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June 25, 2019
Kate Richmond successfully applies for permission to appeal under the Equality Act 2010

Kate Richmond successfully applies for permission to appeal under the Equality Act 2010

Kate Richmond has successfully applied for permission to appeal for her client on two grounds under the Equality Act 2010. The grounds allowed by the Circuit Judge relate to her client’s disability and the extent to which her client’s lay representative was able to make adequate representations during the trial.

Kate was instructed shortly before the hearing and prepared a skeleton argument setting out the grounds for appeal and explaining why there were reasonable prospects of success. Kate also made submissions on her client’s behalf at the hearing.

The Circuit Judge commented that if Kate had not represented her client then it was likely that permission to appeal would have been refused.

By Kate Richmond | Contracts and Debt Recovery

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May 21, 2019
Mediation vs Arbitration

Mediation vs Arbitration

Arbitration and Mediation are the two main forms of Alternative Dispute Resolution (ADR).

There is no ‘one size fits all’ form of ADR. Every case is different. Every party has different needs and objectives. Below we’ve set out some key information which may help you decide which form of ADR is right for you, but our friendly team of clerks are available on a no-obligation basis to chat through your options and help you decide – call them on 01273 81 00 11 or fill in our online enquiry form.

Arbitration

Arbitration is essentially a ‘private court’ which means that someone independent (the Arbitrator) is appointed and that person makes a decision about your dispute. The arbitrator takes the same role that a judge would take at court.

You might choose arbitration instead of mediation in the following circumstances:

  1. When the parties know that they will not be able to reach an agreement, even with assistance
  2. When the timescales are such that there is not time for negotiations to try to reach an agreement
  3. When the parties wish to be able to fix and limit fees by limiting the amount of meetings you have with the arbitrator

Arbitration is a well-established scheme. The arbitrators making the decisions are experienced lawyers who have undertaken additional training and are accredited and regulated by professional bodies relevant to their area of law.

The main benefits of arbitration are:

  1. Practical convenience

Arbitration is more relaxed than going to court. The arbitration itself can take place at a venue and time to suit you and the other party. That could be outside of court hours and in a far more comfortable setting such as barristers’ chambers or a solicitor’s office.

You can choose your own arbitrator who will be a specialist in the area of law in which you which to arbitrate. If you and the other party cannot agree on an arbitrator the regulating professional body can appoint one for you. You will also be able to ensure, where there is more than one meeting, that there is continuity of arbitrator; this is by no means guaranteed in court proceedings.

  1. Price

You will fix the price for your arbitration in advance.

Prices are structured so that you can choose to instruct the arbitrator to determine one distinct issue such as holiday contact with a child or the instruction of an expert, or ask the arbitrator to determine all of the issues in your case.

There is no possibility of further meetings with the arbitrator being needed; the arbitration is listed to be heard on a given day and a decision will be made.

With mediation there is the possibility of further meetings with the mediator being required (with a further fee), the aim being that each party shifts their position between each mediation until an agreement is reached.

  1. Streamlined process

Arbitration is not like court proceedings in which you fill out lengthy application forms, send them to the court and wait for a date for your hearing, and then wait months between each court hearing for your case to be decided.

Arbitration is also not like mediation where the aim is to get you and the other party to reach an agreement which could take an unknown amount of meetings with the mediator.

Arbitration is a simple process where you tell the arbitrator which issues you want determined, provide the arbitrator with the evidence (orally or on paper), and then await the determination which will be with you within seven days.

  1. Delay

One of the main benefits of arbitration is that delay is minimised. An arbitration can usually be listed within two weeks and a decision will follow within seven days. Your case will be the only one which the arbitrator deals with on that date and so there is no chance of it being adjourned because the arbitrator has run out of time or needs to deal with another matter.

Arbitration is a swift, cost-effective alternative to court and has the advantage of providing a final determination of your dispute. Barrister For Me offers arbitration in disputes relating to children and you can find out more about it on our family arbitration pages.

