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Anita Jackson

anita-jackson

Senior Litigation Executive

Anita joined Bermans in 1987 and has over 25 years of experience in the recoveries arena and a deep understanding of finance and asset based recoveries procedures.

In addition to producing and managing court process for a variety of commercial clients Anita has her own caseload of undefended and defended small claims litigation primarily for the asset based lending industry.


Email: anita.jackson@bermans.co.uk

Tel:0161 827 4602

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Pat Haver

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Chartered Legal Executive

Pat is a qualified Chartered Legal Executive and joined Bermans in 1997.

She works in our Litigation department and deals with a wide range of contract disputes and also property litigation matters (particularly Landlord and Tenant possession actions and Landlord’s claims for rent arrears).

She has developed real litigation nous and is respected by clients’ in their own right, as adept lawyers in their fields.


Email: pat.haver@bermans.co.uk

Tel: 0151 224 0507


 

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Bernard Barrett

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Consultant

Bernard founded Bermans invoice finance team back in the early/ mid 1970’s following his law degree and qualification a solicitor in 1973 and has been a major figure in the industry ever since. He devised and still delivers the much appreciated, very popular and well attended Legal Aspects residential course for UK Finance (previously ABFA).

Now a consultant with the firm, Bernard assists the team with a variety of invoice finance issues including the complex drafting of bespoke documents.


Email: bernard.barrett@bermans.co.uk

Tel: 0151 224 0500


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Melanie Morris

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Solicitor

Melanie joined Bermans in January 2015 as a Trainee Solicitor and qualified as a Solicitor in January 2017 in the Property team.

Melanie graduated from Lancaster University with a degree in Law in 2011, before completing the Legal Practice Course at The University of Law, Chester. Prior to joining Bermans, she spent time as a paralegal and working at an international bank.

Throughout her training, Melanie gained experience in both the Corporate and Commercial Property departments. She has assisted each department on a wide range of both contentious and non-contentious matters and prides herself on her friendly, common-sense approach with clients.


Email: melanie.morris@bermans.co.uk

Tel: 0151 224 0548

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Catherine Lo cropped

Catherine Lo

Catherine Lo cropped

Solicitor

Catherine joined Bermans in August 2016 as a Solicitor in the Corporate team. She qualified as a Solicitor in 2005 following her law degree.

Catherine advises a variety of clients ranging from sole traders and start-ups to medium-sized enterprises.

She is experienced in drafting documents for and negotiating a broad spectrum of corporate transactions assisting clients in reorganisation of businesses and company structures, business/company sales and acquisitions, shareholders and cross option agreements, company law and partnership matters.


Email: catherine.lo@bermans.co.uk

Tel: 0151 224 0536


 

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Are we about to see an increase in Employment Tribunal claims?

Sophie

Fees were introduced into the Employment Tribunal system on 29 July 2013, with claimants being required to pay a fee to issue their claim and another fee in order to progress their claim to a final hearing before an Employment Judge. In addition, parties are now also required to pay fees for things like reconsideration of judgments or dismissal of claims after they have been withdrawn.

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The right content, at the right time, in the right place

There continues to be a huge buzz around content marketing, due to its potential for raising awareness and winning new customers. However, what makes it really powerful is understanding your customer’s journey, and saying the right thing at the right time and in the right place.

 

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Daniel Nolan, Managing Director

1. Awareness

How do you make your product or service visible to people who don’t even know they need it? The key to the awareness stage is providing content that is useful and interesting to your prospects – such as answering a problem or question they may have. It could be an infographic, tweet, blog, press release, stats piece or calculator; however you provide the answer, it needs to be easy to digest, highly shareable and optimised for search engines if possible. Your prospects can then stumble across your brand name while researching their problem or question.

2. Consideration

At this stage, your prospect is aware they need a product or service similar to the ones you offer; now, you need to be as helpful and authoritative as possible. Content marketing at this stage uses powerful storytelling to explore your product or service in more detail. Think downloadable guides, whitepapers, case studies, unique research, webinars and FAQs – whatever will demonstrate your value to the prospect. This content should ideally be of interest to authority websites in your niche which your prospect may be consulting, potentially leading to a link, share or guest article.

3. Decision

At this final hurdle, standing out from your competitors is the difference between winning and losing. You have that prospect on your website one last time, so ensure your content is persuasive – and make it easy for them to convert, by including clear contact details. In addition, client testimonials, reviews and videos can really bring your brand to life and inspire trust, so make sure they’re prominent on your website.

