Medical negligence – when can you claim?

When you put yourself in the hands of medical professionals, whether it is your GP, a district nurse, or a specialist surgeon, you trust them to provide a standard of care you would expect from a highly trained medical professional. Your life is in their hands.

Sadly, not everyone’s experience of their medical treatment is a good one. Whether it be a mistake with a diagnosis, treatment or a serious error in an operative procedure, the result can be devastating not only to the patient but also to their loved ones.

Medical negligence does happen. When it impacts your life you require expert legal advice on how best to get the compensation you deserve and, as in many cases where life-changing injuries are the result, urgently need.

What is medical negligence?

Medical negligence is very precisely defined. It is sometimes referred to as clinical negligence and is a failure to provide a patient with ‘adequate and appropriate’ healthcare. This failure results in the individual suffering either a worsening of their condition or complications that otherwise would not be expected to occur had the correct course of action been taken. To prove medical negligence you have to establish a breach of duty to provide reasonable care and that you have suffered harm as a direct result.

There is a legal test for medical negligence known as the Bolam Test. A breach of duty will not be established, and a medical negligence claim may fail, if the medical professional acted in the same way as any other body of professionals of a similar level of expertise and experience would do so in the same circumstances.

The Bolam Test is not, however, a ‘get out of jail free’ card for the medical profession.  For example a Surgeon failing to inform you of the risks of an operative procedure could still face a medical negligence claim.

Medical negligence can include:

  • Failure to diagnose a condition or making an incorrect diagnosis.
  • Failing to provide a patient with the correct information regarding the risks of an operative procedure so that they can give informed consent.
  • An error during an operation or procedure.

What’s a ‘never event’?

A ‘never event’ is an event that should never occur during a medical procedure, for example, leaving a piece of gauze or even a surgical instrument inside a patient during an operation. Despite the name, ‘never events’ can and do occur, and in many cases result in a medical negligence claim by or on behalf of the patient.

Can you take legal action on someone else’s behalf?

If you are the closest relative of someone who has been injured and is unable to pursue a claim for themselves (such as dementia sufferers) or has died as a result of a medical negligence, you can pursue a claim on their behalf. Parents and guardians of children under the age of 16 can also pursue a claim on the child’s behalf as their Litigation Friend.

Is there a time limit?

You have three years from the time of the act of negligence, or from when you became aware or ought to have been aware of such, to issue a claim for medical negligence. If the person affected is a minor then the three-year limitation period starts from their 18th birthday.

What are my chances of a successful outcome?

The vast majority of medical negligence claims are settled out of court, and fewer than two out of every 100 cases brought against the NHS result in a court case. The rest are settled out of court or dropped by the person bringing the claim.

These are however often difficult cases. It is essential that an experienced lawyer assesses the merits of a claim at an early stage so that a potential claimant is fully appraised of the risks from the outset.  With the right legal advice in appropriate cases you can have a good chance of winning your case. Establishing that the pain and suffering is a direct result of breach of duty is paramount to succeeding in a medical negligence case. This is where expert legal advice and guidance as to the appropriate experts to instruct is crucial. If you do bring an action against an individual or an NHS Trust you can claim compensation for the pain and suffering caused and for financial loss to cover ongoing treatment including physiotherapy, the cost of additional care or home adaptations as well as loss of earnings.

Medical negligence is rare. If unfortunately it happens to you or a loved one make sure you have the best medical negligence solicitors fighting for your rights and the compensation you deserve.

If you would like to talk in confidence to an expert about a medical negligence claim, please email or phone 020 8349 0321.

