More News Posts


Relief from Sanction

Following my appearance recently in the Manchester High Court in the Mercantile Division, it is worthwhile noting HHJ Bird’s judgment regarding an application by the Defendants for relief from sanction under CPR 3.9.  There has been a great deal of coverage of cases since the amendments to the civil procedure rules in 2013.  The cases of Mitchell and Denton continue to dominate as authorities.

The particular facts of this case were that the Defendants had failed to file and serve its witness evidence in accordance with the case management directions three months earlier.  This followed some earlier minor breaches of the directions.  Prior to the substantive breach, the Defendants were in a dialogue with the Claimant’s solicitors regarding the provision of the disclosure.  There was a convoluted discussion over a number of weeks regarding each Defendant providing a written undertaking for photocopying the requested disclosure.  The Claimant finally provided the disclosure the day before the expiry of the deadline for service of witness evidence.

Five days after the deadline, the Claimant wrote to the Defendants and informed them they were in breach and would now be barred from relying on any witness evidence on the claim or counterclaim.  The Defendants were litigants in person and wrote to the Claimant seeking an extension for service, but this was refused.  Five days later, they made an application for relief from sanction.

HHJ Bird applied the three stage from Denton.  It was clear that the Defendants were in part the authors of their own misfortune by missing a series of deadlines by a small but important margin.  They had not made any application for an extension before the expiration of the deadline and it was not made very promptly post-expiry.  

However, equally he was less than impressed with the conduct of the Claimant.  It turned out that the reason for the delays in service of the disclosure was an absolute requirement by the Claimant for each of the Defendants to sign an undertaking for payment of the reasonable photocopying costs.  These amounted to approximately £23 + VAT.  The Judge remarked this equated to less than six minutes of billable time by the solicitor acting for the Claimant.  He also recognised that it was unrealistic for the Claimant to have expected the Defendants to have filed and served their witness evidence by the deadline and that as they were unrepresented, could have prompted an extension application.

The application was granted with an unless order and costs sanction for the Defendants.  The matter is listed for trial in 2016.

If you would like assistance with your commercial or business law matter, please call Marcus Croskell for your free initial advice by calling 0843 8862603 or by emailing him HERE.

Lawyer, High Court - Marcus Croskell

VW Group 'Dieselgate' Scandal

You can now check if your car is affected by the VW Group 'dieselgate' scandal by submitting you vehicle identification number (VIN) on a dedicated website for your brand of car as follows:


Audi - http://ow.ly/T6Y7o

VW - http://ow.ly/T6Yb6

Skoda - http://ow.ly/T6YeS

Seat - http://ow.ly/T6Yla

 

Parties are already preparing to begin litigation after it has become clear that although economy is unaffected, the pollution levels are and this will likely effect vehicle prices. VW are recalling over 10 million vehicles worldwide of which the UK market is a huge proportion of that.  It is proposed that they will be making adjustments to the vehicles to bring them back in line with the testing figures.

Even if you car is not one of the particular engines involved, your vehicle may have been devalued by the substantial loss of faith in the VW Group brands.

Endorsement in 2015 Legal 500

Last week saw the publication of the 2015 Edition of the Legal 500 and I am pleased to announce that I have been listed as a leading junior barrister for the second year in a row.  The Legal 500 is a leading publication that solicitors and clients look at to see the ranking and recognition of any particular lawyer.  I have been recognised in the South East of England as being a leading junior barrister in commercial, banking and insolvency.  

The Legal 500 researchers speak to solicitors and other parties to find out information from independent parties regarding a particular barrister and lawyer.  They then complete the rankings and provide comments from those solicitors in the publication.

In the 2015 Edition, it quotes that I am known for “…mastering complex facts quickly and assists with developing strategies."

I remain a part of EA Law - East Anglian Chambers and I am also pleased to say that my barrister chambers are ranked as a Top Tier and Leading Set on the South Eastern Circuit.  Once again this is a benchmark for the quality of the lawyers and staff at EA Law - East Anglian Chambers.

A ‘junior’ barrister is every barrister who has not been awarded the rank of Queen’s Counsel (known as “QC” or someone in “silk”).  Only a small proportion of the profession apply and if successful, attain the grade of a QC.  To be a QC is the highest recognition in the legal profession of one’s skill as an advocate and lawyer.  The application process costs the individual applicant in excess of £5,000 with no guarantee of success or work at QC rates thereafter.  If a barrister elects to not apply for silk, that does not mean that that those that remain as ‘junior barristers’ are any less worthy.  In the modern competitive age, it is often more attractive and cost effective for businesses and individuals to instruct a effective and well-known junior.

