Alternative Dispute Resolution (ADR) is a fundamental aspect of the Civil Procedure Rules (CPR) which are the rules that govern the process of Civil Litigation. ADR is a way of settling a dispute other than having a judge decide the claim at trial after a lengthy dispute. ADR includes various methods of settling a dispute such as mediation, arbitration, part 36 offers, early neutral evaluation, without prejudice offers and an ombudsman.

CPR 1.1. contains the overriding objective which states that cases must be dealt with fairly and at a proportionate cost which would include the case being dealt with at a proportionate cost to the sum in dispute. If ADR is attempted early on in proceedings and is successful, it can save the parties the time and cost of a lengthy litigation dispute. Even at the end of a lengthy dispute that does result in a trial, the outcome of the trial cannot be promised. A claim going through the trial process has many stages that must be completed including but not limited to disclosure, exchanging witness statements, cost budgeting, expert instruction and trial preparation. All of this legal work will require payments on account throughout the process so even if a party is successful at trial and gains a cost award against the other party, expense will be incurred in the interim leading up to trial.

There is then also of course the chance that a party may not be successful at trial due to various reasons. The normal rule is that the successful party will be able to retrieve their costs from the unsuccessful party, although it is not possible to recover every penny a party has spent on litigation leading up to trial. However, a Judge can fray from this rule if they deem that the successful party has not been cooperative throughout the process and has unreasonably refused an offer of ADR. This means that if a party is successful in their claim but it is found that they unreasonably refused an invitation to enter into ADR, this may result in an adverse costs order. Mediation is a form of ADR in which parties are entered into a confidential meeting outside of the court process with a mediator who will communicate the offers of settlement between the parties.

Mediation has a high success rate of settling disputes so that the need for trial can be vacated. The case of Halsey -v- Milton Keynes General NHS Trust (2004) highlighted that there can be costs consequences for unreasonably refusing mediation where a Judge finds that mediation could have reasonably settled the dispute.

The Courts do not look favourably on parties who “want their day in Court” and strongly encourages parties to consider a reasonable alternative. The penalties for parties who don’t engage in ADR can include that the unreasonable party may be ordered to pay the other party’s costs on an indemnity basis. This could mean that the refusing party would have to pay the other party’s costs even if they are not proportionate to the amount in dispute. The Court often order a “stay” of proceedings which essentially pauses proceedings whilst the parties attempt ADR and often include on their orders that the refusing party may have to lodge a witness statement explaining their refusal to the Court.

It is well known within the profession that the Courts are extremely busy which causes significant delay in proceedings and countless adjourned trials, meaning that the relief that comes with a settled dispute is too often delayed for parties. The amendment No.3 to the Civil Procedure Rules comes into effect on 1st October 2024 which will include a stronger focus on Alternative Dispute Resolution which will take some pressure of the Courts.

For further advice and assistance please contact our Litigation and Dispute Resolution team on  01604 344562 / 01908 916096 or email info@franklins-sols.co.uk.

L V Bespoke, a family-run business based in Norfolk, recently won a trademark dispute against the fashion giant, Louis Vuitton, after a two-year legal battle.

Back in 2020 when lockdown hit the country, Mr and Mrs Osborne founded L V Bespoke. They had a  view to create steel plant supports and other home and garden products.

They decided to register L V Bespoke as a trademark as their business looked like it was taking off. Unfortunately, they received a letter from the Louis Vuitton legal team.

The fashion label argued that by registering the trademark “L V Bespoke”, there would be confusion in the eyes of consumers. Such confusion could also work for the benefit of the couple. According to them, the use of L V Bespoke would “take unfair advantage of, or would be detrimental to” Louis Vuitton’s earlier trademarks. 

Mr and Mrs Osborne decided to fight the objection. They argued that their metalwork products are clearly different than the metalwork found in Louis Vuitton’s handbags. The couple thought it was “surreal” to compare both metalwork and imagine that there could be any sort of confusion. This is what the judge, Matthew Williams, ruled in favour of.  According to him, “almost all of L V Bespoke’s goods were self-evidently dissimilar” to Louis Vuitton’s products. He added that “the only point of commonality is the presence of the same two single letters “L and V”.

Mr and Mrs Osborne spent almost over £15,000.00 in legal proceedings and lost two years of potential business growth. The judge however ruled in their favour and ordered Louis Vuitton to pay their costs and £4,000 in damages.

