Another High Court Injunction Success

Our specialist litigation team recently secured a High Court injunction against a company for both a trade mark and passing off infringement, based on the 1994 Trades Mark Act.

Our client wanted to restrain the offending company from using both a logo and a name that would cause considerable confusion to any existing or prospective customers. As a long standing and established nationwide company with an excellent reputation, they were obviously very concerned with the damage that may be caused to their reputation.

The company involved had only recently been established and the logo and trading name was obviously designed to mirror our client’s business to gain an enhanced reputation. HH Judge Hacon granted the emergency injunction on Monday 24^th June 2019. The injunction prevents any further infringement of our client’s Trademarks including its name and logo, and from passing-off. Our client will also pursue recovery of damages and costs.

The case really reflects the strengths of our litigation team, in that we had to act swiftly to support our client and in doing so collated all evidence urgently and in doing so achieved our client’s objectives.

With this type of case it is vital to act quickly and decisively to support the client and we acted with a real tenacity to ensure the desired outcome is achieved.

If you believe that you or your company is a victim of trademark infringement or passing off or any Intellectual Property issues including copyright then you can contact the litigation team on ph@rogers-norton.co.uk or on 01603 675639. We have recently defended successfully a number of copyright and passing of claim in addition to pursuing such claims.

2019 Rogers & Norton Footgolf Tournament

We were delighted that the weather brightened, to help make our third annual foot golf tournament at Eaton Park a resounding success. The competition was dedicated to raising funds for a specialist Admiral Dementia Nurse for Norfolk.

Twenty Five teams, comprising professional contacts, clients and local companies took part in the event and joined us later for a bbq at The Georgian Townhouse.

Lovell UK won the team competition, with Lee Aldridge from last year’s winners First Home Improvements scooping the individual prize.

We were very grateful to be supported by some ex Norwich City stars, including Mike Milligan who helped us raise money on the ‘beat the pro’ hole, together with Darren Huckerby who was the man to beat in the penalty shootout competition. They both willingly give up their time each year to support the deserving causes we raise money for.

Our guests were in an extremely generous mood in the evening, bidding for an array of football memorabilia to further boost the money we raised.

Overall we have raised just over £6,000 so far, towards funding a specialist Admiral Dementia Nurse for Norfolk.

As well as raising funds for a deserving cause it was important to raise dementia awareness. Every penny that we raised made a huge difference to those affected with dementia.

Challenging a Seizure by Border Force

24th Jun 2019

We are often instructed by clients following them approaching Border Force direct to request for their goods to be released. Terminology such us “hand back” or “returned” will often be used, in the thinking that this will be sufficient to challenge the legality of the seizure.

Unfortunately Border Force will only act if it is made clear that you are challenging the seizure of the goods. Even if it is your intention to do so, unless made expressly clear, Border Force will treat the request as a request for the restoration of the goods and not for condemnation proceedings to be issued.

If Border Force believes that any imported goods are liable for excise duty that has not been paid, or there is either a contravention of any provision of regulations or a contravention of any condition or restriction imposed by or under regulations, this ultimately means the items are liable for forfeiture.

If you have had something seized by HMRC or Border Force and you don’t accept there was a legal right to seize it and you want them to consider returning it there are three options to pursue

• Challenge the legality of the seizure by sending a notice of claim to HMRC or Border Force
• Write to HMRC or Border Force asking for the thing to be returned to you even if you accept it was seized legally. – this is called restoration
• Do both of the above at the same time by challenging the legality of the seizure and asking for the seized thing to be returned in the meantime.

It is important to understand that challenging the legality of the seizure and asking for restoration are two completely separate processes. The legality of a seizure is a matter that is dealt with before a court by way of condemnation proceedings, usually by a magistrate’s courts.

Restoration is decided by either HMRC or Border Force but if you don’t agree with their decision you can ask for a statutory review. If you choose the third option the two processes may be dealt with at the same time but in separate ways. They can’t be combined because magistrates’ courts and the First Tier Tax Tribunal have different areas of authority and jurisdiction.