Mediation

Mediation is a confidential and flexible process in which an independent person (the Mediator) facilitates negotiations between the parties to help them achieve a voluntary settlement of their dispute on terms which they agree.

Unlike arbitration no binding decisions are made unless the parties reach agreement on the proposed settlement. This means that the option of reverting to the Court for a determination by a Judge remains open if either party is unhappy with the settlement proposals and means that no outcome is ‘forced’ on either party.

The Mediator will be an experienced litigator who will be able to focus discussions and break down barriers to settlement. Anecdotally the success rate of mediations is around 80%, meaning there is a very good chance that the dispute can be resolved on the day.

The Mediator will speak confidentially with each party in separate rooms about the strengths and weaknesses in their case and their opponent’s case. The Mediator will help the parties formulate and analyse settlement proposals with a view to helping the parties find a suitable settlement point.

Some of the key benefits of our mediation service:

  1. Convenience
  • Our service is available to parties before or during court proceedings.
  • It can be arranged at a time and date of the parties choosing rather than the one prescribed by the court listing officer.
  • The parties can choose a venue which suits their needs. Our mediation suite is included in the fixed price for our mediation service and is often preferred by parties as ‘neutral’ ground.
  • The parties can choose a mediator based on their knowledge and experience.
  • It can be accessed whether or not you have legal representation.
  • You can mediate the whole dispute or particular issues.
  • Our Mediators are flexible in their approach and will adapt the mediation process according to the needs of the parties.
  • Mediations can result in solutions, which Judges can’t order.
  • Mediations can help parties resolve their differences and improve future relationships in contrast to the court process which often further entrenches the parties’ differences.
  1. Price
  • Significant costs savings can be achieved by mediating a dispute compared to the costs associated with litigating a case to trial.
  • A clear fee structure is quoted in advance so you know how much the process will cost.
  • The Courts now strongly encourage parties to seek to resolve their dispute using alternative forms of dispute resolution (known as ADR). Mediation is one of the main forms of ADR and a failure a party to constructively engage in mediation can result in the Court making a costs order against that party.
  1. Streamlined Process
  • Mediations can be arranged at short notice.
  • Unlike a trial which can last many days, most mediations only take 1 day.
  • There is no need to give evidence or be cross-examined.
  • If settlement is achieved it will be written down and signed by the parties there and then.
  1. Avoids Delay
  • Rather than wait for a court listing date, which can often be many months later, a mediation can be arranged at short notice.
  • Increasingly trials are being adjourned at very short notice which builds in further delay and frustration into the court process.
  • Mediations can be arranged at any point during your dispute, whether at the very start or after positions have become entrenched.
  • Even after a trial has finished there can be delays in obtaining a Judgement which might then be subject to a lengthy appeal process. In contrast a successful mediation can achieve immediate solutions which can’t be appealed.

We offer mediation services in the following areas of law:

  • Civil and commercial disputes – including disputes concerning businesses, consumers, contracts, debts, property, landlords and tenants, land and real estate, neighbours, boundaries, wills and inheritance, trusts, personal injuries and employment.
  • Family disputes – including financial arrangements following divorce and child contact

Read more on our mediation pages.

If you have any queries about our arbitration or mediation services or think it could be useful in your case please contact the Barrister for Me clerks on 01273 81 00 11 or fill in our simple online contact form.

Stuart WrightJulie Stather MCIArb  | Arbitration & Mediation

 


Mediation vs Arbitration

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April 21, 2019
Unfair relationships in banking or credit agreements

Unfair relationships in banking or credit agreements

On 6th April 2007, the Consumer Credit Act 1974 (“CCA”) introduced the concept of an “unfair relationship” in respect of banking and credit agreements. The unfair relationship concept replaced the former extortionate credit bargain test found in sections 137 to 140 of the CCA which was repealed by the Consumer Credit Act 2006.

