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Company Law for Commercial Business
The Companies Act 2006 became law on 8 November 2006 and was fully implemented on 1 October 2009. It has 1,300 sections and 16 rather extensive Schedules. Its provisions cover formation to dissolution and affect commercial companies. Changes were made to English company law in relation to company constitution, corporate structure, share capital, shareholder rights, duties of directors, directors and corporate management, meetings, company procedures, communications and legal compliance. The provisions of the Companies Act 2006 are organised into 47 Parts. New sets of company model articles of association for private and public companies have also been produced and these came into force on 1 October 2009. Most of the regulations that constituted default articles in Table A of the Companies Act 1985 are now enacted or modified in the 2006 Act. The model articles for a private limited company can be modified and adopted for use by a company although it should be accompanied by a shareholders agreement if there are two or more shareholders.
There are also changes to the way a company communicates with its shareholders (including electronic communications) and the relevant provisions can be found in Part 37 and Schedules 4 and 5. Notices, timings, place, meetings, voting in relation to resolutions, meetings and record keeping for a company may be found in Part 13 of the Companies Act 2006.
Shareholders or members of a company may rely on Parts 8 and 9 of the Companies Act 2006 in claims against errand directors. Derivative actions are claims by shareholders, acting on behalf of their company, against the company directors for wrongs committed against the company. The circumstances in which shareholders can bring derivative proceedings include the director's negligence, breach of duty or trust. Proceedings can also be brought against third parties who have benefited from the director's default, negligence or breach of trust. Part 11 sets out provisions for derivative claims and proceedings by members. Flexibility has been provided in cases involving shareholders disputes, shareholders rights and directors' corporate mis-management. Derivative claims are subject to a two stage procedural filter by the court. See below for derivative claims, unfair prejudice claims, winding up on just and equitable grounds and shareholder agreement disputes.
Part 30 provides shareholder protection against unfair prejudice. In some circumstances, depending on the facts of each case, it is preferable for a shareholder to bring a derivative claim in connection with a petition to the court for unfair prejudice on grounds that the company's affairs are being or have been conducted in a manner that is unfairly prejudicial to the interests of shareholders generally, or some part of the shareholders of the company (including himself), or an actual proposed act or omission of the company is or would be so prejudicial. Unfair prejudice may be considered in cases where there is a breakdown of relationships between shareholders in a deadlock situation.
Directors of a company may refer to Part 10 which has a statutory code consisting of directors' legal duties that replaces the fiduciary and common law duties which were previously derived from English case law. These statutory director's duties have increased the exposure to personal liability for company directors. However, directors' duties are owed to the company and not to the company shareholders but can be enforced by shareholders claims, on behalf of the company, in derivative proceedings.
How we can help
If you are a shareholder, director or an interested party in a commercial company and are in need of advice on your rights, duties and liabilities or if you require representation and advice on procedure in litigation proceedings or help with settlement negotiations, you can contact James Chan & Co for legal advice and court representation. A summary of the directors' statutory duties, which can lead to personal liability for directors under company law can be found below.
Directors and Company Board
From 1 October 2008, every commercial company must have at least one director in the company who is a natural person for the purpose of being held responsible and accountable for the actions or omissions of the company. Section 155 of the Companies Act 2006 abolishes boards of directors that comprise solely of corporate directors or one corporate director Board companies, common in Group company parent and subsidiary structures.
A short concession was available until 1 October 2010 for companies where none of the directors were natural persons and the company had the correct number of directors on its board as on 8 November 2006; being one appointed director for a private company and two for a public company. A breach of section 155 results in a fine on the company and any officer in default. Companies should review their board constitution and those of its subsidiaries within its parent group structure. If necessary, an individual person should be appointed to the board of directors with any necessary alterations to the company articles of association made. Under the Companies Act 2006, no person under 16 years of age may be appointed a director of a company.
Directors' Duties under Companies Act 2006
The duties owed by a director to his company and its members are now codified in sections 171 to 177 of the Companies Act 2006. These place on directors legal duties which require them to act within the powers given in the company articles of association, promote the success of the company, exercise independent judgment and exercise reasonable care, skill and diligence in company business matters, avoid conflicts of interests, not accept benefits from third parties and declare personal interests in transactions or arrangements with the company.
A director is defined as including any person occupying the position of a director, by whatever name called, including a shadow director. The statutory duties apply regardless of the terms in a director's service agreement. With statutory duties come liabilities and directors are exposed to risks from personal liabilities and shareholder claims.
Individuals offered the position of a company director need to consider, apart from personal, commercial benefits and interests, attendant responsibilities and potential legal liabilities and risks which company law imposes. As the scope of these statutory duties are wide, and some personal to the director, it is unlikely indemnity insurance cover will afford the director full protection. The statutory duties will be subject to litigation in the Companies Court for years to come.
Company Law - Directors' Duties
The following is a summary of the director's statutory duties codified in the Companies Act 2006 which serves as a guide since the law is expected to develop through court litigation. You should always seek legal advice from a solicitor as the circumstances and facts of each individual case will be different and personal to your situation. There will be developments on the law and in the interpretation of provisions giving rise to these duties.
Directors to act within Company Constitution
This is currently interpreted to mean directors must act within the powers given to them in the company's constitution or articles of association and they can only exercise these powers for the purposes for which these were given. Directors who are not familiar with the provisions of their company constitution run the risks of acting outside their powers and therefore acting in breach of their statutory duty. Directors should review and, if necessary and with the consent of shareholders, amend the company articles of association to ensure they are able to comply with their statutory duties in accordance with company law. We offer an audit, review and advice service to clients. You can contact us with your requirements.
Directors to Promote the Success of the Company
Directors must act in the way they consider, in good faith, would be most likely to promote the success of the company for the benefit of its shareholders. In exercising this statutory duty, the directors must have regard (in addition to other considerations) to the likely consequences of any decision in the long term, the interests of the company's employees, the need to foster relationships with suppliers, customers and others, the impact of the company's operations on the community & the environment, maintaining a reputation for high standards of business conduct and the need to act fairly as between shareholders of the company. This statutory duty under company law is wide and likely to increase litigation involving liability for directors. We can advise board members on the management of such risks.
Directors to exercise Independent Judgment
In addition to acting within the authority of the company's constitution, directors must exercise independent judgment or freedom of thought. A director should not therefore be influenced by the will of others, such as shareholders or other directors. Difficult situations arise if a director were to act in accordance with an agreement, duly entered into by the company with a third party that restricts the future exercise of discretion by its directors or where the terms in a shareholders agreement imposes on a shareholder, who is also a director, to act in a particular way given particular trigger events. What if two director shareholders differ in their independent judgments as to whether their company is to be put into administration or liquidation? If you encounter such situations which are bound to give rise to dispute and potential litigation, we will be pleased to take instructions to advise and, if necessary, represent you in litigation proceedings.
Directors to exercise Reasonable Care, Skill and Diligence
The provision of this statutory duty appears to have been extracted from section 214 of the Insolvency Act 1986 which relates to wrongful trading and liability of directors and other persons to contribute to a company's assets. An objective test and then a subjective test is used and applied in the determination of liability of directors under company law. A director is required to exercise the care, skill and diligence that would be exercised by a reasonably diligent person with the general knowledge, skill and experience that may reasonably be expected of a person carrying out the functions carried out by the director in relation to the company, and the general knowledge, skill and experience that the director has.
Directors to avoid Conflict of Interests
Directors are required by law under Section 175 to avoid situations in which he has or can have or possibly may have a direct or indirect conflict of interests with his company. This includes but is not limited to exploitation of any property (probably including existing or future intellectual property), information or opportunity. This statutory duty is extended to cover the interests of connected persons of directors including spouses, civil partners, children and parents. This duty could cause problems for a majority shareholder appointing a director to the board of a joint venture. There are exceptions to this duty and private companies incorporated on or after 1 October 2008 may have a potential conflict of interest authorised by the board of directors following disclosure. This raises potential legal problems which could open the director concerned or the other board members to claims from shareholders of the company.
Directors not to accept Benefits from Third Parties
This duty applies to all manner of benefits which may be reasonably regarded as giving rise to a conflict of interest. The use of companies for provision of services to directors of a company where one or more of the directors have interests, will be deemed not only a conflict of interest situation but also a benefit conferred on the director or directors involved in breach of Section 176. There may also be issues of constructive trust and unjust enrichment arising from such situations.
Directors to Declare Interest in Transactions or Arrangements with the company
Whilst a director's duty under Section 175 is to avoid a conflict of interests, Section 177 requires a director to actively declare an interest in a proposed transaction or arrangement with the company to the Board. This duty is extended under Section 182 to declare an interest in an existing transaction or arrangement with the company. As with the duty to avoid conflicts of interests, a director must consider the interests of connected persons. There is a declaration regime to be followed. We will be pleased to advise you of the procedure and potential risks arising, particularly in commercial transactions.
