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Dispute Resolution Briefing Notes
Wharton v Bancroft, death-bed Wills and Legal Costs
Wharton v Bancroft, death-bed Wills and Legal Costs
Summary: The recent court case of Wharton v Bancroft [2011] EWHC 3250 (Ch) emphasises the need to be wary when challenging a Will. Although contentious probate claims will often be emotionally charged, this case illustrates that it is important for both clients and solicitors to put aside personal issues which might impact on their decision-making and to approach such cases dispassionately and proportionately. A failure to approach such cases appropriately can, as happened in this case, lead to significant cost liabilities for unsuccessful parties.
The case also serves as a reminder to practitioners who are involved in making a death-bed Will as to the requirements for ensuring the testator has the requisite mental capacity to make a Will, one of the so called “Golden Rules”.
Please speak to Richard Monkcom, Head of Druces LLP’s Private Client team for more information. A pdf of our full briefing note on the subject can be downloaded via the link below.
Relevant to: Individuals who are seeking to challenge the terms of a Will and Legal Practitioners
Private Client Briefing Note Wharton v Bancroft, death-bed Wills and Legal Costs (Mar 2012)
Posted in Briefing Notes, Dispute Resolution Briefing Notes, Private Client Briefing Notes
Tagged high court, private client, proceedings, richard monkcom, undue influence, will
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Repudiatory breach of contract: (1) The Trademark Licensing (2) Lonsdale Sports v Leofelis & ors
Repudiatory breach of contract: (1) The Trademark Licensing (2) Lonsdale Sports v Leofelis & ors
Summary: Two contracting parties each purported to terminate a contract on the grounds of the other’s repudiatory breach. In this trade mark licence dispute, the licensee purported to terminate a trade mark licence agreement on the grounds of a repudiatory breach by the licensor and treated the agreement as at an end. The licensor did not accept the repudiation, but terminated the agreement on the grounds of the licensee’s own breach. The ground relied upon by the licensee to terminate transpired not to be a breach, but it sought nonetheless to rely on another alleged breach not known to it at the time, to justify termination.
The court ruled that the later alleged breach can be relied upon by the licensee as a defence to the licensor’s claim for damages, but not to found a claim for damages against the licensor, because the unknown alleged breach was not the cause of the termination.
Please speak to Marie-Louise King, Partner in Druces LLP’s Litigation & Dispute Resolution team, and who acted for the First, Fourth and Fifth Third Parties in the proceedings, for further information
Relevant to: Parties involved in commercial contracts, legal practitioners
Posted in Briefing Notes, Dispute Resolution Briefing Notes
Tagged contract, high court, leofelis, litigation, lonsdale, marie-louise king, repudiatory breach
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How the Courts interpret oral contracts: BVM Management v Roger Yeomans [2011]
How the Courts interpret oral contracts: BVM Management v Roger Yeomans [2011]
Summary: Oral contracts are binding between parties in the same way as written contracts, except in relation to certain types of transactions such as the sale of land. However because oral contracts are not translated into a single written document, difficulties often arise in identifying what are the exact terms of the agreement. For that reason, lawyers will always advise that contracts should be put into writing. Where they are not, the Courts are often left to resolve disputes between the parties.
The case of BVM Management Limited -v- Roger Yeomans was one such case. The parties had discussed terms for the provision of services by BVM verbally and BVM had indicated a requirement for a minimum of 2 year period for the contract. Various draft documents had passed between the parties, and these drafts contained a clause entitling Yeomans to terminate the contract on 3 months’ notice. Subsequently BVM began providing its services without concluding an agreed written contract, on the basis of the negotiations that had taken place. Yeomans later sought to terminate the contract relying on the 3 month termination provision. BVM refused to accept that the termination provision formed part of the contract.
The Court of Appeal’s decision was that the break provision had been incorporated, by reason of its inclusion in the drafts passing between the parties and BVM’s failure to object to it during the discussions on the drafts. The case highlights the dangers implicit in oral contracts and emphasises the need for parties to be clear in their objection to objectionable contract terms during negotiations, in order to avoid the incorporation of such terms subsequently.