Over a decade later, there has been considerable development of the concept of an unfair relationship and how the courts have interpreted the scope and application of the unfair relationship provisions. This article will summarise the unfair relationship test and how it has been applied by the courts, particularly since the Supreme Court decision in Plevin v Paragon Personal Finance Ltd [1].

The test

The test for an unfair relationship can be found in section 140A of the CCA and applies to natural persons. It allows the court to make an order under s.140B if it determines that the relationship between the lender and the borrower arising out of the credit agreement (or related agreement) is unfair to the borrower because of one or more of the following [2]:

  • Unfairness of any term of the agreement or of any related agreement;
  • The way in which the lender has exercised or enforced any of his rights under the agreement or any related agreement; or
  • Any other thing done (or not done) by, or on behalf of, the lender (either before or after the making of the agreement or any related agreement.

How does the test apply?

The test applies to both regulated and unregulated credit agreements and the court has a broad discretion to “have regard to all matters it thinks relevant” when deciding whether to make a determination.

The matters the court can consider include those relating to the borrower and the lender. For example, the court can consider the borrower’s characteristics, sophistication/vulnerability, the facts the borrower could reasonably be expected to know, the range of choices available to them and the degree to which the lender was or should have been aware of these matters [3].

The court will focus on the relationship as a whole and not whether the agreement itself was unfair [4]. Accordingly, the court may review the relationship between the lender and borrower after the agreement has concluded and the review could extend to consider the entire history of the banking or credit relationship.

In 2014, Plevin v Paragon Personal Finance Ltd [5] established that it is not necessary for the lender to have breached a duty to the borrower before the relationship could be found to be unfair [6]. The Supreme Court revisited the issue of unfair relationships in relation to PPI mis-selling claims. In particular, the court was concerned with the non-disclosure of commissions payable out of a PPI premium where the lender had committed no breach of the ICOB regulations. Prior to Plevin, the finding of an unfair relationship was based on the standard imposed by the regulatory authorities pursuant to their statutory duties [7]. Plevin viewed this basis in the wider context of the standard of commercial conduct reasonably to be expected of the creditor [8]. This wider context now allows the court to consider the fairness or unfairness of the banking relationship even in circumstances where the lender has complied with their duties to the borrower.

Once the borrower has alleged that a relationship is unfair, the burden of proof shifts to the lender, and it is for the lender to prove that the relationship is not rendered unfair by what it did or failed to do [9].

The unfair relationship test provides powerful sanctions that, since Plevin, are even broader in their application to banking and credit relationships. The test allows the court to act when the Rules and legislation governing these relationships cannot and so provides a valuable form of additional protection for borrowers.

If you are seeking legal advice in regards to an unfair relationship, please contact the Barrister for Me clerks on 01273 81 00 11 or fill in our simple online contact form.

By Kate Richmond | Contracts and Debt Recovery

——

[1] [2014] UKSC 61

[2] See Section 140A(1)(a) – (c)

[3] Paragraph 17 of Lord Sumption’s judgment in Plevin v Paragon Personal Finance Ltd [2014] UKSC 61

[4] Patel v Patel [2009] EWHC 3264(QB)

[5] [2014] UKSC 61

[6] Plevin v Paragon Personal Finance Ltd [2014] UKSC 61 at [17] which overturned the Court of Appeal decision in Harrison v Black Horse Ltd [2011] EWCA Civ 1128

[7] Harrison v Black Horse Ltd [2011] EWCA Civ 1128

[8] Plevin v Paragon Personal Finance Ltd [2014] UKSC 61 at [17]

[9] Section 140B(9)


Unfair relationships in banking or credit agreements

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December 14, 2018
What is a Winding up petition?

What is a Winding up petition?