Protection From Creditor Enforcement Extended Until 30 September 2021

At the time of writing, Coronavirus statistics were looking fairly positive. Although hospital admissions have been rising day by day, the increase in Covid cases is being met by a wall of vaccinated people which has so far prevented the NHS from being overwhelmed.  However, there is news that the coming winter is likely to be a tough one, not because of Covid, but due to the uptick in flu numbers.  Acknowledging that as a country (and a planet) significant battles against the pandemic have been won but the war is far from over, the government has extended protection against statutory demands and winding up petitions being brought against businesses affected by Coronavirus until 30 September 2021.  The relaxation in conditions for a company to enter a Part A1 moratorium also continues until 30 September 2021 (although this was already extended in March).

As with the extension of rent-arrears related forfeiture and rent-arrears recovery under Commercial Rent Arrears Recovery (CRAR), the news is great for debtors, creditors are not left in such a rosy position. 

What is the law behind the Coronavirus-related creditor enforcement protection?

To help battling businesses survive the ramifications of the first lockdown, in June 2020, the government amended insolvency laws via the Corporate Insolvency and Governance Act 2020 (CIGA 2020).

CIGA 2020 was quickly pushed through Parliament and amended insolvency legislation to provide more favourable conditions to struggling companies throughout the Coronavirus pandemic.

The Act provided for:

  • Some companies, in certain circumstances, to gain a moratorium for 20 business days (this could be extended), giving them protection from creditors and allowing them to delay paying certain debts which fell due before and during the moratorium.
  • The creation of a Restructuring Plan, which if approved by the Court, would mean some creditors would have to accept revised terms relating to debts owed.
  • Prohibition on issuing a wind-up petition based on statutory demands.
  • Prohibition on presenting winding-up petitions or making winding-up orders if the evidence showed that if it were not for the pandemic, the circumstances surrounding the petition or order would not exist.
  • Prohibition on terminating a supply contract if the reason for doing so is due to one of the receiving parties undergoing an insolvency process.

This is only a small sample of what CIGA 2020 covers and it is beyond the scope of this article to go into further detail.  In October 2020, certain provisions of the Act were extended, some until 30 December and others to 30 March 2021.  The prohibition of winding-up orders and statutory demands was further extended until June 2021 and now to the end of September.

When can a winding-up petition be presented?

Until 30 September 2021 (and perhaps beyond), a creditor cannot present a winding-up petition based on a statutory demand served from1 March 2020 to 30 September 2021.  Furthermore, until September 2021, a winding-up petition can only be presented if the creditor can satisfy the following test:

  1. The Coronavirus pandemic has not had a significant bearing on the debtor’s organisation; or
  2. The grounds for the petition would have applied even if the company had not been negatively impacted by Coronavirus.

The Court is also forbidden to make a winding-up order unless the above test has been satisfied.

How an Insolvency or Commercial Solicitor can assist you if you are struggling to pay your creditors

The extension on banning commercial lease eviction and winding-up petitions will be extremely frustrating to landlords and suppliers, some of whom have been waiting over 12 months for payment.  At some point, the extensions will have to cease and there could well be an influx of business insolvencies, especially for the small number of organisations that, rather than putting in a strategy to pay their creditors, have allowed the can to roll merrily down the road, hoping for further extensions.

Although the government has indicated it is planning to enact legislation to potentially ‘ringfence’ rent arrears so tenants can focus on paying current rent owed, the vast creditor protection measures currently in place cannot carry on forever.

If you have been impacted by the pandemic and associated lockdowns, the sooner you seek professional advice from an Insolvency or Commercial Solicitor the greater chance you have of negotiating a fair re-payment plan and avoiding insolvency and possibly personal liability.

When it comes to outstanding debts, the earlier you confront matters, the more choices you will have regarding meeting your creditors’ need for payment.

To make an appointment to discuss any aspect of insolvency law please email us or phone 020 8349 0321.

OGR Stock Denton successful in Road Traffic Accident (RTA) compensation claim for client

OGR Stock Denton has once again successfully acted for a Claimant in a Road Traffic Accident (RTA) compensation claim against a Highway Authority. The firm’s Personal Injury solicitors represented a motorcyclist whose vehicle slipped on a manhole cover. The accident resulted in the client suffering a broken knee and wrist. Sitting in the Central London County Court, Mr Recorder Stephen Jourdan QC complimented counsel on the “clarity and cogency” with which the case was presented and awarded the Claimant £66,000 plus interest and costs.

