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The recent case of Athena Brands Ltd v Superdrug Stores Plc [2019] EWHC 3505, highlights employee’s liability when negotiating a contract on behalf of their employer via email.

For a legally binding contract to be formed, an offer, acceptance of that offer and consideration is required. There must also be certainty regarding the key terms of the agreement, and there must be intention by both parties to create legal relations.

Where an employee (agent) seeks to contract with a third party on behalf of their employer (principle), the employee must have principle authority to do so. This requires an agreement between the agent and principle, for the agent to act on the principal’s behalf. This authority can be express or implied.

Is an email legally binding?

In Athena Brands Ltd v Superdrug Stores Plc [2019] EWHC 3503, an email exchange took place between a Superdrug Stores buyer and Athena Brands, a manufacturer, regarding the sale of a new cosmetic product.

The exchange of emails set out that the product would be sold to the Defendant at a set price during a 12-month period, in which the Defendant could order consignments of stock at any time via purchase orders. The sale price would have exceeded £1.3m, but in response to slower than expected sales – Superdrug stopped placing orders. The manufacturer claimed nearly £980,000 in damages.

The Claimant alleged that the agreement also included a commitment by the Defendant to purchase a minimum amount of £1.3m of stock during this period, which the Defendant disputed on the basis that they were not committed to purchasing any products unless and until it submitted a specific purchase order.

The Defendant alleged that there was nothing in Superdrug’s standard terms and conditions of purchase to indicate that they would agree terms for purchasing minimum quantities or would be bound by any such terms if an employee agreed them.

The email containing the proposed terms was sent by the Claimant’s employee to the Buyer at the Defendant on 23 May 2017 and said:

“Just to confirm, you are placing orders and committing to the yearly quantity against all lines detailed below…. We have agreed that you will call off stock… on an ad hoc basis within a 12-month period…. [there followed a table of products with quantities and prices] If you could drop me a note to confirm all the above ASAP that would be great, I shall then be in a position to push the button at this end.”

The Buyer replied on 25 May 2017, stating:

“Please go ahead with the below [referring to the claimant’s previous email and preceding chain], happy on Nature’s Alchemist…”

The High Court found that there was a clear acceptance of Superdrug’s commitment to buying annual quantities of the product from the manufacturer. The Court ruled that nothing in Superdrug’s evidence showed that the claimant was unreasonable when it relied on the Defendant’s confirmation as binding the company.

The Defendant’s failure to make the claimant aware of Superdrug’s policies which governed the negotiation of purchase contracts was particularly relevant to the Court’s ruling. It was found, had they done so, the outcome would likely have been different.

Despite the fact the contract was agreed via an email exchange, it was found to be sufficiently clear to create a liability of £1.3m on the part of the Defendant. This highlights the dangers that businesses face when discussing contract terms in any sort of written form and that a legally binding contract contains a number of components that the court will assess objectively to determine validity.

This case also serves as a reminder for employers to make clear to employees their responsibilities when acting on their employer’s behalf and the risks of failing to do so.

At Eldwick Law, we have an expert team of contract lawyers who can assist with your claim.

Should you have any queries with regard to this article, please do not hesitate to contact us via email: mail@eldwicklaw.com, or telephone: +44(0)203 972 8469.

Coronavirus advance fee fraud: the NHS has warned households to be vigilant about fraudsters sending out fake invitations to have the coronavirus vaccination. 

The warning comes amid an increasing number of complaints being made about scammers attempting steal individuals’ personal details or extract payments from them. According to Action Fraud, there have been more than 1,000 reports of email scams claiming to offer vaccines in just 24 hours this week. 

In one case, a 92-year-old woman in London was charged £160 and administered with a fake vaccine, which she was told would be reimbursed to her by the NHS. 

Fraudsters are also sending out scam emails which include a link to register for the vaccine, and asking individuals to provide their bank details to verify their identification or make payment. 

The NHS says that it would never ask for bank details, as the vaccine is free and no registration is required either. 

These scams are, of course, classic examples of advance fee frauds. An advance fee fraud is one of the most common types of confidence tricks, and typically involves promising the victim a significant share or a large sum of money, or in this case a highly sought after vaccination, in return for a small amount of money up front. 

For more information on how our expert fraud solicitors can help you, visit our Advance Fee Fraud Page

If you would like to know how NHS would contact you, follow this link:
Coronavirus Scam

The recent case of R (Kombou) v Wood Green Crown Court is a sobering lesson for anyone facing a criminal prosecution, and who is considering pleading guilty with potential Confiscation proceedings looming.

