Reconstituted agreement suffices

Litigation costs - change is in the air: Lord Justice Jackson's final report on civil litigation costs

Anyone involved in civil litigation needs to be aware of Lord Justice Jackson's recent report on civil litigation costs. If implemented, the proposals could result in widespread reform in the way litigation is paid for.

Voluntary v compulsory liquidation

An agreement with a company has gone into arrears. The vehicles may or may not have been sold. The company has placed itself into voluntary liquidation. Can the finance company take steps to protect itself?

Public Procurement - the new Remedies Directive

On 20 December 2009, the Public Contracts (Amendments) Regulations 2009 (SI 2009/2992) (2009 Regulations) will come into force, implementing the Remedies Directive in England and Wales.

Creditors' rights not extinguished

Last month, I reported on the OFT draft guidance note on how to comply with duties to give debtors and hirers copy documents and statements of account following requests under sections 77 - 79 of the Consumer Credit Act 1974. There has now been a case.

The early bird

The recession and funding cuts may finally increase the use of alternative dispute resolution techniques by local authorities. Kathy Garside explains what is involved with early neutral evaluation.

New life for ASBOs - Home Office announcement of 13 October 2009

On 13 October, Home Secretary Alan Johnson declared: "dealing with anti-social behaviour is my top priority." His announcement seems to offer plenty of encouragement, but does it actually offer any practical help?

Guidance on giving information

Readers are likely to have seen an increase in requests for information under sections 77(1), 78(1) and 79(1) of the Consumer Credit Act 1974 (the Act).

It's a matter of timing

Securing judgments by way of charging orders over property is a popular way for finance companies to enforce against debtors. Often, this process is a race against time before a bankruptcy or winding-up order is made.

Directors' duties: Current interpretation and future reforms

Simon Graham of Wragge & Co LLP reports on the steadily amassing case law governing the newly-codified general duties of directors, and discusses one seemingly unavoidable legacy of the financial crisis: more regulation in the boardroom.

Renegade master

Aged 28, Bijan Sedghi joined a Midlands-based plc and proceeded to increase its value from £500,000 to £110m before returning to law in 2006. HBJ Gateley Wareing wasn't big enough to hold him, will Wragges do a better job?

"Without prejudice"

The use of the words "without prejudice" on correspondence or in a meeting where there is a "dispute" over a finance agreement can potentially lull the parties into a false sense of security.

Justice trumps ability to pay

Finance agreements with a debtor company are often backed by personal guarantees from the directors of the company. If insolvency proceedings are contemplated, you need to consider whether you could bring the same action against the principal debtor.

DC Trustees under attack?

Most active members of occupational pension arrangements are building up benefits on a DC basis.

Cloud computing: the journey has just begun

The term 'cloud' can be interpreted as a reference to the cloud symbol frequently used in network diagrams to represent the Internet. The expression cloud computing refers to a style of computing in which IT-related capabilities are provided as a service.

Personal data security breach management: checklist

This checklist provides a summary of the relevant action points following the discovery of a breach of personal data security.

Personal data security breach management in the public sector

This Practice note considers UK data protection laws and guidance on personal data security breach management in the public sector.

"A Funny Thing Happened on the Way to the Forum": Where to Turn for a Remedy Before Arbitration Proceedings Have Commenced, EDO Corpn v Ultra Electronics Ltd

Comparing the respective approaches of major institutions to pre-arbitration measures in light of the case of EDO Corporation -v- Ultra Electronics Ltd. The article provides practical guidance for practioners and clients alike.

That old chestnut!

Guarantee or indemnity? A guarantee is a promise to answer for the debt of another who remains primarily liable, the liability of the guarantor being secondary. However, with an indemnity, the surety assumes primary liability.

A Budget for real estate?

On Wednesday 22 April Chancellor Alistair Darling made his second, and one of the most eagerly awaited, Budget statements. A top rate of income tax at 50% ... A diminution in the value of personal allowances ...

Unfair terms in consumer contracts

In consumer contracts entered into on a business's standard terms, the court can find on a claim by an individual consumer that a term is unreasonable and unenforceable as against that particular consumer.

Pensions Buy-Out: Deal or no deal?

