Case Histories
Below is a varied selection of case histories undertaken by Mr Barham.
Small irrirations can sometimes escalate and become expensive problems.
Seek early advice.
1. Sale of Goods
Client “A” had purchased in good faith an antique rifle from a dealer at a specialist fair of Military memorabilia.
The particular weapon was advertised as an example of a well known early 19th century rifle. It was not in first class condition and the price reflected that. A bargain was struck resulting in Client “A” buying the weapon for the asking price and agreeing to pay the dealer extra money to carry out comparatively superficial repairs and refurbishment.
Upon later examination it appeared the weapon was of comparatively recent manufacturer and substantially fake. Various allegations were made by the dealer as to the client’s knowledge of such weapons and his examination of the weapon. The dealer was not prepared to refund the money paid.
A simple letter drawing the dealer’s attention to the implied effects of a sale by description and the threat of court proceedings resulted in the dealer taking back the weapon and reimbursing in full.
2. Insolvency
Many people, once discharged from bankruptcy believe that this is an end to any previous claims being made.
If a house, at the date of bankruptcy is owned by the bankrupt, or possibly jointly with another person, that property, is in fact owned by the trustee in bankruptcy. Frequently no action would be taken by the trustee to recover the value of the house for many years, often indefinitely.
That situation changed fairly recently and trustees have been forced to take steps to seize the house.
In many cases, by using market forces and outstanding mortgages on the property it has been possible to negotiate a very acceptable “buy out” of the trustee’s interest.
3. Building Disputes
These are often a mine field for both the builder and the customer. Such contracts are deemed to be “entire”. The builder is not allowed to insist on payment until the contract has been entirely completed including minor detail and “snagging”. The customer is at risk from poorly defined works and prices and further risk when vague additions and variations are required.
If the builder is not paid then in some cases he is not allowed to stop work whilst in other cases he may. The process of challenging the value if not agreed is often time consuming and expensive unless there is a clear contractual method of doing so which also ensures that work continues.
Client “B”, a builder, had entered into a contract which was to be commenced and completely quickly; there was a standard (and expensive) penalty for not completing on time.
The architect in charge of the work had drawn the work specification; this expressly gave the electrical works to another contractor.
The work included demolition of some existing buildings and given overall time constraints this work had to be commenced promptly if the contract was not to over run and expose my client to very large penalties.
On commencing demolition work Client “B” discovered that the existing electrical supply had not been disconnected nor made safe. He could not continue with the demolition. The architect refused to allow a variation to the contract such that my client could be paid for doing this work. The architect alleged that it was my client’s responsibility to do this work despite the appointment of separate electricians.
Client “B” immediately assumed the additional electrical work to avoid further delay but required the architect to submit his refusal of a variation to the appropriate legal procedure. There was every possibility that Client “B” would be awarded the variation (and thus get the costs of this work). The effective customer would be advised of the appeal and realise the architect had made a mistake.
The architect issued the variation by return of post.
4. Property Disputes
Surprisingly, a fair number of people do become involved in disputes concerning their own property. These can relate to the ownership of the property, the extent of the property (boundary disputes) or the use of the property. The background law for all these matters is unfortunately quite complex.
A common problem is “squatter’s rights”. If a stranger takes possession and control of part of your land for twelve years or more, that person is in a strong position to claim ownership of that part. If title to your property is registered and the squatter has only come to it in recent years you may well be safe given changes to the law in 2002.
There is still plenty of property which is not registered or where the squatter came prior to 2002 and difficulty can be encountered.
One elderly gentleman had taken the effective control of land which he did not own by using it as his vegetable patch. New owners of that land asserted he was a trespasser and tried to evict him despite clear evidence that he had been there for the requisite period. The case was fought staggeringly through the High Court and the Court of Appeal, both courts finding in favour of the gentleman and ordering his opponents to pay his considerable legal costs. The case should never have gone that far.