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The Commercial dimension... Sale and supply of goods and services relating to the Transport Industry Alex Sandland, LLB (Hons), Director, Dyne Solicitors.

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Presentation on theme: "The Commercial dimension... Sale and supply of goods and services relating to the Transport Industry Alex Sandland, LLB (Hons), Director, Dyne Solicitors."— Presentation transcript:

1 The Commercial dimension... Sale and supply of goods and services relating to the Transport Industry Alex Sandland, LLB (Hons), Director, Dyne Solicitors Limited Jonty Gordon MDes, LLB, Solicitor, Dyne Solicitors Limited

2 The Changing Transport Industry Industry is changing Commercial Focus Dictum meum Pactum – word is my bond... Payment Terms Delay Squeeze at the bottom end Pressure from both sides – position Cash flow

3 The Importance of T&Cs Avoid litigation Avoid delays Maintain commercial relationships More funds in Less funds out Solid trading base...given the ever-growing importance of cash flow, ensuring that you are contracting on your own, favourable terms is more important than ever...

4 Trading Terms - Sources 1.Supply of Goods and Services Act 1992 [SOGSA] 2a.Course of dealings 2b.Conduct of the parties 3. Terms and Conditions (written) 4. Management and Utilisation

5 1a.Supply of Goods and Services Act Unavoidable – can be excluded? (no) – Express agreement –v- UCTA 1977 – Clear, unambiguous agreement; course of dealings – But why? 2 (+1) elements: – Supply of service (sections 12-16) – Sale of goods (sections 2-5) – Hire (sections 6-10)

6 1b.Supply of Goods and Services Act Sale of Goods:...satisfactory for intended purpose...accords with description... Supply of Services:...carried out...with reasonable skill and care...within a reasonable time... Hire:...satisfactory for intended purpose...

7 2.Conduct Historical conduct Course of dealings Conversations Informal Casual business Can be undone

8 3a.Written Terms and Conditions Bread and butter Not jam To complement SOGSA To correct / undo Conduct Essential feature of business Confers control

9 3b.Written Terms and Conditions Key issues: – Payment – Interest – Insurance / risk – Delivery – Loading / Unloading – Liability for loss and damage (exclude; limit) – Indemnity – Lien

10 3c.Written Terms and Conditions Bespoke Heavy Transport Association [HTA] Road Haulage Association [RHA] Freight Transport Association [FTA] Construction and Plant Hire Association [CPA] British International Freight Association [BIFA] Convention for International Carriage by Road [CMR]

11 Written Terms – Battle of the Forms General Rule: Fire the last shot Example 1: Trevor Bassett Holdings –v- ADT Fire and Security Example 2: British Road Services Ltd –v- Arthur Crutchley and Co. Ltd

12 Written Terms – Incorporation Initial engagement Website Letters / e-mails Invoices Purchase Order Quotation/Estimate Acceptance Sales Receipt Sales / Marketing Documents

13 Exposure to Risk SOGSA is the foundation (unavoidable?) Relying on conduct is dangerous Absence of T&Cs – Relying on conduct – Committed to other side Predator and prey

14 Potential Pitfalls Dispute Loss of business / relationship Reputation / goodwill Aged debt Cash-flow Insolvency Management Time (staff resources; inconvenience) Litigation (fees; time; disruption; disclosure)

15 Recommendations? Terms and Conditions are tailored Bespoke for business purposes – to suit particular requirements Signed Terms Duplicate / Incorporate / Publish / Advertise [DIPA] Directors Guarantees – Insolvency Recovery of Fees Commercial Interest Rates Due Diligence Know your Enemy Sign Nothing! Management / Awareness

16 And finally.... Leave nothing to chance Integrity? Cost -v- Cost Investment Balancing Risk Certainty – Clarity – Peace of Mind Solid foundations

17 DSL Toolkit What do I need to display in my business letters, orders and websites? The company name, number, place of registration, and its registered office address What can happen if the company fails to comply with the trading disclosure requirements? The company and every one of its officers in default will be committing an offence and they may be liable to a fine Trading Disclosures – Sections 82 to 85 of the Companies Act 2006

18 DSL Toolkit What other legislation imposes requirements on online trading? The Data Protection Act 1998 The Privacy and Electronic Communications Regulations Accessibility - The Disability Discrimination Act 1995 (DDA) E-Commerce Regulations 2002