Directors can take a proactive approach to management of their commercial business and protection of investors. If you are a director or a shareholder, you may very well require legal advice on company law and on your commercial business. You may also need to review our company articles of association and the terms of your shareholder agreements to ensure that these comply with the Companies Act 2006.
How we can help
We provide legal advice to shareholders of their rights under the company's articles of association, the terms of your shareholder agreements. We also advise company directors, or individuals offered directorship, of their legal duties and potential personal liabilities. If you need advice and court representation in bringing or defending shareholder claims against a company or its directors, contact James Chan & Co for representation in court litigation.
Company Directors Disqualification Act 1986
On the 1 October 2009, the remaining provisions in the Companies Act 2006 came into force. The Company Directors Disqualification Act 1986 will be amended to take into account any breach by a director of his statutory duties under the Companies Act 2006 when determining disqualification of a director on the grounds that he or she is unfit to be a director. Under Section 6 of the Company Directors Disqualification Act 1986, the Court will consider admissible evidence of persistent breach of the Companies Act 2006 (carrying a maximum of 5 years' disqualification), breach of the directors' statutory duties and the conduct of a director which makes him unfit to be concerned with the management of a company.
During litigation, the Court is required to consider any misfeasance or breach of any fiduciary or other duty by a director in relation to the company. Consideration is given to evidence of a director acting within his authority and exercising care, skill and diligence in performing his or her duties and functions. It is not a defence in disqualification proceedings in court for an appointed director to plead that such duties were delegated to another person. Such a person assuming the director's duties could be made the subject of disqualification proceedings if he or she is considered to be a shadow director of the company with whose directions and instructions the directors of the company are accustomed to act.
Disqualification could also result from an investigation by the Department for Business, Innovation and Skills (formerly DBERR) which finds the director unfit to be concerned in the management of a company (maximum 15 years' disqualification). In cases where there has been fraudulent trading or wrongful trading, a disqualification of a period of 15 years may be ordered. Securing such disqualification orders is particularly effective to prevent directors who rely on the limited liability of the company to run up debts that remain unpaid, cease trading and then start up a new company to carry on the same business.
A disqualified director cannot be concerned with the management of a company directly or indirectly or act as promoter. Breach of a disqualification order is a criminal offence which could result in a fine and imprisonment and the disqualified director is personally liable for the debts of the company during the period when he acted, whilst disqualified.
Shareholder Derivative Claims and Directors' Liability
Under English law, the general rule is that only the company (itself a separate legal person recognised in law), and not the shareholders, can bring legal action against the parties responsible for wrongs done to the company, e.g. unauthorised withdrawal of capital from the company by a director. In practice, if the directors acted in breach of duty or in breach of trust, the majority of shareholders may vote to take legal action against the directors concerned. In the absence of a majority vote being passed, no action can be commenced against the directors.
There are exceptions to the general rule and these relate to fraudulent or illegal acts by directors, for example, where directors secure for themselves benefits from a profitable contract which should have gone to the company. Other exceptions relate to the denial of an individual's shareholder's rights, the implementation of corporate decisions without the required majority votes and where the majority of shareholders commit a fraud on the minority shareholders. The rule and exceptions severely restricts the shareholders' access to remedies via the court. This has however been redressed to some degree in the Companies Act 2006 which provides procedures for a shareholder to pursue legal action in the form of a derivative action. Subject to the provisions in the Companies Act 2006, for a shareholder to bring a legal claim in the name of the company against the parties responsible for wrongs done to the company.
Section 260(3) came into force on 1 October 2007 and provides that a derivative claim may be brought in respect of a cause of action arising from an actual or proposed act or omission involving negligence, default, breach of duty or breach of trust by a director of the company and that such legal action may be brought against the director or another person (or both). Any provision in the company's constitution or in a contract with the company which seeks to exempt the directors or auditors from such liability is generally void except where permitted in law.
Authorised Share Capital and Allotment
There are major changes on company authorised share capital after 1 October 2009. There is no longer a need for the authorised share capital of a company to be stated in its memorandum and to have an authorised share capital. The ability of a company to allot shares are governed by rules and these fall under two separate situations. There are rules which apply to private companies having only one class of shares and rules for all other issues by private or public companies. Directors of private companies with only one class of shares will no longer require the authority from its members to allot shares unless this is specifically provided for in the company's articles of association (section 550 Companies Act 2006). In all other cases, the power of the directors to allot shares is subject to prior authorisation by the company shareholders via ordinary resolution or by the company's articles of association. In cases where there are no provisions in the articles of association restricting the power of the directors to allot in a private company, and in the absence of relevant provisions in a shareholders agreement, the minority shareholder could find his shareholding in the company diluted.
Alteration of Share Capital
Under the Companies Act 2006, a company may only alter its share capital by an increase of capital by the allotment of new shares; reduction of capital (see below); sub-division or consolidation of shares; reconversion of stock into shares and redomination of shares (e.g. GBP into Euros).
Reduction of Share Capital
This may be done by a company for a variety of reasons, including repayment of any paid up share capital which is in excess of the company's needs or the cancellation of any paid up shares which are no longer represented by available assets. A special resolution is required for a private limited company but in the case of a public company, an application for court approval is required. Directors of private companies are required to provide a statement that the company will remain solvent after the reduction in capital. This solvency statement is to support the shareholders resolution to the reduction. It must be made no longer than 15 days before the proposed resolution and should state that each of the directors is of the view that there are no grounds on which the company would be unable to pay its debts and that any winding up within the next 12 months would be a solvent liquidation. If a solvency statement is given recklessly without due consideration of the company assets and liabilities, the directors will be commiting a criminal offence. This could lead to imprisonment and/or a fine. The date the reduction takes effect is governed by the date of registration of the special resolution and the solvency statement confirmed by the board of directors that it was properly made and circulated to the shareholders. For companies which have a statement of share capital in their memorandum, an alteration must be filed with Companies House.
Commercial Transparency
Companies must have in all company e-communications, the full name of the company; registration number; place of registration and its registered address. Commercial and e-commerce businesses should include these details in all business correspondence, invoices, emails (footers) and websites used in the course of their businesses including electronic trading platforms. Where the business is a money service provider, transmitter or payment institution registered with HMRC or authorised by the Financial Services Authority (FSA), the registration and authorisation number should also be displayed. Non-compliance could result in fines. For further details, refer to sections 82 and 84 Companies Act 2006 and The Companies (Trading Disclosures) Regulations 2008. For transparency related issues, see section on commercial law.
Company Dividends from Shares and Profit Extraction
Her Majesty's Revenue & Customs has provided guidance on the application of Part 7 (Employment Income: Share Related Income and Exemptions), Chapter 4 (Post-Acquisition Benefits from Shares) of the Income Tax (Earnings and Pensions) Act 2003, Section 447. This provision creates a tax charge on post-acquisition benefits derived from employment related securities including shares. For small owner managed companies which pay dividends out of company distributable profits to its director shareholders by way of profit extraction, HMRC will not apparently apply section 447 if there is no attempt at avoiding income tax or national insurance contributions on remuneration (or any attempt at avoiding IR35 rules). Dividends paid on shares of special purpose vehicles set up to pay employee bonuses, and contractors in place of income subject to PAYE and NIC to avoid the IR35 rules, may be subject to the tax charge under section 447. This may change and advice from your accountants and tax advisors are strongly recommended.
Company Automatic Late Filing Penalties May 2010
Company accounts must be prepared and filed in accordance with the Companies Act 2006. The time for filing accounts for private companies has been reduced to 9 months after the company Accounting Reference Date and 6 months for public companies. With effect from 1 February 2009, accounts for financial years beginning on or after 6 April 2008, the following new penalties will apply:
| Length of delay (from the date accounts are due) |
Private
company |
Public
company |
| Not more than 1 month |
£150 |
£750 |
| More than 1 month but not more than 3 months |
£375 |
£1,500 |
| More than 3 months but not more than 6 months |
£750 |
£3,000 |
| More than 6 months |
£1500 |
£7,500 |
These amounts are automatically doubled where:
(1) The company accounts are filed late under the Companies Act 2006; and
(2) The previous year's accounts under the Companies Act 2006 (financial year beginning on or after 6 April 2008) were also late.
Company directors are encouraged to file their accounts and reports on time because they must provide this information for public record. It is in the interest of the company that its accountants and auditors are provided the necessary information for early preparation and filing of company accounts to meet deadlines imposed under the Companies Act 2006 to avoid the automatic late filing penalties which apply to all private companies whether trading or non-trading. Guidance on late filing penalties can be found here.
