Category Archive: Industry News

1. Recent court case demonstrates why incorporation of terms and conditions matters

   June 29, 2021 12:07 pm Leave a Comment

   A recent High Court case, concerning, amongst other things, whether or not the supplier’s standard terms and conditions were properly incorporated into the contract between the parties, has demonstrated the need for careful drafting of standard terms and conditions.

   Phoenix Interior Design Ltd v Henley Homes plc [2021] EWHC 1573 (QB) was a lengthy court case involving a number of complex legal issues, including in respect of the reasonableness of an exclusion from the warranty for goods and services supplied.

   The claimant – an interior designer – sought to bring a claim against unpaid invoices from the defendant for monies owed in connection with goods supplied and services rendered in relation to the refurbishment of (what the defendant claimed was) a five-star hotel in the Scottish Highlands.

   The claimant asserted that the balance outstanding from the defendant comprised one half of the agreed price under the contract between them. However, the defendant counterclaimed that the goods supplied were defective. The defendant further argued that, as the last half of the price was payable on completion and (in their opinion) performance was defective, completion had never occurred and the remaining half of the price had never fallen due for payment.

   In relation to the standard terms and conditions, the initial question arising was whether the claimant’s standard terms and conditions had been incorporated into the contract between the parties. Here the court referred to an earlier (2006) case for the test for incorporation with the question as to whether terms and conditions had been properly incorporated into the contract between the parties depending “on whether that which each party says and does is such as to lead a reasonable person in their position to believe that those terms were to govern their legal relations’. The court also considered whether the claimant, in issuing its standard terms and conditions, had done all that was reasonably sufficient to give the customer (the defendant) notice of those conditions.

   Having been handed to, and later emailed to, the defendant, the court concluded that the claimant’s terms and conditions had been incorporated into the contract. The High Court further held that the claimant was able to recover almost all of the remaining amount of the contract price due to it, due to the successful arguments in respect of the reasonableness of its terms and conditions and the factual circumstances around the claim itself. However, this case serves as a cautionary tale to suppliers of goods and services to ensure that they provide a copy of their terms and conditions before the contract is formed and not merely after the fact – for example, on the back of the invoice.

   If you require advice on your business’ standard terms and conditions and the proper incorporation of the same, or you wish to have your terms and conditions reviewed by one of our specialist corporate and commercial law solicitors, contact us by telephone on 01782 652392 or fill out our contact form here https://tinsdills.co.uk/business/company-commercial/

2. Solicitors Services Deemed Most Satisfying in Significant Survey

   March 10, 2020 3:48 pm Leave a Comment

   If you need an indication of just how vital solicitors are in helping people every day, look no further than this large survey by the Legal Services Board & the Law Society – the largest one of its kind.

   Overall, the survey shows that the service given by solicitors continues to be held in the highest regard. However, there are lessons to be learned too, and ways in which we can continue to reach out and help potential clients. The research shows that almost 1 in 3 people who come across an issue will either want further help, wait 2+ years for a resolution, or not look for help at all.

   This survey shows us the views of some 28,633 members of the public, having been based around YouGov data from February and March last year (2019). It is the first to utilise OECD guidance regarding how we conduct surveys on legal needs, segmenting people by income and the extent to which consumers are equipped to make decisions.

   Solicitors Come Out on Top

   Perhaps the most significant fact we can pull from this survey is that solicitors rank highest when it comes to people being truly satisfied with their service. 9 out of 10 indicated that they were satisfied with the service they were given by a solicitor, and 84% believed that they had received value for their money. People who sought out professional help were much more likely to get what they feel was a fair result – 66% of people who got the help of professionals were satisfied with the result.

   The worst ratings were reserved for providers that are unregulated. 1 in 5 said they were dissatisfied with the service they were given by these places.

   On the whole, 2 in 3 people had come across legal issues over the previous 4 years. A massive portion of these were deemed to be contentious. The breakdown for these is as follows: professional or faulty goods or services (26%), a neighbour’s anti-social behaviour (14%), buying and selling property (11%), employment issues (11%) and wills (11%).

   Of all the places and professions people sought advice from, solicitors were the most likely to be consulted by the public – with 30%, or even higher at 40% for issues considered contentious.

   

   Legal Stats for the Ages

   As tends to be the case, older people proved more likely to seek out a solicitor. 4 in 10 people at 65+ stated that a solicitor was their main source of advice, which fell dramatically amongst 30-49 year-olds at 26%, and further still with 18-29 year-olds at just 18%. This is due to young people choosing to seek out help outside of professional circles.

   The majority of people did not pay for the service of their advisor first hand. Most of these people (49%) got their advice for FREE, whilst another 7% got theirs through an insurance provider or family & friends.

   Just 1 in 5 people who were provided with professional advice looked around at alternative options.

   That being said, the majority of people who used a solicitor looked at two providers or more, at 57%. Meanwhile, 1 in 10 explored four or more.

   Of the few reasons given for any lack of satisfaction with the service given by a legal professional, none related to price but instead a sense that their designated adviser had not done enough (32%) or that they took too much time to do their job (31%).

   The Case for Legal Education

   The study also discovered a link between legal capability and the outcomes of cases – indicating once again a need for stronger education when it comes to legal practices. People with less legal knowhow and lower-income understood their individual rights far less, and thus were also less likely to look for professional help. In turn, this resulted in the majority feeling dissatisfied.

