excavator.
 
The plant hire company was convicted on the grounds that it ‘did not have a suitable regime of inspection for the plant it hired out to ensureDiggers safety conditions were maintained’ and that it had ‘also supplied the eq uipment without adequate safety warning signs, written information and instruc tions or CE marking’. The company had also neglected to ensure the attachments supplied with the excavator were maintained in an efficient state, working order and in good repair.
 
The operator had failed to take adequate care when positioning the bucket.
When an accident could easily have been avoided, as in this case, the HSE often spreads the net of blame widely. It is important for those with health and safety responsibilities to be aware of the scope of their duties. Whilst an error may appear to be mainly the fault of one person, ‘liability creep’ can easily occur unless careful risk assessment and minimisation procedures are in place.
 

 

Posted June 18th, 2011 in Commercial Litigation |

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Claim on Wrong Basis Prevents Compensation for Loss

Damages for a breach of contract claim are confusing for many business people as recovering does not necessarily mean recouping all losses claimed for a breach. the general principle under English contract law is that damages will be awarded for loss of profits but there are other possibilities.

In a recent case, rather than a claim for loss of profits, the claimant sought damages on the basis of loss of value to business on a franchise agreement, which was ended by the franchisor. This in turn obviously made the claimant's company less valuable.
Whilst on a commonsense view, the claim as detailed above made sense, the Judge in the case rejected this method of claim and stated that it was much too hypothetical. Had the claim been made instead on the basis of loss of profit, it would have succeeded. Alternatively, if the consequence of the breach of contract was that the claimant's whole business failed, then a  different claim based on loss of value may have succeeded.
This case clearly highlights the technical nature of contract law and the need for good advice from experienced litigation solicitors. It also shows that when you make a claim, you should include different and alternative possible legal points so that if a Judge rejects one basis of argument you can still succeed on other arguments.
Please visit our litigation page or get in touch for further advice.

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Posted June 10th, 2011 in contract law |

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Defective Wording Does Not Remove Liability

Whether a court will interfere or vary a legal document or contract is an important issue which can appear confusing. In some cases the courts are willing to do this, either on a common sense approach or where equitable or in order to reflect evidence of the intention of the parties.
Courts re generally far more reluctant to interfere with legal documents where the matter relates to a business to business transaction. Where the issue relates to an unequal bargaining position or inherent advantage such as in the employer and employee scenario or business to consumer, the courts are more willing to intervene.
In  situations which do not neatly fit into any of the categories described above, a recent case is quite instructive as to the possible approach in property law.
In this case a farmer sought to avoid an estate rentcharge for roads and sewers on the farm estate when the covenants in the land transfer documents contained errors and omissions. the court decided to interpret the rentcharge, notwithstanding it's label as having been intended not on the basis of profit.
If you believe that you have an argument that a contract or other document should be amended or varied or that it contains unenforceable provisions or falls foul of the Unfair Contract Terms Act, please get in touch, whether it's an employment law issue, property law or a consumer law problem or dispute.

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Posted May 26th, 2011 in Commercial Litigation |

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Trade Mark – Whole, Not Parts of Whole, is What Matters

The High Court has confirmed that a trade mark refers to the general impression given by the mark, not to the details of the mark and this can include auditory and conceptual factors as well as purely visual ones.
The important issue is whether the average consumer would be misled bearing in mind that the mark is perceived as a whole, not by its individual parts.
Merely creating a mark that is subtly different from a trade mark may well be insufficient to prevent an action for violation of the trade mark or ‘passing off’ (deriving an economic benefit from it) if the overall impression is similar. For advice on all trade mark and other intellectual property matters, contact us.

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Posted May 23rd, 2011 in Commercial Litigation |

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Reasonable Approach Pays in Court

Litigation can not only get very personal but tactics play a very important role. there can be decisions about making tactical offers and whether those offers should be made on a fully without prejudice basis or perhaps without prejudice save as to costs or even on a fully open basis.

There is a natural reluctance to make open offers, but each case is different and should be looked at that way. If you are not making admissions in an open offer or perhaps offering a specific sum, but instead are suggesting a sensible resolution to a dispute which really shouldn't end up before a Judge, you perhaps have little to fear and in fact this approach may well reap rewards, as a recent case demonstrates.

In this case a partner was effectively expelled by the other partners in an LLP. He made an open offer to them to buy out his share in the LLP at fair market value.
This offer was rejected and when the case reached trial the Judge rules that the offer was completely reasonable and made exactly that Order, with costs payable on a full indemnity basis by the unreasonable partners, which is not normally the case, since generally, win lose or draw, you do not recover all your legal costs of litigation.
We can help you negotiate a successful outcome to a commercial dispute so please get in touch, or why not visit our commercial litigation page.

