Archives: Expertises

Fraud

It is often said that fraud cuts across everything and it certainly assists when advising a client who has an old claim which likely to be time barred if one can establish fraud.

Fraud is a very wide term and covers not simply criminal activity but also civil and equitable fraud, the latter being based upon express or implied trust or some form of unconscionable conduct).

Apart from negating time bars, a fraud allegation can also be used to lift the corporate veil to get to directors and even shareholders.  Further, the measure of damages can be greater, the Court’s approach to damages assessment and loss being far more generous.

Sometimes one needs to plead a form of fraud (such as fraudulent or grossly negligent misrepresentation) to overcome a contractual clause seeking to limit or exclude a part’s liability or to overcome an entire contract clause.

All that may appear very exciting but a warning is necessary; there are further hurdles to be overcome.

First, fraud has to be pleaded in great detail and be very focused indeed.  That inevitably takes time and costs money.  There are specific rules of pleading in the Civil Procedure Rules.

Secondly, the Bar Council rules and the Solicitors Code of Conduct make it critical for the lawyers to evaluate the evidence very carefully indeed because lawyers must not plead fraud in the absence of strong evidence.  Often a lot depends on inference.  To plead the case without such evidence can lead to the legal team being exposed to risk of disciplinary action.

Thirdly, it is often said that a plea of fraud will escalate the temperature of the litigation and it should be borne in mind that these days copies of  Court pleading can be obtained by third parties unless the Court imposes some restriction on access.

Fourthly, the burden of proof is considered to be higher in the case of a plea of fraud.

At GSC we do not shirk away from advising a client to plead fraud if we consider there is evidence of such conduct and the proposed defendant had the requisite knowledge whether actual knowledge or by showing such a disregard for making appropriate enquiries as to be reckless.

Emergency injunctions (freezing and search and seizure orders)

These orders are considered to be the most draconian orders which an English Court can grant, “the nuclear option”.  They are normally made on the urgent application of one party without notice to the other and can immediately put unbelievable pressure on a Defendant.  If the Defendant is within the jurisdiction of the English Court and fails to comply with the Court’s order he can be faced by an application for contempt of Court, punishable by a prison sentence.  Such orders can ultimately also affect a person’s ability to travel elsewhere, particularly within the EC.  How this will be affected by Brexit remains unclear at the moment.

A freezing order usually freezes a Defendant’s bank accounts and assets up to a specified amount, granting the Defendant a weekly living allowance and some monies to use for legal costs.  A freezing order is often combined with a search and seizure injunction which is designed to ensure that control and possession of critical documentation, property or evidence is preserved and not destroyed pending trial.  Such an order permits a Claimant’s lawyer to enter the Defendant’s premises (with a third party solicitor) to search and remove specific property.  It can even authorise a computer sweep.

Usually the evidence portrays the Defendant in the worst possible light.  However the evidence must be clear and complete; a failure to disclose material information can prove disastrous.

These orders can be calamitous for a Defendant.  Their cumulative effect can be to damage his business by freezing most of its assets and forcing him to reveal important information which may be of critical use to his competitors.  However it is crucial for the Defendant to appreciate that if he is ordered to reveal his assets to the Court and the Claimant, he must do so even if the Defendant intends to apply to set aside the orders.  Non-compliance to produce the information will be considered a contempt of Court.

Understandably a Defendant can feel aggrieved but it is essential to keep calm and to work hard to persuade the Court he is not “the baddie”. Obtaining and responding to these orders is costly, time is of the essence and requires the lawyers to get up to speed very quickly indeed and requires a lot of strategic thinking.  Hence experience counts and we at GSC have handled such pressure many times.  We can walk with you through the experience.

Debt recovery

It is a fact of life that sometimes invoices do not get paid.  This simply may be because of an oversight or because the debtor cannot afford to pay the amount or there may be a dispute and that is why the debt has not been discharged.

At GSC we have acted on both sides, both recovering debts for creditors and disputing debts or seeking time for debtors to pay .