Intellectual Property Law can be delicate and a source of great stress when entering into a dispute. Whether in relation to trademark, copyright, patent, or passing off, the rules around Intellectual Property Rights can be difficult to navigate. Our commercial team has a wide range of experience when it comes to Intellectual Property and infringement of IP Rights and would be happy to assist both individuals and businesses with any issues relating to Intellectual Property.

For further advice and assistance please contact our Commercial Solicitors on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

Photo by Andrea Piacquadio from Pexels

The case of Clitheroe v Bond is a dispute between two siblings concerning the validity of two Wills executed by their late mother. The question for the Court was whether their late mother died intestate or whether the Wills executed were valid. If the latter, it would mean the entire estate, comprising of £400,000.00, would pass to the son in its entirety.

At the original trial, the original Wills were not admitted on the grounds of incapacity. This was as a result of the late mother’s affective disorder, including complex grief reaction, instance delusions and depression.

The son appealed this decision arguing the deputy master had applied the incorrect test. The son also argued the wrong approach for delusions had been applied. In essence, the basis of the appeal was that the incorrect test had been applied for testamentary capacity.

The High Court have provided clarification on the correct test to apply when assessing testamentary capacity.

Mrs Justice Falk confirmed the correct test for assessing whether a testator had the capacity to make a Will as set out in the 19th Century case of Banks v Goodfellow. Mrs Justice Falk further clarified the position in regards to delusions.

As a result of this clarification, an adjournment of three months was provided to the parties to allow them to reflect on their positions and see if there was an opportunity to reach an agreement.

If you require legal advice or assistance in regards to contentious probate and Trusts or Inheritance Act Claims, please do not hesitate to contact a member of the Dispute Resolution Team here at Franklins Solicitors either on 01604 828282 / 01908 660966 or at litigation@franklins-sols.co.uk.

Entering into a franchise agreement is an exciting time. The promise of what is ahead with commercial returns for both the franchisor and franchisee leading both parties to enter into the relationship on an understandably enthusiastic basis. 

From such a positive start, the dynamics can change as the business relationship unfolds with disputes surrounding the following areas high on the agenda:-

The Franchise Agreement

As with any business there are always risks. Taking on a franchise is like any other business and whilst it may be of benefit to have a brand that is already established, there can still be challenges. 

Franchising itself is not regulated in the UK and as a result there are no regulations to guide both parties, meaning that any company can set up as a franchisor.

The most common type of franchise dispute is misrepresentation. This arises when the franchisee alleges that the franchisor was misleading with information or documentation provided to encourage them to enter into the franchise agreement. 

The franchisee has to show that in entering into the franchise agreement they relied upon statements of fact presented to them by the franchisor which later proved to be untrue or could not have been reasonably held.  Perhaps understandably in this category, those claims tend to focus on financial projections relating to the financial returns of operating the business and its running costs and expenses.

The franchise agreement itself can be drafted in a way to favour the franchisor with many obligations falling on the franchisee including a personal liability if the franchisee does not deliver on certain performance or financial requirements. Ensuring that the franchise agreement has been properly drafted and that the parties were aware of their own rights and obligations is critical, as it will enable both parties to operate their part of the agreement effectively and efficiently.

Preparing well in advance for managing the franchisee will assist the franchisor to support this new extension of its existing business.  The program of engaging with the start-up franchise from the outset through to being up and running is important and can head off any potential areas of conflict. This means ensuring that the right levels of support and training are in place.

Handling disputes

The majority of franchise agreements will include a clause as to how disputes between the parties should be handled. This is the first point of call if communication between the parties has broken down.

Mediation can be part of that process, or other facilitated face-to-face meetings, if both parties are represented by solicitors and their direct communications have been unsuccessful. Arbitration or litigation can lead to an assessed outcome for the parties however this can be lengthy and expensive.  Many court cases can take up to 2 years if they exceed small claims limit of £10,000 which makes mediation and its ability to resolve a dispute within a day at much less cost an attractive alternative.

Franklins Solicitors LLP have assisted many franchises in the following areas and just some examples are set out below:-

Following an assessment of the legal position, we discuss with you the options and then best strategic approach in your dispute.

If you have the franchise dispute or have issues with a franchise oral franchisee relationship, please our Dispute Resolution team on 01604 828282 / 01908 660966 or email Litigation@franklins-sols.co.uk.

Running a Franchise and having a dispute with your Franchisor can be extremely stressful. The time, energy and money invested into your business means any dispute with your Franchisor should be handled carefully.

What sort of disputes can arise between Franchisor and Franchisee?