Directors and shareholders can contact James Chan & Co for advice on company law, directors' rights, shareholders' rights and all aspects relating to management of their commercial businesses, corporate governance and compliance. If there have been changes in your corporate commercial business or you are about to seek corporate finance or introduce investors, we can help you review and consider the adequacy and suitability of your company articles of association, shareholders agreement and directors' service agreements.
Provisions of Services Regulations 2009 - Duties of Service Providers
The above 2009 Regulations became law on 28 December 2009 and applies to all companies (including firms and advisers) involved in the activities of provision of services to businesses and consumers. The first main aim is to ensure customers of service providers have access to a minimum amount of information and to a complaints procedure to help them make an informed decision when considering the services of providers. Certain businesses are excluded from these regulations. These include providers in financial services, electronic communications, transport, temporary work agencies, healthcare, audio visual, gambling and social services. For a full list of excluded service providers, see Regulation 2(2).
If your company business falls within the scope of these regulations, you must provide your customers with the name of your business, your legal status; geographical address at which you are established, details by which you may be contacted (e,g, telephone, email), details where you are registered with, registration number, name of your trade or other similar public register where you can be identified, the authorisation scheme or regulated professional authority which you are subject to, VAT registration number, general terms and conditions of business which you use, existence of after sales guarantee (if any), price for your services (where pre-determined for a given type of service), main features of your services and name and contact details relating to your professional liability insurance (if required to be held). For a full list of the information required to be disclosed, refer to Regulation 8(1).
The required information may be supplied to customers on your own initiative and/or made easily accessible at the place where the service is provided and/or the contract concluded, made accessible to customers electronically such as a public website and/or included in any information documents that you supply your customers which set out a detailed description of your services such as your terms and conditions of business agreement. For a complete list of ways of supplying the required information, see Regulation 8(2).
Under these regulations, contact details must be provided to customers should they wish to make a complaint and you are obliged to respond quickly, although there is no definition of the time limit for a response since types of complaints vary and different considerations apply (e.g. language issues, information from third parties required and nature of the complaint). Although the aim is for you to do your best to resolve and find satisfactory solutions to complaints, you are however not expected to do so for vexatious or malicious or clearly unsubstantiated complaints. For the full provisions relating to complaints, see Regulations 10 to 12.
Authorisation and Licences
The second main aim of the Provision of Services Regulations 2009 is to comply with EU Services Directive on freedom of service providers businesses to provide services within the EEA. These regulations apply to permanent service providers' businesses which are established and based in premises in the UK and temporary service providers operating in the UK but based in premises in other EEA states, and vice versa. If a service provider, established in another EEA State, wishes to provide services in the UK, it must register and apply for a licence with the UK competent authority. Similarly, a UK established service provider must also register and apply for a licence to the competent authority in another EEA State it wishes to provide services. EEA Member States are required to have Points of Single Contact (PCS) that allow services providers to apply and pay for authorisation online. Requirements may be imposed by competent authorities but these must not be discriminatory and certain requirements are prohibited. If an EEA State is imposing illegal requirements to your provision of services, you may bring this to the government's attention. In the UK, you may contact the UK SOLVIT centre at solvit@bis.gsi.gov.uk and the matter taken up with the European Commission. A complete list of prohibited requirements is set out in Regulation 21.
Payment Services Regulations 2009
The Payments Services Directive 2007/64/EC was implemented by the Payment Services Regulations 2009 which came into force on 1 November 2009 ('PSR 2009'). These regulations seek to harmonise standards and the rights and obligations of the service providers and users of payment services in the EU and to provide market transparency and competition. The aim of the Directive is to guarantee fair and open access to payments markets and to increase consumer protection and seeks to ensure electronic payments within the EU, such as credit transfer, direct debit and card payments, become as easy and efficient and secure as domestic payments within a single Member State. Payment service providers include credit institutions, electronic money institutions and payment institutions. For a list of the regulated activities, see Part 1 of Schedule 1 of the PSR.
From 1 November 2009, all PIs including those firms operating under the transitional provisions (see below) are subject to the FSA Conduct of Business requirements or COBS including the requirement of having customer complaints handling procedures. PIs and small PIs must also have in place updated anti money laundering and counter-terrorist financing procedures and policies in place and which they apply to customers and their transactions.
Payment Institutions ('PIs') require registration for authorisation by the Financial Services Authority. Initial capital requirements set between Euro 20,000 to Euro 125,000 apply depending on the activities undertaken. In addition, PIs must also comply with ongoing capital or 'own funds' requirements which may be calculated by one of three methods determined by the FSA. The users or consumers of PIs are afforded protection by segregation of customers funds received by the PIs or by the putting in place of an insurance policy or other comparable guarantee.
PIs may conduct regulated activities and services in another EEA State on the basis of authorisation by the FSA as Home State regulator. Such passporting right may be in the form of establishing a branch in another EEA State or a Host State to provide payment services or by cross border services without the establishment in the Host State. As of June 2010, Greece, Sweden and Poland have yet to implement the provisions of the Payments Service Directive with Romania, Spain and Cyprus yet to have in place secondary legislation required to fully implement the Directive. The EU Commision has on 3 June 2010 acted to ensure implementation. The FSA has provided detailed guidance on the scope of the Payment Service Regulations 2009.
China - 'Template' Terms Commercial Contracts
For commercial agreements with Chinese companies in China for the manufacture, supply and sale of goods, agency agreement, consultancy, distribution and licensing, it is advisable for businesses to avoid the use of standard contract form of wording from similar but unrelated commercial transactions or templates. Although some of these agreements have "standard" templated terms and conditions, there may be provisions that may not be relevant to your commercial business transactions. The agreement should be written in Mandarin and English text and care taken to ensure it is amended to accurately reflect the terms agreed between the parties.
There are several choices for resolving disputes between contracting parties in a commercial agreement. Generally, disputes with Chinese businesses are resolved and settled amicably through meetings and by discussions to preserve commercial relations. Forms of dispute resolution include mediation, arbitration and civil court litigation.
Commercial business opportunities could present unexpected legal and commercial challenges. When in doubt, contact us to discuss your commercial requirements, whether to produce standard terms of trade, sale and purchase contracts, review tender documents, preferred supplier agreements, commercial trade letters of credit or for legal advice on the terms in commercial contracts for goods and services, before making an informed decision or signing on the dotted line.
Advice on Commercial Contracts
We advise on, review and prepare contracts for commercial businesses and commercial transactions such as acquisition agreements. We can assist with advice on the terms of agency agreements to suit the commercial aims and risk management of legal liabilities of principal firms. You can contact us to discuss your specific requirements.
We can assist you with the preparation and/or review of commercial contracts, terms of business or trade, non-disclosure agreements, preferred supplier's agreement, long term supply agreements, licensing, agency and distribution of products and services agreements. Contact James Chan & Co for legal advice and representation of your interests in related disputes in London arbitrations and court proceedings.
Disclosure & Inspection of Email Evidence
Civil Procedure Rules (CPR) are the rules and procedures which govern the conduct of commercial litigation in England. The rules are divided into Parts and each Part is supplemented and modified by Practice Directions from the courts from time to time to assist with clarification of the rules and procedures. Claimants, Defendants, Solicitors, Barristers and the Court are bound to follow the CPR in the conduct of commercial court cases.
Parties to litigation are obliged to disclose relevant documentary evidence to each other; even if such evidence is prejudicial to their claim or defence. Disclosure may be standard or otherwise as order by the Court. CPR Part 31.4 defines a document as anything in which information of any description is recorded.
Part 31 Practice Direction 31B relates to disclosure of electronic documents, including e-mail and other electronic communications, word processed documents and databases. In addition to documents that are readily accessible from computer systems and other electronic devices and media, the definition covers documents that are stored on servers and back-up systems and electronic documents that have been ‘deleted’. It also extends to additional information stored and associated with electronic documents known as email and file metadata (information on document creation date, edit date, view dates, distribution list, amended text etc. automatically added to electronic documents but normally not displayed on paper copies or screen).
Clients and potential litigants are reminded that they are required to preserve relevant evidence after commencement of litigation and to make a reasonable search of electronic storage systems for active, archived and deleted data. Deleted relevant documents can and should be retrieved, reconstituted and adduced as evidence in commercial court litigation. E-disclosure should always be considered at an early stage of litigation, preferably pre commencement of legal proceedings. It would be helpful if clients and litigants have internal procedures in place for locating and retrieving electronic documents should these be required in litigation.