A winding up petition is a request to the court to close down a company [“wind it up”] because it can’t pay its debts. You [“a creditor”] must prove that you are owed at least £750 and the company can’t pay you. The process starts by filling in the correct forms and sending them to the right court with a petition deposit, presently £1,600. What the company does will depend on the state of its finances and whether or not it agrees that it owes you. If your application [“winding up petition”] succeeds the assets of the company are sold, any legal disputes are settled, the company collects the money it is owed and the remaining funds are paid to the creditors. You are one of those creditors. You might get all or some or none of the money you are owed. If your petition fails you will probably be ordered to pay the company’s legal costs.

Paul Ashwell offers expertise across the full range of commercial and property law. If you require his services, please get in touch with our clerks who will be able to put you in contact with him.

By Paul Ashwell | Contracts and Debt Recovery

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October 15, 2018
How to serve or challenge a Statutory demand

How to serve or challenge a Statutory demand

What is a Statutory Demand?

A statutory demand is a demand for payment by someone who is owed money [called “the creditor”] by an individual or a company. A special form must be used. The form depends on when the debt is payable and whether it is owed by an individual or a company. The usual time limit is 6 years and the demand has to be made or “served” in a special way. When the individual or company that owes you money [the ‘debtor’] receives a statutory demand, they have 21 days to either pay the debt or reach an agreement with you to pay. If they don’t respond, if the debt is large enough, you can apply to the court to bankrupt your debtor [if they are an individual] or wind them up [if they are a company]. The court fees are at present £280 for an individual and £1,600 deposit for a company.

If a demand is made on you and you don’t agree with it you can challenge it and get it “set aside” if you are an individual. A company challenges a statutory demand in a different way by applying to stop the winding up. If you make a demand which is unjustified you can be ordered to pay the debtor’s legal costs.

Paul Ashwell offers expertise across the full range of commercial and property law. If you require his services, please get in touch with our clerks who will be able to put you in contact with him.

By Paul Ashwell | Contracts and Debt Recovery

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Upon receiving your enquiry a public access clerk will contact you within 24 hours to discuss your case in further detail. Please see our 4 steps outlining the process of instructing a public access barrister with Barrister For Me.

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September 14, 2018
What can Commercial Dispute Mediation be used for?

What can Commercial Dispute Mediation be used for?

Commercial dispute mediation [“CDM”] is a way of resolving commercial disputes as an alternative to taking a claim to court for a judge to decide. It is one of the means of alternative dispute resolution [“ADR”]. Other means of ADR are negotiation and a settlement meeting, which is similar to CDM but without an independent mediator. CDM can take place before any court claim is made but often takes place soon after a court claim is made because then each side will understand what the other’s position is about the dispute. Often a business will not sit down and mediate unless a court claim is actually started or at least about to start. The procedure is that the two sides choose and pay for an independent mediator whose job it is to help them reach agreement, not to decide the dispute. Both sides and their lawyers and the mediator meet for ½ a day or a day and try to reach a written agreement. CDM is far less expensive than going to trial, quicker, less stressful, avoids publicity that can damage reputation and can allow a commercial relationship to continue. It is private and confidential so that if it is not successful a judge cannot be told about what happened at the CDM. About 80% of CDMs result in agreement, either on the day or shortly afterwards.

Paul Ashwell offers expertise across the full range of commercial and property law. If you require his services, please get in touch with our clerks who will be able to put you in contact with him.

By Paul Ashwell | Contracts and Debt Recovery

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April 6, 2018
How do I restore a dissolved company to the register of companies?

How do I restore a dissolved company to the register of companies?

If your company has been struck off the register of companies, there are various options available to you: 

There are 2 ways of re-instating a company. The easy way is by administrative restoration. You will find the procedure, forms and cost here and a fee, currently £100, is payable to Companies House. 

If you are not eligible for the administrative method (for example because the company was struck off more than 6 years ago) you will need to get a court order to restore the company. The process is short but technical, and at the time of writing, the court fee is £308. You can find further details of the procedure here. 