Social media should be part of your campaign, not an afterthought.

 

There’s more to content marketing than just producing a great piece – you have to give it a helping hand with social media to get it seen by the right people. As well as existing followers who may be in the consideration stage, there’s huge potential to expand your reach through the social ripple effect and get your awareness content seen – if you promote it correctly.

What’s more, Global Web Index found that between 17% and 35% of people (depending on their age group) use social media to research products and services; for B2B buying decisions it’s even higher, reportedly between 50 and 80%. So it’s vital you use your social channels to make a great first impression, be real, be engaging and be helpful – it’s far too important to see as an afterthought or leave in the hands of the wrong person, as we all know the implications of managing it poorly.

Need to upskill your team?

 

 

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theEword is a digital marketing agency in Manchester and we’d like to extend a very special offer to Bermans clients – a half price social media training session.

Our social media and content marketing experts will take an in-depth look at your social channels and provide bespoke recommendations and practical tips on how to make the most of your online marketing.

We’re offering this half-day, in-house session for £500 (normally £999) for up to 8 members of your team.

To take advantage of this offer:

  • 1. Email Sian.English@theeword.co.uk quoting Bermans offer in the subject line.
  • 2. Confirm the URL of your website and any social media channels you use
  • 3. Confirm if you currently work with a digital marketing agency (you don’t need to tell us who!)

You can learn more about the Eword by visiting our website theeword.co.uk, calling us on 0161 848 7450 or by following us on Twitter @theEword

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Rule against Penalties relaxed

asset_triangles

An important decision of the Supreme Court has made it less likely that spurious challenges to asset financiers’ liquidated damages clauses will succeed.

For many years now there have been numerous challenges to liquidated damages clauses based on the common law rule against penalties, which in essence has been understood to provide that in order to be effective a liquidated damages clause must only provide for a genuine pre-estimate of the financier’s loss – otherwise it will be struck down as a “penalty” on the grounds of public policy.

Financiers have been careful to avoid a damaging precedent being set in a reported decision of the higher courts, but almost all asset financiers will have experience of being met with resistance to liquidated damages clauses on these grounds.

This area of law was ripe for review by the highest court, so a panel of seven judges sat in the combined appeals of Cavendish Square Holding BV v Makdessi and ParkingEye Ltd v Beavis (Consumers’ Association intervening) [2015] 3 W.L.R. 1373.

Unfortunately the judgments in these cases are rather complex, running to over 100 pages in total. Neither case involved asset finance but the principles to be derived are the same. The first case involved a complex series of investment agreements between sophisticated parties, whilst the second case involved the rather more mundane situation of a motorist overstaying the two hours allotted as free parking in a supermarket car park. However, both cases involved the court giving detailed consideration to the principles of liquidated damages and the concept of penalties.

The leading judgment was given by Lord Neuberger of Abbotsbury PSC and Lord Sumption JSC (with whom Lord Carnwath JSC agreed), who said at paras 31-32: –

“The real question when a contractual provision is challenged as a penalty is whether it is penal, not whether it is a pre-estimate of loss. These are not natural opposites or mutually exclusive categories. A damages clause may be neither or both. The fact that the clause is not a pre-estimate of loss does not therefore, at any rate without more, mean that it is penal. To describe it as a deterrent (or, to use the Latin equivalent, in terrorem) does not add anything. A deterrent provision in a contract is simply one species of provision designed to influence the conduct of the party potentially affected. It is no different in this respect from a contractual inducement. Neither is it inherently penal or contrary to the policy of the law. The question whether it is enforceable should depend on whether the means by which the contracting party’s conduct is to be influenced are “unconscionable” or (which will usually amount to the same thing) “extravagant” by reference to some norm.

The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation. The innocent party can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance”.

Lord Mance JSC said something similar at para 152:-

“What is necessary in each case is to consider, first, whether any (and if so what) legitimate business interest is served and protected by the clause, and, second, whether, assuming such an interest to exist, the provision made for the interest is nevertheless in the circumstances extravagant, exorbitant or unconscionable.”

Comment

As a result of this decision standard liquidated damages clauses used throughout the asset finance industry will be more difficult to challenge as penalties. It will normally be possible for the financier to demonstrate that such clauses are commercially justifiable in the context of its legitimate interest in holding customers to their contractual obligations to make payments throughout the life of an agreement.