In Earles v Barclays Bank Plc (2009), the court had to decide whether to believe the evidence of the claimant customer or the defendant bank. The issue was whether the bank was in fact authorised and instructed by the claimant customer to process transfer transactions on each of five occasions. The bank's terms of business provided, inter alia, that it can act on instructions (including instructions to make or collect payments from or into an account) given on a document bearing the customer's signature; or by telephone or computer, as long as security procedures were followed and whether or not the instructions were given by the customer or not; or verbally, as long as the bank was able to identify the customer. The court had to consider whether telephone calls or emails were made on each of these five occasions and, if so, what had been said or written that evidences the customer's instructions. The court was critical of the bank's failure to provide electronic disclosure of key commercial documents that were absolutely essential to a court if it were to achieve accurate and efficient fact finding in civil litigation. This included emails which contents were relevant contemporaneous evidence that went to factual issues to be decided in a case. The learned Queen's Bench Division Judge stated 'The Practice Direction is in the Civil Procedure Rules (CPR Part 31 Practice Direction 2A) and those practising in civil courts are expected to know the rules and practice them; it is gross incompetence not to.' Although the claimant was unsuccessful and his claim dismissed, the court decided in its discretion that a fair and proportionate award for costs was for the claimant to pay only 25% of the claimant's claimed costs; given the failure to provide proper electronic disclosure.
We provide guidance and representation on behalf of Claimant and Defendant clients and potential litigants before and after commencement of legal proceedings and can assist with the forensic IT aspect of commercial litigation process.
Forcing Settlement of Commercial Claims
It is always time and cost effective to avoid litigation by settling a claim for which you are liable. If the claim is excessive, you make an offer to settle an amount for which you believe you are liable. What do you do if court proceedings are issued for a claim you know to be excessive or if the claimant attempts intimidation by retaining a large firm of solicitors to act on their behalf or you find the conduct of the case is deliberately dragged out to wear you down and/or exhaust your resources? Will you be able to force settlement and bring the case to an end to minimise legal costs on both sides?
Prior to 6 April 2007, Defendants wishing to make an offer to settle a claim under Civil Procedure Rules Part 36 at any time before or after court proceedings are commenced. The offer must be in writing; state it includes interest and is intended to have the costs sanction consequences of a Part 36 offer to settle; specify a period of not less than 21 days within which the Defendant will be liable for the Claimant's costs (to be assessed by the Costs Judge if not agreed) if the offer is accepted; state whether the offer refers to the whole of the claim in the statement of claim or to a part of it; whether it takes into account any counterclaim by the Defendant and funds to back the offer (a form of security for the Claimant) made must be lodged in court. If the Claimant accepts the offer, the claim is brought to an end. If the Claimant refuses to accept the offer and proceeds with litigation and is awarded an amount of the claim which is less than the sum offered by the Defendant, the Claimant will be subject to the costs consequences and must pay the Defendant's legal costs with interest from the date the offer expired. However, some Defendants encountered difficulties in complying with the requirement to make actual payment of funds into court to support their offer to settle, in circumstances where such payment may not necessarily bring an end to litigation. They were therefore deprived of a useful tool that could force early settlement.
Following changes to Part 36 of the Civil Procedure Rules, the Defendant is no longer required to lodge funds into court to back the offer. This brought some balance back into commercial litigation. If the Part 36 offer is accepted by the Claimant, the Defendant has 14 days to make payment to avoid a judgment from being entered. By making a Part 36 offer of settlement, a Defendant would have gained leverage and transferred part of the risks from commercial litigation back to a Claimant, particularly one with deep financial pockets. Other changes allow Claimants to accept Part 36 offers to settle out of time without consent of the court subject to the costs consequences but there may be exceptions to this general rule as costs is always at the discretion of the court in commercial litigation.
Legal Advice and Representation
If you have a claim or if you have been served with legal proceedings, you can contact us for legal advice on your case, claim, defence or counterclaim and for legal representation in the commercial courts or tribunals. Most claims are subject to time limits and it would be prudent to seek legal advice at an early stage. It could result in early resolution of a dispute or possible settlement without commencement of legal proceedings or bring existing legal proceedings to an early end.
Expert Witnesses - Abolition of Immunity in Litigation
Expert witnesseses have enjoyed protection from being sued when giving evidence in legal proceedings. This immunity was abolished in a recent decision of the Supreme Court on a point of public importance concerning litigation. In Jones v Kaney [2011], Lord Phillips gave the leading judgment which held that expert witnesses owed a clear contractual duty to exercise reasonable skill and care. The broad consequence of denying immunity accorded to expert witnesses will be a sharpened their awareness of the risks of pitching their views of the merits of their client's case too high or too inflexibly lest these views come to expose and embarass them at a later stage. His Lordship welcomed this change as a healthy development in the approach of expert witnesses to their ultimate task and sole rationale of assisting the court to a fair outcome of the dispute or, indeed, assisting the parties to a reasonable pre-trial settlement. The decision leaves open claims against experts for breach of contract and/or negligence in relation to evidence they give in legal proceedings.
Litigation in China -People's Court of China
One main provision which must be present is the Jurisdiction and Governing Law Clause. For certainty, it is desirable to agree that the contract is to be interpreted in accordance with and governed by a particular country's law (e.g. English Law or Chinese Law) and disputes are heard in a court within a particular jurisdiction exclusively, or perhaps non-exclusively, depending on the nature of the commercial agreement or transaction and enforcement considerations. Care should be taken before submitting to a particular court of law and jurisdiction. Legal advice should be taken beforehand. Another useful provision would be the Language clause which sets out the version of the commercial agreement which is to prevail for interpretation or dispute purposes. There are however local laws, civil court and litigation procedures which must be considered. The People's Court of China requires cases to be presented in Mandarin and if a document is in a language other than Mandarin, a Chinese translation must be appended before it is submitted as evidence in litigation.
Arbitration in China - CIETAC
If the commercial agreement provides for disputes between contracting parties to be referred to CIETAC (China International Economic and Trade Arbitration Commission) arbitration, the place of arbitration in China (e.g. Beijing; Shanghai) and the applicable governing law should be clearly stated to avoid ambiguity. The agreement could, for example, provide for referral of disputes to CIETAC arbitration with English law or Chinese law to apply. Attention before conclusion of a binding contract could save a lot of time and costs later in the event a dispute arises and enforcement of an arbitration award becomes necessary.
The CIETAC website has full contact details and links to English translated text versions of the Chinese procedure for an application for arbitration of disputes, a list of arbitrators and the Arbitration Rules for disputes in China. There are main arbitration rules for general disputes. For the resolution of electronic commerce disputes (and if the parties were to agree, for other economic and trade disputes as well) the CIETAC Online Arbitration Rules, which came into effect on 1 May 2009, can also be accessed on its website. Financial services disputes arising from transactions between financial institutions, or arising between financial institutions and other natural or legal persons in the currency, capital, foreign exchange, gold and insurance markets that relate to financing in domestic and foreign currencies, and the assignment and sale of financial instruments including securities and futures, may be made subject to CIETAC Financial Disputes Arbitration Rules, subject to agreement between the parties, can also be accessed on its website.
London Arbitration, Commercial Court Litigation
James Chan & Co has acted for Buyers and Sellers in commercial sale and purchase of goods contracts, including disputes arising from damage to containerised and bulk goods, jurisdictional disputes, obtaining and enforcing security for claims and costs and enforcement of judgments and awards. Contact us for advice and representation in arbitrations and commercial court work.
For an insight into commercial trading with the People's Republic of China, please see Exporting to China which is an extract from an article previously published in the UK Trade & Investment Guide.
Security for Cargo Claim
The letter of undertaking is a form of security for the claims of the cargo owners and interests given by a P&I Club (shipowners mutual protection and indemnity insurers) in return for cargo owners and interests agreeing to refrain from taking action that would prejudice the legal and commercial interests of shipowners such as the arrest of the ships of owners for security for the claims pending settlement or in other cases, the release from arrest of owner's ship and/or refraining from re-arresting owner's ships. Its wording is subject to contention and should be reviewed with developments in case law. Letters of undertaking can be made subject to English law and worded to accept the exclusive jurisdiction of the English High Court.
In Owners of the Cargo lately laden onboard the vessel 'Jutha Rajprueck' –v- Steamship Mutual Underwriting Association (Bermuda) (2003), the Admiralty Court and the Court of Appeal considered the meaning of a competent court in the context of an undertaking given by the P&I Club in the absence of an expressed agreement to English law and jurisdiction of the English High Court. The 'Jutha Rajprueck' carried a mixed cargo of steel coils, light and heavy machinery from Japan/Korea bound for Vietnam, Thailand and Malaysia. On the way to Thailand, she suffered an engine breakdown in bad weather, could not be restarted and was abandoned but later salvaged to a Chinese port. Part of the cargo sustained damage caused by shifting and water ingress. There were 28 'bills of lading' which were governed by different jurisdictions and provided for various laws to apply including English law, Thai law and exclusive Thai jurisdiction and exclusive Hong Kong jurisdiction. Cargo interests obtained security from shipowners’ P&I Club which included in its letter of undertaking:
'We further undertake that we will within 14 days of receipt of a written request from you to do so, instruct solicitors to accept on behalf of the above-named ship service of in rem proceedings brought by you in a competent court and/or tribunal as mentioned above and file an acknowledgement of service thereof, albeit wholly without prejudice to the Owner’s rights to contest jurisdiction and/or apply to stay such proceedings.'
