That's how we roll

Dixon Phillips have been rolling high both on the lanes at the annual Handelsbanken bowling evening and at the blackjack tables at the COEL casino night.

Oliver Phillips and Matt Dempsey were on opposing teams, Tayabali Tomlin & White and McTear Williams & Wood respectively, at the Cambridge Leisure Park where all 28 lanes were filled with local businesses from accountants, solicitors and estate agents. Matt scored respectably and Oliver less so, but both struck out on the charity raffle as part of the Handelsbanken bowling event which raised more than £4,000 for its chosen charities.

 
Oliver then swapped his bowling shoes for a dinner jacket and joined Paul Dixon to try their luck at blackjack, roulette and wheel of fortune along with other COEL clients and contacts at 12a Club. Oliver was a winner last year but over-confidence was his downfall this time – John Russell of Cater Jonas taking the gambler crown with the most COEL dollars in his pocket at the end. It was a rocking night, with excellent company, music and food to accompany the fun (but professionally managed) gaming tables.

 

 

Limitations of Liability and the Unfair Contract Terms Act 1977 (UCTA)

Under UCTA any terms in a company's standard terms of business which seek to exclude or restrict liability need to be deemed reasonable to be upheld and be enforceable.

The High Court has recently decided that various limitations of liability in standard term contracts were unreasonable under UCTA. (Saint Gobain Building Distribution Ltd (t/a International Decorative Surfaces) v Hillmead Joinery (Swindon) Ltd).

The usual thinking is that limitation of liability clauses have a good chance of passing the reasonableness test if the buyer at least has some remedy, for example, replacement of the goods or a refund. If such remedies are available, then it is often considered reasonable to exclude any liability beyond what is commonly referred to as indirect or consequential loss.

In the present case, the judge was not prepared to accept clauses whose effect would deny the buyer of any remedy in certain circumstances, even if total denial would only occur in those circumstances, and a refund or replacement was available in other circumstances.

The case raises a number of old and new points for suppliers to consider:

• Where the UCTA reasonableness test is likely to apply, it is dangerous to exclude the implied statutory terms without offering something reasonable as an alternative, for example, a warranty of compliance with a written specification.
• It may be dangerous for a seller to exclude "all liability" in certain particular circumstances, even if some limited liability is accepted in other circumstances. The safer course may be not to exclude liability completely in any particular circumstance, but subject all different types of liability to an overall cap, covered by insurance, and expressed as a generous percentage of the value of the contract.
• It may be prudent for a seller to accept liability for some defined forms of loss that might otherwise be considered indirect and not recoverable, but again subject to an overall cap.

The decision in the present case is consistent with the view of some lawyers that a prudent rule of thumb is to employ drafting which results in the buyer ending up with at least a right to compensation that amounts to something like 125% or 150% of the invoice value. The case did, however, turn very much on the facts, and in other cases it has been held reasonable to cap liability at the contract price.

Dixon Phillips solicitors would be pleased to have an initial, no obligation discussion or meeting with any local business which has a query or concern about commercial law issues.

Snapped at Vodka Revolution

The Cambridge Professionals Network lunchtime meeting on Friday, organised by McTear Williams & Wood, was well attended.  This may have had nothing to do with the fact that we were sponsoring it this time and that Paul made a short speech.   However, this didn’t seem to put off the other lawyers and sundry accountants, bankers, IFAs and insolvency practitioners present.  The free food helped too!   Paul’s topic was the value or otherwise of making plans for things.  He thought it went down reasonably well and at least extracted a nervous laugh from the audience by quoting Mike Tyson “It’s fine for you to make plans but just wait until I punch you in the mouth!”  A bonus was that we got our pictures in the paper. 

 

Stand and Deliver

Google are doing it, Facebook are doing it and now Dixon Phillips are doing it!

We’ve decided that we sit on our bottoms far too much in this office so we now have sitting-standing desks!  Some studies suggest that sitting for long periods increases your chances of developing diabetes, cardiovascular disease and blood clots or thrombosis. According to some reports, men who sit more than 6 hours a day have a 20% higher mortality rate and women who do so have a 40% higher mortality rate. So we are on our feet and looking forward to the benefits of standing up more, including increased energy, alertness and productivity, as well as burning more calories … which means, of course, we can eat more biscuits guilt free!

On his feet: Paul Dixon at our new sit-stand desk

Do your Terms and Conditions work for you?

Terms and conditions are not often a priority for businesses, whether it’s creating new Ts&Cs for a new company or reviewing existing Ts&Cs for an established company. 

Here are a few of the main areas to consider when preparing or reviewing your standard terms and conditions of business. 

Avoiding a battle of the forms

It is important to establish whose Ts&Cs apply at the point a contract is formed, particularly if your business depends on a series of repeat orders.

The last party to put forward its Ts&Cs, which were not explicitly rejected by the other side, will be incorporated into the contract. It is important to make sure your Ts&Cs are included in the contract process before the contract is formed and to be aware of any Ts&Cs sent by the other party with any counter offers which could then apply instead of your own.

Dealing with conflicting terms

Each business deal may be different and not every term of the Ts&Cs may be relevant. Some standard terms could conflict with any specially agreed terms for a particular deal giving rise to doubt on what was actually agreed.

When a contract comprises more than one document (an order form/invoice and standard Ts&Cs for example) it is important to check that key terms across the documents, such as services to be provided or timings, do not conflict and, if they do, to provide that any special terms agreed (which should be clearly set out on the order form/invoice) will override the relevant standard term.

Indemnity warning

Indemnities (a promise to pay a particular amount should a particular liability arise) are a serious contractual protection which should never be entered into without proper thought.

You should usually resist granting indemnities, but try to include them in your Ts&Cs to protect you if there is a particular issue of risk. If you have to give an indemnity, try to cap the level of liability or limit the particular circumstances and time periods in which it applies so that any potential liability is clear and limited.

Right of termination

Thought should be given to how a business can end a contract if the relationship with the other side breaks down or you simply no longer wish to do business with them. This point can be covered by a termination clause setting out the circumstances which would allow this to happen.

At The Races

 

 

I had the pleasure of joining these lovely ladies at Newmarket Racecourse this month for Ladies Day. The sun was shining, the Pimms flowing and the hats donned. We fancied a flutter but as none of us were seasoned gamblers we carefully selected our horses based predominantly on name and jersey! The lawyers of the group decided to bet on anything that slightly resembled the law and we were thrilled when TUPI crossed the line a nose ahead of the competition! Thank you to Price Bailey Legal Services LLP for the invite and a fabulous day out.

Michelle joins the equity

We’re extremely pleased to announce that Michelle Oliver (aka Michelle Atkins, since she got married last year!) has taken a stake in the firm.  She is now a shareholder, as well as a director, alongside us (Paul Dixon and Oliver Phillips.)

 Michelle has been with the firm nearly 5 years and become a key member of it, not only serving clients but also in a management role, in particular helping to develop Lauren’s skills and in maintaining the firm’s good reputation with other professionals and contacts.   She has bags of common sense as well as being responsible in large part for the positive, friendly and mutually supportive atmosphere in our office.

 …  We think she’ll be bringing a cake in soon.

 Paul and Oliver