Duress

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Duress works as a complete common law defence for people who are forced or put under improper pressure to commit a crime. It stops one party from taking advantage of another by becoming involved in unconscionable conduct.

This defence operates in criminal as well as civil law, which mostly applies in contract law.

According to contract law, a lawful agreement can only be reached if both parties enter into it freely and without any pressure. If consent was obtained by improper pressure, the parties will not necessarily be legally bound by a contract. Duress may take the form of illegitimate threats or physical violence in order to pressurize a party into entering a contract.

A party to a contract will not be able to use duress as a defence for legitimate commercial pressure or mere inequality of bargaining powers. However, it is sometimes very difficult to draw a line between legitimate commercial pressure and an improper economic threat. Threats to take business elsewhere, sell to a competitor, or not to give a discount in future, are all likely regarded as legitimate commercial pressure.  The nature of the pressure needs to be examined on case by case basis in order to determine whether the pressure is illegitimate.

Illegitimate pressure can be defined as unlawful threats such as a threat to break an agreement or threat to commit a crime.

Duress can be actionable by the innocent party if the following factors are present:

  1. Compulsion or lack of practical choice for the victim
  2. The pressure is illegitimate; and
  3. There was a significant ground inducing the claimant to enter into the contract

The effect of duress makes the contract voidable. A voidable contract is a valid, legally binding contract unless and until it is rescinded or affirmed by the innocent party. It the innocent party chooses to affirm the contract it will be binding and cannot be changed.

When a contract is rescinded, neither party have to perform any future obligations. Duress can also be used as a defence if the other party tries to enforce the agreement or claim damages for breach of it. The innocent party cannot claim damages.

Nearly £25 billion lost due to Government waste ?

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Enormous Government wastage

At a time when the general public are struggling financially, the last thing we want to hear is that there is a huge wastage of money at Government level, as after all, one of the main things we elect our politicians for is to run the economy well. Whilst some wasted money is inevitable, the scale of apparent waste seems to indicate that certainly during the boom times, the economic recklessness was not just evident in the private sector. So here are some figures released by the National Audit Office which are really quite shocking, based on an analysis dating back to 2009 :-

  • £6bn in wasted defence related spending
  • £10bn lost due to uncollected income tax
  • several billions more squandered on flawed IT projects such as the now abandoned scheme to centralize and join up all NHS records and transport schemes
  • Possible overstaffing bearing in mind the Government believes that it can cut 100,000 jobs from the public sector over the next 3 years

Is email an outdated and poor business tool ?

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Email on it’s way out ?

Who among us does not now regularly feel that the pace of communication and technology adds to stress and makes it sometimes difficult to filter out all the rubbish ?

Despite the huge tech advances in the last decade, the issue of email spam is still a big problem and does email adequately substitute the need for a verbal communication ?

Well, some experts are now predicting that email is gradually becoming less and less important or productive as a communication tool and in fact constitutes a distraction so serious as to damage business (who hasn’t seen a colleague or someone else in a business meeting furtively checking and then typing an email reply on a smartphone ?) and some businesses are even going further, by experimenting with banning email for certain specified days to gauge how their employees respond, whether they feel agitated by being “cut off” or whether in fact they are more focused, present in the moment and therefore more productive.

Research certainly suggests that in some circumstances email can waste time and blur an employee’s focus.

A recent study by business experts ORSE, in conjunction with other data supplied by others claims that :-

  • it takes over a minute to get back on task after receiving a spam or irrelevant email which distracts the reader
  •  only 11% of 11-19 year olds use emails, instead they prefer instant and more interactive forms of communication such as social media

there are of course dangers in that email for many is a happy medium between the manic short messaging of text or tweets, where the brain can sometimes engage sometime after the fingers, with sometimes devastating bad results, and the old fashioned means of communicating.

What do you think ?

Distance Selling

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What do Distance Selling Regulations mean to you?

The Consumer Protection (Distance Selling) Regulations 2000 (‘Distance Selling Regulations’) ensure protection to consumers when shopping either online or enter into other contracts at a distance as the consumer does not have the benefit of examining the goods or services that are being offered. Examples of distance selling include selling via the internet, telephone, text messaging fax or mail order.

What rights do Consumers have?

The Distance Selling Regulations provide consumers with the following rights:

  •  to receive sufficient information about the supplier, goods and services before deciding to buy
  • to receive details of the price of good or services including taxes
  • to receive delivery details
  • to receive details of how payment can be made
  • to receive details of arrangements of delivery or performance of service
  • to receive confirmation of this information in writing
  • information on how to cancel or withdraw from the contract

When do the Distance Selling Regulations apply?

The Distance Selling Regulations apply to distance contracts for the sale of goods or supply of services; concluded between a supplier and a consumer; and/or where communication with the consumer is not face-to-face

For example, distance communication may include the following:

  • web pages;
  • leaflets dropped through letter boxes;
  • letters;
  • catalogues;
  • telephone;
  • email;
  • fax; and
  • television such as teleshopping.

What are the requirements of the Distance Selling Regulations?

