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Posts by: Alison Rowley

Can I get my money back if my holiday is cancelled because of COVID-19?

This entry was posted in For you, News on by .

We are being asked by many of our clients what the position is with regard to any refunds where their holiday has been cancelled because of the Coronavirus.

Firstly, the refund you are entitled to will primarily be dependent upon how you booked/purchased the holiday.

If you have booked a package holiday through a tour operator, which has been cancelled by them due to the Coronavirus, under the Package Tour Regulations you should be entitled to a full refund within 14 days.

If you have booked direct then what you can get back following a cancellation will depend on the terms and conditions of your contract.

The industry has been faced with an unprecedented level of cancellations, followed by a halt on future bookings, and as such many companies are claiming they do not have the cash flow to make refunds.  Many tour operators claim they are not receiving refunds from flight companies or hotels.

As a consequence, there appears to be increasing pressure placed on customers by tour operators to accept a voucher enabling them to book a holiday at a later date, or which can be converted into cash at a later date if a further holiday is not booked.  The travel operators are also putting pressure on the government to make these offers legal, stating that the Package Tour Regulations were not designed for the current pandemic.

Until any changes are made by the Government, the Package Tour Regulations stand, and a party does not have to accept a voucher or rebooking.

If you have any questions regarding a holiday you have booked which has been cancelled, whether it is a package holiday or otherwise, then please do not hesitate to contact Alison Rowley on 01282 433241 or email ar@drnlaw.co.uk.

 

 

COVID-19 – Contracts: Where Do You Stand?

This entry was posted in Business Law, Employment Law, For Business, For you on by .

What is the position if you cannot fulfil your contractual obligations due to the Coronavirus?

Many of our clients at DRN have been in contact with us to ask this very question. As businesses are having to close or lay off staff, or put them on Furlough leave, it’s looking increasingly likely for contracts that were entered into before all this began to be fulfilled.

Generally speaking, failing to fulfil the terms of your contract would mean you were in breach of that contract. However, this is subject to two exceptions.

Firstly, you need to consider your contract to see if you have a force majeure provision that will cover this situation. In absence of a force majeure provision, you may be able to rely on the common law doctrine of frustration.

 

Contractual term – force majeure

Many written contracts contain a clause which outlines what will happen should an event outside the control of those contracted occur. This clause may excuse those involved from the responsibility of fulfilling their obligations, or will prevent them from being held liable should they fail to fulfil their obligations.

Such clauses will generally cover situations where it becomes impossible for those contracted to fulfil the contract, or the contract has been hindered or delayed in some way.

What is covered, however, depends on how the clause has been drafted. Whether or not an event has been included will be dependent upon the words used. As such, the force majeure clause needs to be carefully considered. Many will expressly refer to epidemic or pandemic if drafted on a long stop basis, which should cover the Coronavirus.

As an alternative, the clause may refer to illegality or government action which may cover the prohibitions imposed by the government on various businesses, or the imposed mandatory detainment under the Health Protection (Coronavirus) Regulations 2020.

It should be noted that changes in economic or market circumstances are not relevant events for the purpose of such clauses, and as such a party relying on a clause must be very clear about the reason for their failure to fulfil their obligations.

In the event that your obligations are covered under the contract, generally each party will bear their costs caused by the suspension or termination, unless the contract specifies otherwise.

If the event is temporary and the contract is capable of being fulfilled at a later date, the obligations can be resumed at the appropriate time. If there is an express provision to terminate, the contract will normally set out what happens to payments already made in the event of termination. If it is now impossible for the contract to be fulfilled, the paying party will be entitled to restitution under the Law Reform (Frustrated Contracts) Act 1943, as referred to below, in absence of an express term.

One issue may be non-refundable deposits. These will need to be looked at where appropriate in line with the Consumer Rights Act 2015. They may be retained, provided they are not unfair.

Finally, any contract dealing with the public will need to consider what was clearly pointed out when the contract was entered into given that many consumers will not know what force majeure means.

 

What if there is no clause or no written contract?

If there is no clause written into a contract, or no written contract at all, you will need to consider the doctrine of frustration.

This will not necessarily be a desirable route, as it is generally rarely permitted by the courts. That said, we are currently living in unprecedented times.

For this to arise, the event relied upon which frustrates the contract must be unforeseeable. As such, it is unlikely that this can be relied upon for contracts entered into once the Coronavirus began to obtain significant attention.

A high bar is required for frustration as you will need to show that steps could not be taken to prevent the contract failure.  Ultimately, the circumstances must make compliance impossible.

If frustration arises, the contract will be brought to an end automatically, and all parties are released from their obligations, except those obligations that should have been performed before the frustrating event. A party will remain liable for terms performed before the frustrating event.

Under the Law Reform Act 1943, a party who has paid money will be entitled to a reimbursement of those funds, minus an allowance for expenses that have been incurred in performing obligations prior to the frustration.

 

How can I agree an alternative?

Whilst the above sets out the current legal position, the option is always open for contracted parties to carry out negotiations in order to agree an alternative resolution. For this reason, remaining open to the prospect of communication and negotiation is advised.

 

If you have any concerns regarding contracts that you have entered into which are now affected due to the Coronavirus, please contact Alison Rowley at DRN on 01282 433241 or email ar@drnlaw.co.uk.

 

Contentious Probate: An Introduction

This entry was posted in Wills and Probate on by .

Losing a loved one can be an incredibly challenging time. A period in your life that can be made even more trying should probate become contentious.

Probate is the process of administering the estate of the deceased, with a reading of the will being an integral part of probate – should the deceased have left a will. However, leaving a will doesn’t automatically eliminate the possibility of a contentious probate case.