If you would like assistance with your commercial or criminal case, please contact Marcus Croskell on 0843 886 2603 or by email HERE for your initial free legal advice.

Keeping Out of Court – The Growth of Alternative Dispute Resolution

Not every consumer or business dispute needs to go to court. Experienced business dispute lawyer Marcus Croskell frequently helps his clients in Norfolk, East Anglia and London to avoid unnecessary court cases, ultimately saving time and money while achieving an agreeable settlement. Resolving disputes through negotiation, arbitration, mediation or other processes all come under the heading of Alternative Dispute Resolution (“ADR”). Lawyers, including direct public access barristers, are often involved in these cases and help to prevent them from ending up in the courtroom.

Courts are increasingly requiring those involved in a range of disputes to attempt mediation, for example via round-table discussions, before deciding to go ahead with a case. Now use of ADR looks set to become even more widespread in the future, since the Government wants to encourage this route and has introduced a new regulatory regime.  The Courts across the country and on appeal in London have been keen to penalise parties to litigation that unreasonably fail to engage in ADR or some form of mediation prior to and after commencing proceedings.

ADR Regulations 2015

New ADR regulations are coming into force from 2015 onwards. Under the first set of rules, which came in from July, all businesses selling to consumers will have access to a certified ADR services provider within their sector. The Government says it aims to make ADR services more consistent and raise quality by certifying providers.

The new regulations do not make it mandatory for businesses to agree to ADR, but from October 2015 onwards there is a new information requirement for traders. This means that, in the event of a dispute, they will have to give consumers the details of a certified ADR provider and say whether they intend to use that provider's service 

There are some types of regulated business where use of ADR is already mandatory to settle disputes, for instance in the financial sector and for companies belonging to some trade associations, and this will continue to be the case. It's important for businesses to be aware of the new regulations and the Department for Business, Innovation & Skills has issued detailed guidelines on how to comply. 

By way of example under the pre-action protocol for disputes involving construction and engineering, the parties are expected to have obtained experts reports on each side’s position and talked prior to issuing proceedings in the county court or the specialist Technology and Construction Court (part of the High Court).  The pre-action protocols have been developed by the senior judges to guide parties through the litigation process in a predictable and organised fashion to reduce costs.  Failure to do comply with pre-action protocol may result in sanctions including an immediate stay of proceedings to ensure the claimant complies with the pre-action requirements or later on it may result in a penalty in costs.  These types of disputes can be over a few thousand pounds to multi-million pound developments.  Therefore the potential loss of one’s own costs can be in the tens or hundreds of thousands of pounds. 

Parties ignore these provisions at their own peril.

Reasons to Use ADR

Alternative Dispute Resolution can be a good way to settle disputes because it is typically cheaper and quicker than going to court, which can be a drawn-out and time-consuming process. Disputes can often take up a lot of staff time for a business, if their customer care departments have to have long discussions with the consumers concerned, so referring a case to ADR can help to free up star time.

As well as the advantages in terms of speed, there is greater privacy, since negotiations of this type are carried out behind closed doors rather than in public. This also helps to make the whole process of seeking a resolution less stressful. In addition, resolving a dispute via ADR can mean there is room to be more flexible and the parties can have greater scope to find a solution that is acceptable to them rather than it being imposed by a court.

Another reason to consider using ADR is that if you refuse to consider mediation and go straight to court, then you may potentially find the court penalises you for this decision.

How Does ADR Work?

The procedure for mediation can vary depending on the ADR provider being used, how complicated the dispute is and various other factors. However, in general, after agreeing to use a mediator, the parties involved will provide one another with summaries of their cases, together with supporting evidence, and will also supply this to the mediator. Evidence will need to be prepared in advance.

After the mediator introduces themselves to the parties, he or she will aim to facilitate an agreement or solution. This may involve an initial joint meeting followed by meetings with the different parties separately. Once an agreement has been drawn up and signed by the parties to the dispute, it will be binding on them.

It can be very helpful to have legal representation from an expert contract dispute lawyer during the ADR process, especially if the issues that you are considering are complicated. Having the benefit of legal advice and representation will help you to focus on your wider interests and ensure that you reach a workable settlement.

