Our Business Contractual Disputes Expertise

Contractual disputes demand a sound understanding of contractual law and the dispute resolution process.  We have a sound knowledge and understanding of all the issues that should be in the tool kit of any contractual litigator, including for example:

  • Formation of contracts
    • Basic principles of offer and acceptance
    • Mistake
    • Misrepresentation
    • Duress and undue influence
  • Terms of contracts
    • Conditions
    • Express terms
    • Implied terms
    • Exemption clauses
    • Unfair terms
  • Enforceability of contracts
    • Vagueness
    • Illegality
    • frustration
  • Breach of contract
    • Defective goods
    • Failure of consideration
    • Repudiation
    • Damages
    • Specific performance
  • Sale of goods and consumer legislation.

Our advantage lies in the application of these basic principles with the benefit of our specialist sector knowledge and our experience of particular types of dispute.

Retail

The retail sector is by its nature built on contracts.

We have litigators who have worked on secondment with large retailers and who understand the imperatives and commercial realities that drive retailers and their suppliers.

We have a successful track record of conducting heavy weight litigation in a variety of contractual disputes on behalf of retailers involving:

  • Supply of goods to customers
  • Purchase of goods by suppliers
  • IT implementation and maintenance of software and systems
  • Building and car park maintenance
  • Fitting out
  • Supply chain and logistics
  • Employees and agents
  • Goods promotions
  • Provision of utilities
  • Product recall

The litigation team is supported by non-contentious teams which are dedicated to work in the retail sector.

Agriculture

Clarke Willmott has a sector group with a national reputation specialising in the affairs of farmers and Landowners, We also have a team dedicated to professional negligence work in an agricultural and rural context.

The team acts for farming business of all sizes and sorts and for both private estates and institutional land owners in disputes arising from all aspects of their business, financial affairs and estate management.

Recent years have seen a continually growing client base among businesses operating in the broader “Agri-business” sector.

Contractual disputes in this area require a specialist knowledge of the sector. Examples of contractual disputes which our group has handled include:

  • Livestock and semen transactions
  • Fertilizer and silage
  • Renewable energy
  • Grain, seed and crop contracts
  • Advance purchase contract disputes
  • Agricultural plant and machinery
  • Agricultural finance agreements
  • Milk quota

The team is supported by a non-contentious group which is nationally regarded as a leader in the agricultural sector for transactional and management work.

Construction

A contract lies at the heart of every construction project, whether it is a bespoke contract or a standard form of contract such as a:

  • JCT contract
  • NEC 3,
  • ICE IChemE

We have a team specialising in contractual disputes in a construction context.

The team acts for a broad range of clients from across the industry, including employer developers, large-scale national and international contractors, funders and professional consultants as well as specialist subcontractors.

They have particular expertise in specialise in infrastructure, renewable energy (especially large scale wind farms).

The team includes a multi-disciplinary lawyer (dual qualified engineer, QS, project manager) and adjudicator (Peter O’Brien).

Social Housing

Clarke Willmott offers a national service dedicated to the Social Housing sector from its London and regional offices, acting for a wide range of Registered Providers, local authorities, ALMO’s, charities, care and health care organisations. [link]

We bring our specialist knowledge of this sector to contractual disputes arising from, amongst other things:

  • Maintenance contracts
  • Utilities contracts
  • Service providers
  • Building contractors
  • Suppliers
  • Energy and utilities
  • IT systems for housing management
  • Finance agreements

IT

Every business today relies heavily on information technology in order to manage its affairs and communicate with its clients, suppliers and staff.

This ranges from the provision of a lap top to the sale and implementation of a complex case management system.

IT contracts are notoriously complex and invariably relate to issues that one or both of the parties do not fully understand.

Contractual disputes arising from IT can arise from any number of causes including:

  • Capabilities
  • Project scope
  • Change requests
  • Termination
  • Corrupt data
  • Problems with contractors
  • Performance of the software
  • Standard of support and maintenance services
  • Finance agreements

We have considerable experience of advising in and conducting disputes arising from IT contracts.

Share purchase agreements

As businesses grow and succeed, they acquire and sell interests in companies and businesses and attract external investment.  This is done through binding contracts.

Such contracts may be drafted very informally or in a complex suite of documents pursuant to an extensive due diligence exercise.  Parties will rely on audits, disclosure of information and representations by individuals. A seller may be required to give warrantees and guarantees in order to give a purchaser comfort.

We have great experience in contractual disputes arising out of such deal involving, amongst other things:

  • Misrepresentation
  • Breach of warranty
  • Breach of guarantee
  • Failure of consideration
  • Implied terms
  • Set off against money held on escrow
  • Failure to pay consideration

Finance agreements

Many business and individuals enter into finance agreements for a variety of goods and services, including:

  • Software
  • Office furniture
  • Computer hardware
  • Photocopiers
  • Vehicles
  • Telephone systems

Purchasers often don’t appreciate that that they have entered into a contract with a finance company rather than the party who appears to have recommended and sold goods to them.  Such contracts are frequently supported by personal guarantees, with directors who do not appreciate they have given.

Where things go wrong, the purchaser wishes to complain and does not wish to continue paying.  It comes as a surprise that the real dispute lies with the finance company and not with the initial supplier. This can lead to complex multi party disputes involving questions of incorporation of terms, misrepresentation and consumer legislation.