Case background

The defendant entered guilty pleas at the Magistrates’ Court to breaches of a Local Authority (Enfield Council) planning enforcement notice. The offences related to unauthorised conversion of a house into 8 separate units.

The defendant sought to change his plea when the matter was committed to the Crown Court and the Local Authority pursued Confiscation proceedings. He applied to vacate his guilty plea but the Crown Court refused his application.

The defendant challenged, by way of Judicial Review, the Crown Court’s decision to refuse permission to vacate his guilty plea. The defendant argued that the Local Authority was improperly motivated because of the benefit which they would derive from the Home Office’s Asset Recover Incentivisation Scheme (“ARIS”).

The High Court rejected his challenge, finding that the fact that the Local Authority had considered bringing confiscation proceedings did not mean the decision to prosecute had been motivated by an improper consideration; there was nothing to support the argument that the decision to prosecute was improperly motivated.

There is some background to the case but one of the reasons the defendant pleaded guilty was because he thought it was possible that the case might end without Confiscation proceedings.

Local Authorities are increasingly relying on planning enforcement notices to prosecute and recover any ‘ill gotten gains’. Local Authorities will receive 37.5% of the money recovered – it’s big business, and so one may naturally be critical of the motivations to prosecute here. The Court concluded that there were no improper motivations in this case, however.

How can we help?

If you are facing a Local Authority investigation or prosecution, it’s important to get early advice from an experienced team of lawyers. Early representation can make all the difference.

Unexplained Wealth Orders (“UWO”) are posing an increasing threat to the assets of private individuals. At a moment’s notice, authorities such as the HMRC and CPS can seize assets where they suspect the property is criminal property. The economy has taken a significant knock and all of the signs suggest authorities such as the HMRC are looking to UWO rather than proceed by way of a criminal prosecution.

Put simply, a UWO requires the responding party to explain what interest they have in whatever property is named in the order, how they obtained the property, and how it is held.

Applications for such orders can be made without notice to the High Court by enforcement authorities including the Serious Fraud Office, Her Majesty’s Revenue and Customs, and the National Crime Agency. Applicants must:

1. Specify or describe the property in respect of which the order is sought; and

2. Specify the person who they believe holds the property.

The threshold tests for obtaining an order are relatively low. Before deciding whether to issue a UWO, the court needs to be satisfied of the following:

1. That there is reasonable cause to believe the respondent holds the property;

2. That the value of the property is greater than £50,000;

3. That there are reasonable grounds for suspecting that the known sources of the respondent’s lawfully obtained income would have been insufficient to enable the respondent to obtain the property;

Thereafter, for most applications, the court will be asked to consider there are reasonable grounds for suspecting that the person affected by the order or a person connected with that person is or has been involved in serious crime (whether in the UK or elsewhere).

Many commentators discussing UWO focus on people suspected to have suspicious political connections or “politically exposed persons” (PEP). It is important to stress, UWO have an impact well beyond PEP and can affect any individual.

If the individual does not provide satisfactory evidence of how their assets were acquired, these assets can be held as ‘recoverable property’ for the purposes of a civil recovery order under the Proceeds of Crime Act.

The order may also be accompanied by an interim freezing order, as an unexplained wealth order alone will only lead to investigation, rather than the assets being frozen or seized. This is typically imposed to prevent any assets being disposed of before the unexplained wealth order process is complete. However, this could lead to a number of innocent people fighting to retain their assets on the basis of an assumption of fraud.

In National Crime Agency v Baker and ors [2020] EWHC 822 (Admin), the High Court discharged three unexplained wealth orders brought against two high profile Kazakhstan individuals relating to three London properties worth over £80m. In this case, following a detailed examination of the evidence, the court found the source of ownership of the properties were no longer unexplained. In this case, all properties were subject to freezing orders whilst the unexplained wealth order process was being carried out.

Whilst it is a complex task for agencies to prove how individuals obtained their wealth and identify ownership of assets, especially overseas, it seems that unexplained wealth orders are being used as an alternative to impair the individual in question, as it would be onerous to arrest and charge the individual with a criminal offence based on investigative purposes.

Further, this type of order places the burden on the individual, rather than the enforcement agency to evidence the source of the wealth. The threshold for an obtaining an order is relatively low as the civil standard of proof applies, making it easy for agencies to pursue anyone they believe worth investigating. The authorities only have to be satisfied that the evidence is strong enough on the balance of probabilities that there has been a serious criminal act.