Marcus Croskell – Business Dispute Lawyer

As a specialist business lawyer, Marcus Croskell has extensive experience of ADR, including contractual dispute resolution, and has represented many small and medium businesses in this type of dispute. He can advise you on the best approach and work with you to reach a satisfactory solution without the need for court appearances.

If you are looking for a business dispute lawyer in Norfolk, Cambridgeshire, Suffolk, Essex or London contact Marcus Croskell now at EA Law – East Anglian Chambers for a free initial phone consultation on 0843 8862603 or EMAIL HERE.

New Consumer Rights Legislation – What Will It Mean for Businesses and Customers?

The new Consumer Rights Act 2015 (“the Act”) will see an overhaul of consumer protection laws in the UK. This means various existing pieces of legislation are being brought together and included in a new framework. It's also claimed that the updated law will simplify the rules for consumers obtaining refunds and any replacements consumers will be entitled to.

With most provisions of the Act coming into force from 1 October 2015, it's essential for companies in East Anglia to take action and ensure they bring in the consumer protection measures stipulated. If you are a business affected by the changes, reviewing your procedures now can help to guard against potential problems later.

At the same time, customers also need to be aware of their rights under the new law and make sure they apply for repairs, replacements or refunds within the relevant time limits. Here is a brief look at some of the main areas covered in the Consumer Rights Act 2015. However, if businesses or customers do run into legal problems over the new act or any other consumer issue, then it is essential to obtain expert legal advice from an experienced business lawyer, such as Marcus Croskell, who has clients in the Essex, Suffolk and East Anglian region.

Supply of Goods

The law sets down requirements for the expected standard of goods, which must be of “satisfactory” quality. This means they have to meet the expectations of a “reasonable” person in light of relevant circumstances, such as the price and product descriptions (sections 9 to 11 of the Act). This is nothing new, but it is now codified and condensed into one piece of legislation.  The Department for Business, Innovation and Skills (“BIS”) has issued guidance to businesses, which explains that, for instance, budget items are not necessarily expected to be of the same quality as more expensive alternatives – but they are still expected to work and to be fit for the purpose they were sold for.

For goods sold in a shop, there is normally a right for consumers to reject the item within 30 days if it is faulty or unsatisfactory and receive a full refund (section 22 of the Act). If a fault develops after the 30-day period but within six months, the consumer has a right to a replacement or repair. However, if the item can't be repaired or replaced, then in most cases there is still the right to a full refund.

Between six months and six years after purchase, if a fault develops, the customer could still be entitled to a repair or replacement, or to some money back, depending on how long that type of product is normally expected to last. 

The same time limits apply for faulty goods bought at home, for instance via the internet which are sometimes referred to in legal parlance as goods or services subject to distance selling. However, with most types of product, there is also a 14-day window or ‘cooling-off period’ where customers are allowed to send goods back if they change their mind, even if they aren't faulty – for instance, if clothes don't fit.

Supply of Digital Content

This is a relatively new area, but has become increasingly popular over recent years, with many goods, such as apps and games, being provided via the web and to our smartphones, tablets, consoles and computers.  With the further expansion of video on demand (“VoD”) from providers like Netflix, Yahoo, Amazon, etc, this is an expanding area of law and litigation.

Companies supplying digital content need to be aware of consumer rights under the new law, which lays down that, as with physical items, the digital goods must be of satisfactory quality, as described and fit for purpose.

If digital content is faulty, the customer is entitled to a repair or replacement, and if it cannot be put right within a “reasonable” time they could be able to claim part or even all of their money back. Under some circumstances, there could also be a right to have their device repaired and get compensation if the digital content has damaged it (sections 42 to 45 of the Consumer Rights Act 2015).

Provision of Services

The new law also sets down expectations for provision of services, saying they need to be carried out with “reasonable care and skill”, and that if this isn't the case the contractor can be asked to put things right or give a partial refund. If a delivery time and/or price hasn't been agreed in advance, then these too have to be “reasonable”. In addition to this, for services paid for at home rather than in a shop, in most cases there is a right to cancel within 14 days.

This section will likely have wide ramifications as section 48(1) of the Act states that it applies to “a contract for a trader to supply a service to a consumer.”  Therefore, this will equally apply to the provision of supplies of all trades such as builders, plumbers, carpenters, decorators and professionals.  However, it is important to note that the supply of services to a business is excluded.  Business leaders are expected to essentially know better and enter into any business relationship with their eyes wide open.