This used to be a simple process but things have now changed by reason of a new Pre-action Protocol for Debt Claims that came into force on 1 October 2017 in respect of non-business to business debts.  But the first point to remember is that if the debtor is a sole trader (i.e. an individual who is trading under a business name rather than in his own) he will fall within this Protocol.

In the case of the non-business to business debts a whole new procedure has been brought into play and one which shows yet again how the Court process is to be the course of last resort.  The Protocol has in effect slowed down the whole process and the old-fashioned seven day letter no longer applies.  Instead a formal Letter of Claim with an Information Sheet, a Reply Form and a Financial Statement Form are issued.  The debtor then gets 30 days in which to respond and even that period can be extended if the debtor justifiably asks for further information or the production of documents.  Even then the parties are further encouraged to try to agree a payment schedule and if they can’t, to use another form of alternative dispute resolution.  Only then can proceedings be commenced.  How this Protocol will impact and what the court’s attitude would be to non-compliance is yet to be made clear.

In the case of business to business debts the old procedures still apply and Court proceedings can be issued.  At GSC we can advise on the whole gambit of options whether it be issuing High Court or County Court proceedings or if there is absolutely no defence by serving a Statutory Demand under the Insolvency legislation albeit the Courts have said on many occasions that they will not permit Insolvency Proceedings to be used as a means of debt collecting.  There are however occasions where there is absolutely no defence to the claim and the service of the Statutory Demand can lead to either prompt payment or dialogue and an agreed payment schedule.

However, it must be borne in mind that if a Statutory Demand is served on an individual, an application can be made to set it aside.  If the Court does then set it aside, the creditor can be at real risk of having to pay a lot of legal costs.  In the case of a company debtor there is no such equivalent procedure.  However a company debtor will have to seek injunctive relief to restrain the advertising of the Statutory Demand or the presentation of the petition.  Again, there can be major cost ramifications.

If the Court proceedings are used, the debtor can make offers which the Court requires the claimant creditor to consider.  Once judgement is obtained then there are several methods to enforce judgement including again insolvency proceedings but also instructing the Sheriff or Bailiff, attaching a third party debt such as a bank account or applying for a charging order against the debtor’s property.

In summary therefore GSC can advise on:

• The Pre-action Protocol for debt recovery for non-business debt

• Pursuing Court proceedings

• Issuing Statutory Demands

• Defending claims for an unpaid debt

• Defending Statutory Demands

• Using mediation or other form of ADR to resolve a debt dispute

• Dealing with the enforcement of a Court Judgment

For information on our charges fees please visit: Debt Recovery Fees

Cost disputes including security for costs applications

It may seem unusual for a firm of solicitors to put as one of their topics ‘costs’ but the fact of life is litigation in English is expensive.

• Court fees always seem to be increasing; a few years ago, the highest court fee was circa £2,000, now the top fee is £10,000.  That is not an amount of money to be ignored.

• In the English Court oral submissions still play a crucial role as do cross-examinations.  This means trials can take a long time.  Opening and closing submissions can often be both oral and in writing and if in writing frequently can become extensive.

• Further, when law firms are getting bigger, often through mergers and the percentage of non-fee earning staff is growing, the firm’s earnings have to cover this.

• Traditionally solicitors charge on an hourly basis, particularly in litigation.  For years solicitors’ costs have been assessed on the basis that a solicitor can dictate 10 standard letters an hour and thus solicitors charge in six-minute units.  In the days of email communication that seems to be somewhat unrealistic but it is the current practice.

Whist the English courts have expressed concern at the ever-increasing cost of litigation, their attempts to introduce costs controls have added to the overall expense.  It costs money to prepare costs budgets and if the solicitor handling a case considers the approved budget is likely to be exceeded he must make an immediate application to the Court (at even more cost) or face incurring a loss for his client.

All of this is highly significant because unlike 25 years ago, when costs were dealt with in the last five minutes of a Court Application or at the end of a trial, costs issues can become a major debate.  Now there are barristers specialising in costs, specialist cost courts (where it takes months to get a hearing), a new profession of costs drafts-men and even costs law reports.  Therefore, to ignore the topic of costs can have serious consequences.

