The Value of Mediation in Resolving Family Business Disputes
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Insights for Accountants and Trusted Advisers Introduction As accountants and trusted advisers, you play a pivotal role in guiding your clients through various business challenges. One of the more delicate situations involves navigating disputes,...
As we approach the Christmas break with excitement and anticipation, many of us are aware of a bubbling cauldron of family conflict which could flare up at any time. But this is said to be the season of peace and goodwill; so how well do we deal with...
Four hour mediations – the quick solution? The classic commercial mediation “model” involves bringing the parties together for a full day (seven or eight hours). This can be extended if the parties have not quite concluded their deal...
How will the mediation landscape be changed by the Fixed Recoverable Costs regime? The new Fixed Recoverable costs (“FRC”) regime took effect from 1 October 2023. It arrives as parties are being encouraged to mediate. Will it help? Here...
Early intervention through workplace mediation reduces the costs of workplace conflict.
“Every dispute has a sweet spot at which it is most susceptible to resolution.”
How can we find it? This is all about being clear about what the litigation process can and cannot provide; understanding what mediation has to offer and assessing investment risk, balancing the costs burden of pursuing litigation against the consequences of doing so.
Some things to think about Is the current value of the company sufficiently large for the owners to argue about it if they fell out? Is the value likely to increase significantly over the near future? Do you wish to introduce new shareholders to an...
Simple belief that you have a strong Defence does not necessarily justify a refusal to mediate. The judge in DSN v Blackpool FC Limited outlines some of the reasons why.
Summarising the principles drawn from recent cases dealing with sanctions for refusing to mediate
Recentjudgment finds shareholder/director personally liable.
There are several ways in which a wayward shareholder/director may be called to account but for many smaller businesses, the potential benefits of pursuing court proceedings will be outweighed by the potential costs. Here are ten practical steps to take.
Can I keep my monthly dividend? – It depends
In the case of Jones -v- Sky Wheels Group [2020] EWHC 1112 (Ch), the judge concluded that it was sufficiently arguable that a shareholder who had been paid over £400k on account of dividends did not have to repay that money until the directors and shareholders had decided whether to declare a dividend which would reduce his liability to repay monies to the company
I have been very pleasantly surprised at the ease with which it is possible to undertake a difficult civil/commercial mediation online. I thought it would be useful to share the experience of setting up and running an online...
The outbreak of coronavirus (COVID-19) has created so many problems for so many businesses that it can be difficult to provide any specific guidance across a wide range of different sectors that will have any lasting impact in a blog such as this. For...
The recent Supreme Court case of Tillman-V-Egon Zehnder [2019] UKSC Number 32 has clarified the correct approach to “severance” in restraint of trade cases. The revised guidelines are helpful to...
Occasionally, we can be tempted to carry out work without having agreed a price. Sometimes it is a lot of work. We do it on trust, hoping and believing that we will get paid. Some recent cases throw this into doubt. Sometimes a court will award nothing. Even if something is payable it may be significantly less than expected.
The moral of these tales? Don’t rely on oral contracts. Make sure the terms are clearly agreed and set out in writing.
The recent case of re Dinglis Properties [2019] EWHC 1664 (Ch) is an interesting example of a decision made in respect of an unfair prejudice petition in a family business. The son had a 12% minority shareholding. He was not otherwise involved in the...
This is the third article in a series dealing with workplace mediation. In the other two I have explored: What is workplace mediation? What’s that all about! Resolving workplace conflict - Bash on or call someone in? Imagine that you are the...
... any offer to purchase shares which are made in the context of a threatened unfair prejudice petition needs to be framed carefully. If drafted properly, then it will put the prospective petitioner in an extremely difficult position if he is thinking about refusal.
Why workplace mediation is more than just good management
I often hear stories of people who say that they have tried mediation in the workplace and that it didn’t work. Further enquiries reveal that whatever process was used it was mediation only in name but not in substance.
What are the key differences?