The undertaking was to be governed by and construed in accordance with English law and the Club agreed to submit to the exclusive jurisdiction of the English High Court for the purpose of any process for the enforcement of the letter of undertaking.
Cargo interests subsequently issued an English court Admiralty claim in rem against the shipowner and/or demised charterers and sister ships. The Club was called upon to appoint UK solicitors to accept service of proceedings in accordance with the letter of undertaking but declined. It argued it was only obliged to instruct solicitors to accept service of proceedings brought in a competent court where such proceedings could be both commenced and pursued to a conclusion and contended the English Admiralty Court was not a competent court since it was not in a position to exercise its jurisdiction in rem because neither the 'Jutha Rajprueck' or her sister ships had ever come into English territorial waters. Further, the bills of lading were subject to exclusive jurisdiction elsewhere. The Admiralty Judge ordered the Club to appoint solicitors to accept service of proceedings in rem and to file an acknowledgement of service. The Club appealed against the decision.
The Court of Appeal rejected the Club’s contention as it made no commercial sense. It held that one of the purpose of a letter of undertaking is to give an undertaking to accept service of in rem proceedings in a competent court and this would be largely defeated if the Club was only obliged to accept service in a jurisdiction in which the vessel or a sister ship was actually present. The express reservation of the rights of the shipowner to contest jurisdiction and to apply to stay proceedings indicated that the competent court was not necessarily one in which the proceedings would be pursued to a conclusion. A competent court meant a court that has jurisdiction to entertain claims in rem proceedings and the Admiralty Court had such jurisdiction under sections 20 and 21 of the Supreme Court Act 1981. In the Court’s view, the decision by the Judge accorded well with the requirements of business efficacy and dismissed the appeal.
Pirates' Seizure & NYPE Time Charterparties
Does detention by pirates, piracy or the effects of piracy entitle charterers to put the vessel off-hire under a NYPE time charterparty? Its seems not, according to the Commercial Court decision on 11 June 2010 on an appeal from an arbitrator's tribunal decision on this preliminary point. Hire remains payable continuously unless charterers can bring themselves within any exceptions under a time charterparty. Any doubt as to the meaning of the applicable exceptions is to be resolved in favour of owners. In the case of Cosco Bulk Carrier Co. Ltd v Team-Up Owning Co Ltd in the case of M/V 'Saldanha', Mr. Justice Gross considered clause 15 of a NYPE charterparty dated 25 June 2008 which provided:
'That in the event of the loss of time from default and/or deficiency of men including strike of Officers and/or crew or deficiency of… stores, fire, breakdown or damages to hull, machinery or equipment, grounding, detention by average accidents to ship or cargo, dry-docking for the purpose of examination or painting bottom, or by any other cause preventing the full working of the vessel, the payment of hire shall cease for the time thereby lost...'
The arbitration tribunal decided the preliminary issue in the negative. it also concluded the war risk and insurance provisions of the charterparty did not preclude the Respondent shipowners from claiming hire in respect of periods when the vessel was under the control of pirates. Charterers appealed.
The vessel, a Panamax size bulk carrier, was delivered on or about 5 July 2008 for a charter period of 47 to 50 months at US$52,500 per day. On 30 January 2009, charterers gave orders to load a cargo of bulk coal in Indonesia for carriage to Koper in Slovenia. The voyage was to be via the Suez Canal and owners reserved their right to refuse to comply with these orders unless charterers confirmed they would reimburse owners for the additional war risk premium. Charterers confirmed they would do so 'as per Charter'. The vessel was seized by Somali pirates on 22 February whilst sailing the transit corridor in the Gulf of Aden. The vessel was directed to Eyl in Somali and remained there until 25 April before released. On 2 May, she reached an equivalent position to the location where she was seized. Charterers refused to pay hire for the period between 22 February and 2 May. Owners claimed for hire, bunkers, additional war risk premium and crew war risk bonuses under the terms of the charterparty, alternatively, by way of indemnity for following charterers' order. Charterers counterclaimed for unseaworthiness on the basis the vessel and crew had not been properly prepared to deal with an attack by pirates.
In coming to its decision, the Commercial court considered whether charterers were entitled to rely on three phrases in the wording of clause 15 in support of their counterclaim that the vessel was off hire as a result of her seizure by pirates. Charterers asserted (a) detention by pirates amounts to 'detention by average accidents to ship or cargo'; (b) 'default and/or deficiency of men' encompasses errors, alternatively negligent errors, by the master and crew; and (c) seizure by pirates falls within the sweeping up provision 'any other cause'. The Commercial Court concluded each of these issues in turn but concluded the seizure of the vessel by pirates was not covered by clause 15. The learned Judge referred to a bespoke clause in the charterparty which dealt with seizures but went on to conclude the wording therein could not also be construed as covering seizure by pirates. Clause 40 provided:
'Should the Vessel be seized, arrested, requisitioned or detained during the currency of this Charter Party by any authority or at the suit of any person having or purporting to have a claim against or any interest in the Vessel, the Charterers' liability to pay hire shall cease immediately from the time of her seizure, arrest, requisition or detention and all time so lost shall be treated as off-hire until the time of her release….'
The Commercial Court was not prepared to distort the meaning of clause 15 of the charterparty. Unless within the ambit of the exceptions, the risk of delay is borne by charterers. Charterer's appeal was dismissed. It is open to Charterers to seek permission to appeal to the Court of Appeal.
Law, Regulation & Compliance
FSA Business Plan 2011 to 2012
The FSA has published its 86 page Business Plan for 2011/12 and the implications for its budget on 22 March 2011. The business plan sets out the regulator's priorities in dealing with the financial services industry. Following the proposed fundamental overhaul of the financial services regulatory structure by the British government, the existing FSA will be replaced by the Prudential Regulation Authority (PRA), and the Financial Conduct Authority (FCA) towards the end of 2012 or early 2013. The business plan is aimed at delivering financial stability, market confidence, consumer protection and preventing financial crime.
FSA Prudential Risk Outlook 2011
The business plan should be read in conjunction with the FSA's 94 page Prudential Risk Outlook 2011 published on 17 March 2011 which sets out its assessment of economic and financial trends as a context for prudential regulation and supervision of authorised firms. This is an interim document which is preparing the ground for the new UK regulatory structure which includes the proposed Bank of England Financial Policy Committee that will focus on macro economic issues.
FSA Retail Conduct Risk Outlook 2011
During February 2011, the FSA published its 96 page Retail Conduct Risk Outlook 2011, a key component in its consumer protection strategy to identify risks earlier, proactively intervene in products and services to prevent detriment to UK consumers. The Retail Conduct Risk Outlook also examines the range of current, emerging and potential risks which could impact on customers.
The Business Plan builds on the Prudential Risk Outlook and the Retail Conduct Risk Outlook and the 2011 Outlook replaces the previous FSA Financial Risk Outlook 2010.
EU Regulation of the Derivative Market
The House of Lords European Union Committee on Economic and Financial Affairs and International Trade Sub-Committee is conducting an inquiry into the regulation of the derivatives market. The FSA and HM Treasury have produced a joint paper in December 2009 on Reforming OTC Derivative Markets - A UK Perspective that they referred to in responding to the House of Lords European Commission's Communications on Ensuring Efficient, Safe and Sound Derivative Markets at Memorandum from the FSA and HM Treasury. This memorandum was referred to in the evidence submitted by the Futures and Options Association. A copy of its response to the House of Lords can be viewed at FOA evidence to House of Lords.
European Supervisory Authorities and a European Systemic Risk Board in 2011
Supervision and regulation of financial institutions are about to be tightened following agreement between the European Parliament and the Council of Ministers on 2 September 2010 to create three new European Supervisory Authorities and an European Systemic Risk Board (ESRB). The existing Committee of European Banking Supervisors, the Committee of European Insurance and Occupational Pensions Committee and the Committee of European Securities Regulators are to be replaced. The ESRB will help with restoring confidence, the development of a single EU Rulebook and solving problems with cross-border firms. Oversight of regulated firms will remain with national supervisors like the Financial Services Authority. Although the new structure is said to provide for better coordination of financial services supervisors across Europe, it remains to be seen whether Britain's sovereignty over her financial regulation will be further weakened. Multi-layered legislation is being considered and the Authorities and ESRB are expected to be in place early 2011. See EU final proposal for macro prudential oversight of the financial systems and establishment of the ESRB.