If you don’t challenge the legality of the seizure by submitting a notice of claim, you won’t be able to challenge it later at the tribunal.

HMRC and Border Force’s general policy is not to return seized excise goods (such as alcohol or tobacco products), the vehicles used for commercial smuggling or anything that is prohibited (such as illegal drugs, offensive weapons or endangered plant and animal species) or where there has been an attempt to evade any duty.

They will however consider all requests for the return of seized things and take all relevant facts into account.

Dealing with HMRC Border Force can be a daunting and complicated process that involves adherence to strict protocols. If the systems aren’t followed in the correct way then delays will occur causing unnecessary costs and the potential loss of valuable goods. Seeking legal advice as quickly as possible will normally prove to be the most effective option when dealing with the seizure or stoppage.

Our expert litigation team have a wide experience in dealing with detentions, stoppages and the seizure of goods by UK Border Force. The team deals with the worldwide importation of goods to the UK, including the huge market from China. We work with clients who want goods restored at all major ports of entry, such as Felixstowe and London Gateway, together with Stansted, Gatwick & Heathrow.

We have a strong understanding of Border Force systems and can act quickly and decisively to support our clients in getting their goods restored.

Restoration Success for Border Force Team

21st Jun 2019

The litigation team has achieved yet another major result in successfully gaining the restoration of an HGV tractor unit seized by HMRC Border Force. The lorry had been impounded following the discovery of a quantity of tobacco belonging to the driver in his cab.

Despite the tobacco having no connection to the owners of the lorry, Border Force made the decision to seize the cab, potentially costing the owners hundreds of pounds a day in loss of income, on top of the loss of an expensive truck cab..

Our client had repeatedly advised their drivers that they were forbidden to take any quantities of tobacco that exceeded permitted limits, when they cross the border.

We were delighted that Border Force chose to restore the lorry to our client free of charge and no claim for excise duty was made at all.

As one of the leading legal teams involved in this type of work, our detailed and thorough knowledge of HMRC Border Forces systems and procedures enabled us to mount a detailed and rapid challenge to the seizure. The client was delighted with the outcome in recovering their lorry, minimising both the loss of income to them and the inconvenience to their customers.

We can also advise on Border Force’s policies for seizure, restoration and take to step to avoid seizures.

The success of the team is based on the ability to act quickly and decisively to support our clients in very trying and stressful circumstances. Companies can have both goods and assets seized that impact heavily on their ability to trade successfully – we understand the issues involved and use our experience to help gain a successful outcome for them. Our clients are based throughout the UK; Europe; the Far East; Mexico and the USA.

Latest Case on Liquidated Damages

Triple Point Technology Inc v PTT Public Company Ltd

The supplier of a software system appealed against a Technology and Constriction Court’s judgment dismissing its claim and ordering it to pay substantial damages on the counterclaim.

The main issue of principle which arose was how to apply a clause imposing liquidated damages for delay in circumstances where the contractor or supplier does not achieve completion.

In 2012, PTT decided to buy a new Commodity Trading & Risk Management (CTRM) system. There were two phases: Phase 1 would replace the existing system and Phase 2 would involve the development of the system to accommodate new types of trade. Triple Point completed the first two stages of Phase 1, 149 days late. Triple Point then submitted an invoice in respect of this work, which was paid. However, Triple Point went on, relying upon the calendar dates for payment stated in the order forms, and asked PTT to make further payment in respect of other work which was not yet completed. PTT refused saying that payment would be made by milestones. Triple Point had not achieved any of those milestones, apart from the completion of Phase 1. Triple Point suspended work and left the site. PTT terminated the contract.

The High Court dismissed Triple Point’s claim, awarding US$4.5million to PTT on the counterclaim. The Judge said that there was an inconsistency between Article 18 of the CTRM contract (which required payment by milestones) and the payment dates stated in the order forms.