I list below some of the key differences between workplace mediation over “good management practice.”
As its name suggests, this term refers to the use of mediation to resolve conflict in the workplace. In this, the first of a series of three articles, I will set out what mediation is and how workplace mediation work. In later articles I will deal with the...
Help: I need an NHS contract mediator! 1st March 2019 is the day for appointing a mediator for NHS contract negotiations according to the NHS Operational Planning and Contracting Guidance 2019/20 (“the Guidance”). Where will they find them? ...
In a recent Blog I explained why the temptation on the part of a Trusted Adviser to give their client some “common sense” advice rather than recommending that they instruct an experienced lawyer could be a false economy. In this Blog I suggest some other reasons why the early involvement of a lawyer can help to achieve a better outcome.
In the commercial world disputes are common. They can quickly affect the profitability, operation and future of the business. As a trusted adviser to your clients you will often be approached by people who want advice in these situations. Since there is...
In the case if Smithton Limited v Naggar and Others [2014] EWCA Civ 939 the Court of Appeal was asked to consider a claim against the respondent, Mr Naggar based on an assertion that he was a de facto or shadow director. Background Mr Naggar was a...
Some simple answers to this question might be to save money; because it gives a better chance of resolving a dispute; and because it can lead to better outcomes for both parties to a conflict. I have offered some answers but many people will not...
In the recent case of Warm Zones v Sophie Thurley [2014] EWHC 988 (QB) the High Court was prepared to grant an injunction requiring the defendant employees to allow their home computers to be inspected by an independent computer expert to see if they had...
Many companies spend a lot of money getting their own terms and conditions of business (both for sale and purchase) drafted, but take inadequate steps to make sure that these terms become incorporated into their contracts when dealing with other...
In a recent article we commented on the case of Bristol Ground School Limited v Intelligent Data Capture Limited and Others [2014] EWHC 2145 in which the judge applied principles set out in the case of Yam Seng Pte Limited v International Trade...
For those working the field of mediation and negotiation, cognitive biases are to be reflected upon regularly and dismissed at our peril. In the following slides I explore the relevance of some of these biases. The intention of these slides is not to be an...
Good negotiators can learn a number of lessons from the dynamic of the mediation process. How does mediation help? A conflict is often identified as being ready for mediation when the parties themselves are no longer able to find constructive ways...
In the recent case of Stack v Ajar-Tech the Court of Appeal upheld the decision of an employment tribunal on the facts of this particular case that a shareholder and director who had neither asked for, nor received, any remuneration for the work that he...
There has been much publicity in the press about the increase in the court fees which came into effect on Monday 9 March. What impact is that likely to have on someone involved in a dispute? What are the Increases? In some cases the court fees have...
In the recent case of Sunrise Brokers LLP v Michael William Rodgers [2014] EWHC 2633 (QB) the High Court granted a declaration to the claimant employer that the defendant remained in its employment, and therefore subject to restrictive covenants, for the...
The Supreme Court in the case of Coventry v Lawrence (No 2) [2014] UKSC 46 has set the cat amongst the pigeons in relation to the recoverability of legal costs. The case involved a claim for nuisance by the appellants Katherine Lawrence and Raymond...
The parties to a written contract will often assume the contract contains all relevant clauses. However, when a dispute arises one or other of the parties will often argue that the written contract does not contain the full picture and will see to imply...
Many employers heaved a sigh of relief following the decision of Mr Justice Donaldson in the case of Prophet PLC –v- Huggett . In that case, he had been faced with a restrictive covenant in an employment contract which, on its true, proper and...
Litigation Practitioners will be aware that over recent years the Courts have been taking every opportunity to encourage parties to attempt to resolve their disputes by negotiation or by mediation rather than using the courts. For example, There is a...
The rules applying to flexible working arrangements have been changed with effect from 30 th June 2014. Until that point, the right could only be exercised by parents of children under 17 or by those caring for an adult. However, the right has now...