This paper considers the buy-out process from the perspective of trustees of UK occupational pension schemes. It considers the decisions faced by trustees and the legal factors which trustees need to consider before and during the buy-out process.

Debt Relief Orders - the essentials

Individuals unable to pay their debts have an additional form of debt relief available to them following the introduction of the Debt Relief Order (DRO) on 6 April 2009.

Intervening bankruptcy fails to thwart charging order

When an individual is made bankrupt or a company is wound up, any dissipation of assets, or enforcement proceedings completed after the date of the presentation of the petition are liable to be set aside (s 346 Insolvency Act 1986 (IA)).

On the record

If an army marches on its stomach then it is equally correct that the effective administration of a pension scheme relies heavily on the quality of its membership database.

The sustainability of the Local Government Pension Scheme

It is only a matter of time before the focus of elected members and council tax payers returns to the sustainability and affordability of the Local Government Pension Scheme as a defined benefit scheme.

Payment by instalments

In these difficult financial times it is not unusual for a debtor to ask for additional time to pay outstanding finance instalments, or any judgment that might have been obtained against him.

Open source software: the top 10 open source licences

Andrew Katz wrote an excellent article on the subject Open Source: An Opening Resource. This article drills down into one of the significant issues identified in Andrew's article, namely "loads of different licences".

Now you're asking for it...

Credit insurance shortage will bring down SMEs" ran a headline in last month's Building (12 December). The report went on to highlight the reluctance of many banks and insurers to provide performance bonds for smaller contractors.

Demands and performance bonds

"Credit insurance shortage will bring down SMEs" ran a headline in last month's Building (12 December). The report went on to highlight the reluctance of many banks and insurers to provide performance bonds for smaller contractors.

Charging orders remain enforceable indefinitely

Having obtained a judgment following default in payment of a finance agreement, the obtaining of a charging order over the debtor's property is an effective way of ensuring that the judgment is secured and that payment will be made.

Funding options for litigation

Conditional fee agreements (CFAs), often combined with insurance policies, have been used in the personal injury market for a number of years to enable parties to bring claims in circumstances where they might otherwise be unable to afford to do so.

Pharmaceutical patents need a new lease of life

Patrick Duxbury and Emma Tuck ask whether the increasing cost of drug development, and the declining numbers of drugs being approved, mean that IP protection for life science products should be reevaluated.

Public sector pensions: the storm clouds gather

Apparently computerised modelling programmes predicted that the type of global financial circumstances recently encountered would only occur once in every 10,000 years.

Guarantees - business or consumer?

Business loans guaranteed by individuals involved in the management of the business are not caught by the UTCCR. Such guarantors are unlikely to be able to prove that the terms of such a guarantee are unreasonable and so unenforceable.

No HPI registration? No problem

Although it is standard practice for finance companies to register their interests on the HPI register, the case of Industrial & Corporate Finance Ltd v Wyder Group Ltd confirmed that there is no legal duty to do so.

The Reluctant Litigator

Getting someone else to fight your PFI dispute battles for you can be uncomfortable for both parties – name-borrowing may be a better solution all round.

Serving proceedings

Lenders issuing and serving proceedings need to be aware of the changes to the rules on service of proceedings in England and Wales which came into effect on 1 October 2008.

Ombudsman complaints

If consumers' complaints cannot be resolved to their satisfaction by the body complained of, they have the right to complain to the Financial Ombudsman Service (FOS) under the Financial Services and Markets Act 2000.

Terms of the appointment hold the key

The circumstances in which experts' decisions can be set aside have been reviewed again and, in Owen Pell Limited v Bindi (London) Limited [2008], the court has rejected most of them.

Settlement by cashing cheque

When attempting to negotiate repayment from a debtor, it might initially appear attractive to accept and bank a cheque offered in payment and then pursue the debtor for the remainder.

Conversion for wrongful retention

A recent case has restated the basic principles of a claim in conversion fir wrongful retention of goods.

PFI: Opportunity still knocks

The risks for contractors and subcontractors in PFI are not to be underestimated. The trick is to understand what these risks are, and to be bold about pricing for them.

Staying the course - building long term relationships for regeneration

Stephen Sellers, head of regeneration at Wragge & Co looks at relationship building and its place in regeneration.

