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By brocs1, Dec 10 2020 10:23AM

The recent decision in the case of Bell v Ivy Technology Ltd [2020] EWCA Civ 1563, If anything, reminds us of how crucial the drafting of a Share Purchase Agreement can be and how the facts should marry up with reality.

In April 2019, Ivy Technology Ltd entered into a share and purchase agreement for the purchase of shares in five companies. Prior to the completion of the share purchase agreement, it was disclosed that although Mr Bell (second defendant) was not a party to the share purchase agreement, he did in fact, beneficially own 50% of the shares along with Mr Martin (first defendant) who owned the remaining 50%. This was of course significantly different to what the share purchase agreement stated, in that, Mr Martin held “all beneficial rights, title and interest in and to” the individually held shares, and that no other person was entitled to any right in and to such shares – such disclosure to Ivy Technology Ltd was not undisputed.

Ivy Technology Ltd brought a case claiming it was fraudulently misrepresented by Mr Martin; breach of warranty and a claim in restitution argument was also advanced. As Mr Bell was not named on the share purchase agreement, a claim against Mr bell was initially founded in tort rather than contract.

The claimant, Ivy, issued an application for permission to amend its claim form and particulars to include Mr Bell in its breach of warranty claim. The application at first instance concluded that the claimant had real prospect of succeeding in its contention that Mr Bell was liable for breach of the share purchase agreement, even though he was not named as a party and permission to amend was given.

The second defendant, being Mr Bell appealed this decision and the Court of Appeal dismissed each of the 3 grounds and upheld the earlier decision that the Claimant was granted permission to amend its claim to include a claim for breach of warranties against the second defendant. Amongst the reasons the CoA gave, they stated that they could not rule out the possibility of Mr Bell being held liable under the contract at trial once a factual investigation had taken place and the reasons why he was not named as a contracting party becomes known. The court contended that an explanation was required as to why the share purchase agreement failed to name Mr Bell as a party to the contract.

If you are looking to sell your shares or make a purchase and you are unsure about how you are affected or what your rights may be then do contact our specialist team at Summerfield Browne Solicitors on 0800 567 7595 or email [email protected]

By brocs1, Apr 27 2020 08:57AM

Have had your holiday cancelled and are wondering if you are entitled to a refund, or are you thinking about cancelling an upcoming trip?

In light of the current Covid-19 coronaviruspandemic there is now widespread disruption to travel and holidays around the world and the situation is constantly changing,

The Foreign and Commonwealth Office (FCO) issues advice to UK nationals on where it's safe to travel abroad. Your right to cancel and get a refund will depend on the latest UK Government and travel advice.

Most insurers will cover you for cancellation if a Foreign and Commonwealth Office (FCO) advisory is put in place for your destination after you've taken out the policy, and it's still in place when you're due to travel. To be sure if your insurance provides you with cover its best to check your individual policy and with the insurer.

Some companies will now let you cancel or rebook and many airlines are now only offering vouchers online. As the Foreign Office are now warning against non-essential travel "indefinitely" it's likely you'll need to wait until close to your travel date before airlines, hotels and travel insurers agree to refund you.

How can I claim a refund?

If you have a holiday booked in the next couple of weeks, it is likely to have already been cancelled. The first step is to contact the travel firm airline or hotel directly, even if your original booking was on a non-refundable basis, as some have started to introduce special cancellation or rebooking policies to help those affected by coronavirus.

If your holiday is imminent but has not been cancelled you can contact your travel insurance provider, but only if you booked the holiday and purchased the insurance before the Foreign Office issued a warning against non-essential travel

I booked my holiday to attend the Olympics, can I get a refund?

A number of major events around the world have now been cancelled or postponed due to the coronavirus outbreak. If you booked the trip as a package, you may be entitled to a refund under the Package Travel regulations. If a tour operator makes a 'significant change' to the original arrangements, you aren't obliged to accept the alternative and are entitled to a full refund of the package price.

If you have an issue and require legal advice, please contact our offices on 0800 567 7595 or [email protected]

Summerfield Browne have offices in Leicester, Birmingham, London, Oxford, Cambridge and Market Harborough and assist with cases all over the UK.

By sfb solicitors, Sep 25 2019 12:55PM

If you’ve had work done at home and there’s a problem caused by the trader you are protected under either the Consumer Rights Act or the Supply of Goods and Services Act 1982, depending on when the work was undertaken.

Under the Consumer Rights Act, which came into force on 01/10/2015, consumers entering into a contract for goods and services should expect work to be undertaken with “reasonable care and skill”, and materials should also be of satisfactory quality, as described and fit for purpose.

If the trader provided goods in addition to the service, you are legal entitled to ask the trader to fix the problem. If the trader just provided the service, you are legally entitled to get a refund and stop the trader from carrying out any further work.

What to do next:

1. Obtain estimates from other traders.

2. Request that original trader fixes the work and provide them with the estimates obtained. You will need to agree a final date for the work to be completed. You should make it clear that if they do not complete the work you will appoint an alternative trader and seek the additional costs incurred from them. You must give the trader the opportunity the opportunity to rectify their work within a reasonable time frame, if you do not and proceed to instruct an alternative trader to complete the works this could affect any claim you make.

3. Collect evidence in support of the claim for poor workmanship i.e. photographs. Should you proceed with a formal claim an expert’s report may be required to provide an independent assessment. Keep copies of all documents and correspond by email where possible in order to obtain an accurate record of communications

4. If the trader cannot or will not fix the problem you can ask for a full or partial refund, once an agreement has been reached the refund must be paid within 14 days.

If you withhold any monies owed this could make you in breach of contract, enabling the trader to take legal action against you.