   9 in 10 adults believe that legal aid is good, but of the people earning £32,000 or less who were eligible for this aid, 85% mistakenly believed themselves to not be eligible. Further to this, those with more legal ‘confidence’ were more likely to know their rights than those with less.

   Another issue that proved to be somewhat common is a lack of understanding regarding regulation. 1 in 3 people were unsure of whether their adviser was regulated, or in some cases did not check at all. The majority just assumed they were regulated. Again, this is an issue that further legal education would look to fix going forward.

   If you are looking for expert legal advice, then look no further than Tinsdills Solicitors. Feel free to give us a call today on 01782 652300. Alternatively, you can drop us an email at enquiries@tinsdills.co.uk. We look forward to hearing from you.

3. Another Law Firm Bites the Dust

   March 2, 2017 12:43 pm Leave a Comment

   – Does Anybody Care?

   Since the introduction of the Legal Services Act and the liberalisation of the rules around ownership of law firms, we have seen a considerable change in the way that law firms operate in the UK, and the recent relaxation of the rules regarding separate businesses introduced by the Solicitors’ Regulation Authority (SRA) will no doubt change things further.

   Over the last 9 years we have seen significant mergers of existing larger law firms in their attempt to retain their market share in the face of increased opposition. We have also experienced existing law firms selling out to venture capitalists, established legal brands from other countries setting up in the UK with a view to dominate the market and, of course, the setting up of new firms, and the setting up of alternative business structures (ABS) attempting to introduce novel and inventive ways of delivering legal services as a way to gain a foothold in the market.

   Any new business or change in the way in which an existing business operates carries its own risks, whether it be a significant culture clash following a merger, or a business model that looks attractive on paper but in practice proves to be exactly the opposite. Where venture capitalists’ money is involved, their voracious appetite for a return on their investment often results in firms having to significantly expand quickly (and probably invest all profits made in the interim to do so) only for the business to be sold on for a profit (with a healthier balance sheet) in the fairly short term. Whether or not such quick expansion or growth in a mature legal market is sustainable in the medium or long term remains open to question.

   On the basis that some of these new and “exciting” legal ventures are established purely for short term gain, rather than providing high quality legal services to clients who they intend to look after and nurture for the future, it is no surprise that there is a significant attrition rate amongst these firms and with any such failures there will be losers. However, to go back to my initial question – does anybody really care if that is the case?

   The public’s perception of lawyers has never been good, and this can only be harmed further by the publicity given to the demise of law firms which not only are likely to attract significant media coverage (Halliwells and Parabis being good examples of this) but are also likely to increase public concerns as to whether or not lawyers are actually putting their clients interests ahead of their own.

   In March 2016 the SRA’s Chief Executive Paul Phillip was reported as saying that if a large firm collapsed, he would expect the market to pick up the pieces rather than leave it to the regulator to sort out – in effect what mostly happens in these types of cases through a pre-pack administration. Apart from the entity who acquire the assets of a firm under such an arrangement (which sometimes is those quite closely connected with the firm that has collapsed), everyone else loses out. The staff still lose their jobs, unsecured creditors lose their money (just look at the recent example of Triton Global where it was reported unsecured creditors would face a shortfall of almost £4.9 million) and clients have to find new lawyers to deal with their ongoing or new legal matters.

   As a lawyer myself, although I run a business I also feel that I am a member of the “legal profession” and part of my duties as a lawyer, and manager of a legal firm, is to protect clients’ interests – and the SRA Code of Conduct confirms that. The best way to do this, in my view, and to try to maintain clients’ confidence in the legal profession, is to be able to answer three client questions in the affirmative:
   1. Yes – we are still here
   2. Yes – we still hold your original documents which have not been packed up and stored somewhere in an administrator/liquidator’s warehouse or sold
   3. Yes – we can provide you with the further legal services that you require.

   You may call my view conservative, with a small “c”, but it has always been our plan to build up our firm on a regional basis, not only providing excellent legal services (which clients take as a given) but also helping to support clients, either corporate or individual, on an ongoing basis. Clients want the security of continuity whether it is a client wanting to make a new Will or buy a house, or corporate clients who want to change their Shareholder Agreements. Do not think for a minute, however, that our firm hasn’t significantly changed its internal structures, the legal services that we offer and the way in which we deliver them. If you stand still, particularly in this ever changing legal environment, you will go under. A balance has to be struck and in our view that’s served best by evolution not revolution.

   I am sure that in addition to those firms who have, themselves, reported to the SRA that they may be in financial difficulties or have other reasons to suspect that their businesses may be failing, the SRA operates its own internal “watchlist”. In my view the SRA themselves should care if legal service providers fail. They should do all that they can to assist firms to prevent that happening rather than leaving it to others to sort out.

   It may only be a matter of time before what is perceived by the public as a large legal firm collapses – more likely to be a perception based on media branding than actual size– and to expect that not to have significant consequences in so far as the public’s confidence in legal firms is not, in my view, realistic.

   Liberalisation comes, not only with opportunities, but also threats. Let’s hope that going forward more care is taken to ensure that business models of new style firms are sustainable in the long term rather than predicated to short term gain.