Apart from controlling a client’s costs exposure to his solicitor, one significance of all this is that unlike in many other jurisdictions, a party to an English Court case is at risk of not only having to bear his own costs of the litigation but also having to pay the other side’s costs even if he wins. These days, a three or four day Court case can run quickly into hundreds of thousands of pounds.

When the Court reaches a decision after trial or on an application the winning party normally will obtain an order that his costs be paid by the losing party but that is not always the case.  A strategically thinking hands-on lawyer will try to position his client at the earliest opportunity to avoid an adverse finding of costs by, for example, making offers either without prejudice or in accordance with the Court rules known as a Part 36 offer.  The Part 36 Offer was introduced in 1998 to enable both sides to state at an early stage what they are prepared to offer in respect of the claims made by or against them.  It has to be a genuine offer to settle.  If not accepted, it can have severe consequences and sanctions for the party who rejected the offer.

This also has significance in relation to litigation involving foreign claimants without assets in the jurisdiction of the English Court or impecunious claimants.  The Court Rules (modified in some cases by statute regulation) enables a Defendant to ask the Court to order the Claimant to provide security for the Defendant’s costs of the case.  The Defendant is not permitted to use such an application to stifle legitimate claims.

At GSC this features very often in the sort of litigation we do with an international element and is something we readily advise upon.  We are a dedicated small firm and intend to stay that way.  We keep a tight rein on our overheads and this enables us to keep our charging rates very competitive indeed.  We like to think and advise and not simply process and we read the papers in detail.  That gives our clients an enormous advantage in litigation.

Contentious Probate

It is a fact of life that the death of someone close (whether family or otherwise) will evoke a huge number of emotions.  It is not simply a question of grief but also facing one’s own mortality.  This in turn can lead to one questioning one’s own values and unfortunately can give rise to one of the seven vices, namely greed.  What should be a straightforward process of dealing with a deceased’s estate can become challenged for various reasons and that challenge can be motivated by various psychological and emotional stresses.

If someone dies without leaving a Will then there is a statutory code for how to deal with the resulting intestacy.  However, even if a Will is found it can be open to challenge with arguments such as undue influence or whether the person who has died had the requisite mental capacity when the Will was made.  There may be reasons why the deceased chose to cut out somebody from the Will and that person can feel unvalued and a sense of right to be part of the estate.  Sometimes time can help the process but often the emotional battle becomes the means of delaying dealing with the underlying grief and sense of loss.

What should be a straightforward process of dealing with an Estate can become a wholly unedifying dispute.

At GSC we have experience of handling this sort of dispute both from the legal perspective and also from the emotional side including the following (which is by no means an exhaustive list):

• Challenging the validity of a Will due to a lack of formality or the testamentary capacity of the Will maker.

• Seeking awards under the Inheritance (Provisions for Family and Dependents) legislation.

• Challenging the manner in which the personal representative is conducting the handling of the estate.

• Disputes between beneficiaries as to their entitlement.

• Claims made by or against the estate by third parties.

• Donatio causa mortis where shortly before death a deceased gave a gift to someone and query whether the gift was complete.

• Estate duty queries.
• There can also be jurisdictional problems where the deceased had assets in various countries. There can be conflicts between the rights of the beneficiaries within each jurisdiction as there is no unified (i.e. worldwide) law relating to handling and distribution of a deceased’s estate.

Company/shareholders, partnerships and joint ventures

Although at GSC we act for various institutions on property and corporate transactions, we love acting for entrepreneurs.  We like dealing with the person who makes the decisions and can give the direct instructions.

Often these entrepreneurs enter into joint arrangements with third parties or already have associates.  These arrangements can take many forms including a private company, a partnership or a joint venture.  From time to time those relationships go wrong and the problems have to be addressed.  It can feel like dealing with a divorce.  It can be a very personal episode, full of recrimination.

The starting point when handling this sort of dispute is the documentation governing the relationship.

In the case of companies, the prime document will usually be the Shareholders’ Agreement but the position can also be directly influenced by legislation (the relevant Companies Act) and the Memorandum and Articles of Association.  There can for example be pre-emption rights in the event that a shareholder wishing to sell his shares and a notice and valuation procedure to be gone through.