Under the old legislation, Marcus Croskell recently acted for a builder that constructed a large extension to a property.  The consumer was unhappy with the build quality and she used the similar provisions under the old legislation including the Supply of Goods and Services Act 1982 to bring a claim.  Marcus assisted the builder bring a counterclaim for non-payment of his final invoice and the consumer ended up walking away with no further work done to her property and a bill for over £40,000 paying her own legal costs and damages to Marcus Croskell’s client.

What Should Businesses Do to Comply?

As a starting point, BIS is suggesting companies display its “point of sale” information to inform customers of their rights. This isn't an obligation but they are hoping businesses will do so. As well as this, companies need to go over all their terms and policies to ensure they comply with the new Act. This includes contracts, since the new law also covers unfair terms in contracts. Key terms must be clearly displayed and staff must be trained in what's required.

The BIS guidance to help small business owners implement the new law includes a lot of detail, but if you are in doubt about anything, it's a good idea to seek legal advice. In practice, no matter how careful you are to comply, various types of dispute could arise. For instance, the BIS guide says that it will be “ultimately for the court” to decide whether goods are satisfactory.

If you are involved in a consumer legal issue or contractual dispute which needs resolution, direct access barrister Marcus Croskell can help. As an expert business lawyer, he has represented many clients in Essex, Suffolk, Norfolk, Cambridgeshire and London. He can provide advice and legal representation, both via mediation and negotiation and if a case ends up in court. 

Contact him for a free initial legal enquiry on 0843 8862603 or by EMAIL HERE.

Criminal Justice and Courts Act 2015 - The New Changes

A number of major changes to the criminal law in the UK have been made under the Criminal Justice and Courts Act 2015. These include changes to sentencing rules and the creation of new criminal offences – it's likely many more people will face custodial sentences and also that some sentences will be longer.  Surprisingly, this was the product of the dying hours of the last coalition government between the Conservatives (who tend to advocate harsher punishments) and the Liberal Democrats (who tend to push for sentences in the community where possible).

As a criminal lawyer and direct access barrister representing many defendants in criminal cases, Marcus Croskell keeps a close eye on changes to the law and implications for the public. Here is a look at some of the changes being brought in under this law, which was drawn up under the previous Coalition Government and is now in force.

Changes to Sentencing

A number of changes under the law involve tougher sentences including:

Knife Possession: The new 'second strike' knife possession law applies to anyone aged 18 or over caught with weapon for a second time and carries a minimum 6-month sentence, with the possibility of up to 4 years imprisonment.  Marcus Croskell dealt with one of the first cases in the country caught by this legislation with a client caught in possession of a knife two days after the legislation came into force in July 2015.  The particular young man had previously been caught with a cosh and prosecuted for being in possession of an offensive weapon.  In July 2015, he was caught after midnight with a knife in his pocket which he was using to scrape paint out of his graffiti can (an activity which he did legally in designated areas in Norwich).  The knife was simply found on his person upon a stop and search by police and at no stage was it produced or brandished.  The consequences under the second strike law is that he now faces the prospect of a mandatory six months. This new law is designed to stop people carrying knives but I fear it might lead to an extra burden on the prison population and experts predict that a 1,000 people will likely be getting mandatory custodial terms.

This is similar to the 'three strikes' law for burglars which has applied since 1999, meaning that people convicted of a third burglary will receive a minimum 3-year sentence unless there are special circumstances as explained on the Criminal Law Blog.

Changes to Cautions: There will be less use of these in future as they are being banned for serious offences and the police will be prevented from using repeat cautions for less serious offences.  It has been noticeable since the credit crunch, under the later stages of the labour government and those since, that the police have been using cautions as a way of disposing of cases in a quick and cost-effective way.  However, this by no means guarantees justice.

In a civilised society, cost should not be the only factor influencing whether or not a person is cautioned.  I have seen first time offenders being unreasonably offered cautions for very serious offences including rape and grievous bodily harm.  In my view this is all driven by pressure on police officers to get results (thereby increasing their positive statistics), rather than protecting the public.  Hopefully, this legislation is the long awaited turn around in policy to make sure the victims of crime are put first, rather than pure public finances.