A Part 8 claim form is issued with a witness statement which must include certain pieces of required information. Evidence of service of the application, any undertakings and the agreed consent order are also filed. The court procedure involves the Registrar of Companies who is represented by the Treasury Solicitor – (whose attendance might require you to pay costs of around £250 or more) – and can involve some negotiation. Information about the company can often be found free of charge at  Companies House. Whilst you may feel confident in tackling the administrative method yourself, our team of experienced commercial lawyers are able to help when an application has to be made to the court – both in drafting papers and representing you in court. 

To get in touch with a member of our Direct Access legal team, first read our simple step-by-step guide, then fill in the online form for our clerks to advise you on your next steps. 

By Paul Ashwell | Contracts and Debt Recovery

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March 23, 2018

Litigant in Person’s status is clarified by the Supreme Court

Legal professionals and litigants-in-person alike will be interested in the recent Supreme Court decision in Barton v Wright Hassall LLP [2018] UKSC 12 which is likely to affect how litigants-in-person are treated by the court when considering compliance with CPR rules and practice directions.


Background

 The case was brought after Mr Barton, acting in person, purported to serve a claim form and particulars of claim by email on the defendant’s solicitors, Berrymans Lace Mawer, the day before expiry of the four month period allowed in CPR rule 7.5.

Mr Barton had failed to obtain permission prior to service on Berrymans who refused to acknowledge service. The claim form expired unserved and the action became statute-barred.

Mr Barton then applied for an order for retrospective validation of service under CPR rule 6.15(2). In order to succeed he needed to demonstrate a good reason to grant the application.


Decision

 The Supreme Court dismissed the appeal by a majority of three to two. Lord Sumption gave the lead judgment and agreed with the decision of the Court of Appeal below. Lady Hale and Lord Briggs provided a dissenting judgment.


Reasoning

At paragraphs 9 and 10 of his judgment, Lord Sumption set out the main factors to consider when granting retrospective validation of service:

  • Whether the claimant took reasonable steps to serve in accordance with the rules;
  • Whether the defendant or his solicitor knew of the contents of the claim form when it expired;
  • What, if any, prejudice the defendant would suffer from validation of the non-compliant service.

Paragraph 18 of the judgment is particularly useful for those who appear against litigants-in-person where there is purported non-compliance with CPR rules or practice directions.

Paragraph 18 reads:

Dissenting Judgment

The dissenting judgments of Lady Hale and Lord Briggs allowed the appeal considering that Mr Barton’s service fulfilled the purposes of ensuring that the contents of the claim form were brought to the attention of the person to be served and notifying the recipient that the claim has been commenced against the defendant on a particular day.

Lady Hale and Lord Briggs decided that Mr Barton’s circumstances would provide good reason for validation unless there were specific circumstances which swung in the balance against validation (paragraph 38).

However, Lord Briggs stated:

 

Discussion

Lord Sumption’s judgment seems to allow for some leniency towards litigants-in-person when it comes to case management decisions and how hearings are conducted, for example, giving unrepresented parties longer time limits for compliance with case management directions or assisting unrepresented parties to present their evidence during trial. However, when it comes to compliance with CPR rules and practice directions, the clear message is that litigants-in-person should be treated the same as represented parties.

Nevertheless, the message is tempered slightly by the last sentence of paragraph 18 referring to ‘inaccessible or obscure’ CPR rules and practice directions. It is not clear what parts of the CPR are to be considered ‘inaccessible or obscure’ for the purposes of litigants-in-person complying with rules and practice directions but it is assumed that the relevant parts will be identified on a fact-specific, case-by-case basis.

Indeed, both leading and dissenting judgments made tacit admissions that CPR provisions relating to service by email might need to be reconsidered and, to that end, the judgment was referred to the Civil Procedure Rules Committee. Although it could be said that the reference to the Rules Committee is a result of the prevalence of email communication since the rules on service were last considered.

In any event, it is suggested that the starting point for the courts would be to consider any parties’ failure to comply with CPR rules and practice directions without reference to whether a party is represented or not.

