Persistence pays off in commercial disputes

Posted by Colin Fenny Nov 17th, 2011, in Dispute Resolution

A recent commercial dispute I was involved with demonstrates the value of being prepared to pursue a claim and not to be put off by repeated denials and delaying tactics from the other side, especially when it comes to dealing with insurers

The case involved water damage to a commercial property in Lancashire, which was caused by preparatory work on a neighbouring building site.

Our client purchased a former railway tunnel which he was intended to use for storage, which began taking water when a housing developer removed the topsoil from nearby land to begin work on new housing.

The leaking water caused a major nuisance to my client’s business and caused significant damage to the property. We therefore submitted a claim to the developer for £75,000 to compensate the client for both the damage caused and the cost of remedial works to fix the problem. (more…)

Do your contracts need a review following Court of Appeal case?

Posted by Colin Fenny Feb 10th, 2011, in Dispute Resolution, Property

If you’re a building contractor, you’ll be interested to hear about a recent case in the Court of Appeal which has provided useful guidance on the extent of your liability for defective works.

Even if you’re not in the building trade, the case is equally applicable to manufacturers wanting to protect themselves against future claims for defective products.

In this case (Robinson –v– P E Jones (Contractors) Limited) a homeowner brought a claim against the contractor that had originally built the property, claiming the costs of remedying defective works carried out in 1992, but not discovered until 2004.

The homeowner could not pursue a claim under the original building contract because more than six years had passed since the works were completed. The homeowner therefore sought to pursue a claim under the common law of negligence. (more…)

Why now is a good time to review your terms and conditions

Posted by Colin Fenny Aug 25th, 2010, in Business Protection

The onset of the recent recession and continuing difficulties in the economic climate highlight numerous risks when entering into new business relationships.

A number of recent cases have brought to light the need for businesses to ensure their terms and conditions are reviewed on a regular basis to ensure that they remain fit for purpose and provide the necessary protection if things go wrong.

For example, earlier this year the High Court held that the adverse change in economical market circumstances caused by the collapse of the financial markets, did not amount to an event of force majeure or frustration in contract law and, if a party wanted to get out of an unprofitable contract on the grounds of economic hardship, there needed to be an express agreement to that affect. As a result, the purchaser could not escape liability for payment of the balance due on a multi-million pound contract.

This illustrates the risk of relying on standard terms, which may not be fit for purpose, and the need to ensure that the contractual terms meet the requirements of the particular circumstances.

Even if the terms and conditions are appropriate, they are of absolutely no use whatsoever if they are not properly incorporated into the end contract. This again has been the subject of recent High Court consideration.

The case involved a “battle of the forms” where each party purported to rely on their own standard terms and conditions. On the facts, the Court held that neither party’s standard terms and conditions had been incorporated into the contract. As a result the contract between them was governed by and incorporated the implied terms of the Sale of Goods Act 1979. This meant that the supplier’s standard limitation of liability clause was rendered ineffective and the supplier faced unlimited liability.

These recent cases demonstrate that care needs to be taken when using standard terms and conditions to ensure that they are up-to-date, enforceable and appropriate for their intended use, and if a party wishes to rely on standard terms and conditions that they are properly incorporated into any contract at the outset.