Other Changes: Longer sentences are being imposed for causing death by driving while disqualified. In addition to the above change, child rapists and terrorists will only be released early if a parole board rules that they no longer pose a danger to the public. 

New Offences

Several new criminal offences have been created and these include those involving behaviour in the digital arena. These include:

·      New offence of revenge porn – This sounds like an American term but it poses a very serious problem for society. Those familiar with the internet and forums, comment sections on websites, blogs and social media will know that the anonymity of the internet offers people the chance to comment without the perceived threat of retribution.  However, this is a fallacy.  Two years ago, Ryan Giggs stopped a leading newspaper from publishing an article about his extra-marital affairs.  However, those on Twitter were quick to name the person, which put them in breach of the super injunction.  Those people have now been tracked down and are being brought to court for contempt of the court order and could face prison.  This should act as a warning to anyone using the internet to get revenge or to make vicious and malicious comments; the internet does not provide the protection that it may at first blush appear to do.  However the more pernicious side of online trolling is the use of images and video from relationships that are then used in a malicious and belittling way by ex-partners and so-called friends.  This new law makes it an offence with punishment up to two years.

·      The general offence of online ‘trolling’ was already an offence under the Malicious Communications Act but now has an increased sentence of up to two years.

·      Extreme pornography showing images of rape is created as a new offence

·      Four new criminal offences of juror misconduct – These include researching cases on the internet and sharing the information with other jurors, plus other offences.   Jurors are always given a clear warning by the judge at the beginning of each case and prior to retiring for the deliberations not to go onto social media sites such as Facebook or similar or to pursue any avenue of independent research.  This jeopardises trials as the parties have no idea what they have seen, whether it is a correct or incorrect state of affairs, and no idea whether it complies with the rules of court.  The jury must decide the case on the evidence put before them by the parties.  If they now go off on a frolic of their own there are new penalties in place.  Recently a juror who was in recess deciding verdicts with her colleagues contacted a Defendant on Facebook after they the jury had  acquitted him but were still deliberating upon the verdict of his co-defendants.  She received new and unfiltered information from the defendant that she passed onto the jury.  This may have resulted in the victims not getting justice or alternatively an acquittal that was not justified.  Happily, the judge was made aware of the contact but she went on to face a term in prison.

·      Causing serious injury by driving while disqualified – The courts have historically treated those that breach a court order by being disqualified very severely with automatic prison sentences for repeat offenders. However, this new law makes is inevitable that a substantial prison sentence will result.

·      Finally, the Act has created a new offence of remaining unlawfully at large following a recall from licence – Being on licence is the period of a prison sentence that a person is released prior to the full term.  The basic rule is that a person serves half their sentence in custody and the remainder in the community.  For instance, a person subject to a four-year sentence will serve two years in prison and two years on ‘licence’ in the community.  If they breach their licence by failing to comply with the terms that are set by the parole board and probation service, or commit a further criminal offence in the operational period, they will be liable to recall to custody to serve all or part of the remaining part of their sentence.  Marcus Croskell has historically represented many prisoners before the parole board who are subject to recall, trying to secure their release before the expiry of the substantive sentence.  This new legislation creates a new and separate offence of absconding when subject to recall.  Marcus Croskell recently represented a prisoner at HMP Bure in Norfolk who would have committed this offence as he was notified of his recall and then hid, albeit for only four days, before giving himself up.  This could result in a consecutive sentence to the period of recall and prevent the parole board from releasing the person before the end of the substantive term of the main sentence.

If you face a criminal charge, it is essential that you have professional assistance from an expert.  You may be eligible for legal aid and Marcus Croskell can refer you, where appropriate, to a recommended solicitor to help you with your case.  If however you wish to pay privately because you cannot get legal aid (because of your income), criminal lawyer Marcus Croskell can assist you at every stage of your case.

If you would like assistance, please contact Marcus Croskell for your free initial legal enquiry on 0843 8862603 or EMAIL HERE.

Marcus Croskell represents people in all types of court and is an expert criminal barrister.  He has dealt with a whole range of different types of case and can advise you all through the whole process, giving you expert guidance on how the justice system works.

Advice for Professionals Accused of Negligence

Successfully protecting yourself against a claim for professional negligence involves far more than simply having the right liability insurance in place.  For most professionals in Norfolk, Suffolk, London or elsewhere in the UK the real concern is the real risk of damage to your professional reputation, which may harm your business for years to come, or even prevent you practising altogether.  Therefore, it is important you have access to a professional negligence lawyer who can assist you to prepare your defence and represent you effectively, either in court or in negotiations with the complainant’s lawyers.