Lead Partner Stephen Silverman, who has over 30 years’ experience in personal injury and dispute resolution law, was disappointed that the local authority did not make an early admission of liability to allow the team to arrange interim payments to cover the cost of the client’s rehabilitation. 

Stephen commented:

“As we often deal with highly complex personal injury cases, not only do we focus on getting significant compensation, but aim to secure an early admission of liability so the client can undertake a rehabilitation programme as soon as possible. Our clients’ health and wellbeing are incredibly important to us. Our solicitors are well known, not only for actively pursuing compensation but also for caring deeply for clients and their families at a time when their lives have often been turned upside down.”

Regarding his most recent success, Stephen went on to say:

“The importance of this case is that it recognises the obligation of Highway Authorities to maintain all aspects of a highway, including manhole covers. In this case, despite regular inspections, Transport for London failed to identify that the manhole cover was worn and polished so as to present a reasonably foreseeable and real danger to road users.

As a result of our successful arguments and expert evidence at trial, our client was able to recover damages for his pain and suffering, as well as for financial loss, including cost of repairs to his motorcycle  and loss of earnings, enabling him to move on from this traumatic incident.”

Working with Stephen and his team was Barrister, Tom Bourne-Arton, who is stated in Chambers and Partners as being:

“….efficient and sensible.” “He is quick to grasp issues and very efficient in turning work around.”

Thanks to the formidable reputation of its Personal Injury Lawyers, OGR Stock Denton can instruct highly experienced and respected Counsel such as Mr Bourne-Arton as well as top medical and Road Traffic Accident experts. This ensures our Personal Injury team, who are also members of APIL, can build robust cases and do their best to establish liability and secure the highest compensation available for their clients.

To make an appointment to discuss any aspect of Personal Injury or Road Traffic Accident claims please send us an email or phone 020 8349 0321.

Webinar – Divorce and financial planning

OGR Stock Denton LLP would like to invite you to join our live webinar – Divorce and financial planning

12.30pm, Friday 23rd 2021

Zoom webinars

Join our live webinar on divorce and financial planning, where our family law experts look at the practical evaluation and structuring of financial settlements on divorce. By reference to case scenarios, provision for meeting needs during middle life and retirement is explored through mortgage capacity evaluation; funding options; pension sharing; and cash flow modelling.

Hosted by Graeme Fraser, Head of Family OGR Stock Denton LLP, with guest speakers Claire Heppenstall, Barrister at 1 GC Family Chambers, and Helen Howcroft, Chartered Financial Planner at Equanimity IFA.

If you would like to join this webinar, please register here.

Webinar – Cohabitation TOLATA property disputes and the Dispute Resolution Toolkit

OGR Stock Denton LLP would like to invite you to join our live webinar – Cohabitation TOLATA property disputes and the Dispute Resolution Toolkit

4.30pm, Thursday 8th April 2021

Zoom webinars

Join our live webinar, where our family law experts use case studies to analyse the benefits and drawbacks for our clients of Dispute Resolution in solving problems of Cohabitation TOLATA property disputes.

TOLATA litigation in the context of cohabitation claims can be risky, uncertain and expensive both financially and emotionally.  The COVID19 pandemic has encouraged professionals to move towards Dispute Resolution, including mediation, early neutral evaluation, private FDRs and arbitration, as an alternative method to litigation. This webinar will explore how these methods can be utilised in Cohabitation TOLATA property disputes.