 

What can cause contention?

The following are all becoming commonplace examples of what can cause a contentious probate claim:

  • The deceased had a second family
  • The deceased had re-married and had children from both marriages fighting over the estate
  • Much of the estate being left to a new partner rather than adult children
  • The deceased had a relationship that nobody knew about and left part of the estate to them
  • Estranged family members who expected an inheritance and received nothing
  • People not being included in the will, or being left a lot less than they expected/needed to live
  • The deceased was coerced into changing their will at the end of their life
  • The deceased not being mentally capable of creating their will when they did

The list could go on, and it is a list that is growing all the time. Contentious probate is becoming a much bigger topic in the legal world and cases are significantly on the rise.

 

A changing world

Modern trends such as people living longer, second marriages, cohabitation, and relationships outside of marriage, can all give rise to potential problems when it comes to inheritance.

Another major contributor to the rise in contentious probate cases is the fact that people are becoming more aware of their rights if they feel their inheritance is unjust.

As important as having a will is, it isn’t the judge, jury, and executioner. What the deceased chose to include and exclude from your inheritance can be challenged.

In some cases, the deceased won’t have prepared a will, which makes contentious probate more likely and the case a lot more complex. If the deceased has no will, they will have died intestate. This can present a particular problem for cohabiting couples as cohabitees aren’t automatically entitled to anything under intestate rules.

The world is changing, and as it does probate becomes more and more complex. It isn’t just lifestyle changes of the modern day; the ability for people to travel throughout their life can often make even finding their latest will an arduous task. And if a will is found, it isn’t always cut and dry. A will can always be contested, and you can be awarded a settlement.

 

Making sense of contentious probate

There are a lot of issues for us to unpick for you regarding contentious probate and a single article can’t cover all angles in sufficient depth. Therefore, we will be producing a series of blog posts for you on this topic with a new one being published every month for the next few months as part of our newsletter.

Hopefully this has served as an eye-opening introduction to an incredibly interesting yet serious topic that we think everybody needs to be more aware of. Especially those who have recently lost a loved one and have a lot of unanswered questions about the legitimacy of their inheritance.

Make sure you subscribe to our newsletter to catch our important follow up articles on contentious probate.

 

Need help now?

If any of the above has resonated with you and you would like to discuss your position, please do give us a call. Our Civil Litigation Team is on hand to speak to you straight away. Call our resident expert Alison Rowley on 01282 433 241.

How to Avoid a Dispute With Your Builder

This entry was posted in Property on by .

Whether you are renovating your own home or you are undertaking a property development project for business, managing the variety of tradespeople you employ can be challenging.

Whilst your property is a building site and money is flowing out of your bank account like water, the last thing you need is a dispute with your builder. This is, therefore, something that you should pay close attention to before you award the work to the builder of your choice.

The reason disputes can, unfortunately, become common place is because not all homeowners understand the terms being discussed or the exact nature of the work to be carried out. Therefore we have put together this checklist for you to give you the best chance of avoiding any painful disputes with your builder…

1. Get a variety of quotations – in writing

Even if you have used the same builder before we would always recommend getting at least three quotes for your consideration. Get these in writing and signed for your records.

2. Don’t buy solely on price

Cheapest can be cheapest for a reason and also you want to make sure that you aren’t being overcharged. Getting a variety of quotes is the first step but it’s also worth asking each builder what they plan to do, what the deadline is for each part of the job and get an itemised price list for materials and labour.

It may be that your preferred builder is going to take too long to complete the job so always get the full picture before making your decision. It is worth noting however that a lot of the best builders are very busy, so being busy can be a good sign. Give the builders plenty of notice where possible to widen your options.

3. Negotiate fixed prices, don’t pay by the hour

Don’t give the builder an incentive to take longer on the job. However, you do then have an obligation as the customer to stick to the specification. If you keep changing your mind the builder may wish to vary the cost, which would be well within their rights.

4. Ask to see examples of their previous work

A reliable builder should be pleased to show you their previous craftsmanship and they should have lots of previous clients who are willing to testify to the quality of their work.

5. Get an agreement signed

At this stage all the cowboy builders will have lost interest as they know you are not a customer they can take for a ride. Draw up an agreement based on what you have discussed and have them sign it before they begin. Be sure to include all the aspects you have agreed between stages 1 and 4 here.

6. Check their liability insurance cover before they begin

They should have this ready to show you at your request.

7. Avoid upfront costs

The most reputable builders won’t ask for large sums upfront so be wary if your builder does. They may however ask for you to contribute to some of the costs for materials if they need to spend a lot of money themselves upfront. Labour costs should never be paid for in advance.

8. Avoid cash transactions unless absolutely necessary

Protect your investment further by paying by card or by bank transfer.

9. Be present

When the work begins, be on site for a short period every day to begin with if you can. You want to make sure the builder is progressing as agreed. They will also know that you will be keeping an eye on progress throughout. Once you have built up some further trust it probably won’t be necessary to be on site every day — unless you want to be.

10. If you have an issue address it, quickly.

If disputes are left unsettled they can become very painful, distressing and expensive very quickly, so if anything happens that you aren’t happy with speak to the builder to voice your concern. This can be in a friendly manner and most of the time it should be resolved between you amicably.

11. If you have a dispute that you cannot resolve speak to an expert

Our resident expert Alison Rowley would be happy to take your call and outline your options for you. Again, it is best to do deal with any disputes quickly before any problems escalate.

It has to be said that most builders are honest, hard working and very reputable and if you follow the steps detailed here you should have no problems whatsoever. However, should you have any questions or concerns, rest assured that the DRN team are here to help you in your time of need. You can call Alison Rowley on 01282 433 241

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