Archive for the ‘Litigation & Disputes’ Category

OFT Studying Consumer Contracts

Tuesday, February 23rd, 2010

OFT launches market study into consumer contracts

The OFT has launched a market study, under section 5 of the Enterprise Act 2002, to examine when, how and why consumers have difficulties with contracts. The OFT will be looking at the terms, features or types of contract with which consumers have particular difficulties, including exploring problems that arise both in the small print and upfront terms and the influence of independent advice.

Also, the OFT will be examining why firms use terms which disadvantage consumers, for example, if they are trying to protect themselves from uncertainty or are following the market.

In addition, the OFT will consider how consumers interpret contracts and if this is influenced by behavioural biases or other consumer characteristics. The OFT expects to complete the study in winter 2010. Depending on its findings, the OFT will consider further action, such as providing consumer education, guidance to firms and working with trading standards and sector regulators.

The study follows previous studies into internet shopping and doorstep selling, and comes as the European Commission is proposing new laws for unfair terms in consumer contracts through a new consumer rights directive. The OFT requests responses from the government, businesses and consumer groups and invites submissions from those interested by 31 March 2010. For more information about consumer contracts. Source: OFT press release, 4 February, 2010.

At Gregory Abrams Davidson, we are frequently contacted by clients who have been disadvantaged by the small print and upfront terms of a variety of consumer agreements.

If you feel that you have been unfairly prejudiced as a result of unfair terms in a consumer contract, please contact our Dispute Resolution and Debt Recovery teams are lead by solicitors Martin Shellien and Ciaran Montague. Both are experienced and respected litigation lawyers.

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Get It In Writing – Defendant Entitled to Contractual Costs in Small Claims Case

Monday, February 1st, 2010

In Robert Shaw v Nine Regions Limited [2009] EWHC 3553 (QB), the High Court was asked to consider a Recorder’s order that there should be no order as to costs in respect of a small claim.

The defendant submitted that it had a contractual right to its costs, set out in a loan agreement between the parties. The claimant resisted the application for costs on the basis that this was a small claim and the small claim rules should apply in any event. (Under CPR 27.14, only limited costs are recoverable in claims allocated to the small claims track.) The claimant also contended that the contractual term was void and unenforceable under the Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083) (Regulations).

Roderick Evans J held that, although regulation 5 of the Regulations appeared to apply to the contractual term in question in that it was not individually negotiated, the term was entirely reasonable and it caused no significant imbalance in the parties’ rights and obligations to the detriment of the consumer. Further, (it did not exclude or hinder the claimant’s right to take legal action or exercise any other legal remedyparagraph 1(q), Schedule 2, Regulations). The judge, therefore, awarded the defendant its costs both in the High Court and in the county court below.

It is an interesting case as it is unusual for such costs to be awarded in a small claims case. This decision – which has implications for commercial contracts and is especially noteworthy for our debt recovery clients – helpfully clarifies that it may be possible to obtain costs in a small claims case where the parties make appropriate contractual provision to recover those costs.

Despite the decision in the above case, whenever and wherever possible it is in everyone’s interest to attempt to settle disputes at the pre-litigation stage. However, when this is no longer avoidable, we at Gregory Abrams Davisdon LLP have a determined and experienced team who will go to great lengths to pursue the matter with your best interests in mind.

Should you have any Debt Recovery or other Litigation matters, our Dispute Resolution and Debt Recovery teams are lead by solicitors Martin Shellien and Ciaran Montague. Both are experienced and respected litigation lawyers.

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Posted in Commercial Law, Litigation & Disputes | No Comments »

Care Costs for the Elderly: Obey the Law Health Trusts!

Friday, January 22nd, 2010

A recent case of three families having to fight tooth and nail to reclaim the care home costs for relatives suffering Alzheimer’s and Parkinson’s will be greeted with incredulity. English law, as set out in a Court of Appeal ruling a decade ago, states that residential care costs of a chronically sick person should be paid by the state. It seems that this ruling is being regularly flouted by health trusts.

In one of these cases, that of Judith Roe, the trust argued (shamefully) that Alzheimer’s was a “social” not a medical condition. Mrs Roe’s family then faced a six-year battle to win justice, which they did – but not before Mrs Roe’s home had to be sold to cover care costs. Her family has now been fully reimbursed following the intervention of the Health Service Ombudsman. The other cases are similar.

It would be some consolation to know that these cases are an aberration, but they are not. A further 750 families are challenging similar rulings. It prompts the unfortunate suspicion that for some health trusts, bending the rules to save money is routine. It should not be left to the families of the elderly or the infirm to have to fight the NHS for justice.

Care for the elderly is expensive and is going to get more so because of our ageing population. It is time that the NHS organised its priorities to take account of that fact. If the money isn’t there, then Parliament must change the law… It is totally unacceptable for health trusts to wriggle out of their legal responsibilites towards the most vulnerable people in society.

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Posted in Elder Law, Family Law, Litigation & Disputes, Welfare Benefits | No Comments »

Losing My Subsidiaries

Wednesday, January 20th, 2010

As a result of a holding company’s pledge (to a bank) of shares in its subsidiary and the registration of the shares in the name of the bank’s nominee by way of security (the security being governed by Scottish law), the subsidiary ceased to be a subsidiary of the holding company within the meaning of sections 736 and 736A of the Companies Act 1985.

The decision, in the case of Enviroco Ltd v Farstad Supply A/S [2009] EWCA Civ 1399, which overturned the High Court’s decision, raises questions for practitioners in relation to sections 736(1)(b) and (c) of the Companies Act 1985 and sections 1159(1)(b) and (c) of the Companies Act 2006 (which replicate section 736(1)(b) and (c)) and leaving implications in areas including tax, company law, finance, employment and contract law.

Enviroco Limited has submitted an application for leave to appeal the Court of Appeal decision but no hearing date has been set.

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Posted in Commercial Law, Litigation & Disputes, Liverpool News, London News | No Comments »