However, care should still be taken to ensure that as far as possible liquidated damages clauses properly reflect the losses likely to be sustained by a financier upon termination in the event of default, and particular regard should be had to the relevance of the value of repossessed equipment which may well differ in the case of a finance lease, an operating lease and a hire purchase agreement.

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Mistaken use of CCA regulated paper not binding

asset_triangles

The consequences of using unregulated paper for an agreement which is as a matter of law regulated by the Consumer Credit Act 1974 (“CCA”) are well-known throughout the industry. As originally drafted the CCA rendered such agreements irredeemably unenforceable, though a significant amendment effective as from 2006 provides that in general most such agreements will be enforced by the court in the absence of prejudice to the customer.

What of the opposite scenario: as a matter of law the agreement is not regulated by the CCA, but the financier uses paper which states that it is?

We are concerned here not with dual purpose documents, which have long been in widespread use in the asset finance industry particularly in the business to business sector, and which contain an express carve out for the situation where the customer is not regulated by the CCA or where the agreement is for business use above the £25K limit. The situation we are addressing is where there is no such “dual purpose” exemption clause, but rather the financier simply uses regulated paper by mistake in an unregulated situation.

The point arose squarely for decision in the recent decision of the Court of Appeal in NRAM plc v McAdam [2015] EWCA Civ 751. This case involved a loan agreement which was outside the CCA limits which then applied, but in relation to which the financier had used regulated paper. The effect was that if CCA s77A applied, no interest was recoverable during a lengthy period of non-compliance with the provision of the required post-contractual statements, and in the case of this financier some 41,000 agreements were affected with a sum of approximately £285 Million in play.

The case was brought on as a test case before the Commercial Court, and at first instance Burton J ruled against the financier on the basis that it must take the consequences of having used regulated paper. For a number of reasons and on different bases of legal analysis, the judge was clear that the customer was entitled to all the protections and remedies afforded to him by the CCA, despite the fact that as a matter of law the agreement was not within the jurisdiction of the CCA.

The financier appealed to the Court of Appeal.

The agreement contained express statements as to the right of cancellation and the right of early settlement as thought to be required by the relevant CCA Regulations, and the court had little difficulty in finding that these express statements on the face of the agreement amounted to express contractual terms binding on the parties.

However, the Court of Appeal disagreed with the judge on all the remaining issues. Firstly, the Court ruled that just as it was not open to the parties to contract out of the application of the CCA, so it was not open to the parties to contract into the CCA either: –

“In the light of the highly technical provisions of the 1974 Act, including particularly the role of the court in enforcing regulated agreements, we agree with Mr Waters’ submission that it would require very clear words before one could conclude that the parties agreed to give the court power to enforce the agreements in the limited circumstances given by the 1974 Act and in no other circumstances. It would be very unusual to give a court a discretionary power to enforce an agreement and still more unusual to import mandatory requirements such as those imposed on the court by (among other sections) section 127 which are peculiarly inapt to be imposed by agreement, as are the powers to make time orders, to impose conditions or to suspend the operation of an order as provided for by sections 129 and 135. This must all the more be the case when the parties would be uncertain whether a judge of the County Court would even accept he had jurisdiction to make any necessary order in the first place”.

Secondly, it was wrong to construe the wording on the regulated paper referring to the CCA as an agreement between the parties that the CCA would apply: –

“There is no factual matrix that supports the judge’s approach that the representation should be construed as an agreement on the part of the parties that, irrespective of whether the agreement was in fact regulated, the parties agreed that the borrowers would be treated “as if” the agreement was regulated. The fact that the defendants in this case, and, as one might suppose, many borrowers in the other 41,000 cases, thought they had entered into regulated agreements which had the protection of the 1974 Act, or alternatively thought that, irrespective of whether their loan agreement was actually a regulated agreement, they none the less had the protections of the 1974 Act, is of itself no basis to justify the inclusion of the term found to exist by the judge”.

Thirdly, there was no ground for the operation of the doctrine of estoppel either: –

“For the reasons which we have already given above in relation to the issue of construction, similarly, in the estoppel context, the relevant statements are in our view simply not capable of being regarded as a shared assumption that, whether or not the agreement was a regulated agreement, it would be treated as if it were and as if, so far as possible, the defendants would have the protection and rights conferred by the relevant legislation in force from time to time. As we have already said, the terms of the relevant statements are wholly inconsistent with such an assumption”.

