Many of the proposed reforms will dramatically affect the lives of individuals and the future of many businesses.

Griffin Law has produced a helpful analysis of the Queen’s Speech that is available for download here.

If you need any advice on any of the proposed legislative changes that the government is proposing and what they will mean to you, please contact Donal Blaney at donal@griffinlaw.co.uk. 

Being a director of a company is very often the ambition of budding entrepeneurs and business people. It brings its own challenges, warns Mark Edmonds.

Being a company director comes with various responsibilites and duties including, but not limited to the duties outlined in the Insolvency Act, the Companies Act and in the Articles of Association of any particular company. A failure to adhere to these rules and regulations can have serious ramifications for directors including dismissal from their position, disqualification and imprisonment.

A recent High Court judgment reminds directors that not only do they need to remember their duties to the company and abide by the Companies Act but they must also adhere to court orders or face the wrath of the courts.

The case of Templeton Insurance Limited v Motorcare Warranties Limited (2012) EWHC 795 concerned the misrepresentation of insurance contracts. The Claimants, Templeton Insurance Limited (“TIL”) succesfully applied for a freezing injunction against the Defendants, Motorcare Warranties Limited (MWL). This prohibited the company from dealing with its assets outside of the normal course of its business.

Such an injunction is not awarded lightly and is ordered to preserve the assets of a Defendant so that any damages award maybe properly satisfied.

Soon after the award of the freezing injunction the officers of the Defendant incorporated, what Counsel for the Claimants described as a “phoenix company” and begun the same business as before transferring the goodwill and assets across. TIL won the claim and at the same time, issued applications for contempt of court against the officers of MWL, on the basis they had bereached the terms of the freezing injunction. The officers of MWL explained to the court the reason for setting up the second company was because the freezing injunction had virtually crippled their business. Counsel for the Managing Director of the business put forward the argument that the injunction was made against the company and therefore the Managing Director could not be held liable for the actions of the company.

The Judge held that the Respondents had taken steps to transfer the entire business to the new company. They had further known that these steps were in breach of the injunction and the steps were taken with the intention of interfering with it.

Despite the fact the injunction was made against the company, the Managing Director had been served with the Order and in incorporating a seperate business in which to transfer assets he had willingly interfered with the administration of justice. Such an action constitutesd contempt.

The Judge outlined that he would determine sentencing at a later stage but left the door open for a prison sentence.

This decision emphasises the manner in which courts will enforce freezing injunctions. The decision also emphasises the point that being a director of a company does not mean you cannot be held liable for the actions of your company in whatever guise you appear to take. The notion of limited liability gives a false impression of invinsibility in that regard. However if you can maintain your duties to your company and not fall foul of any regulations the notion of limited liability will allow your business to thrive.

If you are served with a freezing injunction don’t transfer your assets, do as you are instructed and contact Griffin Law without delay.

Facebook and Twitter, together with other social media sites, are ubiquitous. Their influence on the way we live our lives continues to grow. Twitter was credited with playing a central role in the Arab Spring, the series of revolutions that swept the Middle East in 2011. Facebook is set for the largest IPO since the dot com bubble burst a decade ago.

Demos, the centre-left think-tank that continues to influence the Conservative-led coalition government, has published a report calling for users’ private information on social media sites to be more readily spied on by the police and intelligence services.

That means that anything you say to anyone online will be able to be read and used against you. The internet – once a force for freedom – risks becoming a tool for governmental oppression. The government does not spy on gatherings of individuals: so why should it spy on those gatherings if they are online?

Written by David Omand, a former head of the government’s spy centre, GCHQ, the report attempts to nuance the need for a balance between security and liberty. It is well-meant and cogently argued.

The worry naturally is that once the law is changed to allow for snooping by the police and intelligence services – maybe initially pursuant to a warrant granted by a judge – others organs of the state (local council bureaucrats, HM Revenue & Customs, teachers and doctors) will seek to do likewise. And all will claim to be doing so, as ever, “in the public interest”.

There will inevitably be circumstances where, in extremis, it may be appropriate for a judge to permit the authorities to gain access to individuals’ emails, web browsing history and social media accounts. The law already permits judges to grant the authorities access today.

But the kind of widespread access proposed by those who are willing to trade liberty for security is an infringement on individuals’ freedom and must be opposed.

If you need advice on how to protect your personal data and privacy, please contact Donal Blaney at Griffin Law by email at donal@griffinlaw.co.uk. 