As a consequence, Triple Point was not entitled to receive any further payments under the contract. Further, the delay and ultimate failure of the contract was caused by Triple Point’s negligence. They were not entitled to suspend. PTT was entitled to recover the costs of procuring an alternative system; wasted costs, but subject to a cap of US$1,038,000 pursuant to Article 12.3 together with the liquidated damages for delay pursuant to Article 5.3, totalling US$3,459,278.40, which were not subject to the cap.

Article 5.3 of the CTRM contract required Triple Point to pay damages for delay at the rate of 0.1% of undelivered work per day. The Judge held that, although Article 5.3 used the word “penalty”, it was not in fact a penalty clause. The CA agreed. The sums generated by the contractual formula were modest, when compared with the financial consequences of delay in installing the software.

Triple Point said that Article 5.3 was not engaged. It only applied when work was delayed, but subsequently completed and then accepted; it did not apply in respect of work which the employer never accepted.

The Court of Appeal reviewed the general principles concerning the operation of liquidated damages clauses in termination or abandonment cases. Three different approaches had emerged:

1. The clause does not apply.
2. The clause only applies up to termination of the first contract.
3. The clause continues to apply until the second contractor achieves completion.

The question whether the liquidated damages clause ceases to apply or continues to apply up to termination, or even beyond that date, must depend upon the wording of the clause itself.

In the Judge’s view Article 5.3 had no application in a situation where the contractor never hands over completed work to the employer. This was and is of fundamental importance.

The consequence of this analysis was that PTT was entitled to recover liquidated damages of US$154,662 in respect of Triple Point’s delay of 149 days in completing stages 1 and 2 of Phase 1. However, PTT was not entitled to recover liquidated damages for any of the other delays. This was because Triple Point did not complete any other sections of the work.

The fact that PTT could not recover liquidated damages in respect of any other sections of the work did not mean that it was left without a remedy for non-completion. Such damages were at large, rather than fixed in advance, and PTT was entitled to recover damages for breach of other articles in the contract, assessed on ordinary principles.

This left the question as to whether PTT’s entitlement to damages was subject to the Article 12.3 cap. The Judge said this:

• Article 5.3 provides a formula for quantifying damages for delay.
• Sentence 3 of Article 12.3 deals with breaches of contract not involving delay. Hence it necessarily includes the words “Except for the specific remedies expressly identified as such in this contract”. It was common ground that this phrase referred to liquidated damages under Article 5.3. Sentence 3 of Article 12.3 imposed a cap on the recoverable damages for each individual breach of contract.
• Sentence 2 of Article 12.3 therefore imposed an overall cap on the contractor’s total liability. That cap on total liability meant what it says it encompassed damages for defects, damages for delay and damages for any other breaches.

The experienced construction and engineering team deal with drafting and advising on contracts, litigation and disputes (High Court, County Court, TCC including injunctive relief), Adjudication and Arbitration. Our next Construction Seminar and Workshop will be held on Thursday 26^th September 2019 at 8.00 am.

BBC to charge the over 75’s for TV licences

The BBC’s announcement that they plan to means-test TV licences for the over 75s has created widespread condemnation across the media. The decision means licences will only be free for people receiving Pension Credits.

Age UK commented that the new charge will harm millions of older people who rely on their TV as many pensioners live in poverty but do not claim pension credit, either because they are unaware of it, are unable to navigate the complicated application process, or are simply too proud to accept benefits.

Theresa May has urged the BBC to rethink its plan to scrap free TV licences for most over-75s, as it announced that three million pensioners would no longer be eligible for the concession.

People across the country value television as a way to stay connected – many people believe that the BBC needs to look again at ways to support older people.

If the charge goes ahead then sick and disabled people in their 80s and 90s who are completely dependent on their television for companionship and news, will be forced to give it up unless they can afford to purchase a TV licence, creating an additional burden on their budget.

Our dedicated and knowledgeable Private Client team appreciate that clients of a certain age may require a little extra care, attention and support when making decisions, they can advise on Wills & Trusts, LPA’s, together with Tax and Estate planning.

