dglaw's Blog

Email Destruction

dglaw1 — Fri, 20 Jan 2012 14:12:26 +0000

The report yesterday about how News International destroyed crucial emails in the phone hacking scandal http://bit.ly/wUUEOv highlights just how crucial it is to have proper data storage and back up for businesses. The allegations of a deliberate cover up may yet prove unfounded, but it highlights just how important it is as a defendant to protecting your records to avoid litigation claims spiralling out of control.

Bribery Act Update

dglaw1 — Thu, 31 Mar 2011 12:27:04 +0000

Ken Clarke has now issued his much awaited guidelines. The good news is that the concerns over corporate entertainment seem to have been clarified. Moved by a concerted campaign by business and in particular the evening standard newspaper for clarity- common sense is set to apply. “Bona fide hospitality.. or other.. expenditure which…improves the image of a business or better .presents… products/services, or build relations” -will not be caught by the Act. But there has to be proportionality and regard for the sector norms. As if it was ever in doubt!? The rules kick in on 01 July – just in time for the summer “season”.

Force Majeur

dglaw1 — Tue, 22 Feb 2011 09:42:44 +0000

The ongoing events in the Middle East are nervous times not just for the people in the region, but also for those who have family and business connections. Do you do business in the region and if so are you affected? For those of you who are relying on major contracts it may be time to consider looking at your “force majeur” clause. This is the clause in a contract which gives the affected party the right to suspend its obligations until the cause of disruption has passed. Be aware though Force Majeur has no actual meaning in English law – guess what – its French. In otherwords if your contract simply says something along the lines of “usual force majeur rules apply” or is silent on the issue then you may have problems. The contract needs to spell out what kind of event would classify as a “force majeur event” for example riot, general strike, civil war. It then also needs spell out what the parties can do – eg. delay/terminate the contract. Clearly whatever is written into the agreement alot of this is about agreement of the parties – so if you are the supplier or you are awaiting deliveries of goods and services, common sense has to come into play and parties consider on going business relationships when things have settled down.

Bribery Act – Pause for Thought

dglaw1 — Fri, 11 Feb 2011 10:28:57 +0000

The announcement to delay the Bribery Act for some is a relief for others a failure of good government. Either way it will eventually come into force and so this additional breathing space is a good chance to get to grips with what is on the horizon.

At its simplest “bribery is a form of corruption, implying money or gift given that alters the behaviour of the recipient. All except the most hardened racketeers will agree it’s not a great thing to do. It’s essentially already illegal its just the new act codifies the old law (brings into one place and) its critics say widens the potential scope of the crime.

Putting a £50 note in your passport when trying to clear customs without a Visa is a pretty clear example of a payment altering behaviour. So to are the urban myths of rolling dollar bills into drawings to secure government contracts. But what about the staple of the British “summer” that is corporate entertainment, at Henley, Wimbledon, Ascot, the Open where does that sit with the new Act? Does lavishing smoke salmon expensive tickets and champagne seeking to alter behaviour to the point of being corrupt? In short it’s not clear.

What is clear is that the government needs to look at this issue properly and set out some sensible guidelines. For those that already have their marketing plan set up there is some comfort. When the Act was being discussed the Director of the SFO stated for that “ most routine, inexpensive corporate hospitality” would “generally” not be considered to be caught by the Act. Good news unless you are the one business which falls into the exceptional case category. The key test really is this: but for the act (of bribery) be it payment of hard cash or an inducement disguised in another form (such as excessive corporate hospitality) would the company have won the relevant business or contract. Ie was the act critical in the decision making process. If the answer to that is “no” then the decision to treat a key decision maker to a day out at the races looks less odious and less at risk of falling foul of the legislation.

There are plenty of other aspects to consider, but that’s enough for now. If you want to discuss any of the above by all means get in touch.

Prenuptial – Meaning Business

dglaw1 — Thu, 04 Nov 2010 11:53:47 +0000

The recent landmark case of Radmacher v Granatino giving effect to prenuptial agreements in divorce cases gives pause for thought. People say its “un-romantic”, “only worth it if you have £millions”. Really what is so wrong with sitting down before going into a relationship where assets are going to be bought, liabilities taken on and a relationship to be developed – and not thinking through both the practical issues and also any exit strategy. It is certainly what I advise my commercial clients to do when they are thinking of going into business with each other. Whether it’s a shareholders, investment or partnership agreement. I think the principles are the same. Especially where both parties have unequal bargaining positions or assets in their own name which they want to ring-fence.

The Return of Nadir

dglaw1 — Thu, 02 Sep 2010 09:39:39 +0000

The return of Asil Nadir to face charges for the collapse of Polly Peck made me smile. Not for all interesting questions as to why now or can the SFO and UK Justice system pick up from where they left off? No the reason I smile is that when I first became a lawyer I went to an interview on the same day that he absconded and was all front page news. In answer to the question: was I up to date on corporate affairs and what was my opinion I flunked it as I hadn’t read the newspaper or even looked at a newstand. So the big lesson I learnt that day is when you go to a meeting get on top of your facts, prepare, know where you stand on the major issues and at the very least – check the days headlines….

DG Law Update

dglaw1 — Tue, 27 Jul 2010 15:00:18 +0000

Our latest update was released on 23 July. Contact me on david.gordon@dg-law.co.uk for a copy.

The updated includes details on:

How to write an effective Contract
Limiting Liability

Not all bad news for BP

dglaw1 — Mon, 05 Jul 2010 16:13:21 +0000

Today’s rise in share price for BP shows how bad news does always mean a permanent drop in value for a company. Here investors are probably taking advantage of the fact that value may have hit rock bottom. They may also continue to see value in the remainder of the company despite ongoing fines and claims. The same can happen in the small company arena. Sellers question at what stage they should reveal negative issues to potential purchasers which might lead to a price negotiation. There is no rule of thumb here. But sellers shouldn’t lose sight of the fact that buyers may see other areas of value in the company which remain unaffected.

Tip from a Taxi Driver

dglaw1 — Tue, 01 Jun 2010 13:56:05 +0000

Taxi driver Mike Parry last week managed to win a claim against Close Finance for “unfair” late payment fees on his loan. Click Here. The case raises issues as to what is and isn’t fair to charge a customer by way of fees in relation to a loan. It also highlights the perils of not defending a claim. Close didn’t file a defence in time to Mr Parry’s claim and judgement was awarded without hearing the legal argument. So what’s Mr Parry’s tip – always file a defence to a claim raised against you…auwright… where to next gov…..?

CGT…changes for everyone?

dglaw1 — Thu, 27 May 2010 15:08:27 +0000

It seems from the commentary that the changes to CGT are being looked in terms of “non-business” and “business” changes. I take this to mean that existing business reliefs eg Entrepreneur’s Relief at 10% will remain no matter what the other changes to the “personal” elements of CGT – lets see what happens in the June Budget.