Serious Fraud Office - targeting dividends

The Serious Fraud Office (SFO) has for the first time taken action in the High Court to recover the proceeds of crime by targeting dividends gained through unlawful conduct.

Any way, any time, any order

The case of White v Davenham Trust Ltd has reaffirmed that a creditor can choose its own method of enforcing a debt which has been guaranteed by an individual even though it continues to hold security for that debt from the principal debtor.
 

Fit for purpose

The Court of Appeal recently reminded us of the application of the statutorily implied term regarding the fitness for purpose of goods, which is important to finance companies where dealers arrange the financing of the vehicles they supply.

Do I not like that

Negative declarations are becoming more and more popular it seems in construction particularly in adjudications.

Practical completion pitfalls

Parties can inadvertently put themselves at risk by having discrepant practical completion provisions in building contracts and related commercial agreements.

Fishing for evidence not permitted

The court has confirmed it will not assist would-be claimants to obtain evidence to try to substantiate wholly speculative claims.

Cost on discontinuance of claim

When a claimant discontinues its claim, the usual position is that it has to pay the defendant's reasonable legal costs. This is the general presumption under the Civil Procedure Rules and applies unless there is good reason for it not to.

Goodbye Tolent clause, hello Scheme

For the past ten years contracts providing for one party to pay not only its own costs but also the other side's costs in an adjudication (whatever the outcome) have been accepted in the construction industry. Why shouldn't this be the case?

Lenders beware

The decision of the Court of Appeal in Shah & another v HSBC Private Bank (UK) Ltd (HSBC) will give lenders cause for concern.

Settlements: drafting watertight agreements

Anyone sensible that is involved in a dispute will want to try and settle a claim. This has been one of the principles behind the development of methods of alternative dispute resolution (and, in particular, mediation) in the UK over the last 20 years.

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.

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.

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.

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)).

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.

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.

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.

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.

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.

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 and demands for payment, even the agreements are unregulated.

Dishonest valuations - lender wins mortgage fraud case

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

Holding the ring

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

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.

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?

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.

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.

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.

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.

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.

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.

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.