OnHand Counsel's The Business: legal briefing December 2014

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The penalty for seeking a penalty

The importance of well-worded exclusion clauses
Why you shouldn’t lie to your insurer
2014 OnHand Counsel round-up

In this series of legal briefings I update you about recent developments in corporate or commercial law. Some of these briefings will hopefully resonate with some of you some of the time. I explain some of the context and background law, and perhaps give some specific tips. And maybe ramble or even rant a bit.

The penalty for seeking a penalty

As this recent case shows, you have to be very careful if you want to say in a contract that the other party must pay a pre-determined sum if it doesn’t do what it agreed to. 


Rating system:
Reading time (1-10 minutes): 2 minutes
Sophistication level (1 (idiot) – 10 (expert)): 6
Entertainment value (1 (turgid) – 10 (side-splitting)): 5

The importance of well-worded exclusion clauses

The law relating to exclusion and limitation of liability clauses is quite difficult. You have to be very careful how you categorise the types of loss you want to exclude, as this recent case shows.


Rating system:
Reading time (1-10 minutes): 2 minutes
Sophistication level (1 (idiot) – 10 (expert)): 6
Entertainment value (1 (turgid) – 10 (side-splitting)): 5

Why you shouldn’t lie to your insurer

Your Latin term for the day is ‘uberrimae fidei’. This vaguely seasonal-sounding expression means ‘utmost good faith’. It’s an implied term in any insurance contract. A recent case is an example of how important it is.


Rating system:
Reading time (1-10 minutes): 2 minutes
Sophistication level (1 (idiot) – 10 (expert)): 6
Entertainment value (1 (turgid) – 10 (side-splitting)): 5

OnHand Counsel round-up of 2014

Some of you may be interested to know what kind of work I’ve been up to this year. I’ve broken it down into the following. The really big change over previous years is the increase in business sales and purchases; long may this continue!
Work type Number
Business to business and corporate joint ventures   5
Corporate investments; shareholders agreements/Articles   9
Shareholder ‘sortings out’   4
Business/share sales and purchases; MBOs   12
All sorts of bespoke/negotiated commercial contracts. Examples this year included the following types of agreement: supply; products and services; introducer; reseller; distribution; warehouse/fulfilment; consultancy; franchise; framework; software development; software reseller; SaaS….   16
A whole bundle of smaller stocking filler contracts and advice, eg exclusivity; NDAs; powers of attorney; Ts and Cs; start-up advice…   A whole bundle

And who referred this work or the relevant clients (some of them are now repeat clients) to me? I’ve only just got round to analysing this:
(percentage by value)
Other lawyers   30%
Accountants   29%
Clients   25% 
Met through local networking   8%
Web search   4%
Social   4%

Looking further back, 88% of the 25% referring clients were originally referred to me by accountants. Which ultimately makes accountants my best source of referrals! So a special thank you to them. It takes a very special accountant to refer their clients to a one-man band company commercial lawyer like me when they might be expected to refer their clients to a larger law firm because that’s where you are traditionally expected to go if you want a good company commercial lawyer; and many accountants also expect to get leads back from these larger law firm. Many of the accountants who refer their clients to me tell me they prefer to do so because they want their client to get the best possible value service, and the work I do for their clients reflects well on them.
I would like to give a special mention here to my two most favourite accountants who have consistently given me great support and leads over the last few years – Richard Lim of Day Smith Hunter and Mark Brooker of MSB Accounting

And finally -

Special bonus consumer advice

  • If you are with the AA and they send you an annual renewal notice promising you special treatment because you are a long-standing member who has been awarded special Gold Card status, be aware that this means specially bad treatment. Ring them and negotiate a better deal, eg what new members are offered. Or move.
  • Never ever use TalkMobile. Their service, pricing and customer care are totally and utterly awful.
Glad to get that off my chest…
All the best,
Andrew James
OnHand Counsel Limited
This newsletter is provided free of charge for information purposes only. It does not constitute legal advice (even if it looks like it does) and should not be relied on as such. No responsibility for the accuracy and/or correctness (I’m not sure what the difference is but that’s what my precedent says) of the information and commentary set out here, or for any consequences of relying on it, is assumed or accepted by OnHand Counsel Limited or by any solicitor, employee or agent of OnHand Counsel Limited, ie particularly me. You have not paid me to provide it to you and I do not owe you any duty of care whatsoever so why should I be liable to you if you go away and do something wrong relying on what I have said in it. If you want to do something and want to rely on my advice, give me some money! Thank you for reading this far.
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