The Distance Selling Regulations require suppliers to:

1. Provide consumers with certain information before concluding a contract

A supplier must ensure that the following information has been provided to a consumer in a clear and comprehensible form and manner before conclusion of the contract. Failure to provide such information may result in the contract being unenforceable against a consumer:

  • information and the identity of the supplier and, if advance payment is required, the supplier’s address;
  • description of the goods or services;
  • the price including taxes;
  • delivery costs and delivery arrangements (if appropriate);
  • details of the right to cancel; and
  • the procedure to return goods and whether or not the supplier offers substitute goods or services.

2. Provide consumer with written confirmation

Suppliers must provide consumers with written confirmation of the following information:

  • Information about the supplier (name and address)
  • if any payment is required to be made in advance
  • description of the goods and/or services together with the price (including all taxes)
  • details of delivery including delivery costs
  • payment arrangements and
  • procedures on how to cancel the contract

3. Provide consumers with information on how to cancel the contract

Subject to certain exception, the Distance Selling Regulations allow consumers to cancel a distance contract at any time during a “cancellation period”. This is also sometimes referred to as a “cooling-off period”.

The cancellation period for goods and services is usually 7 working days beginning with the day after the goods have been delivered. However, there are certain exceptions where performance of the services has begun or have been completed.

4. Refund consumers within a specific time period

In the event that a consumer cancels a contract, the supplier must, within 30 days of cancellation, refund any sums paid by the consumer. This includes the price paid for the goods and any delivery costs paid by the consumer. However, the costs cannot be passed on to the consumer where the goods are returned because they are faulty.

5. Perform the contract within a certain time period

Unless otherwise agreed, the contract must be performed by the supplier within 30 days from the day after the consumer placed and order.

This guide kindly provided by Darlingtons, a well known and dynamic solicitors in London.

Restrictive covenants

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Restrictive Covenants

A restrictive covenant is a restriction put into an employee’s employment contract which will become enforceable after their employment has been ceased. When agreeing to restrictive covenants the employee is effectively agreeing not to do certain things post-employment. They are usually put in place to protect the employer’s business from the employee using the knowledge and information gained during the course of employment.

4 types of Restrictive Covenants

  1. Non-compete covenants.
  2. Non-dealing covenants.
  3. Non poaching of employees.
  4. Restrictions on the use of confidential information.

Always enforceable ?

Although an employer can put whatever restrictive covenant into a signed agreement between the employer and employee, the covenant will be void if it is seen as a blatant restraint of trade. This means that an employer cannot make the restrictive covenants so harsh that the employee cannot continue their career in their chosen profession. It is also worth employers bearing in mind that if an employee challenges the enforceability of a restrictive covenants that the burden is on the employer to prove to the court that the restrictions are sufficiently narrow. The extent of restrictions on an employee should also reflect their position with the company for example it would not be justified to have an extremely onerous restriction on a junior tea boy whose main responsibilities was collecting post and photocopying.

The general guidelines to which employers should follow to ensure that their restrictive covenants are enforceable is that they should be reasonable, protecting legitimate business interests and not for duration longer than what is necessary to protect the employer’s interest.

A legitimate business is not fully defined and will be an objective definition depending on the business carried out by the employer.

Duration of a Restrictive Covenant ?

It is very unlikely that any court will enforce a restrictive covenant which pertains to be more for longer than 12 months. Restrictive covenants of no more than 6 months are much more likely to be enforced by the Court, assuming that the employer can prove that the restriction is reasonable and protects a legitimate business interest.

Validity of a Restrictive Covenant

It is also worth noting for employees and employers that restrictive covenants are only enforceable if the employee contract between the parties has not been breached. If the employer terminates an employees’ contract in an incorrect manner this will automatically void the contract and therefore makes the restrictive covenant void.

Another way in which a restrictive covenant can become void is if the employer pays the employee a sum of money in respect of their notice period, so the employee doesn’t have to work in said period. In this situation, if an employee’s contract doesn’t cover a payment for notice the restrictive covenant will become void.

Often an employer will enter restrictive covenants into contracts even though they are fully aware that they will not be enforceable, they put these into contracts so as they can act as a deterrent.

Remedies for breaching a Restrictive Covenant

If an employee breaches one of the restrictive covenants inserted into their contract there are remedies available to the employer. The most common remedy available is an injunction. An injunction will effectively be an application made by the employer to the court to ensure that the employee puts a stop to the actions they are taking pending the outcome of the legal proceedings.

An employer may also be able to claim damages against the breach of a restrictive covenant however they will have to show that they have suffered loss resulting from the breach. However, it is often very difficult for an employer to show that they have suffered damages and that the actions of the employee, usually using contacts or clients gained in their previous employment has led to their previous employer losing business opportunities. Assessing damages in this respect is often very difficult for the courts.

 

Social media and recommendations

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Social media, recommendation, word of mouth & an active approach

A recent survey by Hiscox reveals some interesting information relating to small businesses.