I have experience of acting in cases involving solicitors, accountants, surveyors, healthcare professionals, etc.  Representation may be needed for a number of scenarios including any claim through the county court and/or a tribunal for a professional body. This may include a disciplinary hearing before the General Medical Council (GMC), the Nursing and Midwifery Council (NMC), the Law Society, etc.

What's Involved?

For a claimant to be successful in bringing a claim for professional negligence, they must show not only that you were negligent, but also that the negligent act caused them loss.  This takes different forms depending on the type of service being offered by the professional.  For instance, an allegation against a doctor may involve the improper provision of a type of drug.  The claimant in those circumstances would not only need to prove that the administering of the drug was incorrect, but that negligent act and breach of duty, caused some sort of loss or harm.  This same test will apply to other professionals such as surveyors, dentists, nurses, etc.

Case Management

I can assist with every stage of the case from the response to the letter before action to the trial itself at court, or before the disciplinary body.  These types of cases often involve voluminous quantities of paperwork arising from documents created in or around the time of the purported incident and potentially following the allegation with any investigation that takes place by professional bodies, the employer and independent experts for court.  Assistance can be provided with negotiation of any settlement if appropriate and if required, representation in court.  Professional negligence cases are often complex and involved.  It is the very nature of a profession that they are persons providing a service based on their knowledge gained from completing their qualifications and industry experience. 

Hands on Experience

I am currently involved in an action against a large national firm of solicitors that have accepted breach of their duty of care to my client.  I was only instructed after they had lost the trial in the county court and I am currently acting for them in the Court of Appeal in London, trying to rescue the matter following that loss.  I am also instructed to advise on the professional negligence case.  The failure of their former solicitors was a breach of tort of negligence and clearly in breach of their own professional standards set down in the solicitors' code of conduct. However the issue does not end there as to prove negligence a claimant must show a causal link between the negligent act and any loss, plus that the loss must be reasonably foreseeable. 

In my case, the issue that is being contested is the impact that their negligent act had upon the trial and what loss of chance was created by that act.  This last point is often a key feature of professional negligence cases.  Unfortunately, mistakes are made by people in their jobs.  Often the issue will be the importance and impact of that mistake.  Sometimes, the only way of doing this is in a hypothetical way and the court will calculate on a percentage basis your loss of chance and reduce any damages that may have been awarded had the claimant been successful accordingly.

Free Initial Enquiry

I have advised clients in East Anglia and London regarding breaches of their professional duties and often appear across the country in court.  For instance, I am due to start a three-day trial next week in Swindon County Court.  If you or your business requires some straightforward advice for an allegation being made against you or one of your employees, servants or agents, then please get in touch for your free initial legal enquiry. 

I can be contacted on 0843 8862603 or by EMAIL HERE.

Professional Negligence Lawyers Norfolk – If you need professional expert advice with your legal problem for your business or in a private capacity, contact Marcus Croskell for access to quick and straightforward advice and representation.

Why Businesses Avoid Lawyers?

Many businesses, especially small and medium enterprises (“SMEs”), tend to avoid choosing legal proceedings as a way to resolve issues if they can help it, fearful of the monetary costs it might involve, as well as issues around public reputation and the time it might take.  Here experienced commercial lawyer Marcus Croskell takes a look at these three issues and considers when hiring a lawyer to deal with a business issue may or may not advisable.

Financial Costs

Businesses are often reluctant to enter into litigation as it brings with it a fear of spiralling costs if case takes a long time and a fear of losing which would mean they have to pay other side's costs and/or damages.  These are not ridiculous ideas and litigation can be expensive.  However, most will not be taking on a Russian oligarch costing millions of pounds as in the Roman Abromovich High Court case against Boris Berezovsky.

The reality is that most cases settle pre-issue or before trial.  Both sides have to consider it on a commercial basis.  Hiring a lawyer to help with this process does not automatically mean it will go to court and trial.  The judicial process encourages parties to talk or mediate at an early stage to save on costs for the parties and the public expense of running a court. 

A lawyer can help you assess whether you have a good case and/or whether the case is commercially viable.  A commercial lawyer such as myself can assist you reaching an agreement and settlement out of court, drafting terms that the parties can agree on to end the dispute, thereby saving money and the stress of going through the litigation.