The types of disputes that can arise are as follows:

  1. Upon making enquiries with the Franchisor, the Franchisee now believes the profit being made is not what was promised at the outset;
  2. The Franchisee feels there is lack of or no support from the Franchisor which again was promised at the outset and outlined in the terms of the Franchise Agreement;
  3. The Franchisor has concerns that the Franchisee is not following the protocol required which is having a detrimental effect on the performance of the business and profits made.

All of the above can lead to claims for a breach of contract and/or misrepresentation.

I am Franchisee and I have a dispute, what should I do?

As a Franchisee you should always maintain dialogue with the Franchisor and aim to resolve the dispute as swiftly as possible.

It would be prudent to obtain legal advice as soon as possible. This is so dialogue can be initiated straight away and your Franchise Agreement reviewed.

The Franchise Agreement is the legal document which governs your relationship between you and your Franchisor. There will be a series of clauses which set out what your respective duties and obligations are to one another.

I have a dispute, you have my Franchise Agreement, what next, Court?

Not necessarily.

In the terms of the Franchise Agreement there ordinarily is a clause which sets out what steps are to be taken in the event there is a dispute. Such steps would suggest the parties consider Alternative Dispute Resolution such as arbitration and mediation to ensure the dispute can be resolved promptly and cost effectively.

If, however, such steps come to no avail then recourse to the Courts may be your only option left.

The last thing any Franchisee wants is to have dispute with their Franchisor. Disputes of this nature can strain relationships between commercial partners whilst they still have obligations to each other. It can also transform a fully functioning and profitable business into a stressful place affecting all the associated stakeholders. Therefore, careful thought and planning must be put into finding a resolution to avoid such a strain and more importantly prevent costs spiralling out of control.

Here at Franklins Solicitors LLP we understand that you want a quick resolution that is also cost effective. We will work with you to provide specialist advice and ensure a full case plan is prepared to outline your options and next steps. For advice and further information, contact the Dispute Resolution team on 01604 828282 / 01908 660966 or email Litigation@franklins-sols.co.uk.

It is possible to stop the distribution of inheritance to beneficiaries should you wish to make a claim against the deceased’s estate.

In order to do so however, you must act promptly.

The first step is to create a document called a Caveat. A Caveat sets out the details of the person who has passed away and the date of their death. This helps the Probate Registry identify the relevant estate. The form has a prescribed form and when sent to the Probate Registry it must be accompanied by the appropriate fee. 

If a Caveat is lodged with the Probate Registry before the application for a Grant of Probate or Letters of Administration has been filed, it prevents the issue of the Grant or Letters of Administration. The Personal Representatives will not be able to collect the assets of the estate together or sell any of the deceased’s properties until the Caveat has been removed.

A Caveat is only in place for a 6 month period although it is possible to renew it.  During the 6 month period, this time should be used to investigate and present any claim.

The Caveat can be removed by a Personal Representative.  In order to make this challenge, the Personal Representative lodges what is called a Warning at the Probate Registry.  No fee is required to do this.

The Warning is sent to the person who entered the Caveat and they in turn have a short period of time to respond.  This is called “entering an Appearance” at the Probate Registry. 

If there is a failure to enter an Appearance, an Affidavit of Service of the Warning is lodged with the Probate Registry and the Caveat will then be removed enabling the Personal Representative to apply it for a Grant. 

If however an Appearance is entered, the Caveat remains in place until the issues are resolved and the Caveat removed by consent between the parties or by Order of the Court. In many cases it is removed by consent once substantive issues are resolved or agreed.

The Appearance sets out to the Court why the objection has been raised and also the interest the Caveator (the person filing the Caveat) has in the estate along with the reasons why the Caveat has been lodged.  The reasons for lodging it must be valid and not vindictive.

A failure to send an Appearance at the correct time or at all is likely to lead to the Grant of Representation being allowed to proceed. It is important that the Appearance covers all the relevant issues as this too may result in the Caveat being set aside and the Grant being issued.

If you wish to challenge a Will or indeed review the distribution of inheritance, it is important to obtain advice early.

For further information in relating to an inheritance dispute, contact Maninder and the Dispute Resolution team on 01604 828282 / 01908 660966 or email Litigation@franklins-sols.co.uk.

Contracts are entered into regularly by all of us, whether that be as consumers, suppliers, shareholders, investors – the list goes on. But what happens when one of the parties fails to adhere to their contractual obligations and breaches the contract? What remedies are available to the innocent party? This blog will outline the various remedies available in a breach of contract matter and the circumstances in which they may be awarded.