In Teggart v Teletech UK Limited NIIT 007904/11 Mr Teggart the employee in question decided to post comments referring to the promiscous tendencies of a fellow colleague on his Facebook page. He was then dismissed by the employer for gross misconduct. He appealed the decision on the basis that he had meant the comments as a joke and had not intended to harass or bully. He further contended that the company had not followed a correct process when coming to the decision to dismiss him.

The Employment Tribunal found that the comments outlined on the Facebook page constituted harassment and that the dismissal of the employee was fair.

Harassment is a developing area of law and at present can be summarized with reference to the Protection from Harassment Act 1997 as a course of condcut involving more than one unwarranted form communication. It can, as it was in this case also be defined with reference to a particular company’s relevant policy.

The case demonstrates that before posting comments on social networking sites you should seriously consider the repercussions. Not only can comments bringing the company into disrepute be regarded as gross misconduct but comments relating to your colleagues can also lead to disciplinary actions. Comments relating to their sexual exploits outside of work and in fact anything that could be regarded as derogatory and defamatory could be, on the facts of this case, enough to see gross misconduct allegations brought against you.

You have been warned, if you can’t keep dirty talk in the bedroom don’t post it on Facebook!

If you need help with an issue arising from workplace bullying, internet harassment or misuse of social media, please contact Donal Blaney at Griffin Law. 

Amy Collis explains the risks associated with failing to act reasonably in litigation.

In litigation success is viewed, to a large part, as the award of costs. That is not to say that securing the Judge’s agreement to the substance of the matter is immaterial – far from it – however it is often the case that, without the payment of costs, any award made by the Court is rendered negligible.

For this reason, the Civil Procedure Rules 1998 make explicit [CPR 44.3(2)(A)] that the unsuccessful party will be ordered to pay the costs of the successful party. This is the generic starting point for the award of costs. However, in keeping with the overriding objective that cases are dealt with justly, there are various caveats and exceptions which mitigate the stringency of the general rule. These operate two fold. First, they ensure that in cases where injustice would be done by virtue of the strict application of the rule, there is scope for mitigation, and secondly they ensure standards of accountability within the legal profession by penalising those whose conduct falls below par. By CPR 44.3(4)-(7), failures to comply with pre-action protocols, the introduction of inappropriate or exaggerated claims and the general behaviour of a party can all have repercussions on the award of costs.

Judicial commentary regarding the award of costs provides a comprehensive guide as to what will and what will not jeopardise a successful party’s receipt of costs. Mr Justice Jackon in Multiplex Constructions (UK) Limited v Cleveland Bridge UK Limited [2008] EWHC 2280 (TCC) set out eight principles which should govern the Court in their decisions regarding costs. These encourage the use of proportionate costs orders instead of issue-based costs orders which are practically difficult and are discouraged by CPR 44.3(7).

The most recent judicial commentary comes from Mr Justice Ramsey in Mears Limited v Leeds City Council [2011] EWHC 2694 (TCC). In this case, Mears had unsuccessfully tendered for a public procurement contract for social housing in the Leeds area. Mears challenged LCC’s compliance with the Public Contracts Regulations 2006. A multitude of arguments were submitted, including an application to have the procurement set aside. Ramsey J, over the course of several judgments, held that the contract need not be set aside, however, Mears was entitled to compensation by way of damages.

In assessing the appropriate costs order to be made, Ramsey J, thankfully familiar with the intricacies of the case, considered that a proportionate costs order would be most likely to be in keeping with the overriding objective. Ramsey J reflected on the conduct of the parties over the course of the litigation and held that none of the conduct was such to influence the award of costs. As such the starting point was CPR 44.3(2)(a).

In the case, Mears, although successful over-all, had failed on numerous of its arguments and several of its applications had been refused or successfully defended by LCC. Equally, several of LCC’s arguments in counter were defeated, and, although the procurement contract was upheld, damages were awarded in Mears’ favour.

In these circumstances, Ramsey J considered that, similarly to an issue-based costs order, a proportionate costs order is appropriate to reflect the extent that the successful party has not been selective in the points they have taken and should not recover all of their costs.

Ramsey J laid out the matters which steered his decision as to costs. Firstly, Mears, despite being, for all intents and purposes, the “successful party”, could not recover costs incurred in bringing claims which were unsuccessful. However, in addition to costs for the claims which did succeed, Mears could recover the common costs involved in initiating proceedings. Secondly, an impressionistic view of the case as a whole guided the decision. Thirdly, it was clear that, had the costs order been made on an issue-basis, LCC would have been awarded many of its costs in respect of the claims which it advanced and won, and in respect of those claims Mears brought and LCC defeated.

