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Tuesday, December 18, 2012

Commercial Law - Implied Contractual Term - Letter of Engagement

The case of Weetwood Services Ltd v Ansvar Holdings Ltd [2007], concerned the implication of a term of a contract. The defendant occupied a site on which it planned to develop a car showroom. It received an abatement notice from the local authority concerning the unauthorised creation of a culvert for a stream on the site. The existence of the culvert affected the planning permission for the proposed car showroom.

It was the intention of the authority that the culvert be removed and replaced by an open channel stream. The defendant engaged the services of the claimant engineering company to provide a report on the culvert. The claimant was asked:

- whether the culvert was capable of handling the volume of water ever likely to pass through it (referred to as the "1 in 100 year test"); and

- whether the previous stream could be reinstated within a channel 10m wide along the north landing.

By the terms of the engagement letter, the claimant undertook:

- To carry out a topographical survey;

- To assess the catchment hydrology to give culvert inflow hydrographs for return periods of 5, 25, 50 and 100 years;

- To build an HEC-RAS model of the watercourse with the culvert in place and with the replacement channel; and

- To run the two models for the various return periods and 'report on' the results.

In December 2001, the claimant provided a report which concluded that the culvert was inadequate. The defendant took the view that the report did not comply with the letter of engagement, in that insufficient calculations for the two models had been provided, only the results.

The claimant subsequently provided some further information, though not to the satisfaction of the defendant, who refused to pay the fee of around £5,000. The claimant then issued proceedings.

The judge held that the limit of the claimant's obligation under the letter of engagement was to provide the results of the mathematical modelling, without more. The defendant subsequently appealed.

The issue was whether by the wording of the engagement letter, or by an implied term (the defendant's alternative argument), the claimant had been in breach of contract in failing to provide the basis of the results of the modelling which it had undertaken.

The appeal would be dismissed.

It was held on appeal that on the true construction of the engagement letter, the claimant had not undertaken to report the calculations involved in its report, only the results. The suggested implied term was therefore not necessary for business efficacy. It was therefore decided that the purpose of the engagement of the claimant was to determine the potential for flooding, which the information that the engineers had provided had done.

© RT COOPERS, 2007. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

Commercial Law - Importation of Chemicals - European Law - New EC Regulations

The case of Mebrom MV v European Commission [2007] concerned the importation of pesticides. The applicant was an importer of the chemical methyl bromide into the European Union. Methyl bromide was a pesticide applied to crops by fumigation and as it depleted the ozone layer, its importation was subject to restrictions provided by Council and European Parliament Regulation (EC) 2037/2000 ("the Regulation"). The Regulation concerned substances which deplete the ozone layer.

Articles 3 and 4 of the Regulation imposed restrictions on the production, use, marketing and selling of methyl bromide. Articles 6 and 7 of the Regulation created a system of licences and quotas for the chemical's importation and free circulation.

Each year importers applied for import quotas for the following year, and pursuant to that system the applicant had been awarded quotas from 1996 to 2004. However, in 2004, the European Commission changed the system. According to the new system, the fumigators now had to request authorisation to import or produce methyl bromide, before requesting importers, such as the applicant, to actually import the amount of methyl bromide granted under the licence.

In addition to this, importers were no longer entitled to import quotas from the 1st of January 2005 onwards, as well as being prevented from building up stocks. Accordingly, the European Commission adopted a decision refusing the applicant a quota for the year 2005.

The applicant brought an action to annul that decision in the Court of First Instance of the European Communities. It submitted the following arguments:

- Firstly, that the European Commission had misapplied the legal framework established in the Regulation;

- Secondly, that the Regulation obliged the European Commission to grant it a quota; and

- Thirdly, that the new system would oblige current importers to close their businesses, since they would be excluded from the new system of importation, which would be at odds with the freedom to pursue a trade.

The action was dismissed.

Firstly, in view of the restrictions on the production, use and placing on the market of methyl bromide imposed by Articles 3 and 4 of the Regulation, it followed from the overall scheme of the Regulation that the purpose of Articles 6 and 7 was to ensure that the importation of methyl bromide did not go beyond what was strictly necessary for the critical uses specifically identified.

The European Commission's interpretation of Articles 3, 4, 6 and 7 of the Regulation achieved the following:

- No longer any allocation of import quotas to importers; and

- Limiting imports of methyl bromide on a case by case basis, thus preventing importers from building up stocks.

The interpretation therefore gave practical effect to those provisions and ensured that they were applied coherently and in a manner that corresponded to the overall scheme and the objectives of the Regulation. The overall objectives of the Regulation sought to limit the production and use of methyl bromide in order to protect the ozone layer.