In the case of partnership there is usually a Partnership Agreement and of course there are Partnership statutes.

A joint venture is normally defined by way of a Joint Venture Agreement.

The documents may provide a formula for resolving disputes.  For example, a private company will often find what is known as a ‘shotgun’ option whereby if one party wishes to end the relationship with the other he can serve notice indicating the price at which he is prepared to acquire the other shareholder’s shares but can only do so on the basis that the offer can be matched by the party receiving such notice.

Since the late 1970s the Courts have encouraged people to find ways beyond simply putting a company into liquidation or a partnership into dissolution.  A minority shareholder, if he is being prejudiced by the way the affairs of the company is being conducted, can petition for relief against unfair prejudice and the Court can order his shares be acquired.

A company’s affairs may be being prejudiced by the conduct of one or more of the directors.  It is the company who will normally bring a claim for relief but where there has been misconduct by directors, a shareholder may be able to bring a claim in his own name on behalf of the company.  This is known as a derivative claim.

The options open to the shareholder or partner need to be explained carefully and a course of action selected.  This all requires a hands-on approach with careful analysis of potential consequences.  At GSC we have been advising on these situations for many years and are very conscious of the need to give our clients a service which deals with the emotional side as well as addressing legal technicalities and requirements.

Commercial contracts

Commercial (and indeed other forms of) contract can rise to problems and dispute.

Some of the questions to be considered are:

• Who are the parties?
• Has consideration (or value) been provided?
• What does the contract actually mean?
• What obligations and duties does it impose?  Can its express terms be supplemented by implied terms?  Can terms be implied by trade custom? Does any statute impose other requirements?
• What is the impact of an entire contract clause?
• What is the law that governs it and is there a jurisdiction clause?
• Are all the clauses enforceable or would a Court rule some penal?
• Has one party breached its terms and if so what remedies are available to the other party?

… and so on.  What a lawyer’s paradise!!!

The starting point is always the document itself.  Courts have many times grappled with how to construe a document and whether outside evidence can be produced in so doing.  The test is objective, namely what would the reasonable person believe the contract was intended to mean?  Generally words are given their natural meaning but in specialised sectors trade custom or market practice may be considered.  The Judge can look at the background leading to the document being signed but post contract events are inadmissible as are documents evidencing the negotiations leading to the contract (such as drafts and emails).

The Judge may also be faced with an application for rectification.  Such claims are not easy because the burden of proof is heavy.  The applicant needs to prove that all the parties agreed something else to what is in the signed document.  However in this situation the Court can look at a wider range of evidence including earlier drafts and negotiating communications.

The Court can also be asked to imply terms into the contract based on commercial sense and other terms may be deemed incorporated by statute (such as duties imposed by consumer legislation) a clause which expressly states that the contract contains all the agreed terms – an entire contract clause – needs to be construed carefully to see the ambit of its exclusion and cannot defeat a legitimate claim for fraud or misrepresentation.

The rules of evidence can be baffling but we at GSC have advised for years as to the meaning of contracts and how to deal with any dispute.  It impacts not just on our litigation department but effects every single area on which we advise.  Therefore we can guide you through the process.

Commercial and Residential Property Disputes

It is often said that the relationship of landlord and tenant gives rise to one of the most complex and frustrating set of rules.  The relationship is governed by the contract (usually written but in some circumstances oral) and the Courts have always indicated that it is not for a Judge to re-write the bargain reached between the parties.  That stated, the Courts have from time to time intervened to address what they consider to be unconscionable conduct.  Further Parliament has through a series of statutes tried to regulate the relationship (particularly in the case of residential leases) to overcome what they consider to be scrupulous conduct on the part of the landlords.

All of this intervention means that the relationship of a landlord and tenant is an area ripe for challenge and dispute in Court and requires highly specialised knowledge.  Experience is everything in this class of litigation.

We at GSC have acted for decades for the whole range landlord and tenant; from nationwide property entities to individual private landlords and for corporate and individual tenants including tenants in the private rental sector.

At GSC we also have vast experience of buying and selling properties including advising both vendors and purchasers of properties when their transaction has gone wrong including claims for negligence against their professional advisers.