In Baker, the Court emphasised the relatively limited purpose of UWOs as an investigative tool as once property and asset ownership has been explained, the purpose of the order falls away. The nature of an unexplained order seems draconian and unnecessary, especially as it places such as unfair burden on the individual. It seems these orders are being used as an alternative for bringing criminal charges, making it wholly unfair on the individual. The individual in question must prove the burden themselves and undergo an investigation, whilst their assets are likely to be frozen and tried without a jury. This seems wholly unfair and a cause for change regarding the nature of unexplained wealth orders, due to their detrimental effect on those who could be innocent individuals.

Being investigated can be extremely daunting and as the threshold for investigation is low, it is crucial that you obtain the right legal guidance as early as possible. Eldwick Law have a team of lawyers who are experts in this area of law and can assist you with your case, no matter how big or small.

COVID-19 has changed the scope of business contracts in a variety of ways including the performance of contractual obligations. It is important for businesses to recognise their legal standing and the contractual issues they may be facing in light of coronavirus, so that they are not exposed to a claim for damages.

Whether a party can suspend or terminate a contract due to the current climate will depend on a number of factors and the specific circumstances of the contractual terms in question.

Force Majeure

Unforeseen circumstance clauses contained within contracts are often expressly referred to in force majeure clauses in contracts. A force majeure clause will typically allow parties to renegotiate, extend, suspend and/or terminate the performance of the contract when an unforeseen or unexpected event has occurred. Force majeure is not a doctrine of English common law, meaning it is not implied in a contract. Therefore, parties wishing to rely on this clause must expressly insert a force majeure clause into a contract to rely upon it. Parties will often insert a force majeure clause to allocate risk between them when negotiating the drafting of a contract. Unexpected global events, such as the Coronavirus pandemic has the obvious ability to significantly disrupt the performance of a contract and is an example of where some force majeure clauses would be scrutinised quite carefully for who ultimately bears the loss.

Is COVID-19 a force majeure event?

Force majeure clauses must be specific, as the consequences of an unexpected event will be determined by the interpretation of the clause by the courts. The clauses will be examined in great detail to determine whether they can be taken to cover the intervening event and to ascertain whether the event is materially relevant to the performance of the contractual obligations in question. Whether a force majeure clause has been triggered in a contract will depend entirely on the exact wording that the parties have used, this often includes a non-exhaustive list of events. For example the presence of words such as: “pandemic”, “epidemic”, “outbreak”, “government action”, or “crisis” will be crucial in parties being able to argue that their force majeure clauses apply to the current circumstances.

It is the duty of the party seeking to rely on the clause to prove that the force majeure event has significantly prevented or delayed them from performing their contractual duties. Classic Maritime Inc v Limbungan Makmur [2019] EWCA Civ 1102 suggests that the party looking to rely on a force majeure clause must have been willing and ready to perform the contract, even if the exceptional event had not occurred. The unexpected event must be the cause of the failure to perform the contract, rather than an excuse if the underlying problem is something else. Therefore, to give a current example, it isn’t enough that COVID-19 was around at the same time as the breach of contract, it has to be the cause of the breach.

The English courts have previously not looked particularly favourably on reliance of force majeure clauses. However, the current climate makes it more likely than ever that parties will try to rely on force majeure clauses; due to the vast economic impact the pandemic is having on society and in turn, the impact it will have on the ability to perform contractual obligations. The Courts will not offer general guidance for this particular area of law, rather they will consider the cases on their individual merits.

What if the contract does not include a force majeure clause?

If force majeure is not a clause defined within a contract, parties may try to rely on specified time periods, which could warrant automatic termination. Parties will often scour their contracts for any clauses which provide flexibility, such as an option for the parties to terminate or renegotiate the contract, or any redress clauses. These clauses would need to be specifically drafted within the contract for them to take effect.

Further, if a force majeure clause cannot be invoked, parties may seek to rely on the frustration of a contract to bring the contract to an end. A contract can be frustrated when something occurs after the formation of a contract, rendering it impossible to fulfil. Similar to force majeure, the burden of proof for frustration is on the person seeking to assert it. COVID-19 may possibly be a factor that parties can rely on when considering if their commercial contract has been frustrated, however this will heavily depend on the circumstances and wording of the individual contract and will often require parties taking detailed specialist advice.

The realities of a global pandemic may require parties to be forced to re-negotiate aspects of a contract if the situation changes, since each contract is analysed on its own merits; however this would need to involve constructive communication between all parties involved and potentially the involvement of specialist providers of mediation services. It is important to understand the different legal and practical implications of that COVID-19 might have on current or future commercial contracts.

Our commercial contract lawyers are experts in this field and can provide practical and specialist advice during this difficult time.