Preparing for the PPF - The foundation for a smooth PPF assessment period

The credit crunch is biting ... your scheme's sponsoring employer is facing insolvency ... what can the trustees and advisors do before the insolvency to lay the foundations for a smooth PPF (Pension Protection Fund) assessment period?

Ignorance is bliss: but it's no defence

With the OFT breathing down our necks, it would be wise not to get caught out on competition rules because you didn't know they existed.

Civil Procedure Rules

A new pre-action protocol for general litigation claims is likely to be added to the Civil Procedure Rules (CPR) that govern litigation in the UK.Read what this could mean for motor finance companies.

Search engine sponsored links - developments for trade mark owners

Recently Google announced it had revised its Trademarks Adwords Policy in respect of the UK and Ireland. It would no longer investigate complaints by trade mark owners relating to the selection of their marks by third parties as keywords.

No contractual effect

In ING Lease (UK) Ltd v Harwood a director unsuccessfully attempted to escape liability under a personal guarantee by alleging an agreement had been reached in negotiations that he would not be personally liable.

So, what's the damage?

Construction companies accused by the OFT will be wondering how bad things are going to be for them. Here's the answer.

Is Ofgem fit for purpose?

Utility regulation as we know it in Great Britain has been one of the most effective public policy innovations of the past 30 years.

It's still my property!

In Schwarzschild v Harrods Ltd, the court confirmed that for a claim in conversion to arise, there has to be both an unequivocal demand for delivery up and an unequivocal refusal to do so.

Why all brand owners should be worried by Advocate General

On 31 January 2008, Advocate General Mengozzi delivered his opinion in O2 Holdings Limited & O2 (UK) Limited v Hutchison 3G UK Limited (Case C 533/06).

Comparative advertising trumps trade marks rights

On the last day of January 2008 Advocate General Mengozzi delivered his opinion in the O2 Holdings Limited & O2 (UK) Limited v Hutchinson 3G UK Limited litigation .

Consumer or business contract?

Clarification from the Court of Appeal in Evans v Cherry Tree Finance Ltd & Anor, concerning consumer and business contracts.

Get the basics right

The case of County Leasing Ltd and another v East is a reminder of the need to get the simple things right when enforcing hire-purchase and loan agreements, such as calculations of arrears, notices of termination and demands for payment.

Get the basics right

The case of County Leasing Ltd and another v East is a reminder of the need to get the simple things right when enforcing hire-purchase and loan agreements, such as calculations of arrears and demands for payment, even the agreements are unregulated.

Changing with the times

The more things change, the more they stay the same. This is certainly true of pensions. No longer is it the sleepy backwater of the financial world, but it continues to be high profile with new developments worthy of leading articles in the press.

Holding the ring

Ian Yule discusses the legal issues regarding the project manager's duty to act fairly and impartially.

Dishonest valuations - lender wins mortgage fraud case

A look at a case showing an increasingly robust judicial attitude benefiting lenders.

Joint Contracts Tribunal (JCT) Management Building Contract

The concept of the management contract has come in for a lot of flak from a lot of critics in the past but the new JCT model is certainly the best in class.

Limit to ROT reach

ROT clauses are often found in agreements for the sale of goods whereby a seller seeks to reserve the ownership of those goods until certain conditions are met, usually payment in full. However, they may not be suitable in every transaction.

Bear in mind the 12 year rule

Usually, a mortgagee has 12 years from the date on which the right of action accrued to take action under its security; and after the expiry of that period, will be 'time barred' under the Limitation Act 1980 from taking steps to enforce its security.

Fraudulent misrepresentation

Renault UK Ltd v Fleetpro Technical Services Ltd & Anor is an interesting case. It confirms that fraudulent misrepresentations can be made to a machine such that, if loss is suffered as a result, a claim in damages can be brought.

That's all folks

If a home is built defectively, but the owners can still live in it, what compensation can they claim from the house builder for their loss of enjoyment?

Patent pools in the pharmaceutical industry – sink or swim?

Patent pools as a tool for the collective management of intellectual property rights are not a new concept.

An increasingly uneasy relationship - the English courts and the European Court of Justice in trade mark disputes

There is now a plethora of Directives intended to harmonize the national intellectual property legislation of the EU Member States.

