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Greene & Greene is a long established firm of solicitors based in Bury St Edmunds, Suffolk. Our lawyers advise individuals and businesses based all over the UK.

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Entries in Dispute Resolution (48)

Thursday
Nov082018

Decision reached on smash and grab adjudications

Back in 2014, The Hon. Mr Edwards-Stuart made what was then a controversial decision in the case of ISG Construction Ltd v Seevic College. In this case, he decided that if an employer failed to serve a valid Payment or Pay Less Notice in time, then it had to pay the notified sum, and could not challenge that sum (and thus seek repayment of it) until the final payment, which may be some significant time later.

This remained the position until February 2018 when The Hon. Lord Justice Coulson sent shockwaves through the industry by deciding in the case of Grove Developments Ltd v S&T (UK) Ltd that the decision reached by Sir Edwards-Stuart in ISG Construction Ltd v Seevic College was wrong (and thus that an employer who had failed to serve a valid Payment or Pay Less Notice, could cross adjudicate on the “true value” of the payment application). Indeed, it was such an important decision that Lord Coulson himself stated as follows:

“In all my time in the TCC, I am not conscious that I have ever concluded that one of my colleagues, past or present, was wrong in deciding an issue in a certain way. I am not entirely comfortable about doing it now, particularly given the distinguished nature of Edwards-Stuart J's service to this court. But the conflict in the cases is all too apparent and, for the reasons which I have given, I find myself unable to follow the "different line" that he took in ISG v Seevic and Galliford Try v Estura”

Given the importance of this decision, it is perhaps unsurprising that it went to the Court of Appeal. The Court of Appeal has now issued its judgment and has upheld the decision reached by Lord Coulson in Grove v S&T.  Sir Rupert Jackson gave the leading judgment, and found as follows:

  • An employer can start an adjudication to dispute the true value of the works for which the contractor claimed in an interim application for payment, even if it had not served a valid payment or pay less notice.
  • However, and the crucial point to the construction industry, the employer's valuation adjudication could only be started after it had paid the notified sum.

The only exception to this position may be if an employer is able to establish that the contractor is insolvent, and therefore could seek a stay of execution of an adjudicator’s decision to pay the contractor the notified sum, pending their own valuation adjudication.

Therefore, an employer who has failed to serve a valid Payment Notice or Pay Less Notice is no longer in such a quandary as they were pre Grove v S&T. However, they will still have to pay the notified sum, pending being able to commence their own adjudication. This could cause real hardship if the notified sum has been vastly over-inflated by the contractor. Therefore, it remains the case that an employer must be vigilant in responding to a payment application in time, and in accordance with the provisions of the contract. 

Sarah Western is a solicitor specialising in construction law. If you have any queries in respect of this decision, or need any construction legal advice, please do not hesitate to contact her on 01284 717434, or sarahwestern@greene-greene.com.

For more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.

Tuesday
Apr032018

Greene & Greene welcomes New Partner to Dispute Resolution Team

Greene & Greene, is pleased to announce the appointment of Rob Adam as a new Partner in its Litigation and Dispute Resolution Team in the 125th Anniversary year of the firm.

A qualified solicitor since 1995, he has comprehensive experience of dealing with commercial litigation, contentious trusts and probate claims, insolvency matters, claims against professionals and property disputes.  

Prior to joining Greene & Greene, Rob Adam was Head of a large regional Dispute Resolution Team in East Anglia. Alongside Greene & Greene Senior Partner, Michael Batty, Rob is ranked as a ‘Leading Individual’ within East Anglia by independent legal guide The Legal 500 and  was recently described as a “Strong Litigator who is knowledgeable and efficient, and a good negotiator”.

Rob’s arrival cements Greene & Greene’s commitment and ambition to be the pre-eminent Dispute Resolution Team in the region.

Stuart Hughes, Managing Partner at Greene & Greene, said:

“Rob’s extensive experience in all aspects of litigation will further enhance the strength and depth of our tier 1 ranked dispute resolution team and the services that we can offer to our clients. We are delighted to welcome Rob to the partnership at Greene & Greene and wish him every success in his career with us here in Bury St. Edmunds”

For further information please telephone Jools Windermere on 01284 717430, visit www.greene-greene.com and follow @greenegreenelaw.

Friday
Mar172017

Ilott v Mitson – Testamentary freedom back from the grave?

On 15th March 2017 the Supreme Court handed down a landmark Judgment in the well documented case of Ilott v The Blue Cross and Others (known as Ilott v Mitson).  This is the first case in which the Supreme Court has been tasked with considering the Inheritance (Provision for Family & Dependants) Act 1975 (“the 1975 Act”).  The 1975 Act allows certain categories of applicants, such as a surviving spouse or adult child, to challenge a Will on the basis that it fails to make reasonable financial provision.

Ilott concerned a claim by an independent adult daughter who had not been left anything in her Mother’s Will.  The Mother left her Estate entirely to three charities.  Her Estate was worth £486,000.

Astonishingly this case was first heard around 10 years ago.  The Supreme Court’s Judgment has been much anticipated in the hope of clarifying the law governing the circumstances when adult children may be able to successfully challenge a Will of their parents.

It is likely that the dust will need to settle further following this Judgment, however, a number of points at first glance appear to be of great interest in this fascinating area of the law.

Claims for applicants, other than surviving spouses or civil partners, are limited to “maintenance”.  The Supreme Court has attempted to further clarify the meaning of “maintenance” and said: “The concept of maintenance is no doubt broad, but the distinction made by the differing paragraphs of section 1(2) shows that it cannot extend to any or every thing which it would be desirable for the claimant to have.  It must import provision to meet the everyday expenses of living.”