MiFID - Financial Advisers and Cross Border Services
Financial advisers in the UK are not automatically subject to the Markets in Financial Instruments Directive (MiFID). This EC Directive provides that investment advice must be regulated in all EEA Member States and it applies to financial advisers who are not exempted. If a UK financial adviser were to give personal investment advice to a customer who lives in or subsequently moves to another EEA Member State, it must ensure it complies with the legal requirements of that EEA State. There is, however, an alternative to setting up a branch office in other Member States. The financial adviser can obtain a "passport" for services it wishes to render in the other EEA Member State. By doing so, the financial adviser opts in to MiFID.
EEA States with passporting rights (May 2008) include Austria, Belgium, Bulgaria, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden.
There are the Insurance Mediation Directive (IMD) passports for insurance products and/or the MiFID passports for investment based products. Different passports are required for advice on different products. We suggest careful consideration be first given to compliance issues and a cost benefit analysis carried out before decision. Generally, the financial adviser opting in to MiFID is expected to meet the current financial resources requirement, provide detailed systems of controls, comply with FSA Conduct of Business requirements, not hold client monies or assets and in addition meet the minimum initial capital of Euro 50,000 or Professional Indemnity Insurance (PII) of Euro 1 million for any one claim aggregated at Euro 1.5 million. There are options that involve lower initial capital levels of Euro 10,000 or Euro 25,000 and lower PII claim and aggregate limits. These figures and requirements are subject to change.
FSA - Insurance Intermediaries Duties
The conduct of business requirements applying to firms with general insurance business commercial customers came into force on 6 January 2008. Firms which carry on insurance mediation activity other than an insurer have an obligation to disclose commission to clients when asked. The purpose is to promote transparency for clients and the financial services market. The disclosure should be made in a manner which is clear, fair and not misleading. These principles are derived from the EC Council Directive on Insurance Mediation 2002/92/EC.
The Financial Services Authority (FSA) expects intermediaries to disclose to their commercial customers all commission paid to affiliated companies and Appointed Representatives including any profit share arrangements. This is in line with the FSA's new initiative on Treating Customers Fairly. Procedures should be put in place by company directors and owners of authorised firms to respond to requests for information from commercial clients and for the maintenance of proper records evidencing compliance. Authorised firms are expected to demonstrate that they have treated their customers fairly.
Insurance intermediaries and their appointed representatives (AR) involved in insurance mediation activities in non-investment insurance contracts should be aware of the new requirements under the new FSA Insurance Conduct of Business sourcebook FSA ICOBS Insurance. In particular they must comply with Code of Conduct FSA ICOBS 4 in relation to information about the authorised firm, its services and remuneration (applies whether or not the insurance intermediary is an agent of the commercial client), ICOBS 5 in identifying their clients' needs and advising and ICOBS 6 on product information.
Broker's Status Disclosure
In line with the transparency requirements, compliance with status disclosure is required for commercial customers.
ICOBS 4.1.2 "Status Disclosure"- Before the conclusion of a non-investment insurance contract, on amendment or at renewal, an authorised firm must provide to its customers its name and address, its authorised firm FSA registration number, state whether it is a direct or indirect holding representing more than 10% of the voting rights or capital in a given insurance undertaking (whether or not an insurer which carries on insurance business), whether a given insurance undertaking or its parent has a direct or indirect holding representing more than 10% of the voting rights or capital in the authorised firm and finally a complaints procedure allowing customers and other interested parties to register complaints or a service for settlement of disputes and redress between the authorised firm and its customers.
General exemptions from the status disclosure are available to strict Introducers. Under ICOBS 4.1.4, introducers whose contact with a customer is limited to effecting introductions are exempted from the full requirements of Status Disclosure. However, if they go further by advising the customer on a particular policy or become involved in entering into commercial arrangements with a view to policy transactions or contracts of insurance in expectation of a commission or percentage of a commission, the introducers may find themselves bound by the full requirements in ICOBS 4.1.4.
Broker's Fair Analysis of the Market
ICOBS 4.1.6 - This requirement provides that an authorised firm must inform its customers, prior to the conclusion of a commercial contract, whether it gives advice on the basis of fair analysis of the market or it is tied exclusively to one or more insurance undertakings or that the authorised firm neither gives fair analysis or is so tied. The use of regularly reviewed information on products, premium and services offered to customers by several insurance undertakings or a panel of them may satisfy the requirement on provision of a fair analysis of the market.
Duty to Disclose Fees
As regards fee disclosure by a broker to its customer or policyholder, the general requirements are found in ICOBS 4.3 in addition to the separate price disclosure of the premium.
Duty to Disclose Commissions and Arrangements
In addition to the law on fiduciary obligations, a broker that conducts insurance mediation activities for a commercial customer must, if that commercial customer asks, promptly disclose the commission that he and any associate of his receives in connection with the non-investment insurance contract in question, in cash terms or, to the extent it cannot be indicated in cash terms, the basis for the calculation of the commission in a durable medium. All forms of remuneration from any arrangements including arrangements for sharing profits, for payments relating to the volume of sales, and for payments from premium finance companies in connection with arranging finance, are to be included. This should allow commercial customers to make informed decisions about competing prices. See ICOBS 4.4.
Where intermediaries such as marine insurance brokers who are remunerated by way of a commission paid by the insurer, FSA ICOBS 4.4.3 applies:-
'ICOBS 4.4.3 does not replace the general law on fiduciary obligations of an agent and disputes will be subject to commercial law and litigation. In relation to commercial contracts of insurance the root of these obligations is generally a duty on the agent to account to his principal. However, in certain circumstances, the duty is one only of disclosure. Where a commercial customer employs an insurance intermediary by way of business and does not remunerate him, and where it is usual for the insurance intermediary to be remunerated by way of commission paid by the insurer out of premium payable by the commercial customer, then if the customer asks what the insurance intermediary's remuneration is, the insurance intermediary must tell him.'
Compliance with FSA ICOBS
Directors of authorised firms and those conducting regulated activities as appointed representatives should seek guidance from the FSA and assistance with putting in place the necessary procedures to comply with ICOBS New Conduct of Business. For the relevant text on guidance, you can go to FSA Full Handbook.
Directors of general insurance intermediaries or brokers who have thus far avoided the need to apply for full FSA authorisation and regulation by acting as Introducer Appointed Representatives (IAR) for a regulated firm or FSA authorised person, should note the scope of their IAR's is strictly limited to effecting introductions (passing on details of prospective clients without engaging themselves in arrangements) and the distribution of non-real time financial promotions. The use of the term Introducing Broker has an entire separate meaning attributed to it by the FSA and refers to an authorised firm introducing transactions relating to designated investments arranged for its customers to a clearing firm which assumes the primary responsibility and legal liability for the execution and transactions for its customers or a potential customer.
An IAR is an agent of the principal authorised firm and the relationship should be governed and evidenced in the form of a written contract or agreement for practical commercial reasons (e.g. commission payments, terminations) and for management of liability risks (e.g. restricting activities outside scope of authorisation, avoiding inadvertent holding out and misrepresentation).Such a written agreement provides protection for both parties in a dispute or in a claim originating from a third party customer.
Consumer Complaints Consultation May 2011
Following receipt of feedback on CP 10/21, a consultation paper on the financial ombudsman award limits and changes to the complaint handling rules on consumer complaints has been published in May 2011. CP 11/10 invites comments to reach the FSA by 31 August 2011. CP 11/10 sets out the FSA's final policy, rules and guidance and proposes a 50% increase in the financial ombudsman service award limit from £100,000 to £150,000 from 1 January 2012 in line with maintaining consumer protection in real terms. It is likely this proposal will be implemented. There is a proposal to change the definition of "eligible complainant" CP 11/10 also proposes to change the complaints handling rules by abolishing the 2 stage complaints handling process (DISP 1.6.5r and 1.6.6R); requiring firms to identify a senior individual responsible for complaints handling and setting out guidance on how firms can meet existing requirements relating to root cause analaysis (DISP 1.3.3R) and taking account of ombudsman decisions and other guidance. With the exception of the abolition of the 2 stage complaints handling process, which is currently under consideration, it is likely that the other proposals will be implemented.
New in 2010
With effect from 1 October 2010, the national minimum wage will be raised from £5.80 to £5.93 per hour and payable from 21 years of age instead, under the National Minimum Wage Regulations 1999 (Amendment) Regulations 2010. For workers aged between 18 and 20, their rate will rise from £4.83 to £4.92 and for those below 18, who have ceased to be of compulsory school age, their rate will rise from £3.57 to £3.64 per hour. Apprentices employed under a contract of apprenticeship will have a minimum wage at the rate of £2.50 per hour under the 2010 Regulations.