19 DSL Toolkit If you dont know the terms and limitations of a contractual relationship, who will? Having the terms set out in a document can prove to be a useful bargaining tool and ensure your best interests are observed and recorded – battle of the forms

20 DSL Toolkit Wide range of documentation allowing your business to trade effectively. The documentation allows you the peace of mind that its liabilities are minimised and position protected as well as possible. Picnmix, off the peg and practically ready to use

21 DSL Trading Toolkit Agency agreement (domestic/international) Distribution agreement Non-retail supply of goods agreement Terms and Conditions of sale of goods/supply services Event sponsorship agreement Confidentiality agreement Franchise agreement Prices from £225 - £750

22 DSL Online Toolkit Terms and Conditions for use of a website Terms and Conditions for an e-commerce website Privacy policy Copyright statement Cookie policy Email notice Website design and development agreement (domestic) Prices from £50 - 350

23 DSL Debt Recovery Scheme All traders have debts Hard climate to ignore monies due Cash flow compromised by not chasing Difficult to compel debtors to pay Time consuming chasing debtors

24 DSL Debt Recovery Scheme If your debts are less than 6 years old and undisputed, they may be eligible for our debt recovery scheme Risk free initial letter – no-win, no-fee Low fixed fee for litigation steps Our fees are covered on successful recovery Steps include Letter Before Action, issuing Court proceedings, Statutory Demand, Winding-up/Bankruptcy Petition, Bailiffs etc

25 Any questions?

26 Unlawful Levy of Fees by Police Forces across England, Wales and Scotland

27 ...the primary function of a constable remains the preservation of the Queens peace. From this general function stems a number of particular duties......the first duty of a constable is always to prevent the commission of a is the constables general duty to protect life and property......the general function of controlling traffic on the roads is derived from this duty......any attempt by a police authority to extract payment for services which fall within the plain obligations of the police force should be firmly discountenanced by the courts... Lawful Charging Basis for Special Police Services

28 Lawful Charging Basis for Special Police Services Can Police Forces unilaterally impose a fee for the provision of special police services? No basis for charging? No request from = no charge (subject to compliance) Avoid traps?

29 What does the law say? Section 25, Police Act 1996 (England & Wales) The chief officer of a police force may provide, at the request of any person, special police services at any premises or in any locality in the police area...subject to the payment to the police...of charges on such scales as may be determined. Lawful Charging Basis for Special Police Services

30 Lawful Charging Basis for Special Police Services When can the Police charge? By specific request By general agreement Implied requests

31 Lawful Charging Basis for Special Police Services What if the Police attend? Choosing to attend is not enough Scope of general police remit Special circumstances Operational issues

32 The danger of implied requests Reliance by Police, in absence of alternative charging basis No contract No legislation Course of dealings Notifications Historical Conduct Lawful Charging Basis for Special Police Services

33 Leeds United case Unilateral police attendance cannot create an obligation to pay Implied Request is not sufficient? Special Police Services Scope of general police duties Justice Eady...the door is open Further litigation to follow... Lawful Charging Basis for Special Police Services

34 Lawful Charging Basis for Special Police Services Scotland Previous Legislation – Police (Scotland) Act 1967 No charging basis New– Police and Fire Reform (Scotland) Act 2012 – (came into force 1 April 2013) In- line with England (must be a request)

35 Lawful Charging Basis for Special Police Services What is at stake? Present, outstanding invoices – should they be paid? Future work – can the Police charge? Historical charges – can these be recovered? Operational issues

36 Lawful Charging Basis for Special Police Services Historical charges – can we recover our money? Limitation Documentation Is there a contract (oral)? Case law Leading from the front Scotland – probably so; decent prospects (5 years)

37 Lawful Charging Basis for Special Police Services Summary Can Police charge? Should you pay? Avoid the traps Recover historical fees Improve cash flow Operational consequences

38 Lawful Charging Basis for Special Police Services Advice Review your position Do not pay? Get your Notifications right Be careful what you sign Know your stuff Educate the Police If in doubt.......

39 Lawful Charging Basis for Special Police Services Advice Moving forward... Review your position – clarity...certainty Engage with Police Barrister Opinion Bulletin / Letter of Advice Proportionality – immediate savings, uncertain future, time is crucial

40 Any questions?

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