Hosted by Graeme Fraser, Partner and Head of Family team at OGR Stock Denton LLP, and guest speaker Elizabeth Darlington, Barrister at 1GC | Family Law

If you would like to join this webinar, please email Ali Kabani:

akabani@ogrstockdenton.com

 020 8349 5514

Coronavirus and Force Majeure

In this post, we review how specific Force Majeure provisions in business contracts could be engaged within the context of the COVID-19 epidemic under English law and consider safeguarding steps that can be taken in light of the evolving COVID-19 situation.

A Force Majeure event specifically relates to an event that is outside the reasonable control of an entity and is such an event that prohibits or prevents the entity from performing its contractual obligations.

What to do if you have a Force Majeure provision in your contract

If a party wishes to try and claim relief for a Force Majeure event, then the terms of the contract, specifically the Force Majeure provision, will need to be considered. Any party that is affected by a Force Majeure event will usually be relieved from their obligations to perform a service or obligation, and to the extent, they are affected, they may be entitled to receive compensation. While each event will need to be considered in relation to any contractual terms, there are some common features of Force Majeure provisions that we will expand on below.

What type of event constitutes Force Majeure?

Usually, the test of whether or not an event constitutes Force Majeure will come down to whether or not the following points can be satisfied or not.

  • The affected entity must be able to demonstrate they have taken all possible reasonable steps to mitigate or avoid the event or its potential consequences.
  • The event must be deemed to be beyond any reasonable control of the affected entity.
  • The affected entity’s ability to undertake its contractual obligations must have been impeded, prevented, or hindered by the event.

In the case of a valid Force Majeure event, the consequences for all parties will usually depend on the contractual obligations, along with the points expressly outlined by the Force Majeure provision in the contract. In some cases, this will allow a time extension for the purpose of carrying out any obligations or a suspension of contractual performance for the duration of the event. If the Force Majeure event is extended over a long period of time, there may also be such provisions that entitle the parties to undertake a termination of the contract.

What to do if you DO NOT have a Force Majeure provision in your contract?

If you do not have a provision in your contract for Force Majeure, but find yourself in a situation where either yourself or a contractor is unable to fulfil obligations due to such an event, then this section aims to offer some initial guidance.

The Doctrine of Frustration is something that parties can potentially rely upon in the absence of a provision for Force Majeure in an English Law Contract. It will typically be applicable if:

  • The circumstance or event takes place following the contract formation and was not foreseen by either party
  • The ‘event’ is no fault of either entity
  • It is either commercial or physically impossible to fulfil the contract, or where the obligation would need to radically be transformed compared to the initially outlined obligation.

The end-result under the Doctrine of Frustration being that contract will automatically come to an end, and each party will be relieved of their obligations to perform any future work under the contract. The threshold for proving frustration is higher than many Force Majeure provisions, and this is typically due to the fact that it must be proved that any impacted obligations are fundamental to the contract.

There could also be a ‘change in law’ provision in a contract that specifically addresses situations that involve a change in law and whereby such changes make it impossible for the party to carry out any contractual obligations. If this occurs, then parties may incur costs associated with the reimbursement for any affected parties, and in certain situations, there will also be a right to terminate the contract.

Practical Steps for Clients

To help your business prepare for different scenarios that could occur, review the following steps, and try to be as proactive as you can.

  • Review any contracts to see whether or not there is a Force Majeure Provision
  • Review your insurance coverage documents to determine whether or not your insurance will cover any such losses; this could be either a Business Interruption or Force Majeure Insurance policy.
  • Review your financial documentation to consider whether or not there are any notice periods that will need to be complied with relative to any perceived claims for Force Majeure.

If a clause for Force Majeure is present:

  • Review the Force Majeure definition to try and determine if there is are any express events that include a pandemic or epidemic such as COVID-19. If not, try and ascertain whether or not the generic language is adequate enough to reasonably include COVID-19 as a potential Force Majeure event.
  • Consider which elements of the contract you will not be able to perform as a direct or indirect result of COVID-19.
  • Think about any steps your company will take to try and reduce or avoid the effects of COVID-19 on your staff and your business. This is key as you will need to demonstrate that you have taken all and any reasonable steps while following the government guidance.
  • Review the potential consequences for a successful Force Majeure claim

Getting legal advice about Force Majeure claims as early as possible in the process is key.