It is not uncommon for organisations to require someone to enter into a “non-disclosure agreement” before handing over confidential information to them. These agreements contain an express contractual duty of confidentiality designed to ensure...
One of the outcomes of litigations which has become increasingly difficult to predict is the nature of the costs order that might be made by the judge following a trial but there is little doubt that this will be heavily influenced by the attitude to...
In the recent case of Cockrem v Air Products Plc. [2014] UKEAT 0038/14/2105 the employment appeal tribunal upheld the decision of the employment judge to strike out a claim by Mr Cockrem that he had been constructively dismissed when he pursued that claim...
If the Articles of Association of a company are amended so as to include “drag-along” provisions and those provisions are then exercised so as to allow for the purchase of the shares of a minority shareholder, will this constitute unfair...
In the recent case of Merlin Financial Consultants v Cooper [2014] EWHC 1196 (QB) the court upheld a “non-compete” restrictive covenant for one year thus preventing the former employee from practising as a financial adviser in competition with...
There is little doubt that a carefully worded shareholders agreement or specifically drafted articles of association can form a strong backbone for the relationship between shareholders in a limited company. Even the discussion of the possible contents of...
In the case of Devon Primary Care Trust v Readman [2013] EWCA Civ 1110 the Court of Appeal were asked to consider the test that should be applied to a situation in which an employee, having been at risk of redundancy, was offered suitable alternative...
Since 6 April 2014 it has become necessary for a claimant wishing to pursue a claim in the Employment Tribunal to apply to ACAS for Early Conciliation. A failure to do so will mean that the employment tribunal will automatically reject their claim. Early...
Section 35(d) of the Partnership Act 1890 provides that the court may decree a dissolution of partnership when a partner, other than the partner suing; “Wilfully or persistently commits a breach of the partnership agreement, or otherwise so conducts...
It is commonly accepted that restrictive covenants contained in an employment contract will not be enforceable unless the employer can show that it has legitimate business interests requiring protection and that the covenant is shown to be no wider than is...
It will be interesting to find out whether we will see an increase in the number of attempts by employees to use covert recordings of the deliberations by a disciplinary or investigatory panel following the decision of the Employment Appeal Tribunal in the...
It is a sad fact, perhaps, that many people sign guarantees in respect of liabilities within their business without reading them. We all take an optimistic view of the future of our business and if, on that view, there is no likelihood that the...
Disputes over the interpretation of restrictive covenants and over the use of confidential information mostly arise within the context of a failed employment relationship. It is therefore interesting to see the way in which the Courts deal with these...
The recent case of East England Schools CIC v Palmer is a further example of the factors that the courts will take into account when interpreting restrictive covenants and a reminder of the powers that they have to amend these in certain circumstances. ...
It has long been established that a company director is in breach of his fiduciary or statutory duty if he exploits for his personal gain (a) opportunities which come to his attention through his role as director or (b) any other opportunities which he...
By virtue of regulation 2(1) of the Working Time Regulations 1998 (“the Regulations”) the expression “worker” is defined to mean “an individual who has entered into or works under (or where the employment has ceased,...
In the recent case of J M Finn & Co –v- Holliday , the High Court has once again demonstrated that it is prepared to grant injunctions to uphold a garden leave provision within a contract; even one which is for as long as 12 months. ...
There may be situations in which a potential claimant feels it would beneficial to see documents held by a potential defendant before commencing proceedings. How can he obtain these? Does he need to show an arguable case in order to do so? Background ...
What length of notice is it reasonable for a party to give if there is no written contract? That was the question for determination in the recent case of Hamsard –v- Boots. Background It is surprising how often substantial commercial...
The duties owed by a director to the company were codified in the Companies Act 2006. If the director has been in breach of those duties, the company can pursue a claim against him for compensation. However, many people do not appreciate that these duties...
In the recent case of PGF II SA v OMFS Company 1 Limited the Court of Appeal determined that the failure by a party to respond to a reasoned invitation to mediate an ongoing dispute was unreasonable even though there may have been good reasons to refuse...
