The Commercial dimension... Sale and supply of goods and services relating to the Transport Industry Alex Sandland, LLB (Hons), Director, Dyne Solicitors

The Commercial dimension...Sale and supply of goods and services

relating to the Transport Industry

Alex Sandland, LLB (Hons), Director, Dyne Solicitors Limited Jonty Gordon MDes, LLB, Solicitor, Dyne Solicitors Limited

The Changing Transport Industry

• Industry is changing • Commercial Focus• Dictum meum Pactum – “...my word is my bond...”• Payment Terms• Delay• Squeeze at the bottom end• Pressure from both sides – position • Cash flow

The Importance of T&C’s• Avoid litigation• Avoid delays• Maintain commercial relationships• More funds in• Less funds out• Solid trading base

• “...given the ever-growing importance of cash flow, ensuring that you are contracting on your own, favourable terms is more important than ever...”

Trading Terms - Sources

1. Supply of Goods and Services Act 1992 [SOGSA]

2a. Course of dealings2b. Conduct of the parties

3. Terms and Conditions (written)

4. Management and Utilisation

1a. Supply of Goods and Services Act• Unavoidable – can be excluded? (no)

– Express agreement –v- UCTA 1977– Clear, unambiguous agreement; course of dealings– But why?

• 2 (+1) elements:– Supply of service (sections 12-16)– Sale of goods (sections 2-5)

– Hire (sections 6-10)

1b. Supply of Goods and Services Act

• Sale of Goods: “...satisfactory quality...fit for intended purpose...accords with description...”

• Supply of Services: “...carried out...with reasonable skill and care...within a reasonable time...”

• Hire: “...satisfactory quality...fit for intended purpose...”

2. Conduct

• Historical conduct• Course of dealings• Conversations• Informal• Casual business

• Can be undone

3a. Written Terms and Conditions• Bread and butter• Not jam

• To complement SOGSA• To correct / undo ‘Conduct’

• Essential feature of business• Confers control

3b. Written Terms and Conditions• Key issues:

– Payment– Interest– Insurance / risk– Delivery– Loading / Unloading– Liability for loss and damage (exclude; limit)– Indemnity– Lien

3c. Written Terms and Conditions

• Bespoke

• Heavy Transport Association [HTA]• Road Haulage Association [RHA]• Freight Transport Association [FTA]• Construction and Plant Hire Association [CPA]• British International Freight Association [BIFA]• Convention for International Carriage by Road [CMR]

Written Terms – Battle of the Forms

• General Rule: Fire the last shot

• Example 1: Trevor Bassett Holdings –v- ADT Fire and Security

• Example 2: British Road Services Ltd –v- Arthur Crutchley and Co. Ltd

Written Terms – Incorporation• Initial engagement• Website• Letters / e-mails• Invoices• Purchase Order• Quotation/Estimate• Acceptance• Sales Receipt• Sales / Marketing Documents

Exposure to Risk• SOGSA is the foundation (unavoidable?)

• Relying on conduct is dangerous

• Absence of T&C’s– Relying on conduct– Committed to other side

• Predator and prey

Potential Pitfalls• Dispute• Loss of business / relationship• Reputation / goodwill• Aged debt• Cash-flow• Insolvency• Management Time (staff resources; inconvenience)• Litigation (fees; time; disruption; disclosure)

Recommendations?• Terms and Conditions are tailored• Bespoke for business purposes – to suit particular requirements• Signed Terms• Duplicate / Incorporate / Publish / Advertise [DIPA]• Directors Guarantees – Insolvency• Recovery of Fees• Commercial Interest Rates• Due Diligence• Know your Enemy• Sign Nothing!• Management / Awareness

And finally....

• Leave nothing to chance• Integrity? • Cost -v- Cost• Investment• Balancing Risk• Certainty – Clarity – Peace of Mind• Solid foundations

DSL Toolkit• What do I need to display in my business letters, orders and

websites? The company name, number, place of registration, and its registered office address

• What can happen if the company fails to comply with the trading disclosure requirements? The company and every one of its officers in default will be committing an offence and they may be liable to a fine

Trading Disclosures – Sections 82 to 85 of the Companies Act 2006

DSL Toolkit• What other legislation imposes requirements on online

trading? The Data Protection Act 1998The Privacy and Electronic Communications RegulationsAccessibility - The Disability Discrimination Act 1995 (DDA)E-Commerce Regulations 2002

DSL Toolkit• If you don’t know the terms and limitations of a contractual

relationship, who will?