Reputation

Parties have many reasons for going to court.  In cases of non-payment by customers, the impact on reputation can actually be positive as other customers will get the message that you do not have limitless patience with unpaid invoices and require payment for your goods or services within a reasonable period of time.  In serious cases involve large non-payment of debts, reputation can become secondary to viability of the company due to cash flow problems.

Equally they may have valid reasons to resist entering into a contentious court battle.  I am currently involved in a High Court case in the Mercantile Division before HHJ Bird QC.  I am acting for a partnership that is being sued by a large national chain for six-figure sum.  The Judge warned at the first preliminary pre-trial hearing that the parties should talk and avoid a trial.  He particularly warned the national company that a court battle may lead to some unhelpful press publicity that may damage their brand. Depending on the nature of your clientele, a trial in which you or your opponents ‘dirty laundry’ is aired in public, is unlikely to generate future work.

A lawyer can help your company recover debts without recourse to court appearance by encouraging and facilitating settlement.  That being said, sometimes parties are left with no option but to go to court and defend their reputation.

Time

The legal system is known for taking time to process cases.  Small businesses worry about the time required to attend court, have meetings, plus time taken to gather evidence, prepare etc – which can have costs to the business in lost time.  Business has to weigh up the time involved in taking legal proceedings against the time already spent trying to resolve the issue so far (especially if the issue has already been going on for months or even years).  Furthermore, where large sums are outstanding, business leaders have no option but to press on with litigation as further delay may force them out of business.

Sometimes, a lawyer stepping in can help resolve things without needing to go to court, and save time in the longer run.  I was recently told about a local authority that was reluctant to get lawyers involved in case it cost money.  They proceeded with a public tender process for companies to bid for a contract over 5 years.  Mistakes were made in the process because they failed to get specialist legal advice to save a relatively small amount.  In this instance, it can be put in context when one understands that the contract was for £35,000,000.  The mistakes made because they cut corners saving costs will be well in excess of £100,000.  This example shows it can be commercially sensible to get early and timely legal advice.

Appearing in Court

There are many who fear of speaking and appearing in public.  The Courtroom is no different and depending on your tribunal, there may be a variation in numbers from a jury trial to a hearing before a single judge.  Many people have no experience of speaking and/or appearing in any sort of public context.  The thought of talking is daunting on a personal level.  An experienced lawyer has the benefit of doing this on a regular basis and will make the case for you in a skilled and articulate manner.  Furthermore, in a trial, a lawyer such as a barrister is essential to prepare and undertake the trial process competently and with a view to maximising the chances of success.

A good lawyer will be able to give initial advice about your situation, helping to clarify whether further action is worthwhile and what it might involve.

If you would like your business to have some legal advice, then please contact Marcus Croskell for a free initial legal enquiry on 0843 886 2603 or by email HERE.

Lawyers Suffolk - Contact Marcus Croskell for assistance with your business dispute.

Disputes

In the civil law arena, a great number of cases arise from a dispute of some kind between one person or business and another.  When two sides cannot resolve issues by themselves, the problem may be resolved by obtaining timely and effective legal input.  This may simply be advice but also can include assistance with negotiation of a settlement between the parties.  Litigation is often expensive and uncertain.  After all, it is often risky putting the decision of your case in the hands of a judge who may decide a case either way.  However, sometime it is unavoidable if a resolution cannot be reached. If it does need to go to court, legal representation will likely be a needed to best prepare and present your case.

Types of Dispute

Marcus Croskell can assist with a variety of private and business dispute that can arise:

·  Consumer contracts such as credit agreements, supplier agreements, b2b contracts, sale of goods and services, etc.

·  Land and property disputes including boundaries, neighbours, rights of way and easements, adverse possession, etc.

·  Landlord and tenant issues such as possession orders, disrepair claims, etc.

·  Commercial contractual disputes including breach of guarantees, partnership disputes, construction, etc.

·  Negligence and nuisance claims.

·  Corporate and individual insolvency.

·  Corporate health and safety or regulatory infringement.

·  Probate.

·  Legal costs.

Avoiding Court

Many individuals and businesses are put off the idea of engaging a lawyer because they are reluctant for a case to end up on court.  People are afraid of the time and cost of litigation, let alone daunted by the prospect of preparing and representing themselves.  On television, police often accuse detainees who ask for a lawyer of knowing they are guilty.  However, seeking help from a lawyer in whatever situation is often both a logical step to ensure you are in the strongest position. 