When reviewing share sale or shareholder agreements, it is not uncommon to find good lever/bad lever provisions that have the effect that a departing shareholder or partner in the business is deprived of the value of his shares or of future profits as if he...
It is often stated that court decisions in cases involving the interpretation of restrictive covenants cannot operate as binding precedents because the decisions are so dependent upon the facts of each different case. Nevertheless, an examination of these...
So much time and cost is tied up in the process of litigation that the government has, over the years, introduced many schemes to incentivise parties to try and negotiate an early settlement. One such scheme allows a Claimant to make an offer and provides...
So much time and cost is tied up in the process of litigation that the government has, over the years, introduced many schemes to incentivise parties to try and negotiate an early settlement. One such scheme allows a Claimant to make an offer and provides...
The recent Employment Appeal Tribunal (“EAT”) case of Croft Vets Ltd v Butcher is causing concern for employers who are managing employees who are absent from work due to long term illness. It addresses the issue as to what might amount to the...
In the recent case of Park Cakes Limited v Shumba and others the Court of Appeal reviewed the law, and provided some useful guidance, on the circumstances in which an employer might be contractually obliged to pay enhanced redundancy payments as a result...
Two recent cases have considered the question as to whether or not it is reasonable for an employer to dismiss an employee simply on the grounds that there has been gross misconduct. Will dismissal in such circumstances be regarded as automatically within...
Most directors are content to sit behind the limited liability structure of the company in which they are involved and believe that, by doing so, they will avoid incurring personal liability in respect to any matters which they are involved. Therefore, circumstances in which a director has been found to incur personal liability by being in breach of a fiduciary duty to a third party (who is not just the company and its shareholders) will be a potential cause for concern. This is what happened in the case of Ross River Limited and others v Waveley Commercial Limited and Barnett.
In the recent case of Ghosh –v- Nokia Siemens Networks UK Limited the Employment Appeal Tribunal had to review a decision by the Employment Tribunal in which it had ordered the Claimant to pay costs of £5,000 to the Respondent on the basis of...
Many businesses will only supply services to their customers if their customers accept their standard terms and conditions of business. Often these terms and conditions of business will contain a clause which will seek to limit the supplier’s...
In the recent case of John Spencer Harvey –v- Dunbar Assets PLC [2013] EWCA Civ 952 the court had to decide whether, on the construction of a composite joint and several guarantee, one of the four intended guarantors who had signed the...
When one party threatens to do something which infringes the rights of another, he may be threatened with Injunction proceedings. If the parties disagree about the underlying legal rights, it may also be necessary for the Claimant to ask the Court to...
The case of Templeton Insurance Limited -v- (1) Thomas (2) Panesar [2013] EWCA Civ 35 is a good example of the extent to which the Court will exercise its powers against those who persistently refuse to obey Court Orders. It is also an...
It is generally accepted that when interpreting the relationship between two or more individuals it is better to be able to refer to a written Agreement than to try to infer the terms of a contractual relationship from the differing recollections that each...
The recent decision of the Court of Appeal in the case of David Frost -v- Wakesmith and Tofields Solicitors [2013] EWCA Civ 1960 provides a good illustration of the difficulties that parties face, particularly in complex commercial and property disputes,...
Whenever shareholders find themselves in dispute with other shareholder(s) in the company, it can be a lonely and confusing situation. The law governing the way in which companies should be run and the way in which this has been interpretated by the...
Sections 3 to 24 and Schedules 1 to 3 of the recent Enterprise and Regulatory Reform Act 2013 and related employment legislation contain provisions which are of interest to anyone involved in employment law. The changes that are likely to be of most...
The recent claim by Mr Seldon against his former partners in the solicitors firm Clarkson Wright and Jakes, has once again come before the court. The lessons learned are rather mixed. Background Last year the Supreme Court decided that the firm could...
In a recent decision the Court of Appeal has been asked to consider the extent to which an occupier of land can be liable to his neighbour for damage cause to his neighbour’s property as a result of the escape of fire from his land. The...