Medical certificates or sick notes will be replaced by 'fit notes' from doctors regarding an employee who has been ill under The Social Security (Medical Evidence) and the Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010. The fit note will indicate whether the employee is not fit for work or 'may be fit for work' and suggests changes to be taken by an employer to the employee's work environment or role to help facilitate his or her return to work. Additional Paternity Leave Regulations 2010 give fathers and partners (including same-sex and civil partners) up to six months' additional paternity leave, provided the mother has returned to work without exercising her full entitlement to maternity leave. The provisions on 'transferable' paternity leave and pay applies to parents of children due on or after 3 April 2011. Employment tribunals are now permitted, where the Claimant consents, to pass information about public interest disclosures in 'whistleblowing' cases to the regulators under the Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2010.
Managing Risks from Valuable Assets
There have been many employment law changes recently and a rise in employment tribunal claims. Employers should review and audit their employment contracts and service agreements of the most valuable assets of a commercial business. The legal fees are minimal compared to the potential liability from claims. The general rule is that the terms of an employment contract cannot be unilaterally varied in the absence of contractual provision or agreement between employer and employee. In certain circumstances, this could lead to claims for wrongful dismissal, unfair dismissal or redundancy.
Compensation for Unfair Dismissal 2011
On 1 February 2011, The Employment Rights (Increase of Limits) Order 2010 will come into force. New compensation limits will apply to unfair dimissals where the effective date of termination of employment falls on or after the 1 February 2011. For each unfairly dismissed employee, the maximum compensatory award for unfair dismissal will rise from £65,300 to £68,400. A week's pay for basic award for unfair dismissal and statutory redundancy payment will also be increased from £380 to £400. The maximum unfair dismissal award for basic and compensatory elements will be £80,400. There is no statutory limit on compensation claims for unfair dismissal based on sex, race, disability discrimination under the Equality Act 2010 or for termination for a reason connected with a protected disclosure or whistle blowing under the Public Interest Disclosure Act 1998. Employers should review their terms of employment to manage risks.
Variation of Employment ContractsIn R. Robinson v Tescom Corporation before the London Employment Appeal Tribunal on 3 March 2008, a manager's terms of employment were varied to the extent that it involved more travelling on business in the course of his employment. The manager believed this was a unilateral variation which was a breach of his contract and he had been dismissed from his original contract of employment. He however continued to work in accordance with his original terms and under protest. A grievance was raised. He was called to a disciplinary hearing and subsequently dismissed for gross misconduct in failing to comply with the employer's legitimate and reasonable instructions. The dismissal was held to be fair by the Employment Tribunal and his appeal to the Employment Appeals Tribunal was dismissed by the Honourable Mr. Justice Elias. The fact the manager had agreed to continue working after the unilateral variation, prejudiced his case. He could not continue to work under the new terms, even under protest, and yet insists on working in accordance with the original terms of employment. By doing so, he opened himself to dismissal for gross misconduct. This case must be considered on its facts and should not be taken as authority for an employer's unilateral variation of terms of an employment contract.
Void Employment Contract Terms
There are some employment terms, if included in employment contracts, which are void and unenforceable by law such as the restriction on industrial action or terms which are discriminatory in nature or effect. Employment contract terms which are void in law are:
Any term in a director's contract of employment providing for a term of employment longer than two years which cannot be terminated upon notice by the company is void unless it has been approved by the shareholders by resolution.
Any term which requires an employee to become, or to remain, a member of an occupational pension scheme to which the employee is obliged to contribute.
Any term in an employment contract which excludes or restricts an employer's liability for death or personal injury due to negligence or, except in cases where the requirement for reasonableness under the Unfair Contract Terms Act 1977 are satisfied, for other loss or damage.
Any term by which an employee agrees to exclude or limit the operation of statutes enacted for the employee's protection. This does not apply to compromise agreements whereby the terms therein have been agreed between the employer and employee and the relevant provisions in the Employment Rights Act 1996 have been complied with.
Contact James Chan & Co for a fixed fee audit and review of your employment contracts and directors' service agreements.
Managing Company Directors and Senior Employees
As for directors' service agreements and senior bank employees' contracts with contractual bonus provisions, the employer's exposure on risk of liability for breach of implied and express terms and wrongful dismissal claims remains as wide as the terms in the employment contracts will permit under employment law in the absence of negotiated settlement by way of a compromise agreement. Employees are valuable assets but are also part of your business risks and liabilities.
Shadow Directors & Service Agreements
Under section 230 of the Companies Act 2006, a shadow director (a person in accordance with whose directions or instructions the directors of the company are accustomed to act excluding professional advisors) will be subject to the same provisions governing directors' service contracts which means a company must keep available for inspection a copy of a shadow director's service contract or written memorandum of the terms of the service contract. The same provision also provides for notification by the company to the Registrar of the place where the memorandum is kept if it is other than at the company registered office. Non-compliance is an offence and every officer of the company in default is liable on conviction to a fine.
Can a Controlling Shareholder be an Employee?
The Court considers the controlling shareholding in a company to be relevant and possibly decisive in determining whether a contract of employment exists. An individual who holds controlling shares in a company may raise doubts as to whether he can be considered to be an employee of the company he controls. On 29 February 2008, the Employment Appeal Tribunal decided in the case of J E Clark v Clark Construction Initiatives Ltd and Utility Consultancy Services Ltd, that the mere fact an individual has a controlling shareholding in a company or that he is an entrepreneur or has built the company up or will profit from its success, does not prevent a contract of employment from arising. On 11 April 2008, in the case of R Neufeld v A& N Communications in Print Ltd (in liquidation) and Secretary of State for Trade & Industry, the Employment Appeals Tribunal decided that a shareholder holding 90% of the shares in a company was also its employee. The fact the individual concerned offered a bank guarantee for the company's debts was not in itself inconsistent with there being in existence an employer employee relationship or an employment contract.
Is a Director and Majority Shareholder an Employee?
On 2 April 2009, the Court of Appeal decided in the case of 'Secretary of State for Business, Enterprise and Regulatory Reform vs Richard Neufeld [2009]' that there is no reason in principle why a person who is a director and shareholder of a company (whether a majority shareholder or one with total control) could not also be an employee under an employment contract within the definition in section 230 Employment Rights Act 1996 and therefore entitled to statutory protection under English employment law. This case concerns the circumstances in which a director and majority shareholder of a company may be regarded as an employee for the purpose of a claim against the Secretary of State pursuant to Section 182 of the Employment Rights Act 1996 as statutory guarantor for certain categories of unsatisfied debts owed to employees on an employer's insolvency. Consideration had to be given to determining whether the subject employment contract was a genuine contract or a sham and whether the relationship was one of an employee's employment contract or a contract for services.
Contact us for the preparation or review of directors' service agreements, employee employment contracts and your staff handbook. If a potential claim has already arisen, we can assist clients with settlement negotiations and advice on compromise agreements with a view to avoiding a reference of a claim to the employment tribunal. If you need advice on employment law, statutory and contractual rights, or if you need to consider employment law in relation to the terms in compromise agreements, we will also be pleased to help you.
Bonuses, Unfair Dismissal and Unfair Contract Terms
On 17 November 2006, the Court of Appeal in London held in the case of Commerzbank AG v James Keen that Section 3 of the Unfair Contract Terms Act 1977 (on liability arising under contract) does not apply to employment contracts as employees do not "deal as a consumer" with their employer. In this case, an ex-employee with a basic annual salary of £120,000 was eligible to participate in a discretionary bonus scheme. The terms stated that no bonus will be paid if on the date of payment of the bonus the employee was not employed by the Bank or if he was under notice to leave the Bank's employment. Mr. Keen was made redundant on 10 June 2005 before the Bank's bonus payment date in March 2006. Mr. Keen claimed breach of contract, under-payment and non-payment of annual discretionary bonuses under the term providing for entitlement to a discretionary bonus. It was claimed the Bank could not rely on the term (under UCTA 1977) which provided that no bonus would be paid if an employee was no longer employed by the Bank. Hence, the employer was in breach of contract and not entitled to exclude or restrict any liability in respect of the breach or to claim to be entitled to render a contractual performance substantially different from that which was reasonably expected of the employer, or in respect of the whole or any part of the employer's contractual obligation, to render no performance at all by non-payment of the bonus.
If you have been unfairly dismissed and deprived of your bonus entitlement just before the date your employer was due to declare and distribute the company bonus or if you believe you were discriminated against in the distribution of bonuses, you may have a claim. To extinguish your right to bring employment related claims, a compromise agreement with terms favourable to the employer, some of which could be penalty clauses and thus unenforceable, may be offered for your acceptance. Contact us for advice on your rights and for independent legal advice on the terms offered to you in a compromise agreement.
Who is the Employer?
On 18 May 2007, the Employment Appeal Tribunal held in the case of Consistent Group Ltd -v- Kalwak and Others and Welsh Country Foods Ltd that agency workers were employed by the employment agency regardless of the fact that it was the company where they were sent to work which exercised control over their day to day work. This case was decided on the facts surrounding the dispute and may not apply to other relationships between an employment agency and their temporary workers.