However, there is some solace for customers in the judgement in that the Court went on to say that a customer may still have a remedy against a financier where regulated paper is used in an unregulated agreement: –

“As we have already said in earlier passages in this judgment, in our view the relevant statements on any basis amounted to a representation by NRAM that the loan agreement was an agreement regulated by the 1974 Act and that the borrowers were entitled to the protections afforded by the Act to borrowers under such regulated agreements. That representation, as Mr Waters accepted, indeed had legal effect in the sense that, if, as was the case, it was false, the borrower would be entitled to sue for misrepresentation under the Misrepresentation Act 1967. Given the context and prominence of the relevant statements, we take the view that they are to be construed not merely as representations but also as contractual warranties and that the borrowers would have been entitled to sue for breach of contractual warranty”.

Comment

This is a welcome decision applying common sense principles to the convoluted issue of CCA regulation.

Although the agreement in question was made before the £25K limit for regulation was removed in 2006 for non-business transactions, an adverse decision would still have had significant consequences for the asset finance industry in relation to both past and future transactions.

A note of caution still applies in view of the Court’s remarks that statements about the applicability of the CCA amounted to contractual warranties. However, customers are likely to face a number of hurdles in bringing successful claims based on breaches of warranty: –

  • (1) It would normally be necessary for customers to establish reliance, which is likely to be difficult unless they can show they were aware of specific provisions of the CCA at the time of the agreement;
  • (2) it may well be difficult to prove loss and damage; and
  • (3) the limitation period of six years will run from the date of the making of the agreement.
  • Of course none of this applies to the dual purpose documents, which have always been widely used in the asset finance industry, particular for financiers dealing with business customers. It is difficult to foresee any customer bringing a successful argument based on the fact that it didn’t bother to read the clause exempting a dual purpose agreement from regulation by the CCA, and this Court of Appeal decision should be confirmation that the industry has nothing to fear from the use of dual purpose documentation.

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    Discretion applies in claim for delivery up

    asset_triangles

    To what extent is a financier’s application for delivery up of leased goods likely to be defeated by a hirer’s invocation of the court’s discretion?

    The use of interim applications for delivery up of equipment on finance has been greatly curtailed since the moratorium imposed by the Insolvency Act 1986 has afforded protection to companies in administration, but such applications remain relevant outside the insolvency context.

    A recent example with somewhat unusual facts arose in the case of Dawsonrentals Coach & Bus Ltd v Geldards Coaches Ltd [2015] EWHC 2596 (QB). Here the claimant leased 27 vehicles to the hirer which were used for local authority school transport. The hirer was in arrears and resisted an interim application for delivery up on the basis that the schools were unaware of the situation and would be unable to obtain alternative vehicles before the end of term, which was about two weeks away. The hirer therefore sought to delay any order for delivery up for a period of a further two weeks, whilst the claimant insisted on delivery the next working day.

    The judge referred to previous authority defining the nature and scope of the court’s discretion in an application for interim delivery up where there is no real legal defence to the claim: –

    “The claimant, Dawsonrentals, must have a arguable case, but, as was set out in the decision of sir Robert Megarry as Vice Chancellor, a decision of 14 March 1980, Howard E Perry & Co Ltd v British Railways Board 1 WLR [1980] 1375 , there need not be any urgency or any risk of danger of loss or disruption. At page 1384 of his judgment, these two passages are of relevance. At letter E he says:

    “Do these fears of the defendants, either individually or collectively, provide a sufficient ground for the court in its discretion to refuse to make the order for delivery which otherwise ought to be made in favour of the plaintiffs? Ought the court to be persuaded from making an order against a litigant if that litigant has been threatened with unpleasant consequences if he does what the order requires him to do?”

    Then he goes on to say at letter G:

    “There may be cases in which other respects the scales are only barely tipped in favour of making the order and the damaging effect of the threats are so great that the court may then refrain from making the order. But, apart from cases such as these, I think the court ought not to allow threats to a litigant and the litigant’s fears of those threats to dominate the decision.”

    A concern with regard to the reputation of a company or its ongoing ability to trade does not in itself give rise to a reason as to why the order should not be made”.

    The court then weighed up the competing contentions and interests of the parties, and ruled that there would be a further grace period of about a week before delivery up of the vehicles would be ordered so that the hirer could inform the school authorities, who would hopefully have time to arrange replacement transport.

    Comment

    The advent of the insolvency moratorium has led to a dearth of reported cases on interim applications for delivery up, but this case restates established principles that at the end of the day the court always has a discretion before ordering interim delivery of financed assets, and in exceptional circumstances such discretion may take into account the interests of innocent third parties.

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