If you are unable to reach an agreement other options available are Alternative Dispute Resolution or proceedings with a formal claim

Summerfield Browne have offices in Leicester, Birmingham, London, Oxford, Cambridge and Market Harborough and assist with cases all over the UK.

By sfb solicitors, Sep 18 2019 09:54AM

Nobody wants to get embroiled in a contract dispute. It is essential that when entering into any contract the correct advice is obtained to minimise any damage to you or your business. The contract itself should be clear an unambiguous as this will make it easier for the injured party to seek redress if the need arises.

A contract dispute arises when one party believes that the other has not adhered to some or all of the obligations set out and agreed between the parties. This can involve a failure or refusal to pay on the grounds that one party has failed to perform its obligations by supplying defective or incomplete goods or services.

If the terms of a contract are broken this is known as a breach of contract. Various remedies are available but the most common are:

1 - Damages – an award of damages is the usual remedy. The purpose of damages is to put the injured party into the same financial position they would have been in had the contract been performed correctly.

2 - An order will be made by the court requiring a party to perform a positive contract obligation, that is to do something that should have been done under the contract itself).

3 - Injunctions – this is a court order requiring a party to take specific steps or restraining them from certain activities. An example would be to prevent them from contacting a customer or supplier or from publishing a false or defamatory comment.

4 - Recission – this is setting aside a contract where the parties are put back into the position they were before the contract was made. This may be available where the contract was agreed as a result of misrepresentation, mistake, duress or undue influence.

5 - Rectification – this only applies to written contracts and its main purpose is to put right a genuine mistake made between orally agreeing terms and recording those terms into a written contract.

We can offer expert advice in both drafting contracts in an effort to protect you from pitfalls at a later stage and dealing with any disputes that arise as a result of a breach that has occurred.

Summerfield Browne have offices in Leicester, Birmingham, London, Oxford, Cambridge and Market Harborough and assist with cases all over the UK.

By sfb solicitors, Nov 29 2017 11:35AM

This article considers a real court case, highlights the key facts and legal points of the case and provides some important points that can be considered and applied in Construction Contracts.

In December 2001, Ms Prim became interested in buying a 200-year old property in Devon. It was originally a coach house or agricultural building built into a hillside. It needed refurbishment. Ms Prim commissioned a survey; the surveyor, Mr Pernicks, valued the property at £150,000 and identified several defects, including movement of the structure, with extensive distortion of the walls and roof. Mr Pernicks did not consider immediate action was essential but did recommend the obtaining of an engineer’s report. Ms Prim did not take up Mr Pernicks’ recommendation to instruct an engineer, bought the property and asked Mr Glib, an Architect, to prepare plans for the refurbishment, making clear that he would deal with the structural defects identified in the report.

Mr Glib visited the property, carried out a survey and took measurements but did not suggest that Ms Prim should instruct an engineer.

Mr Glib provided plans for the conversion of the property into a three-bedroom one; Ms Prim accepted the plans, instructed a local builder which completed his work in April 2003.

Ms Prim put the property on the market in 2007 at an asking price of £275,000, but the potential buyers withdrew their offers because of an adverse survey. At that point, Ms Prim commissioned a survey of the property by a structural engineer which said “The building is in reasonable condition works carried out for its conversion to a dwelling has left some structural elements and in particular the suspended timber floors and the roof structure in a below standard condition. General maintenance and standard of finishes are very good.” He suggested consideration be given to a complete roof replacement.

Ms Prim reported this to Mr Glib, whose response was that any structural problems were not his fault; so, Ms Prim sued him for professional negligence claiming damages for breach of contract and tortious negligence.

The judge concluded that Mr Glid (i) had failed to recommend the appointment of a structural engineer (ii) he had failed to appraise the condition of the property (iii) had failed to make or recommend investigations for upgrading its fabric, and (iv) had failed to take account of its structure in his design proposals.

According to the Judge, Mr Glib should have paid more attention to the structural makeup of the building and should have consulted, or have advised Ms Prim to consult, a structural engineer to comment on its soundness and its roof.

In fact, according to the Law, where there is a contractual relationship, the professional may owe concurrent duties in contract and in tort. A concurrent duty in contract and tort exists where a claimant can build a tortious claim on either the: (i) Defendant's undertaking based in contract; (ii) Defendant's negligence in performing the contract in a way that caused harm to the claimant's property or commercial interests.

As a rule, professionals are taken to have assumed responsibility towards their clients and so owe both a duty of care in tort and contractual obligations.

However: (i) In contract, the cause of action is completed as soon as the contract is breached; (ii) in tort, no cause of action accrues until all elements of duty, breach and damage are present.

The contract between a professional and his client governs the basis of professional liability and is the source of the professional duties owed to the client.

The contract with the client may be in writing. Where the contract is not in writing, a professional should always take the precaution of writing to his client soon after the initial meeting, setting out the details of the contract as clearly as possible. This will help define the scope of duty and give the client the opportunity to clarify his instructions (if need be), thereby avoiding any confusion. It will also be evidence of the terms of the contract.

If they are not intending to give advice on a topic arising during the retainer, they should advise the client of this and keep a record.

Finally, in contracts for services where the professional is acting in the course of a business, it will be implied that the service will be carried out with reasonable care and skill (section 13, Supply of Goods and Services Act 1982 (SGSA 1982).

This means that the professional undertakes to possess and to exercise reasonable skill in the art he professes and the client is entitled to rely on the professional to exercise the highest degree of care and skill that a competent professional would exercise in work of that kind. It is possible for the contract to exclude or limit this implied duty, subject to the Unfair Contract Terms Act 1977.

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