Ask the Experts

Dispute Resolution

I am the director of a limited company that has gone into liquidation. Am I able to trade using another limited company?

As the director of a limited company which has gone into liquidation, the liquidator is required to report to the insolvency service on your conduct as a director. If there are issues with your conduct the insolvency service may seek to have you disqualified from acting as a director. If that is the case you will be informed by the insolvency service. If there are no issues with your conduct the only restriction you will face relates to the name of the limited company of which you intend to act as the director.

I am the director of a limited company and am concerned by the financial position of the company. What duties do I have to the company and to creditors and what are the consequences if I breach these duties?

All directors have a fiduciary duty to act in the best interest of their company. If the financial position of the company is uncertain, the directors also owe a duty to potential creditors of the company i.e. the directors must ensure that if they continue trading they are not increasing the debts owed by the company. If a director breaches theses duties it is possible that they may be found personally liable for some or all of the debts of the company. Given the consequences of breaching these duties please contact us if you require further advice.

I jointly own a property with my wife - can my trustee in bankruptcy force a sale of the property?

The short answer is yes. The trustee is likely to give you or any third party 12 months from the date of the bankruptcy order to purchase their interest in the property. However, if a sale of the property is required, the trustee can require this to take place notwithstanding anyone else’s interest in the property, unless there are exceptional circumstances. If you believe that there may be exceptional circumstances why your property should not be sold please contact us for further advice.

Once I have been discharged from bankruptcy are my assets returned to me?

We are often asked about the effect of discharge and it appears to create a great deal of confusion. The effect of discharge is limited and simply releases you from the restrictions placed upon you while in bankruptcy as such you can be a director of a limited company or seek credit of more than £500 without disclosing the bankruptcy order. Any assets you owned at the time of the bankruptcy order vested in the official receiver (or trustee in bankruptcy) and this property is not returned to you once you have received your discharge.

A bankruptcy order has previously been granted against me. How long will I be in bankruptcy?

As long as you co-operate with the official receiver or your trustee in bankruptcy, if one is appointed, you will be discharged from bankruptcy automatically after 12 months.

If the official receiver or your trustee believes that you have not been co-operative, they may apply to court to suspend your discharge from bankruptcy which could result in you remaining in bankruptcy until you co-operate.

I owe money and have received a statutory demand what do I do?

Give us a call! We are happy to chat through any issues that you have to see if we can help. Please note that statutory demands need to be responded to within 18 days of receipt, so please don’t delay in seeking advice.

What initial steps should I take before contacting you?

Think about what you want, not just what went wrong.

If the terms of the contract are recorded in a written document, it is essential that you obtain a copy of it and provide it to us. Parties are generally free to agree whatever they want, so asking a solicitor questions about whether a contract is legal, without the contract, will rarely enable them to provide you with proper advice.

If the terms of the contract were not written down, write down what you think was agreed, when and between whom.

Gather and place into chronological order any and all relevant documents (including emails) concerning the nature of the claim.

My claim is worth less than £10,000 and falls within the small claims track. Is it still sensible to contact a solicitor?

If your claim is worth under £10,000 it will generally be referred to as a ‘small claim’. Such claims are still ultimately determined by County Court judges at trials, but the losing party will generally not be ordered to pay the winning party’s costs.

In claims worth over £10,000, the winning party can expect to recover its legal costs from the other side, but not in small claims.

However, we can enter funding arrangements suitable for each case, including fixed fees for specific pieces of advisory or drafting work and no win no fee agreements.

How much is my claim for breach of contract worth?

In English law, the purpose of an award of damages for breach of contract is to compensate the injured party for loss, rather than to punish the wrongdoer. The general rule is that damages should (insofar as a monetary award can) place the wronged party in the same position they would have found themselves had the contract been performed properly.

How long will it take to proceed?

This depends on the value and complexity of the contractual dispute. The more complex, the longer it will often take to litigate the dispute. However, as an estimate, you could expect it to take between a few months and two years.

How long have I got to bring a claim?

A claim founded on simple contract (that is, a contract not contained in a ‘deed’), has a limitation period of six years from the date of accrual. This means that a claim for breach of contract brought after six years will almost always fail.

A defendant will generally have a cast-iron defence to any claim for which the limitation period has expired, no matter how strong the original claim was.

What type of contractual disputes can SAS Daniels assist with?

We assist individuals, sole traders, partners and large private and corporate bodies with a wide range of commercial and contract disputes including:

  • Warranty and indemnity claims;
  • Agency, distribution and franchise agreements;
  • Restrictive covenants;
  • Misrepresentation claims;
  • Breaches of trust and breaches of fiduciary duties;
  • Unjust enrichment;
  • Sale and supply of goods and services.

If the contract does not have to be in writing, how do I evidence the terms of the agreement?

In most cases, the conclusion of a legally binding agreement is preceded by a period of negotiation. The parties will say or write various things during the negotiations. If there are no written contractual terms, a court might examine the chains of e-mails (often written in fast moving trading situations) and any notes of meetings and conversations to establish whether or not a contract has been made and, if so, what are its terms.

  • A contract can be made by means of the spoken word (face-to-face or via some communication medium such as the telephone), though a party may have difficulty in proving the terms of an oral contract if they are disputed;
  • A contract may be made partly orally and partly in writing;
  • A contract may be implied from the conduct of the parties. Offers can be made and accepted by behaviour, rather than by saying ‘yes’ or ‘no’;
  • A contract can be made via e-mail, or by clicking a button on a website, provided the key elements are present.

It is important to ensure that any online contracting procedures are in accordance with long standing principles of contract law together with any specific regulatory requirements in the field in question.

The message for commercial clients, contract managers and sales teams is that a legally enforceable contract can be created more easily than you might think.

Myth or Fact: You are legally bound by the terms of a document you signed without reading it?

Fact. Signing a document is generally deemed as acceptance of its terms.

Myth or Fact: A contract has to be contained in a formal document to be valid?

Myth. A contract is a legally binding agreement, not a piece of paper.

In general, no particular formality is required for the creation of a valid contract. A legally binding agreement arises as a result of an offer and acceptance and an agreement that each of the parties will do or provide something.

How long have I got to bring a claim?

The time-limit for bringing a claim for either negligence (‘tort’) or breach of contract is six years after the cause of action accrues. (Care must be taken because the trigger date for the cause of action starting may differ in tort and contract).

Do I need documentary evidence?

It depends. Whilst it is desirable for evidential purposes for any agreement etc to be in writing, an individual may be able to advance a claim in professional negligence arising from oral communications and the treatment, advice or other service offered by the professional.

Who is liable?

Generally, professionals will have deep pockets in the form of insurance and, if they work for a company, the company will generally be liable for their actions.

How long will it take to proceed?

It may sound like a typical lawyers’ answer, but this will depend on your individual case. Usually, cases range from a few months to two years. The more complex the matter, or the further apart the parties are, the longer it will often take to settle or conclude.

How much will it cost?

In order to provide you with clear advice as to the likely costs and funding options available to you, we would have to take some initial details concerning the nature of your claim.

However, at SAS Daniels we pride ourselves on the different and varying funding options that we offer to our clients.

How are damages calculated in a professional negligence claim?

Damages in negligence/tort should put the wronged party back into the position s/he was in before the wrong occurred. This is often impossible, unless the only losses are financial, so the courts will award monetary compensation to redress the loss or damage suffered.

In the event of a parallel contractual relationship, the aim of an award for damages is to put the wronged party into the position they would have been if the contract was performed properly. As above, financial compensation will often be the result. This means that the innocent party can seek to recover profits that he reasonably expected to receive had the contract been performed correctly.