Testamentary freedom, which is the ability for you to decide who you leave your Estate to on your death, is back (sort of).  The Supreme Court underlined the significance of a Will maker’s (Testator) wishes in deciding whether a Will should be varied with the result that beneficiaries lose out or see their “entitlement” reduced or redirected completely.

In relation to claims by adult children, the Supreme Court said that they must establish:

  • a need to be maintained (nothing new here);
  • the relevant relationship to qualify the claimant; and
  • that the testator had a moral obligation to look after the claimant (the resurrection of the, so called, “moral claim” requirement).

However, the Supreme Court said that long estrangements could be an example of where needs are not always enough to justify a claim under the Act.

What does this all mean?

It initially appears that claims by adult children are likely to be more difficult to succeed and the wishes of the Testator may now finally be given more weight in light of this decision.

If you have any questions regarding the contesting of wills, trusts or probate matters please contact Ben Fox (benjaminfox@greene-greene.com ~ 01284 717442).   For more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com

Friday
Jan292016

Flooding: An Act of God?

The dreadful effects of flooding have been graphically illustrated once again by the events in Cumbria, Lancashire, Yorkshire and areas of Scotland over the course of the past few weeks. In legal terms flooding is often described as an act of God: in other words it is something for which no person can be held responsible. This is not always true for, on occasions, those affected by flooding can have a legal remedy.

If the way in which a landowner or occupier uses or manages his land generates flooding that would otherwise not have occurred or makes flooding worse, he may be liable for those consequences on a number of grounds, including negligence and nuisance.

We have successfully pursued flooding claims for a number of clients. Two examples include: -

  1. Recovering compensation for a client whose house was repeatedly flooded following a change of use of the adjoining farmland by its owners, which resulted in water run off whenever it rained heavily.
  2. Establishing liability against a landowner who mismanaged the repair and maintenance of, and the drainage associated with, a large pond on her land with the result that it overflowed during periods of heavy rain and flooded our client’s property. Our client’s compensation ran into hundreds of thousands of pounds.

If you have been affected by flooding or are worried about your responsibilities as a landowner or occupier please contact Michael Batty (michaelbatty@greene-greene.com / Telephone 01284 717414) or Andrea Nicholls (andreanicholls@greene-greene.com / Telephone 01284 717531) in our Dispute Resolution Team.  For more information please visit http://www.greene-greene.com/energy.html and follow @greenegreenelaw.

Monday
Jan112016

Farmers Weekly: What to do if escaped stock cause damage by Andrea Nicholls

(This article was first published in Farmers Weekly, 4 December 2015)

Question:               My stock have escaped and damaged my neighbour’s property what should I do and am I liable to pay for damage to their lawn for example?

Answer:                  Yes.  Your liability for damage caused to property by straying livestock (and the legal definition of livestock includes all the usual farm stock species) is a strict liability.  This means that there is no need for the person whose property has been damaged to prove that you were at fault in any way in allowing the animals to stray.

If your stock stray you are liable to pay both for the damage which they cause to property and any costs which the property owner incurs in controlling or looking after the animals. 

You are liable to pay for the damage caused to the lawn and any costs that the lawn owner incurs in looking after the animals. It is best to collect the animals as soon as possible and pay for the damage.

Question:               Who is liable to pay for damage caused to property?

Answer:                  The person in possession of the livestock is liable to pay for any damage to property caused by straying livestock. The person “in possession” includes both the owner of the livestock and the owner of the grazing land from which the stock escaped. Either person can be sued and any savvy property owner would probably sue both. If you are grazing someone else’s stock on your land, you must agree as part of the Grazing Licence how liability for damage for strays is going to be shared.

Click to read more ...

Wednesday
Dec022015

Alternative Dispute Resolution for Traders and Consumers - The New Law

Alternative dispute resolution (commonly referred to as ADR) is the process whereby an independent and impartial third party (an ADR provider) considers the evidence in a dispute and makes a decision or brokers a settlement between the parties.  ADR offers the parties to a dispute an alternative to pursuing what could be a protracted and costly case through the Courts.

In 2015 ADR for Consumer Disputes Regulations have been passed and apply to all businesses in the UK that sell goods, services or digital content to consumers (except health professionals).  In particular, with effect from the 1 October 2015, all traders selling to consumers are required to give certain information to consumers if, having received a complaint from the consumer, they have been unable to resolve that complaint through their internal complaints process.  The information that must be given includes:

  •             details of a certified ADR provider to whom the dispute or complaint could be referred; and
  •             confirmation of whether the trader intends, or is obliged, to use that provider.

For certain traders (including those in sectors such as financial services, energy and communications), their regulators or trade bodies already require them to offer ADR, and where this is the case, those traders must provide further information in their terms and conditions.  This review and update should take place immediately.  For all other traders, ADR is not mandatory, and they are only required to provide the required information at the end of the complaints process.  These traders should review their procedures for dealing with customer complaints or disputes to ensure that they are regulation compliant.

Irrespective of that, it is important that traders do give serious consideration and take legal advice if necessary before rejecting ADR as the Courts have recently ordered that an unreasonable failure to engage in ADR could result in that party being penalised at the conclusion of the trial i.e. you could win your case but not recover costs if you have unreasonably rejected ADR.

There will be further demands placed on traders in January 2016 when the European Commission will set up the Online Dispute Resolution platform (ODR).  This will allow consumers who have a complaint about a product or service bought online to submit the complaint via an online complaint form to a trader based in another European country.  From 9 January 2016 all online traders must include a link on their website to the ODR platform, which will be in addition to the requirement to give details on the website of the named certified ADR provider. 

For more information on ADR or a dispute that you may have, please contact Henry Nydam in our dispute resolution department on 01284 717433 or by email: henrynydam@greene-greene.com.  For more information on Greene & Greene go to www.greene-greene.com and follow us on Twitter @greenegreenelaw.