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In a ruling that helps to define the concept of balance sheet insolvency, the High Court has upheld a liquidator’s plea that payments made to a property company director were made at a time when the company was unable to pay its debts and were thus recoverable by creditors.
The company was hit hard by the crash in the Dubai property market in 2008 and was wound up on its own petition with a deficit of more than £1.2 million.
Fahmida Ismail, Partner, Sydney Mitchell LLP was the official Notary at the World Record Christmas Cracker Pull in Oozells Square, Brindley Place, Birmingham.
One of the most easily forgotten legal points when an action is begun to recover losses is that there is a general duty on the person suffering the loss to ‘mitigate’ (reduce as far as is reasonably possible) their losses. Failure to do so can limit the amount of compensation awarded.
When an equipment hire and sales company supplied a customer with a forklift truck that was too big to work in the available space, the customer rejected it and refused the supplier’s offer (which was made in general, not detailed, terms) to modify it so that it would be suitable.
When a care plan for children is agreed and there are conditions that apply, it is essential to make sure that these are complied with, as a recent decision shows.
When grandparents allowed ‘sneaky visits’ to their grandchildren by the children’s parents, contrary to the guardianship orders made by the court, the local council applied for the children to be removed from the grandparents’ care.
The case concerning the use of a competitor’s name in ‘keyword’ marketing for Internet searches has now been decided and the ruling has implications for those who use such practices.
The dispute involved Marks & Spencer (M&S) and Interflora. M&S had used ‘Interflora’ as a keyword in its Internet marketing, with the result that users who searched for ‘Interflora’ in the Google search engine would see M&S near the top of their search results.
A betting shop worker who was summarily dismissed after she was accused of ‘pocketing’ punters’ stakes which should have been refunded has succeeded in her unfair dismissal claim.
Yet another case should serve as a reminder to landlords of the need to ensure that all documentation is precisely worded.
When a notice was issued to a tenant, the landlord mistakenly used the wrong name (the name of a director of the company being substituted in error for the name of the company that was the landlord). The validity of the notice was subsequently disputed by the tenant.
The Upper Tribunal ruled that the notice was invalid because the statutory requirement to name the landlord had not been met.
A recent case serves as a reminder to organisations that handle personal data of the importance of following appropriate procedures when the need arises to destroy information held on computers that are no longer required.
Under the Data Protection Act 1998, a data controller is required to ensure that ‘appropriate technical and organisational measures’ are taken ‘against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data’. This is the seventh of eight data protection principles outlined in the Act.
Most Landlords of residential property will take a tenancy deposit at the start of an assured shorthold tenancy (AST). Tenancy deposits are a wise precaution against damage to the premises or to the Landlord’s furniture and contents, and against the possibility that the Tenant might leave rent or other money due under the AST unpaid.
When there is an overseas element in business structures, issues of jurisdiction can sometimes cause problems.
When a Jersey company was unable to repay a £6 million loan from its bank, advanced in respect of a property development in Kent, the bank and the director of the company agreed that a period of administration under English law would be advisable. It was intended that the period of administration would be followed by the sale of the properties.
When a building contractor faced a substantial claim regarding damage to its customer’s property in a development it had contracted to do, it naturally sought confirmation from its insurer that the claim would be covered by its public liability policy.
Adjudication of a construction dispute seems like a great idea – until you get an adjudicator’s report which is not to your liking. In such circumstances, it may be possible to litigate or arbitrate the dispute and, hopefully, settle it on better terms.
In a ruling which underlines the need for careful gathering of evidence in family cases, a grandmother who stepped in to care for her baby granddaughter after the child’s parents could not cope has triumphed in an appeal against an order placing the little girl in care.
The baby was removed from her parents’ home after the mother had threatened the father with a knife whilst he was holding the child. The mother had had a previous child taken from her by social workers and both parents accepted that the baby could not safely be left in their charge.
With the new-build property market picking up, sales of ‘off-plan’ properties will be expected to rise. However, a recent case shows that buying a property in this way has potential pitfalls.
It involved a couple who failed to complete the purchase of a flat due to the withdrawal of their mortgage offer whilst building works were still ongoing. As a result, they have forfeited their deposit and been ordered to pay compensation to the developers.
The Insolvency Service takes a tough line when a director of an insolvent company is found to have behaved in a way that was seriously prejudicial to the interests of creditors.
Recently, the director of an online jewellery company that took money for goods it could not, and should have known it could not, supply was banned from acting as a director for five and a half years.
When a GP referred a female patient to the local hospital for an urgent investigation, it should have led to her prompt diagnosis and treatment for ovarian cancer.
However, the referral letter was lost and, furthermore, the GP had failed to tell the patient that the referral was urgent. As a result, the operation she needed did not take place until several months after it should have done.
The judge concluded that the GP’s failure to advise the woman that the referral was of an urgent nature did constitute a breach of the duties owed by a doctor to a patient.
A dispute over software being developed for use by a group of hedge fund investment managers was never likely to be easy to resolve once a change of direction in the software development strategy took place without the appropriate consultancy agreement being finalised.
Householders whose homes suffered storm and flood damage reluctantly found themselves at the epicentre of a High Court case in which they defeated claims that they should be held personally liable to pay builders who carried out repairs.
A recent case (Park Cakes Limited v Shumba and Others) serves as a clear reminder that not every contractual term need be in writing and, where the individual facts support such a conclusion, obligations may develop over time as a result of ‘custom and practice’.
Your legal questions answered by Fahmida Ismail, Partner at Sydney Mitchell LLP.
Q. I live on a development of flats and houses. We have recently changed property management company, but because of a large deficit from the previous company the new one is asking for an extra sum from us. Is this legal, and do we have to pay? Most of us are up to date with our payments or even in advance.
A man who worked as a machine operator for many years has won compensation after suffering damage to his hearing.
When a separated couple appeared before the family court, having already spent more than 20 per cent of their combined wealth of £4 million on legal costs, the judge felt it necessary to warn them of the danger of dissipating their assets.
The couple met in Singapore and married there in 2009. Three years later, they separated and the wife took their son to live in London, where she works.
When a woman who worked as a cleaner for a bus company in Maidstone, Kent, impaled her foot on a metal splinter at work, she could not have expected that the incident would leave her near to death and her leg needing to be amputated.
The injury happened in the engineering depot when she alighted from a bus that she had just finished cleaning. The bay had not been properly swept and, not noticing a pile of metal debris, she stepped onto the spike, which pierced her shoe.