Similarly, in the dissenting judgment, Lord Briggs accepts that Mr Barton’s status as a litigant-in-person itself did not provide him with a good reason for the court to grant his application. Accordingly, this would support Lord Sumption’s analysis that CPR rules and practice directions’ failures should not be validated with any reference to parties’ represented or unrepresented status.

Interestingly, the courts may already be taking a tougher approach to compliance given the recent judgment in Reynard v Fox [2018] EWHC 443 (Ch) (08 March 2018) where HHJ Matthews (from paragraph 44) applies the principles in Barton referring to the “unanimous” decision of the Supreme court on the position of litigants-in-person.

Mr Reynard’s claim against the defendant, his former trustee in bankruptcy, for damages for breach of contract and negligence in relation to the conduct of the defendant as such trustee in bankruptcy was struck out under CPR r 3.4(2)(a) for re-litigating issues which were decided in a previous application under section 303 of the Insolvency Act 1986. HHJ Matthews commented, at paragraph 46:

“You cannot successfully claim that an apple is an orange, on the grounds that you do not know the difference because you are a litigant in person.”

March 9, 2018
Shareholder disputes – FAQs

Shareholder disputes – FAQs

I’m a minority shareholder in a company. It is being run in a way that is unfair to me. Perhaps I’ve been excluded from management. Maybe business has been diverted to another company. Or my co-director is receiving an excessive salary. What are my shareholder’s rights?  

These are the kind of problems that often arise within “quasi-partnership companies”. These are small, unlisted companies that are like partnerships, with few members and few directors. Our team of commercial barristers have a wealth of experience in dealing with these kinds of issues and can help if you feel you have been a victim of unfair dealings.   

What is the process and who can apply 

Unfair prejudice is assessed using an objective test. A staring point is whether the Articles of Association and any shareholder agreement have been complied with. The procedure is that the member files a petition to the court under section 996 of the Companies Act 2006 and a detailed witness statement which includes all the necessary formal information about the company as well as full evidence about the unfairly prejudicial acts. The Companies (Unfair Prejudice Applications) Proceedings Rules 2009 can be found here and the form the petition takes is shown in the Schedule. Formal information about the company can often be found free of charge at Companies House.   

When it comes to dealing with a claim of unfair prejudice, Section 994 of the Companies Act 2006 gives a special remedy to: 

[1] a “member”, that is, a shareholder who has been usually, not always, registered, 

[2] of a company  being run, or will be run, in a way that is “unfairly prejudicial 

[3] to the interests of himself or herself [and perhaps other members too]. 

So to be clear, this procedure cannot be used by a director who is not a shareholder.  

What resolutions are available?  

This process is time consuming. A court fee, currently £280, is payable in the High Court. At this point, before or after the first hearing, the legal proceedings are often adjourned to give the parties an opportunity to resolve their differences. This is usually achieved by mediation or another method of ADR [Alternative Dispute Resolution]. Everyone has an incentive to sort out the dispute by consent because an actual trial of a petition involves a great deal of preparatory legal work including service of points of claim and points of defence. It is time consuming and expensive. If a trial cannot be avoided, the judge has the widest discretion to impose a suitable solution, which is often (if the prejudice is substantial and there is deadlock) achieved by the compulsory buy-out of the minority shareholding according to a prescribed valuation process. If the company is profitable it is in no-one’s interest to wind it up. 

I would like to begin the process – how do I start?  

The best place to start is usually to have a conference with one of our barristers in which we can discuss what has gone wrong and what the solutions might be. That might be followed up with a letter drafted by the barrister to the majority shareholder explaining what they need to do if a petition is to be avoided. If court proceedings are unavoidable we can draft all the documents and represent you in court. 

To instruct a member of our experienced legal team, first read our simple step-by-step guide, then get in touch with the clerks in our central Brighton office who will be able to advise you on what to do next. 