Our talented specialists can advise on a wide range of legal issues affecting elderly and vulnerable people and take into account each person’s particular characteristics and requirements, especially those of a mental or physical nature, to ensure that they are able to understand the legal processes and documentation required. Our advice is specifically tailored to each client’s individual needs.

If you need to discuss issues or concerns relating to planning for the future, you can contact the team at wills@rogers-norton.co.uk.

Number of County Court Judgments on the increase

All judgments obtained via the Court system are recorded on the statutory public Register of Judgments, known as Registry Trust Limited “RTL”.

Since April 2006 RTL have been contracted by the Lord Chancellor to maintain the register and continue to record statistics for all jurisdictions including those of England and Wales.

All Judgment records remain on the register for a period of 6 years from the date of the Order of the Court, records are updated on the register to show if the debt is paid in full, they are only removed from the register if the debt is paid within 1 month of the Court Order and if payments are made after 1 month then the record may be recorded as satisfied but remains on the register for the rest of its term.

It was reported that there were some 321,044 County Court Judgments registered against consumers (individuals) in England and Wales, this was a 5% rise on the same quarter as 2018.

The RTL has recently reported that there has been a 12% increase in County Court Judgments against businesses in England and Wales during the first quarter of 2019. It was recorded that there were 35,779 County Court Judgments issued with a combined value of £107.2 million, this is a rise of some 6% on the same recorded period in 2018.

There is a need to act quickly to enforce as it’s the enforcement action that usually leads to recovery of the debt.

Enforcement actions include Charging Orders, Attachment of Earnings Order, Order to obtain information, Third Party Debt Order and Execution against Goods (Taking Control of Goods).

To ensure that your business does not become one of the statistics contact the Debt Recovery Team for assistance in recovery and enforcement of the debt.

More Success for Construction Team

Our construction team have recently enjoyed another success when acting for a developer who challenged the sums payable, having served valid Pay Less Notices. They also successfully defended a claim for monies for a developer/employer who had not served Pay Less Notices, something which the contractor had not spotted.

A number of High Court cases have underlined the importance of issuing payless notices correctly. It is essential that the correct procedures are followed to maintain cash flow until final account stage.

An accurate Pay Less Notice is really important if a deduction from the amount of a payment application is to be upheld. The absence of a valid Pay Less Notice makes a case difficult to defend.

A Payless Notice should be clearly identified as such and served strictly in accordance with the applicable contract terms and its administrative rules. The other party must be able to objectively understand that it is intended to be a Pay Less Notice.

The notice should contain sufficient information, including what might be needed to form the basis of an adequate agenda for adjudication for the true value of the relevant part of the works.

Our skilled and experienced Litigation team have a wide depth of knowledge relating to the construction industry – if you are experiencing issues with enforcing a contract and a claim for monies, require a review of your contracts or wish to defend a claim, or you can contact us at ph@rogers-norton.co.uk.

RICS consultation on a proposed new mandatory Home Survey Standard

4th Jun 2019

It’s been reported recently that The Royal Institution of Chartered Surveyors (RICS) has launched an industry and public consultation on the proposals of a new mandatory Home Survey Standard.

The RICS hopes that the new statement will deliver a new best practice standard to improve the home buying and selling process and enhance consumer confidence.

The proposed changes aim to better protect buyers and sellers by ensuring they fully understand the importance and benefits of commissioning a home survey.

RICS worked with industry to create the proposed new mandatory standard and plan to make it simpler for consumers (homebuyers and sellers) to understand the different surveys on offer and what each of them checks, together with the level of service delivered by its members.

The aim is to make sure there is a level of consistency in the types of survey offered. They say that the changes have been made in response to a changing market place, updated technology and consumer needs.

This is a really helpful and positive move by the RICS, as we find that so often clients are unsure of what survey or valuation to pay for and can be driven by the cost rather than the need. Greater clarification and understanding of what they contain and how that can be of benefit, is a hugely desirable step forward.