Force Majeure under PRC Law

 There are many businesses in the UK and, indeed, the rest of the world who deal with goods imported from China. As such, understanding how Force Majeure events are regulated under the People’s Republic of China (PRC) is relevant.

As expected, the best place to start is with the contract and any relevant provisions that are made for Force Majeure events. As COVID-19 is a relatively new ‘event’, it’s possible but unlikely that any specific clauses will relate to COVID-19; however, there is the potential for a pandemic or disease-related clause to be present. In addition to pandemic, plagues, and disease clauses, work stoppages or actions by governments and authorities could also cover this type of event.

Where there are no such provisions, the consideration of whether or not an event could be considered to be a Force Majeure event will rely on any relevant PRC laws or regulations; for instance, the General Principals of Civil Law and the PRC Contract law. In both instances, a Force Majeure event is defined as something that ‘objectively unforeseeable, insurmountable, and unavoidable. This means that any party who is prevented from fulfilling a contractual obligation due to a Force Majeure event could be either fully or partially exempted from their subsequent liabilities, proportional to the given circumstances only. Additionally, it is down to the invoking party of the defence to prove the impact of the Force Majeure event.

There are some high courts; for instance, the High People’s Court in the provinces of Guangxi, Zhejiang, and Shanghai have already taken steps to release guidance documents that directly relate to COVID-19. These confirm that the present-day epidemic could be a Force Majeure event. In addition, the China Council for the Promotion of International Trade has already started to provide Force Majeure certificates to companies in China who are experiencing challenging times with their overseas partners as a direct result of the COVID-19 epidemic.

Regardless of the jurisdiction, Force Majeure’s applicability should always be decided on an individual case-by-case basis.

Drafting Contracts During COVID-19

As a final consideration, going forward, and in any future contracts, it would be wise to address the implications of the COVID-19 epidemic. Some of the key points to include could be defining a ‘triggering event’ to either include to exclude events such as public health crisis, epidemic, state of emergency, etc. It would also be pertinent to review whether disruptions to labour and/or supply chains should be addressed in advance and form part of the contract.

To help mitigate any potential losses or problems, our Company and Commercial team at OGR Stock Denton can help you with any contractual preparations.

If you have any questions about your contractual obligations or would like help with a potential claim for Force Majeure, our dispute resolution solicitors at North London firm OGR Stock Denton  can give you the guidance needed to know exactly where you stand.

If you’d like to know more about the enforceability of Commercial Contracts during the COVID-19 epidemic, our linked article provides more information on this topic

HMRC confirms first arrest in connection with furlough fraud

HM Revenue & Customs (HMRC) has revealed that a 57-year-old man from Solihull in the West Midlands was arrested on 8 July on suspicion of a £495,000 furlough fraud relating to claims from the Coronavirus Job Retention Scheme (CJRS).

HMRC says he is the first person to have been arrested in connection with fraudulent claims from the scheme.

As of 12 July, more than £28.7 billion had been claimed from the scheme by 1.2 million employers in respect of 9.4 million jobs.

HMRC says that the CJRS has four lines of defence against fraud, which it describes as:

  • Employees have to have been on a payroll on or before 19 March – preventing the use of fake employees
  • Claims are only accepted from employers known – and authenticated – by HMRC
  • All claims are assessed by a specialist team within a 72-hour window
  • Proportionate and reasonable interventions with customers after money has been paid.

Richard Las, the Acting Director at HMRC’s Fraud Investigation Service, said: “The CJRS is part of the collective national effort to protect jobs. The vast majority of employers will have used the CJRS responsibly, but we will not hesitate to act on reports of abuse of the scheme.