These factors led Ramsey J to the conclusion that, although Mears was the successful party, the award of costs should be affected by a substantial discount. A discount of 65% was applied. As such Mears only recovered 35% of their costs. While 35% of £145,000 is indeed better than a poke in the eye, it is a far cry from the “hats off to justice” approach which would see the successful party absolved from paying their legal costs – an approach most (successful) parties would prefer.

This decision should operate as a warning to those who practice commercial litigation- take care in deciding what points to argue. None of Mears’ arguments were vexatious nor inappropriate, yet the extent of the costs incurred in pursuing these additional claims, by both parties, acted to prejudice the final costs award.

To learn more about how to avoid adverse costs orders in litigation, please contact Donal Blaney. 

Just as banks have lobbied hard for special concessions from successive governments (paid for us as taxpayers, of course), so it is with big insurance companies. They capitalised on the excesses of a few ambulance chasing personal injury lawyers (aided and abetted by unscrupulous claims management companies) and began to talk of a “compensation culture”. Sadly MPs have bought into this narrative.

As a result, from April 2013 lawyers will no longer be able to recover enhanced costs (known as a success fee, which is usually coupled together with an after-the-event insurance premium taken out by the successful client to protect against the risk of paying the other side’s costs if the claim failed). Instead lawyers will be expected to take up to 25% of whatever their clients are awarded in damages.

Not only will this mean that lawyers will cherry pick only “dead certs” (or only those who can afford legal fees will be able to go to court) but unprotected clients will be at risk of adverse costs orders if they lose – and if they win, up to 25% of their winnings will be taken by their lawyers.

All because big insurance companies’ expensive lobbyists have brilliantly tricked MPs into believing that the only way to address the abuses of the so-called “compensation culture” was to throw the access to justice baby out with the bathwater. And don’t expect insurance premiums to come down either next year, either though that is supposed to be the quid pro quo.

Griffin Law is at the forefront of the campaign for people to still have access to justice from April 2013 onwards. Donal Blaney, the Firm’s Principal & Director, has used his regular column on The Daily Mail website (the most widely read website in the world) to argue passionately for people to still have access to justice.

You may not need a lawyer right now. But one day you, your business or your family or friends might. And if you do nothing now, you and they will lose the chance to have access to justice. Think about it. Don’t just sit there.

A new case highlights how parties involved in litigation need to behave reasonably – or face the consequences! Mark Edmonds explains more.

The nature of litigation and the procedural rules that govern it, mean that timetables and deadlines are crucial for the efficient determination of cases.

Tactical approaches when defending claims vary greatly and range from early settlement and counterclaims to more disguised approaches such as delaying hearing dates and the directions of the court. Such approaches to litigation are often regarded by the courts as being reprehensible and at odds with the current “overriding objective”.

The “overriding objective” is defined in Part 1.1 of the Civil Procedure Rules 1998 (“the CPR”) as a way for the court to deal with cases justly and fairly. The CPR makes it clear that parties are required to help the court to further this “overriding objective”. It is therefore clear that parties should do everything in their power to conduct litigation in a just and fair manner. If it is determined by a Judge that the conduct of a particular party is such that it has not conducted itself in such a manner, there should be consequences for not doing so.

Judges presiding over cases retain a discretionary power when it comes to case management and costs. It is likely that if a Judge determines conduct as going against the overriding objective he/she will sanction a costs penalty or grant some form of adverse order against the party judged to have acted unreasonably.

In most cases of reprehensible conduct he will order that costs be paid on the indemnity basis (which means essentially that the losing party should account for all costs) or an “unless order” will be made, which requires a party to do something or risk being able to pursue the prosecution or defence of the claim.

This has been highlighted recently by Mr Justice Akenhead in the case of Phaestos Ltd and another v Ho [2012] EWHC 635. The Claimant wished to make three applications. It wanted to split the trial, wanted extra time to file its Particulars of Claim and to delay the onset of the electronic disclosure process. The Judge made it clear that the fact that the Claimant wanted to change solicitors and that providing Particulars was difficult were not good reasons to extend time. Deferral would seriously upset the management of the trial process. The judge maintained this approach when refusing the Claimant’s application to adjourn e-disclosure issues, notwithstanding that new solicitors had only just been instructed and its QC was on holiday. The Claimant had put its solicitors and barrister in an impossible position. Having considered all three applications, the Judge concluded that the Claimant was trying to disrupt and delay the court timetable and this was therefore a case for punitive, indemnity costs.