Title disputes

Fairfax Gerrard Holdings Ltd and others v Capital Bank Plc (now Bank of Scotland Plc by substitution) is a reminder that retention of title clauses are a clumsy and unreliable method of taking security over an asset, including over motor vehicles.

Capitalising on nostalgia, re-awakening and exploiting long unused brands

In a challenging competitive marketplace, the importance of brands and how they make consumers feel and respond is becoming ever more important.

Surrendering life policies to aid mortgage arrears can still lead to posession

Wragge & Co's experts look at Mr & Mrs Banfield v Leeds Building Society, which saw an unhappy Christmas for the Banfields. This was due to the dismissal of their appeal by the Court of Appeal in relation to a Possession Order granted in LBS' favour.

Time is running out

If a home is built defectively, but the owners can still live in it, what compensation can they claim from the housebuilder for their loss of enjoyment?

Damages for fraudulent misrepresentation as to ability to supply cars

The case of Parallel Imports (Europe) Ltd  (T/A Baglan Car Centre) v Radivan & Anor is a reminder to dealers that care needs to be exercised where there is a history of trading with a supplier.

Patent attorneys winning new business – inheriting employees : the gathering storm

Winning work from a new client is a great feeling. Winning it away from a major competitor can be even better, but a recent case suggests that there can be a sting in the tail because you may also find yourself inheriting your competitor's staff.

No infringement unless the sign indicates origin? Clairty and the Celine case

In the article "Here we go again...Trademark Use" Carina Badger expressed the view that, in light of the Opel decision, the European Court of Justice now always requires use of the offending sign to establish infringement.

Court of Appeal decides on bankruptcy and marital breakdown

The New Year sees an important decision in relation to two of the competing modern day realities: financial difficulties and marital breakdown. 

Promotional literature and directors' warranties

Wragge & Co takes a look at the legal implications of statements made in a company's promotional literature used to attract customers.

CDM mobilisation

The new Construction (Design and Management) Regulations 2007 require the client to allow a mobilisation period to each principal contractor. We explain this new requirement and provide some practical advice to ensure compliance with this provision.

That's better but not by much

The RIBA standard form has been revised and two particularly irksome clauses have been amended. But don't go overboard. It is still biased in favour of architects. "Go bespoke" seems to be the message.

Bankruptcy and its impact on property ownership

Fiona Hayles, associate at Wragge & CO LLP Solicitors, discusses two very different cases illustrating the varied impact of bankruptcy in the property arena.

Patent misuse in the pharmaceutical industry: developments in US & EU

The pharmaceutical industry has been scrutinized closely by competition authorities and Courts in the US and Europe.

Occupational rights – protecting the lender

The Land Registration Act 2002 (LRA 2002) reduced both the number and scope of overriding interests. Robin Pearson, real estate finance associate, and Sarah Allen, professional support lawyer comment.

Who owns what share of the home

In Stack v Dowden, the House of Lords handed down a judgement setting out the rights of ownership in relation to a marital home following the marriage breakdown. Wragge & Co's experts look at the Court's attitude to the division of property ownership.

Bankruptcy and matrimonial court orders

In Scottish & Newcastle plc v Lancashire Mortgage Corporation Limited, both companies had registered legal charges over 109 Wellington Street, Grimsby (the Property) which was owned by Mr & Mrs Pexman.

Counting the costs

Failure by a party to a dispute to reasonably consider alternative dispute resolution procedures (ADR), including mediation, can result in severe cost sanctions being imposed by the court. Wragge & Co provide expert material on this issue.

VFS Financial Services (UK) Limited v Euro Auctions & Others Limited

This article analyses a case about the correct measure of damages payable to a finance company whose goods have been unlawfully converted by a third party.

Comparative advertising

The Misleading Advertising Directive as amended by the Comparative Advertising Directive is due to be repealed at the end of this year and will be replaced by the Misleading and Comparative Advertising Directive.

A little light relief

SOPC4: What are the main changes that affect the building contractor?

Legal Business arbitration report, May 2007

Arbitration disputes are increasingly ending up in court, raising questions as to whether this  pays proper regard to the wishes of the parties and the message the courts ought to give when faced with invitations to adjudicate arbitration issues.

Room for improvement

On 6 December 2006, the long-awaited Gowers Review of intellectual property in the United Kingdom was finally published.