The Court of Appeal has recently upheld a decision in the case of Attrill and Others -v- Dresdner Kleinwort Limited that the claimants, who were employees of the defendant bank, had been entitled to enforce a promise made by the bank’s former chief...
It is surprising how often company directors disregard their duties. For so long as no one complains, this situation can continue for some time without causing any apparent problems. However, if the conduct is challenged, it can lead to some...
An employee has a right not to be unfairly dismissed provided he has worked for an employer for more than two years. Therefore, in seeking to justify a dismissal, an employer will seek to rely upon one of the grounds set out in Section 98 of the...
The rules for determining whether or not employment is continuous are set out in Sections 210 to 219 of the Employment Rights Act 1996. Generally speaking, such a period begins with the day on which the employee starts work, but the end of the period...
The Late Payment of Commercial Debts (Interest) Act 1998 (“the Act”) introduced a regime entitling creditors to claim an enhanced rate of interest when pursuing commercial debts. Those companies that are able to rely upon the Act can charge...
The most commonly used method for enforcing the terms of a commercial contract is to issue proceedings in the High Court or County Court. Since those proceedings are conducted within the public domain, there are certain situations in which parties...
Ever since the introduction of the Civil Procedure Rules, judges have been trained to give an emphasis towards encouraging parties to mediate. The courts have made decisions disallowing the costs (or part of the costs) of a party if it becomes clear that...
In what circumstances will a tribunal decide that a director of a company providing services which have been re-tendered has transferred to the new provider when the new contract has been placed elsewhere? The test is the same for any employee. Are they...
The decision of the Court of Appeal in the case of NHS Leeds -v- Mrs Janet Larner in July 2012 is an important authority dealing with the right of a worker to be paid in lieu of annual leave, when s/he has been unable to take it having been off sick....
A number of important reforms for civil litigation costs and funding are due for implementation on 1 st April 2013 as a result of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012. Most of the changes will have a major impact on the...
Many business people do not understand the concept of “privilege” as it applies to documents which may need to be disclosed in litigation or tribunal proceedings. The recent judgement of the Supreme Court in the case of R (on the application of...
Do you have a blind spot in your business about the nature and effect of the business relationship with your business partner? Do you understand the risks that that might be creating? At what point would it be sensible to address those risks? Background ...
The recent decision of the High Court in the case of Fahim Imam Saddeque-v-BlueBay Asset Management (Services) Limited illustrates the danger and difficulties faced by a senior employee when considering a departure to join a competing organisation. ...
When dealing with cases involving the enforcement of a restrictive covenant in an employment contract, the courts have to strike a balance between the need to protect the legitimate business interests of an employer and the right of a former employee to ply...
The government has announced the latest increases to the figures for calculating the basic award and the compensatory award in claims for unfair dismissal. With effect from the 1st February 2013, the current limit of £72,300 for a compensatory award...
Many of us will have viewed with considerable satisfaction the news that Monetary Penalty Notices have been served on Christopher Niebel and Gary McNeish, the joint owners of Tetrus Telecoms, who have been inundating us all with unwelcome spam messages....
In the recent decision in the case of Fry -v- Sherry [2012] (in the matter of Ruscoe Limited (in liquidation)) a company director was held to be personally liable for the sum of £259,200 for taking action in breach of his director’s duty even...
In the recent case of Suhail -v- Herts Urgent Care , the Employment Appeal Tribunal were asked to consider the employment status of a GP providing services to an out-of-hours provider under a Service Level Agreement which stated that he was self-employed. ...
Although mediation has been widely available in the UK as a means of resolving disputes, it is still not widely used. The principles of mediation are not always understood by Solicitors let alone their clients. It will often allow parties to resolve their...
When a partner has fallen out with his fellow partners, he will want to know what options he has. He will need to understand the nature of the legal relationship with his partners. Those who take legal advice at that point can find the results surprising....