The lesson? It is clear that if a party to litigation wishes to try and disrupt the directions laid down by the court for the efficient management of a case they do so at the risk of potential costs consequences when their application(s) have been determined.

This month Griffin Law has again broken new ground in the field of internet harassment.

In the case of AMP v Persons Unknown, Griffin Law obtained a super-injunction that criminalises the further harassment of a young girl who had private pictures from her stolen mobile phone uploaded to the internet. Those who take part in such illegal file sharing through torrent sites or otherwise can be identified and are subject to immediate arrest: a decision that has potentially wide implications for illegal file sharers worldwide.

The judgment has been reported in The Daily Mail, The Independent and The Daily Telegraph, as well as being discussed online.

If you are a victim of cyber bullying, impersonation or online harassment, Griffin Law is uniquely placed to help you. You need not suffer in silence. Contact Donal Blaney by email at justice@griffinlaw.co.uk or by phone on 020 7152 6558. 

The decision in (1) Christine Brown-Quinn (2) Webster Dixon LLP v (1) Equity Syndicate Management Ltd (2) Motorplus Ltd; Webster Dixon LLP v (1) Equity Syndicate Management Ltd (2) ACM ULR Ltd; (1) Janine Baxter (2) Webster Dixon Ltd v (1) Equity Syndicate Management (2) Motorplus Ltd [2011] EWHC 2661 (Comm) concerns three clients who wished to bring or continue proceedings under a commonly available BTE insurance policy.

One client instructed a non-panel firm from the onset of the case while the other two had their instructions transferred to a non-solicitor firm. In each case the insurers said that they were entitled, if a client instructed a non-panel firm, to insist that the solicitor they chose to instruct must not charge more than the rates prescribed in their terms of appointment for non-panel solicitors. The hourly rate was £125 but two of the clients instructed solicitors who charged £139. The insurers disputed these rates and informed the firm they would not agree to them acting. The firm continued to act for the three clients for what they considered to be reasonable rates.

The decision on 21 October 2011 in the High Court stated that BTE insurers were not entitled to reject an insured’s choice of solicitors under the policy on the basis that their rates were in excess of those in the insurers terms of appointment. The fees of solicitors who had not agreed to the prescribed rates should be assessed pursuant to the Civil Procedure Rules, not restricted by those rates but taking account of them. The defendants have been granted leave to appeal to the Court of Appeal

This case raised an important issue in relation to freedom of choice under the Insurance Companies (Legal Expense Insurance) Regulations 1990 (the Regulations) which were enacted under section 2(2) of the European Communities Act 1972 with the intention of implementing the Legal Expense Insurance Directive (87/344/EEC) .

This decision supported the view of the Law Society that insurers should not be able to impose terms on non-panel solicitors that in effect deny a client the right to instruct a solicitor of their choosing under the terms of a legal expense insurance.

If you would like Griffin Law to represent you in any dispute, whether under a BTE policy or otherwise, please contact Donal Blaney at justice@griffinlaw.co.uk. 

The decision in Brookes v HSBC Bank PLC [2011] EWCA Civ 354 concerns an appeal from the decision that when the Applicant discontinued her claim she was liable to pay the Defendant’s costs in the proceedings. The Applicant brought an action against her credit card issuer in respect of an alleged failure to produce a true copy of the signed credit agreement in accordance with Section 78 of the Consumer Credit Act 1974. Before the end of the litigation the credit card issuer was able to provide the requested copy documents to the Applicant, such that it fulfilled its duty under Section 78.

Upon analysis by the Applicant’s solicitors it was found that the agreement was compliant with the relevant legislation and was therefore fully enforceable and as such, the Applicant discontinued her claim. She sought her costs in the proceedings from her lender, claiming that the purpose of the litigation was to obtain a copy of the agreement, and therefore after having obtained a copy of the agreement it was the responsible action for her to discontinue her claim.

However, the Judge concluded that the real purpose of the Applicant’s proceedings was not to obtain a copy of the agreement, but to establish that in the absence of a copy of the original agreement that the debt was unenforceable, and once it became clear that the lender had complied with its obligations that claim was bound to fail.

In accordance with the court’s principles, developed in the case of Far Out Productions v Unilever [2009] EWHC 3484, where a Claimant discontinues proceedings there is a presumption that a Defendant should recover his costs. It is only in rare circumstances that this presumption does not apply, usually only in cases where a Defendant causes a change in circumstances through his unreasonable conduct which in all the circumstances would provide a good reason for departing from the rule. As this was not an exceptional circumstance, the Judge awarded costs to the Defendant. This decision was upheld by the Court of Appeal.