We have considerable experience in advising purchasers and suppliers in disputes arising from a variety of finance agreements.

Unfair contract terms

It is common for a party to attempt to limit or exclude its liability under a contract.  This is perhaps most common where a large organisation deals on its standard terms with a consumer.

The Unfair Contract Terms Act 1977 and the Unfair Terms in Consumer Regulations 1999 exist to protect parties that have entered into such contracts.

However, the protection is not just limited to private individuals.  Small and large companies can also benefit from the protection of this legislation in order to avoid terms that have been foisted on them unfairly.

We have a wealth of expertise in disputes relating to the enforceability of contractual terms and a good track record of successfully challenging unfair terms in the court.

Utilities

We have a wealth of experience of acting for utilities providers and users in disputes arising from the supply of gas, electricity and water.

Disputes may have a number of causes:

  • Refusal to pay invoices
  • Failure of providers to supply
  • Interference with meters and substations
  • Overcharging
  • Errors in meter reading
  • Errors in recording of usage
  • Charging rates applied under statutory ‘out of contract schemes’

Such disputes often give rise to issues relating to enforceability of terms, incorporation of terms and the existence of implied terms.

Recruiters & employment agencies

The recruitment industry is a competitive market with a transient work force.  Contacts and relationships lie at the heart of your business and when staff move on it is essential to protect these assets.  This can often mean that a recruiter has to enforce its contracts, which gives rise to issues such as:

  • Breach of restrictive covenant
  • Enforcement of restrictive covenants
  • Inducement to breach contract
  • Injunction for the return of data and documents

Recruiters are also often obliged to enforce the terms of their engagement against clients and this can often give rise to issues arising out of:

  • Standard of work provided by contractors
  • Incorporation of standard terms
  • Vagueness of terms
  • Employment of Agency Workers Regulations 2010

We have experience of contractual disputes involving all of these and other related issues.

Commercial Agents

Many suppliers and producers bring their goods to market through commercial agents.  The contractual relationship between a principle and its commercial agent is governed by the Commercial Agents (Council Directive) Regulations 1993.

These regulations provide, amongst other things for the compensation of an agent on termination of an agency and the payment of pipeline commission.  The calculation of compensation under regulations 8 and 17 in particular has been a developing area of law over the past few years.

We have acted on many contractual disputes arising from the termination of agencies both on behalf of principals and agents, often on a repeat basis, relating to a bewildering variety of goods including:

  • Commercial flooring
  • Porcelain
  • Security fencing
  • Security systems
  • Commercial fertilizers

We have good working relationships with forensic accountants who we use to support us in the calculation of the value of agencies.

Alternative Dispute Resolution (ADR)

Litigation is not the only way to resolve a dispute.  You can negotiate a deal whether directly or through a mediator or you can submit to the jurisdiction of independent third party such as:

  • An adjudicator
  • An arbitrator
  • An independent expert
  • Community or religious tribunal such as the Beth Din or a Shari’a arbitration council.

We have practising mediators, arbitrators and adjudicators within the team.

They bring the insight and experience that they gain in these areas to the conduct of contractual disputes and the management of disputes.

We have a wealth of experience of these and other forms of ADR ranging from negotiation through to expert determination and use these tools in order to gain our clients’ best advantage.

Mediation

We know that a contested trial with a supplier or a customer is can be damaging to your business whether you win or lose.  It may also have an impact on your reputation.   If there is a business relationship capable of being salvaged then it should be.

Through mediation, parties can engage a third party mediator to help them reach a mutually acceptable resolution without having an court order forced upon them

Along side other forms of ADR, we have huge experience of mediation.

Amongst our partners are two practising mediators (Tim Russ and Alex Jakubowski). They bring their experience as mediators to their litigation advice.  We offer our trainees and junior solicitors the opportunity to shadow Tim and Alex at mediations in order to gain an added insight into the dynamics of a commercial negotiation.

Costs & Funding

We understand the law that surrounds costs and litigation funding.  This sets us apart from many of our competitors.

Such is our reputation in this field that, of our litigation partners, Owen Williams ([ink] was co-opted onto a panel by Lord Justice Jackson to help draft the Costs Management Precedent H implemented by the Jackson Reforms and Michael Clarke ([ink] sits on the panel of experts for the Civil Justice Council.

When it comes to funding, one size does not fit all.  We are able to provide a raft of alternative funding arrangements and will create bespoke arrangements to suit the needs of a particular client on a particular case and we will share a client’s risk where it is appropriate to do so.

If you are put off of the idea of litigation by your concern about the cost then we are happy to discuss and explain your options.

Small Claims

Small claims will affect individuals of business of all sizes.

For a small business, the impact of a just one small claim can be very damaging. For large businesses, the accumulation of several small claims can have a significant impact.

Many businesses do not feel comfortable leaving these disputes in the hands of debt recovery agents due to reputational as well as service issues.

Now that the small claims limit has been increased of £10,000 there will be very many more cases in which your legal costs will not be recoverable from the other side whether you reach an agreement or win your case at trial.

We know that certainty is important and where we can we can offer a fixed cost to give you certainty.  That enables you to carry out a cost benefit analysis before committing to a course of action.  We are always happy to provide advice on discrete aspects of a claim so you can run it yourself and keep costs within control.