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Posted May 3rd, 2011 in Commercial Litigation |

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Trade Mark Infringement Can be Based on Sound

Infringement of a trade mark need not be a visual issue: a trade mark can be infringed when the sound of the trade mark is infringed..

 
The case arose when the international toy manufacturer Hasbro alleged that its trade mark ‘PLAY-DOH’ had been infringed by a company selling ‘Play Dough’, an edible dough for children. The marks were not similar in appearance, nor were the products physically identical.
 
The defendants argued that PLAY-DOH had become synonymous with modelling clay and was thus so generic in meaning that it had lost its distinctiveness. It would not therefore qualify for trade mark protection. They also argued that if the words PLAY-DOH could be extended to cover ‘Play Dough’, then they lacked ‘distinctive character’, which is a necessity for a trade mark to be enforceable.
 
The court rejected both arguments.
 
It is good sense to make sure that you research trade marks before you start to use any trading style.We can assist you to make sure that you do not infringe others’ trade marks, and help you to protect your own trade marks and the rights attached to them.
 

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Posted April 28th, 2011 in Commercial Litigation |

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Email Terms Apply in Contract

A recent case in the Court of Appeal has demonstrated that terms agreed by email can amount to a contract despite a formal contract referred to in the emails remaining unsigned. The case concerned a commodities trader and a fuel storage company that had entered into negotiations for the provision of a facility to store 3,000-4,000 cubic metres of derv fuel.

 
In October 2008, the commodities trader Clear plc made enquiries concerning the availability of storage capacity at Immingham Storage Company Ltd.’s facility in Immingham, Lincolnshire. Following an exchange of emails, it was established that the required storage capacity would be available from 1 May 2009 and a quotation for the storage service was sent to Clear by email.
 
The quotation included details of the storage availability and stipulated a minimum 12-month contract with 6 months’ notice of termination. It was stated that the quotation was subject to tankage availability and the approval of the Immingham Board. The quotation was also subject to ‘General Storage Conditions’, which were also attached to the email.
 
The final sentence of the document was ‘A formal contract will then follow in due course’. It was signed on behalf of Immingham and contained space for a signature from Clear under the words ‘we hereby accept the terms of your quotation subject to your Board approval’.
 
Included in the email was a request that the quotation should be signed and returned by fax not later than the 3 January 2009 in order for the storage capacity to be allocated. In the event, the document was signed with the approval of various officers of Clear and faxed back to Immingham on 5 January 2009.
 
Receipt of the fax was acknowledged by Immingham and a subsequent email noted its acceptance of Clear’s offer to take up 4,000 cubic metres of storage capacity at Immingham’s depot starting no later than 1 May 2009. It was also stated that a further confirmation contract would be drawn up and forwarded for signature. This was done on 23 January, when a legal adviser employed by Immingham wrote to Clear with a contract document enclosed and stating that ‘the contract will formalise the existing situation between us as detailed in our quotation to you’. The letter requested the document be signed and a copy returned.
 
Despite acknowledging receipt of the document and stating that it would be signed and returned within the week, the contract was never returned. Clear was unable to source the fuel and so made no delivery to Immingham. The storage facility was kept available for May and June, with Immingham sending invoices on 1 May and 1 June. On 25 June 2009, Clear denied the existence of any agreement, stating that acceptance of the quotation did not constitute a formal contract.
During the initial court hearing Clear argued that return of the signed quotation was not an offer capable of acceptance as a contract because of the inclusion of the words ‘A formal contract will then follow in due course’. This argument was rejected by the trial judge, who quoted established precedent for so doing. Clear was ordered to pay damages of some £197,000.
 
On appeal, there was further discussion over whether the existence of a contract between the two parties was conditional upon the later provision of a subsequent ‘full contract’. The Appeal Court held that the language of the relevant emails was quite explicit in being a ‘contract confirmation’ and in the acceptance of a contractual offer. The Court also noted that there was nothing in the signed quotation stating that it was ‘subject to contract’. It follows that the subsequent formal contract, had it been signed, would have been no more than ‘further confirmation’ of the contract that already existed.
 
The appeal by Clear was thereby dismissed.
 
It is a popular myth that a contract must be agreed in a written document.The fact is that terms agreed by correspondence, including emails, can constitute a legally binding contract. Businesses that don’t want to be caught out in this regard should seek expert legal guidance at the earliest stage of negotiations.

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Posted April 16th, 2011 in Commercial Litigation |

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