By Paul Ashwell | Contracts and Debt Recovery

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February 9, 2018
Freezing orders and seize and search injunctions – what you need to know

Freezing orders and seize and search injunctions – what you need to know

Contract law is complex and multifaceted. Our team of barristers has considerable experience of commercial disputes at all levels and will be able to help you understand and take relevant action on any challenges you might be facing.  

Our overview of freezing orders and search and seize orders reveals some of the complexities.

What are freezing orders and search and seize orders 

Freezing orders and search and seize orders are aggressive and expensive steps in litigation. Some important points to note: 

  • Both orders are injunctions, that is, an order of a judge telling someone to do or not do something.  
  • Refusing to obey an injunction is contempt of court.  

freezing order freezes a person’s assets to prevent them being disposed of, so that they will be available to pay a court judgment. If an injunction is granted, the defendant will be ordered to make a statement disclosing his assets. After the first “without notice” hearing a second, “with notice” hearing will take place within 14 days. The defendant will be present and can say to the judge that the order ought not to have been made at all, or is too wide and should be limited in amount. You can see a specimen order here.  

search and seize order is a very serious and even more aggressive injunction which can only be made in the High Court. These are often carried out early in the morning and commonly known as “dawn raids”. The aim is to preserve evidence or property relevant to court proceedings. The defendant is ordered to let the applicant’s solicitors enter premises, search them for anything named in the order and to take photos and samples. An expert will search computers. Often the defendant will also be ordered to disclose where things are. To obtain a search and seize order you need an extremely strong case at first sight, very serious damage for you, clear evidence of possession of something incriminating, a real possibility of destruction of that thing, and likelihood that the harm caused by the order will be proportionate to the object of the order.  It is extremely time consuming and expensive to prepare to apply for the order and to carry it out. You can find a specimen order here.  

What does the procedure involve?  

The procedure for both is that an application notice with draft order is issued, a fee paid, and an affidavit supporting it is made for the court to consider. This happens at a hearing which takes place without notice to the defendant.  

Full and frank disclosure of all relevant facts is required – and if it is not given, any injunction may not stand. An applicant must give the court an undertaking – or solemn promise – to pay the defendant for any damage caused by the order. If there is not already a legal claim underway the applicant will have to start one immediately and pay a fee depending on the amount claimed. 

What legal expertise is necessary? 

All the drafting of court papers in either of these cases demands specific legal expertise and this is where our team can help. Our barristers, with their considerable experience in these matters, will also be able to represent you in court. And in carrying out these orders you will need experienced solicitors with specialist knowledge whom we can help you to find. 

Our barristers are able to tackle the most challenging commercial cases. To instruct one of our legal team, first read our simple step-by-step guide, then get in touch with the clerks in our central Brighton office who will be able to advise you on what to do next. 

By Paul Ashwell | Contracts and Debt Recovery

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May 2, 2017

“Freemen-of-the-land” – Go Directly to Jail (Do Not Pass Go)!

Desperate times can sometimes call for desperate measures. It is therefore not difficult to see why the suggestion that you are not bound by legislation or commercial law may be attractive to someone who has mounting debt problems or is facing eviction from their home. This is essentially what is promised by various groups of people whose theories are all based around the ‘freemen of the land’ movement in North America.

The general claim is that there is a big state conspiracy – between the government, judges, civil servants, lawyers etc – to take away citizens ‘common law rights’. This all starts from the moment your parents registered your birth. Freemen see the birth certificate as a contractual document with the state signing over the legal title of the baby. The suggestion is that there is a distinction between you as a man or woman – John, of the Family Smith – and Mr John Smith who is the legal entity owned by the state.

The suggestion is that if you do not consent to being bound by the law then you will not be bound. This way official demands for payment of fines, to appear in court etc can simply be declined. By following various freeman rituals – e.g. asking the Judge if he or she is on their “oath” / refusing to enter the Court room unless the Judge agrees that your god given rights are intact / producing a birth certificate to be the respondent rather than the man/woman themselves – then the Court will have no jurisdiction over you and the Claim will be dismissed. It sounds like a wonderfully simple way to make all of your problems go away.