The range of work within this sector is vast and the following is a list of just a few of the items upon which GSC can advise:

• Non-payment of rent

• Breach of covenants including for example unlawful assignments or under lettings and of course disrepair and dilapidations claim

• Relief from forfeiture

• Termination/ renewal of business tenancies under the Landlord & Tenant Act

• Rent Reviews

• Break clauses

• Restrictive covenants

• Party Wall Acts (although we fully appreciate that these sort of disputes have a high emotional content as well as legal problems)

• Service Charges (indeed we succeeded on one of the rare cases on this topic which went to the Supreme Court)

• Squatters

• Termination of tenancies under the Housing Acts using Section 8 and 21 Notices

Commercial Litigation & Dispute Resolution

Commercial disputes are an unavoidable part of business and personal life.
When they become part of yours, trust GSC’s litigation lawyers to make life easier.

Commercial disputes can have far-reaching consequences. They can affect existing business and people’s lives, damage relationships and jeopardise future success. That is why GSC takes a realistic and practical view when handling disputes. From start to finish we aim to adopt a commercial and cost-effective approach, designed to achieve an outcome that works for our clients and their business.

We advise on many forms of disputes. Our litigation lawyers have decades of experience in dispute resolution – in the Courts, at specialist tribunals or using arbitration and when appropriate mediation – because of this not many things phase us. When we say we are “hands-on”, we mean it. We work in small focused teams, dedicated to our clients and driven to protect and care for their interests. We always have an eye on cost management. Our service is designed especially for each of our clients and, unlike many of our rivals, not simply processed. We advise on many forms of disputes. Our team have decades of experience in dispute resolution – in the Courts, at specialist tribunals or using arbitration and when appropriate mediation – because of this not many things phase us.

Talk to GSC about disputes (both international and domestic) involving the following:

• Jurisdictional disputes including anti-suit injunctions and conflict of laws
• Emergency injunctions (freezing and search and seizure orders)
• Commercial contracts
• Company/shareholders and partnerships
• Professional negligence
• Fraud
• Commercial and residential property disputes
• Contentious probate
• Debt recovery
• Costs Disputes including security for costs applications

This list is by no means exhaustive. Over the years we have handled many types of cases and we are not shy; if we think you would better served by more specialist advice or would be better served by retaining lawyers in other countries, we can make the introduction from our many contacts built up over many years.

Media Law Firm in London

Intellectual Property

Whether you are seeking to protect your rights or are being threatened with claims that you have infringed the rights of a third party, our Intellectual Property team can help you find the best solution, advising on all aspects of the law relating to media and intellectual property. This includes copyright, trademarks, design rights and related areas of competition and European law.

We have a strong reputation for the management and protection of intellectual property rights with cases in the High Court and the specialist Intellectual Property Enterprise Court. We have particular expertise in copyright licensing, enforcement and valuation (including disputes before the Copyright Tribunal) and also specialise in brand protection (including trade mark registrations in the UK, EU and internationally, as well as “passing off” cases).

Our Intellectual Property services include:

• Copyright Infringement
• Copyright licensing and exploitation
• Trade mark registration
• Trade mark infringement
• Trade mark licensing
• Brand protection and “passing off”
• Performers’ rights
• Moral rights
• Design rights
• Database rights
• Data protection and the right to be forgotten
• Confidential Information and Privacy
• Patents

Media Law:

 GSC’s clients span the entertainment industry. They include global corporations, Licensing bodies, local independents and individuals. Whether their speciality is film, music, broadcasting, theatre, publishing, digital distribution, sport or sports entertainment, we help them benefit from the globalization of their industry, the digitization of their medium and the advance of technology.

We have significant experience of actions in court or before arbitrators, resolving contract disputes for our media clients or enforcing our clients’ intellectual property rights. We can do the same for you.

Ask us for commercial advice on all aspects of media law including:

• Recording, film and video contracts
• Film financing
• Rights acquisition and distribution agreements
• Licensing
• Social Media
• Film
• Radio
• Internet
• Television and satellite
• Commissioning
• Digital Media
• Publishing
• Artist management and promotion
• Merchandising agreements
• Royalty disputes.