It followed that the European Commission was not obliged under the Regulation to award an import quota in 2005 to the applicant as an importer. It was also held that the new system established by the European Commission constituted a lawful application of Articles 3, 4, 6 and 7 of the Regulation that was compatible with those provisions.

Secondly, according to settled authority the right to freedom to pursue a trade or profession was not absolute but should be viewed in relation to its social function. Its exercise might therefore be restricted, provided that such restrictions corresponded to objectives of general interest pursued by the European Community. It is also important that the trade or profession did not constitute, with regard to the aim pursued, a disproportionate and intolerable interference which infringed upon the very substance of the rights thus guaranteed.

In this case, the new system introduced by the European Commission simply changed the circumstances in which methyl bromide was imported and did not mean that the applicant was obliged to cease trading. Furthermore, it did not lead to a distortion of the competition in the market, since importers were not prevented from competing with fumigators for the importation and sale of methyl bromide.

Even if the new system were to be regarded as a restriction, the general public interest pursued by the European Community was the protection of the ozone layer and any restriction there might be was justified by the fact that it was imposed in application of the Regulation, with which it was consistent. It could not be regarded as disproportionate, intolerable or as infringing upon the very substance of that right since the applicant could continue to pursue its previous economic activities, albeit in a different way.

Please contact us for more information on assessing damages due under termination of a contract at enquiries@rtcoopers.com

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Monday, November 26, 2012

What Do Lawyers Look for in an Expert Witness?

Are You The One?

One quick search in expert witness directories is enough to give you hundreds of individuals specializing in certain knowledge area. But not all of these experts are qualified to testify in court.

You may have more experience than the other professional witnesses (other term for expert witness), and it sure earns you additional credit, but it is not an ultimate guarantee. There are other things that lawyers consider before they decide to hire your expert opinion.

But before we go into that, let us just re-instate and reiterate the importance of experts.

The Importance of Expert Witnesses

In countries with democratic judicial system, a dispute is resolved through trial. Both sides present their arguments, which are heard by an objective third-party such as a judge or a jury. This procedure of handling disputes is admirable as it gives both sides a chance to speak up. But sometimes, problems arise when the third-party is not knowledgeable about the subject matter.

So to prevent biased or clouded judgment, an expert witness is called to testify. An expert is an individual who, with his expertise, provides his expert opinion to determine whether the document or evidence presented in court is factual or truthful.

What Lawyers Look for in an Expert Witness

So what do lawyers look for in an expert?

1. Knowledge of the case

An expert needs to know the case very well. His duty is to provide truthful and objective information about the case, so to achieve that, he must be well-prepared and well-researched. He must have the ability to foresee unexpected questions and prepare for objective answers.

2. Truthfulness and objectivity

An expert is hired to assist the court in determining whether a piece of evidence can be admissible in court. For the court to do that, the expert must be honest and objective at all times. He must not be inclined towards either parties, and must answer all questions fully.

3. Work ethics

Lawyers want an expert that they can work with harmoniously. They pick people who are professional and highly dependable.

4. Good communication skills

Lawyers want an expert who can confidently speak and explain difficult concepts before a group of people.

Experts are expected to provide a clear explanation of technical terminologies and other ambiguous terms. They are also expected to clarify confusing and difficult concepts. So to achieve this, an expert witness must be able to express himself clearly and confidently.

Legal Placement Services: The Difference Between Court Reporters and Paralegals When Should You Contact a Litigation Lawyer? Collecting an Unpaid Judgment Against a Judgment Debtor Who Uses Several Aliases

Legal Placement Services: Information Regarding Court Reporters

While most people might not think that The Wild Wild West, Billy the Kid, and Wild Bill Hickok might not have anything to do with reporting or legal placement services, in a way they do. What they have in common is their timing, because 1893 was when the first idea of coming up with a national court reporting association (NCRA) came to mind. The idea came to fruition in 1899 in Chicago where the National Shorthand Reporters Association (NSRA) held their first meeting. About the year of 1927, the NSRA set their first code of ethics and allowed women to take a more active role in the profession.

Enough about the history, some people who might be considering this career path might be more curious about the types of court reporters there are and the certifications required. The information below will describe these two pieces of information about court reporters.