Repudiation

If another party to a contract fails to comply with the terms agreed, the innocent party may be entitled to ‘repudiate’ the contract, releasing themselves from any further obligations contained within the contract in addition to claiming against the wrongful party for any losses suffered as a result of the contract not being performed.

Alternatively, they may ‘affirm’ the contract, agreeing to continue with it despite the wrongful party’s breach, but reserving rights to claim against the wrongful party for any losses sustained as a result of the breach.

Damages

Perhaps the most common remedy for breach of contract is damages – monetary compensation for losses suffered by the innocent party.

Damages can come in two forms – ‘special’ damages and ‘general’ damages. Special damages are awarded for sums that can be easily quantified, such as a loss of profit, whereas general damages are awarded for losses that are not easily quantifiable such as loss of amenity.

It is important to note that damages are not awarded simply to punish the party in breach, but to ensure that the innocent party is placed in a position it would have been had the breach not occurred. Further, there are restrictions upon the extent to which damages may be awarded and a number of factors that ought to be taken into account by a party who has found themselves subject to another’s breach and careful consideration should be given to this.

Specific performance

If damages are unlikely to be adequate in the circumstances, an alternative would be to request an order from the Court for specific performance, requiring the party in breach to perform its positive obligations within a specified time frame.

Circumstances in which damages may be deemed as inadequate could include situations where the subject matter or product of the contract is unique and cannot be reasonably substituted or when damages would be financially ineffective in rectifying the position for the innocent party.

If you are party to a contract which has been breached and require advice or assistance with regards to the same contract our Dispute Resolution team on  01604 828282 / 01908 660966 or email litigation@franklins-sols.co.uk.

Contracts are entered into regularly by all of us, whether that be as consumers, suppliers, shareholders, investors – the list goes on. But what happens when one of the parties fails to adhere to their contractual obligations and breaches the contract? What remedies are available to the innocent party? This blog will outline the various remedies available in a breach of contract matter and the circumstances in which they may be awarded.

Repudiation

If another party to a contract fails to comply with the terms agreed, the innocent party may be entitled to ‘repudiate’ the contract, releasing themselves from any further obligations contained within the contract in addition to claiming against the wrongful party for any losses suffered as a result of the contract not being performed.

Alternatively, they may ‘affirm’ the contract, agreeing to continue with it despite the wrongful party’s breach, but reserving rights to claim against the wrongful party for any losses sustained as a result of the breach.

Damages

Perhaps the most common remedy for breach of contract is damages – monetary compensation for losses suffered by the innocent party.

Damages can come in two forms – ‘special’ damages and ‘general’ damages. Special damages are awarded for sums that can be easily quantified, such as a loss of profit, whereas general damages are awarded for losses that are not easily quantifiable such as loss of amenity.

It is important to note that damages are not awarded simply to punish the party in breach, but to ensure that the innocent party is placed in a position it would have been had the breach not occurred. Further, there are restrictions upon the extent to which damages may be awarded and a number of factors that ought to be taken into account by a party who has found themselves subject to another’s breach.

Three key factors to be taken into account are mitigation, causation and remoteness of damage which are outlined briefly below.

Mitigation

The innocent party in a breach of contract matter does still have a duty to ‘mitigate’ the losses they may suffer as a result of the breach. If such a party is deemed to have unreasonably inflated their losses or to have otherwise acted or omitted to act in such a way that has resulted in the losses increasing, such conduct will be seen as breaking the chain of causation (ie, removing the liability from the party at fault for the additional loss) and the damages to be awarded would instead be quantified as if the innocent party had acted reasonably.

It is therefore important to do all you can to reduce the impact and extent of any losses suffered by you if you do experience a breach of contract on the part of another contractual party, otherwise you are likely to have to bear the extent of these losses yourself without recovering them from the opposing party.

Causation

For a claim for damages to succeed, the innocent party must be able to prove that the party whom breached the contract ought legally to be held as having caused the losses being claimed and that there is a complete ‘chain of causation’ between the breach and the loss.

It is not sufficient to demonstrate only that factually the losses would not have been suffered if the breach had not occurred. Even if this is demonstrated, damages will not usually be awarded if it can be proven that an unexpected and intervening act, caused or greatly contributed to the losses suffered. Examples of such circumstances would be the actions of an independent third party unknown to the party in breach or an ‘act of God’.

Remoteness of damage

In addition to causation, a party claiming damages for breach of contract must also establish that the damages claim pass the test for what is known as remoteness of damage. This requires the innocent party to demonstrate that the losses suffered are within the scope of the wrongful party’s responsibility. Remoteness essentially stems down to whether or not the loss would have been foreseeable or in contemplation of the parties at the time the contract was entered into. Not only must it be established that the losses would have been a possible result of breach, but also not an unlikely result of breach.