Employment Rights - Agency Worker to Employee
Section 108 of the Employment Rights Act 1996 as amended by the Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 1999 provides that an employee is not entitled to the statutory right not to be unfairly dismissed by his employer, unless he or she has been continuously employed for a period of not less than one year ending with the effective date of termination of employment. Generally, employment law requires an employee to have at least one year of continuous employment before entitlement to statutory protection from unfair dismissal. There are however several exceptions on which we will be pleased to advise.
If an agency worker were to work for an end-user employer (agency's client) over several periods and then taken on as an employee, would the periods worked as an agency worker count towards the one year qualifying period so as to entitle him or her to statutory protection from unfair dismissal? In the case of Wood Group Engineering (North Sea) Ltd -v- Karen A Robertson, the Employment Appeal Tribunal considered whether there was an implied contract of employment between an agency worker and the end-user employer, when the agency worker was dismissed less than one year after she was taken on as an employee by the end-user. The main legal issue was whether the periods of employment as an agency worker should count towards her one year continuous employment. In this case, there were contractual arrangements and obligations between the agency and the end-user employer and between the agency and the agency worker which governed the relationship between the parties regarding control over the agency worker and mutuality of obligations. The Employment Tribunal at first instance decided there was an implied contract of employment during the period when Ms. Robertson worked as an agency worker because the end-user employer exercised control over her work and there had been mutuality of obligation between the parties. The end-user employer appealed against the decision. On 6 July 2007, the Employment Appeal Tribunal rejected the decision of the Tribunal. It disagreed there was an implied contract of employment given the tripartite contractual agreements and held the period of continuous employment commenced only when the agency worker was taken on as a full time employee and not before. Consequently, Ms. Robertson was not entitled to statutory protection from unfair dismissal, given the facts of her case.
Time Limits - Claims & Appeals
Time limits within which claims arising from employment are to be brought and appeals against Employment Tribunal decisions lodged are strict and can be confusing. If in doubt, always treat time as of essence. Early legal advice should always be sought from solicitors.
Claims for wrongful dismissal or wrongful constructive dismissal in breach of contract under common law are treated differently from statutory claims for unfair dismissal. Different time limits for claims against an employer apply. As a general rule, Employment Tribunals now have concurrent jurisdiction to hear wrongful dismissal claims subject to the amount of compensation they can award. There are certain claims which must be brought in court, even if the sums claimed are within the power of the employment tribunal to award, e.g. issues relating to restrictive covenants, personal injury and intellectual property rights claims.
If the amount of compensation exceeds the maximum amount the Employment Tribunal has power in law to award, the wrongful dismissal claim may be brought in court and a six year time limit for bringing claims would normally apply. If the wrongful dismissal claim is brought in the Employment Tribunal, an employee has three months from the effective date of termination of employment to bring a contractual claim and the employer will have six weeks from the date the employer received a copy of the employee's claim to counterclaim against an employee for breach of contract.
The normal time limit for bringing a statutory claim for unfair dismissal is three months from the effective date of termination. The time limits are strictly enforced by the employment tribunals and this was recently demonstrated. On 6 August 2007, the Employment Appeals Tribunal in London held in the case of 'Beasley -v- National Grid Electricity Transmissions' that a claim for unfair dismissal presented by email just 1 minute 28 seconds outside the three month time limit and the complaint was precluded from being considered by an Employment Tribunal under Section 111(2) Employment Rights Act 1996.
On 18 January 2010, the Employment Appeal Tribunal or EAT, with His Honour Judge Serota QC sitting alone, had to consider whether an Appeal had been served two days out of time. The Employment Appeal Tribunal Rules rule 3(3) provides that a Notice of Appeal must be lodged within 6 weeks, or 42 days, from the date when the written reasons for the judgment of the Employment Tribunal were 'sent' to the parties; 'sending' meaning delivery to the Post Office. The judgment was signed on 9 March which meant the appeal had to be lodged by 4pm on 20 April 2009. The appeal was received by the EAT on 22 April. The Appellant Claimant maintained the judgment was not 'sent' to him on 9 March since he received the judgment on 12 March. On a balance of probability, the EAT considered the judgment was sent on 11 March. The learned Judge went on to state that it was opened to a litigant to challenge that the date recorded on an employment tribunal judgment was the date the judgment was 'sent' to him. The Employment Tribunal, when requested, should be ready to provide evidence of its procedure to ensure that documents (including judgments) are sent on the date stamped upon that document (or judgment) as being the date of sending.
Paid Annual Leave Entitlement Increase
There have been more changes to the Working Time Regulations 1998. On 1 April 2009, the minimum annual paid leave entitlement for full time and part time employees will be increased from 24 to 28 days (pro rated for part timer workers who are entitled not to be treated unfavourably) or 5.6 weeks on the basis of five working days a week. The annual leave entitlement includes public and bank holidays. The law provides for minimum annual paid leave but an employer may increase leave entitlement in its employment contracts. Paid leave entitlement starts to accrue on the date of commencement of employment.
Annual leave accrues even though an employee is on long term sick leave and is absent from work throughout the leave year concerned. Employers are legally obliged to allow an employee on long term sick leave to carry forward accrued annual leave into the following leave year. This raises the question as to the treatment of an employee taken sick over a period whilst on annual leave. The recent view of the European Court of Justice in Pereda v Madrid Movilidad SA (2009) is to treat the period concerned as sick days, subject to the employee complying with notification and evidence requirements of the employer's sick pay scheme or statutory sick pay. The court's decision is legal authority that such an employee is entitled to take an equivalent period of annual leave after he is fit to return to work and, if necessary, such leave may be taken in a subsequent leave year. We recommend employers review and amend their employment contracts and policies accordingly. These changes will affect calculations of payment in lieu of annual leave entitlement that has accrued but untaken on termination of an employee's employment and should be taken into consideration in the terms of a compromise agreement.
Compromise Agreements and Employment Claims
If you need advice on your rights on the terms of a compromise agreement and/or the validity of contractual terms in your employment contract or service agreement, or you wish to consider bring employment law related claims, you can contact James Chan & Co with details of your employment contract terms, your situation and your claims for a preliminary view on your position.
Money Laundering and Financing Terrorism
The House of Lords EU Committee 19th Report on Money Laundering and Financing of Terrorism was printed in July 2009. The report sets out and describes the problems posed by money laundering and terrorist financing and looks at possible co-operation internationally and at the EU level. It also sets out and explains customer due diligence as a measure the regulated sectors are required to take when establishing a business relationship and when carrying out large occasional transactions as one transaction or part of a series of transactions.
The Bribery Act 2010
The Bribery Act 2010 came into force on 1 July 2011. Its application extends to all persons and companies doing business in the UK and covers actions taken overseas which are offences under the Act if the person performing them is a British national, is ordinarily resident in the UK or a body corporate in the UK. The new offences created are the bribing of another person under Section 1; being bribed (where a person requests, agrees to receive or accepts a financial or other advantage) under Section 2; bribing a foreign official under Section 6 and failure by a commercial organisation to prevent bribery under Section 7. There is a defence in circumstances where a commercial organisation can demonstrate it has adequate procedures in place as part of its compliance and governance regime. What amounts in law to adequate procedures will be subject to interpretation by the English courts.
New and detailed 2011 Guidance published by the UK government under Section 9 sets out preventive procedures commercial businesses can put in place to prevent persons performing services for and associated with them from bribing others. The 45 page guidance has illustrative case studies. The Act deals only with the new offence of bribery and is not concerned with fraud, theft or money laundering offences. Facilitation payments remain bribes. Section 7 provides for the offence of bribery which can be committed by commercial businesses of all sizes which fail to have in place adequate procedures to prevent persons associated with them from bribing another person on their behalf. Its scope extents to cover top management, company directors, employees and agents who perform services on behalf of their businesses. There is also a 9 page 2011 Quick Start Guide for reference.
A defence exists if the commercial business is able to show it had adequate bribery prevention procedures in place within its organisation, although this will be tested to its full extent in court in time. For background reading, see also Avoiding Corruption Risks in the City: The Bribery Act 2010 published by Transparency International UK for the City of London Corporation. It has 9 scenarios, some followed by examples and case studies, tables and charts and 4 Appendices. Page 9 provides a summary of the four offences and penalties under the new Act. Page 11 considers the application of the Section 7 offence to companies, partnerships or part of a business in the UK and exposure through subsidaries with a scenario for liability of a parent company's actions elsewhere under English law. For 'Perceived Corruption Risk' in the City of London sub-sectors, see Table 2 page 22. For employment contracts policies, Appendix D at page 60 provides a © Transparency International 2009 Anti-Bribery 20 Point Checklist.
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