“This is taxpayers’ money and any claim that proves to be fraudulent limits our ability to support people and deprives public services of essential funding.”

He called on people to report suspected furlough fraud via HMRC’s online fraud reporting page here.

New Coronavirus insolvency legislation proposed

The Corporate Governance and Insolvency Bill (the Bill) has been introduced in Parliament to support businesses that are struggling as a result of the Coronavirus pandemic.

The Bill includes six new insolvency and two corporate governance measures that seek to address the challenges that businesses are facing.

The Bill includes:

  • A new moratorium to give companies breathing space from their creditors while they seek a rescue.
  • A law that prohibits termination clauses that engage on insolvency, preventing suppliers from ceasing their supply or asking for additional payments while a company is going through a rescue process.
  • A new restructuring plan that will bind creditors to it.
  • A temporary suspension of personal liability for wrongful trading from directors who try to keep their companies afloat through the emergency.
  • A ban on creditors filing statutory demands and winding up petitions for Coronavirus related debts in certain circumstances.
  • Rules that ease the burdens on businesses by enabling them to hold closed Annual General Meetings (AGMs), conduct business and communicate with members electronically, and by extending filing deadlines for:

– confirmation statements

– annual accounts

– registrations of charges (mortgage)

– event-driven filings, such as a change to your company’s directors or people with significant control.

These measures will be applied retrospectively so as to be as effective as possible. It is hoped that the Bill and its measures will enable the insolvency regime to flex to meet the demands of the current emergency.

The Bill, introduced on 20 May, will now make its way through Parliament. Many of the measures in the Bill will need secondary legislation before they come into force, and this will be introduced in due course. Nothing will change until legislation is formally introduced.

Are you owed money? Some tips that may help

In these difficult times cash is king! However many individuals, sole traders, firms and companies are using these difficult times as an excuse not to pay outstanding debts; including invoices, loans and contractual payments.

So what can you do when faced with, or to avoid, this situation?

  1. Act quickly. The older an invoice becomes the harder it invariably is to recover. The initial satisfaction and appreciation the customer had of the effort and work undertaken will have worn off within a matter of weeks …if not days. The reality of making payment is a different matter entirely. Chase a debt promptly with an initial polite letter and a strict time period for payment. A solicitor’s letter demanding payment within 7 days often forces a debtor to respond but much will depend on how old the debt is and how willing the debtor is to engage.
  2. Ensure you have as much information about the debtor as possible. It is imperative that you know your customer. You may know the individual you deal with but in what capacity? Are they acting as an individual, a sole trader, a partner in a firm or a director of a company. Are they authorised to act on behalf of the organisation (entity) they represent? The type of entity that you contracted with, whether individual, firm, company or otherwise will determine the best way of pursuing and recovering payment.
  3. Make sure that for individuals you have their full name, including all forenames that are often needed when undertaking bankruptcy searches or ascertaining what property they own.
  4. Take up financial or personal references where appropriate. Consider requesting references from suppliers to see if they have encountered any problems with payment.
  5. You may wish to limit exposure by setting internal credit limits. Many individuals and organisations fall into the trap of giving customers extended credit, particularly if they are relatively new customers who have promptly paid some earlier invoices ( often for far smaller sums) and the first substantial invoice is then not paid.
  6. Do you have terms of business? These can be extremely useful particularly if containing retention of title clauses in respect of goods supplied and not subsequently paid for.
  7. Keep records of all invoices. A solicitor will promptly require these when demanding payment from the debtor and commencing appropriate enforcement methods.
  8. A solicitor can advise on the various enforcement methods that can be taken prior to issue of court proceedings in an attempt to recover payment, or to reach a negotiated payment settlement by instalments with or without security. Statutory Demands are an effective way of placing sufficient pressure on an individual or company who would rather pay a debt than face bankruptcy or winding up. These however need to be dealt with carefully, and served properly, in order to comply with strict regulations and to be valid.
  9. Where necessary court proceedings should be issued, judgment obtained and then enforced. This is particularly so if there is a risk of an individual being made bankrupt by other creditors or a company being placed into liquidation. A judgment is only a piece of paper, and worthless until enforced, but a solicitor can advise on the appropriate enforcement methods that are likely to be most effective in the circumstances of any given case.