There are two key factors which the Court would consider when determining whether or not the test for remoteness of damage is satisfied; the knowledge of what tends to happen in the “ordinary course of things” and any special circumstances relevant to the specific circumstances of the contract which the parties knew or ought to have known about.

Specific performance

If damages are unlikely to be adequate in the circumstances, an alternative would be to request an order from the Court for specific performance, requiring the party in breach to perform its positive obligations within a specified time frame.

Circumstances in which damages may be deemed as inadequate could include situations where the subject matter or product of the contract is unique and cannot be reasonably substituted or when damages would be financially ineffective in rectifying the position for the innocent party.

If you are party to a contract which has been breached and require advice or assistance with regards to the same contract our Dispute Resolution team on  01604 828282 / 01908 660966 or litigation@franklins-sols.co.uk.

An award for damages is the most common remedy awarded in a breach of contract claim and the aim of such awards is to place the innocent party in the position it would have been had the breach not occurred.

However, there are restrictions as to the extent to which damages may be awarded and a number of factors that ought to be taken into account by a party who has found themselves subject to another’s breach.

Three key factors to be taken into account are mitigation, causation and remoteness of damage. These are outlined briefly below.

Mitigation

Regardless of the wrongful party’s conduct, the innocent party in a breach of contract matter does still have a duty to ‘mitigate’ the losses they may suffer as a result of the breach. If such a party is deemed to have unreasonably inflated their losses or to have otherwise acted or omitted to act in such a way that has resulted in the losses increasing, such conduct will be seen as breaking the chain of causation (ie, removing the liability from the party at fault for the additional loss) and the damages to be awarded would instead be quantified as if the innocent party had acted reasonably.

It is therefore important to do all you can to reduce the impact and extent of any losses suffered by you if you do experience a breach of contract on the part of another contractual party, otherwise you are likely to have to bear the extent of these losses yourself without recovering them from the opposing party.

Causation

For a claim for damages to succeed, the innocent party must be able to prove that the party whom breached the contract ought legally to be held as having caused the losses being claimed and that there is a complete ‘chain of causation’ between the breach and the loss.

It is not sufficient to demonstrate only that factually the losses would not have been suffered if the breach had not occurred. Even if this is demonstrated, damages will not usually be awarded if it can be proven that an unexpected and intervening act, caused or greatly contributed to the losses suffered. Examples of such circumstances would be the actions of an independent third party unknown to the party in breach or an ‘act of God’.

Remoteness of damage

In addition to causation, a party claiming damages for breach of contract must also establish that the damages claim pass the test for what is known as remoteness of damage. This requires the innocent party to demonstrate that the losses suffered are within the scope of the wrongful party’s responsibility. Remoteness essentially stems down to whether or not the loss would have been foreseeable or in contemplation of the parties at the time the contract was entered into. Not only must it be established that the losses would have been a possible result of breach, but also not an unlikely result of breach.

There are two key factors which the Court would consider when determining whether or not the test for remoteness of damage is satisfied; the knowledge of what tends to happen in the “ordinary course of things” and any special circumstances relevant to the specific circumstances of the contract which the parties knew or ought to have known about.

Summary

As outlined above, it is important that an innocent party continues to act reasonably and proportionately in a breach of contract matter. This of course can be easier said than done when faced with a potential defendant acting in contravention of the terms agreed between you, but will reduce the risk of any sum of damages being reduced by the Court later down the line.

If you require advice or assistance with regards to a breach of contract claim our dispute resolution team are on hand to help on 01604 828282 or litigation@franklins-sols.co.uk.

What do I need to prove in a claim for breach of contract?

  1. That a contract exists – you must be able to demonstrate that there is a legally binding agreement between the parties;
  2. That one party has failed to comply with the contract – ie, they have not kept to their side of the bargain or have fallen short of the service or standards expected;
  3. That you have suffered loss – you should be able to evidence the financial losses you have suffered as a result of the other party breaching the contract.
  4. That the loss was foreseeable – ie, the party in breach knew or ought to have known that the losses would be sustained if the breach of contract occurred.

At Franklins we understand that you want a quick resolution that is also cost effective. We will work with you to provide specialist advice and ensure a full case plan is prepared to outline your options and next steps. Contact the Dispute Resolution Team on 01604 828282 / 01908 660966 or email Litigation@franklins-sols.co.uk.