We are a new set of eyes offering solutions you may not have considered.
We are always happy to provide a scope and an estimate so you know where you stand.
Why work with us
Our of experience in dealing with commercial contracts will advance your position.
- We offer you a strategy – review early on can save false hopes;
- If you have received a claim we can manage the process;
- We will always look for an easy solution before launching in.
To guide you on the issues likely to arise we have summarised
Our approach is to limit damage. This entails considering your circumstances, examining options, and then developing a strategy. Focused means picking out the key points that will achieve success. The areas to distil include:
- Establishing the facts that count and dismissing irrelevancies.
- Analysis of the choices.
- Obligation to mitigate the loss.
- Recovering damages.
- Opportunities for settlement out of court with a view to preserving your legal costs.
Establishing the facts
If there has been a contract termination or breach of contract, the first practical steps we will establish are:-
- If there is a written commercial contract what does it say?
- Is your contract a business to business arrangement or business to consumer? If the latter, whatever the contract may stipulate, it may well be overruled by statute or have terms implied into it.
- We check for evidence of any alterations to the written terms in subsequent emails, correspondence or otherwise. Everyone should be as clear as possible as to the latest agreed terms.
Variations to the business contract terms
It is not uncommon for businesses to vary the terms of a written contract. This is particularly the case for parties contracting over a period of time, e.g. licensor and licensee or agent and distributor. We can establish the position for you.
Waiver of breach in business contracts
If you take no action you may be considered to have waived the breach. On the other hand, don’t act too hastily as you may make a mistake that means you are in breach yourself.
Fundamental breach of contract
Different contract clauses have different implications – is the breach a fundamental breach? Does it go the very essence of the bargain? If not, your options and remedies may be different. If yes, then the remedies open to you are vast. We interpret and advise accordingly.
Usually not black and white
In our experience most breach of business contract cases are never black and white which is why a business dispute has arisen. We apply our objective judgement to provide an honest opinion on your chances of success.
Letters before action
Most businesses do not want to take the risk and costs of litigation. We help businesses in a number of ways work towards settlement of their business contract disputes. It may be necessary to proceed as if the case were heading for trial but run parallel without prejudice discussions. Showing the other side you are prepared to litigate can in itself accelerate settlement.
Benefits of a letter before action
The first step is to issue a letter before action. This often causes the defaulting party to listen to sensible settlement offers if its defence is weak. We calculate losses for the innocent party to ensure that the letter before claim is watertight.
Once the letter before claim is issued there will be time limits to follow. Therefore you need to be prepared. Failure to respond can mean immediate court action. We can help you issue the letter before action or to defend a claim set out in a letter before action.
Breach of contract damages
There are many principles involved in determining what alleged losses may or may not be recoverable for breach of business contract.
Some of the key areas we will consider include:
Remoteness and breach of contract
The loss must not be too remote to be recovered. In other words, losses must arise according to the normal events arising from the breach of contract itself or as may reasonably be supposed to have been in the contemplation of the parties at the time they made the business contract. Frustrating events do not qualify, e.g. fire, flood, explosion, or a change in the law making performance illegal. These events make performance of the contract impossible.
Causation for breach of business contract
The party bringing the claim must prove on a balance of probabilities that the breach of business contract caused the loss. The court will usually first consider what would have happened “but for” the breach. Alternatively, a court may consider the “lost chance” approach which looks at the chances of what might have happened.
Mitigation following breach of business contract
The party bringing the claim cannot recover damages for any part of his loss which he could have avoided by taking reasonable steps. This is referred to as the duty to mitigate.
The duty to mitigate following breach of business contract
There are two limbs to the duty to mitigate, which arise after the breach has occurred. The party claiming breach of contract must take reasonable steps to minimise his loss (expenses in taking these steps can also be recovered) and he must not take unreasonable steps to increase the loss incurred.
Frustration of a business contract
A general rule of law is that if performance of a business contract becomes more difficult or impossible, the party who fails to perform its obligations is liable in damages. However, the exception to this is frustration.
Frustration automatically discharges the parties from the business contract. Common frustrating events are:
- The destruction of the subject matter of the business contract, e.g. the goods.
- The unavailability of the subject matter.
- Incapacity, such as where the contract is for personal services and the person can no longer perform the service. Construction contracts are a common example.
- An event varying the contract so substantially it renders performance impossible.
- The business contract becoming illegal through a substantive change in law.