We recognise the difficulties faced by many in these extraordinary times in recovering outstanding debts. We are here to help and  always willing to have an initial no charge discussion as to how we may be able to assist, particularly where your debtors are taking an unfair advantage of the current circumstances.

Enforceability of Commercial Contracts (COVID-19)

Many businesses today are struggling to cope with the pressures of the COVID-19 outbreak. As well as causing unprecedented health difficulties it is also giving rise to huge economic problems around the world.  These will in turn give rise to many legal disputes.

The outbreak will have caused huge problems for supply chains being unable to manufacture or produce goods, due to a lack of workers as staff adhere to the strict quarantine measures imposed by government to contain the virus. This inevitably will result in businesses being unable fulfil contracts to supply goods or services.

The question arises as to whether a party is able to cancel the contract and whether damages would be available as a result.

Under English law, there are two potential contractual methods of escaping liability for breach of contract. These are Force Majeure and Frustration. It is important to understand that these two concepts are completely different and operate independently.

Force Majeure operates as a specific express term in the contract, which tends to identify events and circumstances, which if they occur, would entitle the party to serve notice that the event is one which is beyond their control.

The Force Majeure clause in the contract will outline what has been agreed between both parties, such as:

– the events which will entitle either party to declare a Force Majeure

– how a party should notify the other of a Force Majeure event

– how to deal with the consequences which flow from declaring a Force Majeure.

However, as in all legal issues, the devil will be in the details

It is highly likely that government will issue Force Majeure certificates to assist businesses seeking to rely on the clause. However, contracting parties will still need to agree, as if not the courts will have to determine whether a Force Majeure event has occurred and also, very importantly, whether a party has effectively taken the necessary steps to mitigate the loss.

It is important to note that when agreeing a Force Majeure clause, parties can also agree the consequences which might follow such an event, including whether contractual obligations are suspended, whether liability accrues or is capped and rights on termination.

Frustration is entirely different to Force Majeure. Frustration relies on a party to prove that, as a result of the outbreak, it has become simply impossible to fulfil the contract. This will of course give rise to examination of the particular facts of each situation which is bound to centre on the argument of what was possible as opposed what was impossible.

Businesses seeking to rely on these contractual methods of escaping liability during this current pandemic, will still find it is going to be quite difficult to prove. If a business does seek to rely one of these methods incorrectly, then the other party may argue that assertion has of itself has given rise to a breach of the contract. This could give the other party a right to claim damages or even treat the contract as terminated.

The government has taken and is continuing to take significant steps, in offering financial support across the economy to assist in these difficult times. It seems that there is a likelihood that businesses may be forced into delaying payment for goods or services. Companies should be aware that this might attract interest under the terms of the contract, as well as a statutory right to interest under The Late Payment of Commercial Debts (Interest) Act 1998. However, businesses will be acutely aware that if a company is put into some form of insolvency, there more often than not, very little dividend. It therefore seems that businesses are going to have to be realistic in this difficult time and renegotiate terms.

It would be advisable, where you have contracts of any significant size, for any extensions or variation of terms to be expressly agreed in writing between both parties, so that there is clear evidence as to what terms have been altered and what has actually been agreed.

In terms of court proceedings, whilst there may be some latitude on the deadline for issuing proceedings, where a limitation deadline is in place, there will have to be clear evidence that a representative was unable comply with the relevant timetimes. Once proceedings begin, there is likely to be a delay to comply with any directions but again this will require evidence. The high court in particular is encouraging parties to communicate by telephone or potentially by video link where possible.