The somewhat contradictory findings of this survey of small business include :-

  • 50% of those asked stated that recommendations are a marketing tool which is indispensable
  • 64% advised that said social media is either unnecessary or they are neutral about it
  • 12% are frequent users of social media

These findings suggest that many small businesses do not understand or perhaps underestimate the value of social media. At it’s heart, social media activity is about building trusted relationships with others so that they may decide to engage your services in the future or may pass on your message to their extended network. The core difference perhaps between social media and traditional recommendation is based on 2 things :-

  • Traditional recommendations tend to come from clients or customers who have used your services. With social media this is not necessarily the case. Your contacts on social media may have got to know you via content you have published or an online dialogue. This is particularly true for twitter, with linked in it is somewhat different in that this provides for people to actively recommend you based on past experience.
  • With traditional recommendation, this tends to be based on a passive approach. You have a happy customer, you may request that they spread the word about you, but then often you sit back and wait for it to happen. For success with social media, a much more active approach is needed, it is about spreading your message regularly and actively. Statistics indicate that an irregular or hit and miss approach to social media is unlikely to secure the sort of recommendations you are looking for. Perhaps this is the core reason for the apparent disconnect between small businesses perception and willingness to see social media as a very important marketing tool.

What do you think ? What are your experiences of social media as a source of referrals ?

Supply of goods & services law – outline

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Supply of Goods & Services

The Supply of Goods and Services Act is the law in England & Wales which gives protection to consumers against bad workmanship, faulty goods or poor quality services by requiring suppliers of goods and services to provide them to a reasonable standard.

This Act further imposes obligation on the suppliers to complete the work within a reasonable time and at a reasonable charge in the absence of agreement between the parties.

The Supply of Goods and Services Act covers almost all transactions in every day life such as going to the hairdressers, dry cleaners or buying a can of drink from your local newsagent.

The Supply of Goods and Services Act was passed as the government understands that consumers need extra protection against unscrupulous suppliers, whether these suppliers are one man bands or a multinational company.

The Act imposes implied conditions on the suppliers who are providing goods or services to consumers that cannot be contracts out of. Some of these conditions are as follows:

  • The suppliers should carry out their services with reasonable care & skill.
  • The services will be carried within reasonable time in the absence of the agreement between the parties to the contrary.
  • The services will be carried out at a reasonable cost in the absence of the agreement between the parties to the contrary.
  • Goods supplied will be of satisfactory quality and fit for purpose

If the Supplier fails to comply with the implied conditions as stated above and then consumer suffers some form of loss then the consumer may be entitled to ask the supplier to either:

  • replace any faulty/shoddy goods; or
  • repair them; or
  • make good any poor service provided; or
  • ask for a refund; and
  • if appropriate claim for compensation for any reasonable loss as a result of the breaches of the Act.

Example

Bob have given a contract to Robinson Builders to build a new bathroom in his London home. Robinson Builders are supplying the service of building a new bathroom and installing new bathroom equipment and thus falls within the definition of services under the Supply of Goods & Services Act 1982. Robinson Builders will be obliged to carry out building work at Bob’s London home with reasonable care and skill and within a reasonable time at the agreed cost.

Thus the act gives extra protection to Bob (Consumer) and imposes extra obligation on Robinson Builders Ltd (Supplier). The act further imposes obligation on Robinson builders to provide any goods they are installing at the Bob’s bathroom to be of satisfactory quality. If Robinson builders fail to comply with the implied condition under the act then Bob will be entitled to ask Robinson Builders to replace, repair or refund the faulty goods. For example if Robinson Builders install a new bath which has a scratch on it then Bob can ask that this be replaced or repaired. If neither is done then Bob does not need to pay for the bath.

How to make a Complaint

If the consumer is not happy with the services or goods provided by the supplier than he should contact the supplier to get it sorted. The consumer should explain the situation and the quality of work done to the supplier. This could either be in person or over the telephone. The consumer should ask for a reasonable remedy from the supplier for the unsatisfactory services provided to him.

Where there is a serious problem or the supplier is not being helpful to resolve the issue, the consumer needs to take firmer steps. The consumer should gather evidence which will support his claim against the supplier including copies of previous correspondence, receipts and photos. The consumer should then send a letter to the supplier explaining the whole situation and asking for either repair, replacement, a refund and/or compensation. The consumer should keep a copy of a letter for his future reference. If the consumer is claiming compensation, than the amount of compensation should be a fair reflection of the losses suffered and not be unreasonable. The consumer should give supplier a deadline of 14 days in which he should respond.

If the first letter does not resolve the matter between the consumer and supplier then the consumer should write a second letter to the supplier. The second letter should quote the law or regulation that the supplier is in breach and make it clear to the supplier that if the supplier does not deal with the complaint properly, they will take further legal action against the supplier. This may include starting proceedings in the small claim court or taking the complaint to any relevant Ombudsman.

If the matter is not resolved by written correspondence between the parties, then the consumer can start proceedings in the small claim court, if the claim is £5,000 or less. If it is higher value, it will not be a small claim but will invariably still be started in the County Court.