Speak to Toby Stroh, Head of Druces’ Corporate & Commercial team or Julian Johnstone, Head of Druces’ Litigation & Dispute Resolution team for more information
Relevant to: Parties negotiating commercial contracts, businesses
Corporate & Commercial Briefing Note: Pitfalls of Oral Contracts, BVM Management v Yeomans [2011]
Posted in Briefing Notes, Corporate & Commercial Briefing Notes, Dispute Resolution Briefing Notes, Uncategorized
Tagged Corporate & Commercial, court of appeal, dispute, julian johnstone, litigation, oral contract
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Administrations: Landlord and Tenant update
Administrations: Landlord and Tenant update
Summary: Richard Baines, Head of Druces’ Business Turnaround, Restructuring and Insolvency team, looks at the recent Court decisions relating to the impact of administrations on landlords and tenants, in an article first published in the InHouse Lawyer magazine in February 2012
Relevant to: Administrators, landlords and tenants
Posted in Briefing Notes, Dispute Resolution Briefing Notes, Turnaround, Restructuring & Insolvency Briefing Notes
Tagged administration, court, court of appeal, dispute resolution, high court, insolvency, landlord, law, litigation, proceedings, property litigation, restructuring, richard monkcom, tenant, turnaround
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Service of legal proceedings via facebook: AKO Capital
Service of legal proceedings via facebook: AKO Capital
Summary: A High Court Judge has ruled in the case of AKO Capital LLP and Anor -v- TFS Derivatives and Others that civil legal proceedings may be served on a Defendant via his Facebook account, where the Claimant had been unable to locate him for the purpose of serving the legal proceedings in a more traditional manner. Marie-Louise King, a Partner in Druces’ Litigation & Dispute Resolution team considers the decision
Relevant to: Litigants and legal practitioners
Litigation & Dispute Resolution Briefing note: Service by Facebook, AKO Capital (Feb 2012)
Posted in Briefing Notes, Dispute Resolution Briefing Notes
Tagged civil procedure, court, Facebook, high court, litigation, marie-louise king, proceedings, Service
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Undue influence and the scope of Solicitors’ duties: Padden v Bevan Ashford
Undue influence and the scope of Solicitors’ duties: Padden v Bevan Ashford
Summary: In Padden v Bevan Ashford Solicitors the Court of Appeal has considered the scope of solicitors’ duties in advising clients in respect of the purpose and effect of transactions, particularly in respect of transactions where there may be a suggestion of undue influence. The case is of particular relevance to practitioners advising clients in respect of mortgage transactions. Julian Johnstone, Head of Druces’ Litigation and Dispute Resolution team, considers the decision
Relevant to: Legal Practitioners, Mortgagors and Mortgagees
Posted in Briefing Notes, Dispute Resolution Briefing Notes, Property Briefing Notes
Tagged court, court of appeal, dispute resolution, duty of care, julian johnstone, law, mortgage, negligence, proceedings, property, property litigation, solicitors, undue influence
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A guarantee procured by misrepresentation and undue influence is unenforceable
A guarantee procured by misrepresentation and undue influence is unenforceable
Summary: In the High Court, Trustees of Beardsley Theobalds Retirement Benefits Society v Yardley, a guarantee of a tenant’s obligations under a lease given by an employee of the tenant was unenforceable because it had been procured through undue influence. The employee had not understood the nature of the document he was signing and had not been advised to obtain independent legal advice. Julian Johnstone, Head of Druces’ Litigation & Dispute Resolution team, considers the decision and advises how landlords can protect themselves from similar situations
Relevant to: Landlords and tenants, guarantors, employers and employees
Posted in Briefing Notes, Dispute Resolution Briefing Notes, Property Briefing Notes
Tagged court, dispute resolution, guarantee, high court, julian johnstone, landlord, law, litigation, misrepresentation, proceedings, property, property litigation, tenant, undue influence
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Exercising break clauses in leases effectively: Avocet v Merol
Exercising break clauses in leases effectively: Avocet v Merol
Summary: The case of Avocet Industrial Estates LLP v Merol and another [2011] EWHC 3422 (Ch) is an important case for tenants and landlords. It highlights once again how strictly the Courts are measuring tenants’ compliance with pre-conditions for the effective exercise of break clauses in leases. Julian Johnstone, Head of Druces’ Property Litigation & Dispute Resolution team considers this harsh decision and its ramfications
Relevant to: Landlords and Tenants
Property Briefing Note Exercising Break Clauses Effectively Avocet v Merol (Jan 2012)
Posted in Briefing Notes, Dispute Resolution Briefing Notes, Property Briefing Notes
Tagged avocet, break clause, court, dispute resolution, high court, julian johnstone, landlord, litigation, merol, notice, proceedings, property, property litigation, tenant
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Mortgage Express v Martin: permission to appeal out of time
Mortgage Express v Martin: permission to appeal out of time
Summary: The Court of Appeal dismissed an application made by the Claimant for an extension of time for appealing and for permission to appeal out of time. The Court of Appeal held that the Defendant, who was of relatively modest means, had the right to expect the Claimant, a substantial organisation, to abide by the Court’s rules and cited the parties’ differences in means, and the overriding objective of dealing with cases justly, as grounds for refusal. Please speak to Julian Johnstone, head of Druces’ Litigation and Dispute Resolution team for more information
Relevant to: Litigants
Litigation Dispute Resolution Briefing Note: Mortage Express v Martin (Jan 2012)
Posted in Briefing Notes, Dispute Resolution Briefing Notes
Tagged appeal, civil procedure, court, court of appeal, dispute resolution, extension of time, julian johnstone, law, litigation, mortgage express
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Part 36 Offers: Solomon v Cromwell Group Plc
Part 36 Offers: Solomon v Cromwell Group Plc
Summary: The Court of Appeal has confirmed in Solomon v Cromwell Group Plc that the acceptance of a Claimant’s offer under Part 36 of the Civil Procedure Rules to settle a claim before the commencement of proceedings gives rise to an entitlement on the part of the Claimant to its legal costs incurred up to the point of acceptance, even though proceedings have not started nor will start thereafter.
The ruling is an important clarification by the Court of Appeal because the general rule is that in the absence of a contractual right to recover legal costs, a claiming party is not entitled to recover pre-action costs if the defending party satisfies the claim before the issue of proceedings. However that general rule was inconsistent with the scheme contained in Part 36 of the Civil Procedure Rules which expressly refers to the possibility of offers under Part 36 being made (and therefore accepted) prior to the issue of proceedings. For further information speak to Julian Johnstone or Marie-Louise King, Partners in Druces’ Litigation & Dispute Resolution team
Relevant to: Legal Practitioners and Litigants
Litigation & Dispute Resolution Briefing Note, Solomon v Cromwell (Jan 2012)
Posted in Briefing Notes, Dispute Resolution Briefing Notes
Tagged claim, claimant, court, court of appeal, cromwell group, dispute resolution, high court, julian johnstone, law, legal costs, litigation, marie-louise king, part 36, proceedings, solomon
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