Types of Court Reporters

A court reporter is often referred to as a shorthand reporter, a law reporter, or a stenotype operator, all of which have the same definition of transcribing the happenings of trials. No matter what the profession is called, there are different career paths the professional can advance toward with the right training. Some of the different types of court reporters that require this training include Registered Professional Reporters (RPR), Registered Merit Reporters (RMR), Registered Diplomat Reporters (RDR), Certified Realtime Reporters (CRR), Certified Broadcast Captioner (CBC), Certified Legal Video Specialists (CLVS), and Certified Program Evaluators (CPE).

Those who think technology would eliminate the profession are obviously wrong because while technology provides a sense of better accuracy those recordings or videos still need to be transcribed. Many court reporters choose to work as freelancers because along with working for law firms, they can work for television companies by transcribing captions for the hearing-impaired.

Types of Required Certifications

The Nationally Recognized Certification has been administered to court reporters since 1937. Additionally, the RPR has replaced the licensing exam (also known as the state certification) in 22 states. As previously mentioned there are many different types of reporters, but some of them are simply different levels of certification:

Registered Professional Reporters (RPR) - The first level of certification that holds about 11,000 certified professionals. Registered Merit Reporters (RMR) - 2,100 professionals claim this second level certification spot. Registered Diplomate Reporters (RDR) - 450 have reached this third certification level.

Becoming certified might be challenging with all the different accuracy and type-speed requirements, but it provides a number of benefits. For one, certifications give professionals more opportunities because it shows the professionals' level of commitment to their profession. It also gives them the opportunity to build their skillset and enhance their credibility.

While the process of becoming a court reporter might be frustrating and challenging, it has its benefits and many different career options. If this article has not provided enough information for professionals who are looking to pursue a career in this profession, the interested professional should contact local legal placement services or NCRA.org for more information.

The Hidden Costs Of Judgment Collection

After creditors win their judgment, most want to be done paying for courts, lawyers, process servers, private investigators, etc. Most creditors do not want to pay any more fees to get their judgments recovered. However, one way or another, it costs time and money to recover judgments. My articles are my opinions, and not legal advice. I am a judgment broker, and am not a lawyer. If you ever need any legal advice or a strategy to use, please contact a lawyer. This article highlights expenses, including lesser-known expenses, that creditors may face when trying to get their judgments recovered, under six different scenarios.

1) When you recover your own judgment: The pros are that you keep full control, and you do not have to split what might be recovered. When someone else recovers your judgment, you must share an average 50% of what gets recovered, and other people will usually work on the easiest-to-recover judgments first. If you recover your own judgment, you set the priorities, and keep all possible recoveries. The cons are you gamble that any time and money you invest, will pay off. Judgments are not guaranteed, and any time or money spent trying to recover them can easily go down the drain.

2) When you sell your judgment for cash upfront: The pros are you get some cash, and the only expense is $10 to notarize an assignment of judgment to the buyer. The con is average judgments (without a judgment debtor having massive available assets) sell for 1 to 6% of their face value, and you can waste your time trying to prove otherwise.

3) When you assign your judgment to a judgment enforcer: The pro is they take over the hassle and financial risk of recovering your judgment. The cons are you must assign your judgment to them, and pay about $10 for a notarization of that assignment, and share whatever is recovered over time. Some creditors do not like to assign their judgments, because of the risks of depending on any one person. Some judgment enforcers charge a fee to get started, and/or ask judgment owners to share some costs, and/or have contracts that charge a fee if the judgment is vacated, or the debtor goes bankrupt, etc.

After you assign your judgment to a judgment enforcer, it often takes a long time for any potential progress to be made. Often, it is a case of your judgment debtor having few available assets. However, you might eventually feel the enforcer is not doing enough, and you may want your judgment back. The judgment enforcer might insist you first reimburse them for their court-approved costs. If the judgment enforcer disappears or does not respond, you must then pay for a court motion and hearing, to try to undo the assignment of your judgment to them.

4) When you choose a collection agency to recover your judgment: The pros are you do not usually have to assign your judgment to them, because they work on your behalf. They spend all the time and usually all the money required to attempt to recover your judgment. The cons are that most collection agencies do not specialize in recovering judgments. Those that collect judgments keep a share of what is recovered, and some also charge a fee to get started.

Some collection agencies also charge extra if they have to litigate to recover your judgment, because they have to pay their lawyers. This can happen when the collection agency has to domesticate a judgment to another state, undo fraudulent transfers, etc. Usually, clients are notified before such extra costs are incurred, so if the client does not agree, usually the collection agency will return their judgment. This is almost always an optional choice for the creditor, and creditors should not, and rarely do, get unexpected bills from collection agencies. The best collection agencies use lawyers to recover judgments, so creditors never have to pay any hourly attorney charges.

