In his recent report on costs Lord Justice Jackson highlighted that alternative dispute resolution (“ADR”) is under used. Whilst he did not conclude that ADR should be mandatory he did consider that more could be done to encourage mediation. He emphasised that the court can and should make orders requiring parties to provide an explanation if they decline to mediate and to make costs orders which penalise parties who have unreasonably refused to mediate. Lord Justice Jackson was of the view that much of the question of whether mediation is appropriate will come down to the judgment of experienced practitioners and the court.
The concept behind Part 36 of the Civil Procedure Rules will be familiar to most legal advisers. However, recent case law suggests that interpretation of the rule is still causing difficulties for practitioners and mistakes are still being made in drafting and dealing with offers. A number of amendments have been made to the rule in the last few years and it is vital that those making offers understand the requirements of making and withdrawing offers.
Is it a penalty? Is it a liquidated damages clause? No, it’s “commercially justifiable”
A liquidated damages clause is a provision often included in an agreement to ensure that the contracting parties can be adequately compensated in the event of termination of the contract. Such clauses are generally enforceable, provided they are based on a genuine pre-estimate of loss and are not intended purely to deter a party from breaching the contract.
In 2008 the Court of Appeal case of Foxtons Limited v Pelkey Bicknell & Anr found that to be entitled to commission estate agents must show that they introduced the purchaser to the purchase and not merely to the property.
A retention of title clause (“ROT”), is a provision often included in a supply contract which seeks to ensure that title in the goods does not pass from the supplier to the purchaser until payment has been received. An “all monies” ROT goes further than that since it seeks to retain title in the goods until all monies for the goods in question plus any other monies owed to the supplier are paid, thereby increasing the protection afforded to suppliers. However, it is important to ensure that the ROT corresponds with the general purpose of the contract and the nature of the business being carried out.
In the case of Relfo Ltd (in liquidation) v Bhimji Velji Jadva Varsani, the defendant contested the service of particulars of claim where service had been effected at a house he owned in London. The defendant made an application to have service of the proceedings set aside on the basis that although he owned the London property, which was occupied by his wife and children, this was not his usual place of residence and service should therefore be invalid.
Can 'without prejudice' correspondence be considered by a court?
Boyes Turner’s dispute resolution team recently settled a claim on behalf of a client for unpaid invoices. The claim was defended on the basis that the IT equipment supplied by our client was faulty. In this case, a declaration of agreement was obtained using "without prejudice" correspondence and the defendant's application for permission to appeal was rejected.
Boyes Turner wins commission claim dispute for leading regional estate agent
The defendants entered into a sole agency agreement with a leading regional estate agent 28 March 2007 to sell their property in Yateley. In the September of that year the estate agent arranged for a prospective purchaser (Mr X) to view the property, following which he made an offer to purchase it. The offer was rejected. He then made an increased offer which was also rejected, to purchase the property at £630k but with a delayed completion date.