Engaging a lawyer does not inevitably mean that the dispute goes to court.  Initially, attempts can be made to resolve the matter out of court, either by firmly establishing the relevant legal basis to persuade the other side to relent; or where this is not clear, to negotiate an acceptable settlement.  Marcus Croskell is often instructed to attend mediation sessions to resolve cases at an early stage.  He recently was instructed by solicitor from Essex to attend a mediation in London in a construction dispute and a separate contractual matter in Kent for different client.

In either case, the lawyer's experience is essential:

- To know the relevant law in detail, in order to form a strong argument; and

- To have experience of negotiations of this type, to achieve a settlement

Sending a Firm Message

All to often, by the time a lawyer is engaged in relation to a dispute, it has been going on for some time, with some attempts to already having been made to resolve it.  Very often, the simple act of letting the other side know that you have engaged a lawyer sends a firm message that you are not going away and that you are determined to proceed. This in itself can very often result in a shift of position and result in a resolution, with very little time spent by your lawyer.

Faster Resolution

If a dispute has been going on for some time, engaging a lawyer can be a route to expediting a resolution. Especially when one of the parties is using delay and elapsed time as a way to avoid resolution or payment to you of monies owed.  This is often noticeable in cases where companies are insolvent or on the cusp of.  They delay paying invoices and then when challenged, leave everything to the eleventh hour to avoid paying out. By engaging a lawyer, pressure can be brought to bear by threat of legal sanction.

Marcus Croskell represented a homeowner in Newmarket, Suffolk who was being prevented having access to her rear garden by a neighbour.  It was clearly marked on her deeds that she should have unfettered access across her neighbours’ garden.  The neighbour did not like it and it appears prevented the previous owner as well.  She had engaged a solicitor at an early stage, but this made little difference with over £3,000 spent on letters back and forth between her solicitor and the neighbour. Marcus Croskell met her and within a short time had issued proceedings and sought an injunction against the neighbour.  The neighbour refused to agree to negotiate, but did instruct a lawyer for the first hearing.  At that stage, the lawyers negotiated a settlement in which Marcus Croskell’s client achieved all the aims of her claim and received a large payment towards her legal costs.  Marcus Croskell helped her take decisive steps and within two months of him being instructed, had resolved the case, which had run for eight months before that.

If you would like to instruct Marcus Croskell for advice or representation in your business or personal dispute, please contact him on 0843 886 2603 or EMAIL for your free initial legal enquiry.

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Ruling on Part 36 in Costs Cases

In a recent matter before Andrew Gordon-Saker, the Senior Costs Judge at the SCCO, the issue of Part 36 and unreasonableness was considered.  In Cashman v Mid-Essex Hospital Services NHS Trust [2015] EWHC 1312 (QB), [2015] 3 Costs L.O. 411, the court was asked to consider a case in which the Claimants during detailed assessment proceedings issued a bill of costs of approximately £262,000 and then made a Part 36 offer on the costs to the tune of £152,500.  This in my experience is not unusual as parties often recognise the uncertainties of litigation and if a major head of the bill is varied such as the hourly rate for fee earners, the sum can be cut considerably.

This was offer was not accepted by the Defendant and Master Gordon-Saker at the original hearing rejected the Claimant’s request under CPR 36.14(3)(d) for the 10% increase, indemnity costs and 10% interest after the bill was assessed in the sum of £173,693.78.  He considered it disproportionate and unjust where there had been a significant reduction in the bill.

However, the lead judgment from Slade J DBE in the High Court disagreed with the senior costs judge.  She overturned his decision as he had erred in relying on the degree of reduction made on the assessment where the Part 36 offer was less than the assessed amount.  The approach penalised the Claimant for making a propert and appropriate Part 36 costs offer.

This ruling is consistent in my view with the various cases on Part 36.  To not allow the Claimant’s costs undermines the process of Part 36 offers.  In many respect they are there for the other side to take them or leave them.  If they do the latter, they do so knowing there may be costs consequences.  In this case they could have paid less as the part 36 offer ended up giving the Claimant a unexpected windfall.

If you would like advice on costs or other commercial litigation, contact Marcus Croskell by EMAIL or on 0843 8862603.