The problem is that it is, put simply, nonsense.

In the 2012 case of Meads v. Meads, a Canadian Judge forensically deconstructed and dismissed freemen-style arguments in a detailed 192 page judgment. This is a long read, but essential if you have any doubt that what the Freemen are peddling is anything other than nonsense.

The real problem is that not only will the Freemen arguments not magically make everything better – they may in fact land you in contempt of court – facing imprisonment or at the very least a substantial fine.

For example, in 2015 at Sandwell Magistrates’ Court, an uninsured driver was sentenced to 14 days imprisonment for contempt of court after claiming to be a Freeman-of-the-Land and therefore outside of the jurisdiction of the Court.

Unfortunately, there are no magic cures or silver bullets when it comes to legal problems. There is no substitute for taking early legal advice from a trained professional and being represented by someone who can fight your corner in accordance with the legitimate laws of this land.

Further reading:

Meads v Meads 2012 ABQB 571 (CanLII) https://www.canlii.org/en/ab/abqb/doc/2012/2012abqb571/2012abqb571.html

https://ukhumanrightsblog.com/2012/09/30/freemen-of-the-land-are-parasites-peddling-pseudolegal-nonsense-canadian-judge-fights-back/

https://ukhumanrightsblog.com/2011/11/15/freemen-of-the-dangerous-nonsense/

http://www.birminghammail.co.uk/news/midlands-news/freeman-land-driver-jailed-contempt-10253089

http://www.bbc.co.uk/news/uk-england-merseyside-12668444

http://www.bbc.co.uk/news/magazine-36499750

http://www.eveningnews24.co.uk/news/crime/norfolk-tax-dodger-arrested-after-writing-to-queen-1-745681

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July 8, 2016
£11 million Ferrari dispute resolved

£11 million Ferrari dispute resolved

Simon Sinnatt and David Lewis-Hall represented a car collector in dispute over £11million 1954 classic Ferrari.

Simon and David were instructed to represent renowned car collector Mr Christopher Gardner at the 3 week trial in the Commercial Court set to start on the 18th April 2016.  The case concerned the purchase of a 1954 Ferrari 375 Plus by American billionaire Mr Les Wexner at an auction held by Bonhams at the June 2014 Goodwood Festival of Speed. The car is one of only four of its type which remain in existence.

The car was previously owned by Mr Karl Kleve, an Ohio car collector, but the chassis was stolen from him in 1989 and found its way to Belgium. Mr Jacques Swaters bought the chassis in 1990 and restored the car to its former glory.  A title dispute arose between Mr Kleve and Mr Swaters, which was continued by their respective heirs.  Mr Gardner subsequently became involved in the dispute.

The car found its way to the Bonhams auction as a result of a purported settlement agreement between the parties fighting over ownership of the car.  Mr Wexner sought to rescind his contracts with Bonhams and the sellers, alleging that he had been misled.

A number of different claims were issued and joined together, resulting in proceedings involving 8 parties and a trial bundle running to over 60 lever arch files, to determine the fate of the car and destination of the proceeds of sale.

Simon and David were instructed as Public Access Barristers representing Mr Gardner in the negotiations between the parties who were represented by leading firms of solicitors Jones Day and Mischon de Reya and magic circle Chambers Brick Court and Blackstone.  Settlement of all claims was achieved.

Read news article here.

 

May 14, 2015

Paul Ashwell advises in Company dispute

An entrepreneur sold his shares in a media company with instalments of the seven figure purchase price being paid over a number of years. There was a dispute about the tax treatment by the company of payment of instalments, the calculation of the balance in his director’s loan account and the conduct of the company pending the final payment. Both company law and tax expertise were needed. The way forward was resolved in a round table meeting with the barrister, a forensic account whom chambers had recommended and the entrepreneur’s legal advisor from abroad.

Paul Ashwell | Contracts and Debt Recovery