We have a claim against another business, is it worth going to Court about?
The answer depends on a costs/risk/benefit analysis. It is vital to correctly perform that at the earliest possible stage. It is one of the things that we will sit down with you and do when you first contact Wake Smith for advice about any commercial dispute. We have a team of solicitors with a wealth of experience in handling these types of cases.
A hopeless claim has been brought against our business, do we need to react?
Yes you do and the quicker the better. If Court proceedings have begun there will be strict time limits to be complied with and the penalty for not doing so is that your opponent will win the case by default. Even if proceedings have not yet been issued, there will be a Pre Action Protocol to be followed which once again sets down various time limits with which you will have to comply. It matters not how hopeless you think the claim is. Timescales at this stage are measured in days and not weeks and thus you need to react as quickly as you can.
Our company has received a Statutory Demand which we need to challenge, how do we do that?
English law does not recognise any way to set aside a Statutory Demand served against a company. Instead the procedure is to obtain an undertaking from the creditor that they will not either present a Petition or if a petition has already been presented, advertise it. If such an undertaking is not forthcoming you will have to apply to the Court for an injunction to restrain the presentation or advertisement of a Petition. Time is of the essence because once a Petition is advertised, it will have crippling effects on your business. To do any of that the debt must genuinely be disputed on substantial grounds and any part of the debt that is admitted should be paid. A DIY solution is nearly always disastrous in the context of Winding-Up Petitions.
One of our contractors damaged our free-issue material whilst carrying out work on it for us and now they are refusing to pay for the damage, can we make them pay?
Probably. This type of dispute invariably involves arguments of fact, for example exactly what happened, when and whose fault it was and also arguments about law for example what do your Terms and Conditions of Business say about the situation and what do your contractors Terms and Conditions of Business say. Commercial issues often arise as well for example how much pressure you are under from the company that wants the items from you and how much you are dependent upon the relevant contractor. There could also be insurance angles depending on what cover you have in place. In short these sorts of disputes tend to be complex but they also tend to need resolving quickly in order to preserve commercial relationships.
I am starting a new business and I want to know how I can protect my brand and ideas. How can I do this?
First you should register the company name and purchase appropriate domain names. You should then look at registering your name and logo as a trademark and consider whether your products are capable of design right protection. Make sure that within the business you have clear and strong clauses to protect your ideas and confidential information amongst staff and colleagues.
We had a fire or a burglary at our factory/warehouse and our insurers are refusing to pay out, what can we do?
Insurance policies are notoriously complicated documents full of small print which the odds are your brokers will never properly explained to you. Your insurance company via their loss adjusters will look for any reasonable opportunity to avoid having to pay out. Often what happens is that insurers will say you breached a condition of the policy for example putting into operation a maintained and properly working red care alarm system at the premises whenever they are not occupied. The small print is often not as straight forward as the insurance company might have you believe. It is often possible to successfully challenge a refusal to indemnify. The first step is for us to get a good understanding on your behalf of what happened, when, how it happened and exactly what your insurance policy or the relevant part of it says. At Wake Smith we do not act for insurance companies. We have however conducted many cases against them and we are here to help you.
I own a small company but my fellow director has a few shares and I want him out, are there any dangers?
Yes, the Companies Act 2006 provides protection to minority shareholders against unfairly prejudicial conduct which might for example include excluding your co-director from management, diverting business away to another company in which he is not involved etc. The usual remedy is a Court Order requiring you to buy out the minority shares and no minority discount will usually be allowed in the valuation process. So be careful.
Our company have the sole rights to sell equipment on behalf of a large American manufacturer into the UK and after years of building up the business it looks likely that the American company want to terminate the arrangement, do we have any rights?
Yes. The Commercial Agents Regulations 1993 provide you with various rights and may well apply to your relationship with the American company. If the American company terminate your agency contract you are entitled to receive commission/remuneration for the remainder of the Contract until the date of termination and also to be paid compensation in recognition of the good will and business that you have built up over the years. That compensation will be assessed by reference to the price you could reasonably have been expected to receive assuming you had sold the agency business at the time it was terminated with the right to continue performing the agency and that valuation will take into account likely future performance. There are also certain minimum periods of notice that have to be given. In short you should obtain reasonable compensation or the loss of your agency.
One of our customers has gone into administration owing us a lot of money but in their warehouse they have our goods which they have not paid for, can we get our goods back?
If you have a title retention clause in your Terms and Conditions of Business, then you are on the starting blocks of a claim to recover your goods. There will be a number of quite technical issues to address, for example whether your Terms and Conditions of Business have been incorporated into the Contract, whether your title retention clause is valid, exactly what the clause applies to, whether you can identify the particular goods you have supplied, whether those goods have become mixed with the purchaser’s goods etc. The Administrator will need to be satisfied that your claim is water tight before he will allow you uplift the goods.
I have received an aggressive letter from a competitor’s solicitor telling me I am copying their ideas, they want me to stop, to give them undertakings that I won’t do it again and to agree to pay them compensation. Can they do this?
These types of letter are common and the strength of each case depends on its own facts. Sometimes your competitor may be trying it on to damage your business, but on other occasions letters like this are legitimate and require careful consideration before matters escalate to your possible disadvantage. You will need to show us the correspondence, provide us with some background information and we can then advise.
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