Monthly Archives

April 2017

Making a case to extend time

By | Problem Solved

Problem

I work as a contracts manager for a main contractor.  Back in January 2016, we started work on the refurbishment of an office block in Birmingham.  It was nothing too complex, and we were supposed to finish in December 2016.

However, delays were incurred during construction, resulting in the eventual completion being at the end of March 2017 – approximately 13 weeks late.  Most of the delays were down to us (let down by a couple of sub-contractors), although part of the delay was the client’s fault.

At a meeting towards the back end of 2016, I approached the client and stated that we would not make a claim for an extension of time with loss and expense, providing the client would waiver its claim for liquidated damages.  The client seemed quite enthusiastic about this and said it was a good idea.  This arrangement was kept to, until we put in the payment application just before completion of the work.  Although the client’s agent certified most of our application, we then received a letter from the client headed up ‘Pay Less Notice’, which claimed that we were late in completion and therefore had a right to deduct the liquidated damages as per the contract.

Can the client do this?  What can we do?

Kim

Response

Hello Kim.

If you wanted to have made the ‘arrangement’ binding, you should have executed a side agreement, which is an agreement that sits in parallel to the main agreement but effectively moves the goal posts as regards to the terms of completion.  From your outline, I very much doubt you could establish a binding agreement was reached, or there was a legal waiver as to the right to claim damages or, estoppel.

Your client, as the employer under the building contract, was quite within its rights to issue a pay less notice.  Where an employer to a construction contract wishes to set-off sums against a payment that is due to a contractor, it is mandatory for the employer to issue a pay less notice, and providing the pay less notice is a) issued on time; b) specifies both the sum that is considered to be due at the date the notice is given; and c) the basis on which that sum has been calculated, then the pay less notice is valid.

However, it does not mean that the pay less notice cannot be challenged.  For example, if the contract is a JCT, a condition precedent to the deduction of liquidated damages is for a notice of non-completion to have previously been issued.  You could also challenge the liquidated damages as being a penalty if the damages are extremely high when compared to the actual or likely losses.

I would however suggest that the best way forward, would be for you to provide the necessary level of evidence that would establish that you are not responsible for at least part of the delay, and then try and reach a formal agreement where each party is responsible for its own costs.

© Michael P. Gerard

May 2017

The advice provided is intended to be of a general guide only and should not be viewed as providing a definitive legal analysis.

The unfortunate cost of a homemade Will

By | news

John Cato describes the cross border legal mess caused by a homemade Will and emphasizes the importance of having both English and Portuguese synchronised Wills.

The Background

Our biggest ever assignment in the Algarve centred around a ‘home-made’ Will.  Mrs X lived in a large rambling Villa in Monte Gordo.  She owned various pieces of property between her Villa and Faro, with one of her prize possessions being a large piece of land very near the coast between Tavira and Santa Luzia.  She also had substantial assets in England.

Whilst sorting out her estate we found out that she had been in touch with an English Lawyer who had correctly advised her to make a Will in England, properly synchronized with a Portuguese Will.  She had been quoted £1,300 by the English lawyer and about €500 in Portugal.  Apparently, she thought it was just lawyers cashing in.  She had spent money on lawyers before and didn’t see any value in it.

Because she was English she had a general understanding of ‘testamentary freedom’ which means you can leave your property as you wish.  (In England the Law can interfere after you have died in some restricted situations under, what is known as, the ‘Inheritance Act’.  For example, a spouse who has been left nothing at all can apply for provision from the estate.)  With her general feeling for the ‘testamentary freedom’ jurisdiction she had grown up in, she wrote out a Will in regard to both her Portugal and English assets on the kitchen table.  By doing so she entered the worst possible legal world in both countries.

The Problem and the Solution

We were instructed because of our experience in dealing with disputed Wills – known in the trade as ‘Solemn Form Business’.  Dina Sousa Advogados were instructed by us in Faro.

This is how we sorted it out – in a nutshell:

The Will did not conform with the formalities required by Section 9 of the Wills Act 1837.  It also contained a charitable trust (not recognised in Portuguese law) which was incorrectly described.  An application had to be made to a High Court Judge in England.  All of her potential beneficiaries had to be found and served with the application.  You know the old saying – ‘where there’s a Will there’s a relative’ – and some of them, learning of the value of the estate and of the ‘dodgy‘ Will duly entered appearances.

It was cheaper to buy some of them off than incur further legal fees.  Therefore, Mrs X ended up benefiting some nieces and nephews, none of whom had kept in touch with her or cared for her, and one of whom she had not even met.

Nevertheless, in due course the judge made the order sought and we had an ‘amended Will which was valid in England.

Fortunately Portuguese law can recognise a Will that has been prepared in another jurisdiction.  Once we had the order of the High Court and a Grant of Probate we were able to start administering the estate in Portugal.  To a certain extent we were assisted by the generosity of the Portuguese justice system – allowing us to interpret an English charitable trust as a limited Portuguese company.

Along the way we had to battle with:-

  1. The ‘relatives’;
  2. a Portuguese Municipal Authority which decided some of her land was suitable for a seaside car park, but backed down when ‘introduced’ to European Human Rights Law in regard to property;
  3. Local travelling people taking up occupation on some land (which when I inspected it I was told to keep at least 500 yards away because they had guns and did not like visitors!);
  4. Thefts from her Villa and later on damage by squatters;
  5. Rafts of complicated English and Portuguese law.

If she had made a Will in England and a Will in Portugal, carefully defining her assets, and ensured the two Wills were synchronous, the estate would have avoided these unnecessary delays and expenses.

Our firm drafts English Wills and gives English tax advice as a matter of course.  Our specialist solicitor is a member of the Society of Trust and Estate Practitioners in England – the recognised specialist body.

Our close association with our Portuguese partner law firm enables us to advise through both jurisdictions.  We have a dispute speciality so we can sort things out if they go wrong.

Where ever you reside – Make a Will

This case was particularly complicated because of the cross border jurisdiction however everyone, which ever country they reside in, should make a Will. As Dispute Resolution Solicitors we deal with many disputed Wills and see first-hand, the emotional impact and financial loss that is incurred when there is no will in place or its validity is questioned.

For more information on making a Will please visit Wills, Trusts and Probate or contact us to make an appointment.

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