There is a difference, when the collection agency is owned by attorney(s) or not. When a collection agency is attorney-owned, in many states, when attorneys represent clients on a contingency basis, the law is their clients must pay most or all court filing fees, and certain other fees. When a collection agency is not owned by attorney(s), the agency often pays most court filing fees.

Sometimes, when a collection agency brings up the topic of their client paying a litigation or filing fee (e.g.) to domesticate a judgment, the creditor will not want to pay. One solution is for the creditor to assign their judgment to the collection agency. The reason assigning a judgment to the collection agency can work, is because after the judgment is assigned to the agency, they are no longer representing the creditor, so the agency can pay the court filing fees.

5) When you choose a non-contingency lawyer to recover your judgment: The pros are you get some control of the timing and plans to recover your judgment. The cons are you must pay them a retainer and by the hour, and all expenses, without any guarantee of success.

6) When you choose a contingency lawyer to recover your judgment: The pros are you do not have to pay for the lawyer's time, and they usually advance some of the expenses, except where laws make the creditors pay court filing fees. Also, they usually get the best results. The cons are they usually only accept certain judgments, and may sometimes first place their priorities on clients that pay by the hour. If you later want your judgment back, you might owe the lawyer some money because of their quantum merit contract clauses. Such clauses mean a contingency lawyer can get paid for the work they did, if you choose to fire them.

Cheap Asset Searches

When you are recovering a judgment, there seems to be no limit on how much you can spend, attempting to discover assets to recover some money from your judgment debtor. This article is my opinion, and not legal advice. I am a judgment broker, and am not a lawyer. If you ever need any legal advice or a strategy to use, please contact a lawyer.

The easy, yet expensive way to find the possible available assets of your judgment debtor is to hire a private investigator, pay an asset location search company, or pay monthly for a professional data service subscription. The good ones are expensive. This article highlights some cheap and possibly time consuming methods of locating assets of your judgment debtor using public data records. The free and cheap methods are rarely as good as the expensive options, however they sometimes work.

The first search to try is the web (Google, Bing, etc.). Run your judgment debtor's name, address, and phone number. Try your searches using different quoting options, and perhaps also a few spelling variations. If there are no matches, try the debtor's spouse or parent information, if you know it, as that might provide clues about your debtor.

Look up your judgment debtor's name on Facebook and other social media web sites, because sometimes people brag about their assets, hobbies, or jobs on the web. Enter your debtor's home address into Google Maps, to see what their house or residence looks like. If your debtor lives in a shack next to a toxic waste dump and some railroad tracks, they may be judgment proof, and there is probably no need to do any more searches.

The next searches are for criminal records, because they show private judgment debtor information and are public records. Most of the "free criminal record searches" on the web are not free. I recommend first searching on the web for "yourcity criminal records". You might find a local courthouse on the web that lets you search to see if criminal records exist for your judgment debtor.

Unfortunately, most courts require you to visit their courthouse to view or copy their records and often you must pay for them. If you cannot visit the court, maybe this can be done by mail, or you might have to pay a few dollars to those "free" solutions on the web. Pick the web sites that show up on the first few pages of a web search.

Next, search for property records of your judgment debtor and their parents. The reason for also looking at the property records of the parents of your judgment debtor is to see if they own real estate assets. If they do, there is a chance your judgment debtor will inherit them someday. On the web, the free search sites quickly turn into pay services. Try searching on the web for "yourcounty property records" or "yourcounty, state property records". In some counties you need to visit the county recorder in person, or arrange and pay for a copy of the records by mail.

If possible, walk or drive by your judgment debtor's house or residence, and take note of what vehicles are parked there, and what you can see through their windows. Look for hints about toys they may own, taking care not to trespass or cause attention to yourself. This is a long shot because usually window coverings are closed, however sometimes the garage door is open and a shiny new motorcycle or boat is showing. Also, you might try to follow them to their job some morning.

Next, there are judgment debtor examinations and possibly third-party examinations. These are not as cheap as they should be, yet once you pay the fees and the expenses to have your judgment debtor served, your patience and determination will be the most important factors.

Unfortunately, vehicle ownership record information from sources other than from debtor examinations are rather expensive; requiring a private investigator, or through other expensive and complicated solutions including the department of motor vehicles. Through debtor and third-party examinations at the court, you can determine possible vehicle ownerships. Judgment debtor examinations and document requests may lead to information about other available assets owned by your debtor.

If the free and cheap asset discovery tools do not pay off, and you think your debtor has some type of available assets, it might be worthwhile to pay for a private investigator to perform an asset check on them.