• Having the terms set out in a document can prove to be a useful bargaining tool and ensure your best interests are observed and recorded – battle of the forms

DSL Toolkit• Wide range of documentation allowing your business to trade

effectively.

• The documentation allows you the peace of mind that its liabilities are minimised and position protected as well as possible.

• Pic’n’mix, off the peg and practically ready to use

DSL Trading Toolkit• Agency agreement (domestic/international)• Distribution agreement• Non-retail supply of goods agreement• Terms and Conditions of sale of goods/supply services• Event sponsorship agreement• Confidentiality agreement • Franchise agreement

• Prices from £225 - £750

DSL Online Toolkit• Terms and Conditions for use of a website• Terms and Conditions for an e-commerce website• Privacy policy • Copyright statement• Cookie policy• Email notice• Website design and development agreement (domestic)

• Prices from £50 - 350

DSL Debt Recovery Scheme• All traders have debts• Hard climate to ignore monies due• Cash flow compromised by not chasing

• Difficult to compel debtors to pay• Time consuming chasing debtors

DSL Debt Recovery Scheme• If your debts are less than 6 years old and undisputed, they

may be eligible for our debt recovery scheme

• Risk free initial letter – no-win, no-fee • Low fixed fee for litigation steps• Our fees are covered on successful recovery• Steps include Letter Before Action, issuing Court proceedings,

Statutory Demand, Winding-up/Bankruptcy Petition, Bailiffs etc

Any questions?

“Unlawful Levy of Fees by Police Forces across England, Wales

and Scotland”

• “...the primary function of a constable remains the preservation of the Queen’s peace. From this general function stems a number of particular duties...”

• “...the first duty of a constable is always to prevent the commission of a crime...”

• “...it is the constable’s general duty to protect life and property...”

• “...the general function of controlling traffic on the roads is derived from this duty...”

• “...any attempt by a police authority to extract payment for services which fall within the plain obligations of the police force should be firmly discountenanced by the courts...”

Lawful Charging Basis for ‘Special Police Services’


Can Police Forces unilaterally impose a fee for the provision of ‘special police services’?

No basis for charging?

No request from = no charge (subject to compliance)

Avoid traps?

What does the law say?

Section 25, Police Act 1996 (England & Wales)

The chief officer of a police force may provide, at the request of any person, special police services at any premises or in any locality in the police area...subject to the payment to the police...of charges on such scales as may be determined.



When can the Police charge?

By specific request

By general agreement

Implied requests


What if the Police attend?

Choosing to attend is not enough

Scope of general police remit

Special circumstances

Operational issues

The danger of implied requests

Reliance by Police, in absence of alternative charging basis

•No contract•No legislation

Course of dealings

Notifications

Historical Conduct


Leeds United case

Unilateral police attendance cannot create an obligation to pay

Implied Request is not sufficient?Special Police Services

Scope of general police duties

Justice Eady...the door is open

Further litigation to follow...



Scotland

Previous Legislation – Police (Scotland) Act 1967

No charging basis

New– Police and Fire Reform (Scotland) Act 2012 – (came into force 1 April 2013)

In- line with England (must be a “request”)


What is at stake?

Present, outstanding invoices – should they be paid?

Future work – can the Police charge?

Historical charges – can these be recovered?

Operational issues


Historical charges – can we recover our money?

LimitationDocumentation Is there a contract (oral)?Case lawLeading from the frontScotland – probably so; decent prospects (5 years)


Summary

Can Police charge?Should you pay?Avoid the trapsRecover historical feesImprove cash flowOperational consequences


Advice

Review your positionDo not pay?Get your Notifications rightBe careful what you signKnow your stuffEducate the PoliceIf in doubt.......


Advice

Moving forward...

Review your position – clarity...certaintyEngage with PoliceBarrister OpinionBulletin / Letter of Advice

Proportionality – immediate savings, uncertain future, time is crucial

Any questions?