Should you have any queries with regard to this article, please do not hesitate to contact us via email: mail@eldwicklaw.com, or telephone: +44(0)203 972 8469.

On 13 March 2020 the High Court decided that Gate Ventures PLC, a company specialising in media and entertainment investment previously chaired by Lord Grade, will enter into administration. The company’s management faced accusations of mismanagement and misapplication of monies which resulted in the company falling into serious financial difficulties. Eldwick Law represented a number of Chinese individuals with small shareholdings in their fight to uncover the truth.

Gate Ventures was founded in 2015 by the legendary British songwriter and composer Geoff Morrow whose compositions were performed by stars including Barry Mannilow and Elvis Presley. The company invested in start-ups, films and had backed stage-shows such as 42^nd Street and Sunset Boulevard. Gate Ventures initially saw a surge in its share price of 55% when it debuted on the AIM market and was once backed by several prominent investment organisations.

However, the company’s fortunes were much changed by March 2020. It was alleged that Gate Ventures’ management had fallen into farce under the chairmanship of Jonny Hon, a prominent businessman based in Hong Kong. The court heard of how Mr Hon spent thousands of pounds of company money on lavish meals with foreign dignitaries, including President Obama’s press-secretary and Prince Albert of Monaco, as well as private tours of exclusive fashion houses. The court heard how Sarah Ferguson the Duchess of York, a one-time member of Gate Ventures’ board of directors, had rendered invoices of £200,000 for branding and marketing for her company ‘Ginger and Moss’ and had received £90,000 in loans from Gate Ventures which had yet to be repaid.

Lord Grade, another director and presiding chairman of Gate Ventures at the time proceedings came to court, presented the defence on behalf of the company’s management following the withdrawal of their lawyers for non-payment of legal fees. Lord Grade admitted that spending limits were not in place during the chairmanship of Mr Hon but asserted that he had presided over the emplacement of strict financial controls and that the company was close to being revived through a series of high-profile investments. However, the company’s defence ran into real difficulties when Lord Grade was unable to offer any answer to claims made by the Applicant’s lawyers that Gate Ventures inexplicably spent £1 million to buy shares in a dormant company with no assets, whose directors included members of the board of Gate Ventures, and had made a series of loans to other board members without the requisite shareholder approvals.

The court heard how Gate Ventures had posted losses of £19.5 million despite investments of approximately £24.5 million, some of which had come from an array of smaller investments made by individual Chinese consumers who had secured ‘Intervenor’ status and were represented by Eldwick Law. The company’s dire financial situation was compounded by the fact it owed £2.5 million to Chinese businessman and shareholder Zheng Youngxiong, who had launched the principal action after the company had proven itself unlikely to be able to repay him by the looming contractually-agreed deadline. Lawyers for the Applicant and the Intervenor expressed their disbelief that a company of once such significant assets could be reduced to being unable to pay its own accountants and lawyers, to which Lord Grade and his team of informal advisors had no substantive explanation.

No doubt Lord Grade had hoped to be able to replicate the defence mounted by the company earlier in the year, where the court had denied Mr Youngxiong’s application to place Gate Ventures into administration on the strength of the all-star cast of board members that included Lord Grade (former Director of Programmes at the BBC) and the Duchess of York among others. The judge highlighted on that occasion that he was willing to give the board a chance to enact a rescue plan they had presented to the court, but placed the company under an obligation to produce fortnightly financial reports to monitor its progress. But with neither the mandated reports or any of the envisioned investment having materialised by the hearing in March and with a number of high-profile resignations from the board, including the Duchess of York, and the withdrawal of the company’s lawyers – the situation looked bleak for Lord Grade and his team.

Attempts by Lord Grade to adjourn proceedings to seek alternative advice or to raise additional funds from creditors, who were said to be ‘waiting in the wings’, were robustly opposed by the applicants and ultimately refused by the court. Further attempts to place Gate Ventures into Members’ Voluntary Liquidation, a technical process whereby a company is liquidated and any remaining equity distributed to its creditors and shareholders, was similarly opposed and rejected. It was concluded that the company was in such dire financial straits that it was unlikely to survive the 21-day process without being wound up by its creditors and there was no guarantee of the process being approved by Gate Ventures’ shareholders in any event.

Ultimately the court held that Gate Ventures should be placed into administration to protect the interest of major creditors such as Mr Youngxiong and those of the smaller individual Chinese investors – many of whom had been induced into investing by dazzling roadshows and the extravagant social-media profile of Mr Jonny Hon. It is hoped that, by being placed in administration, Gate Ventures has a chance of returning to the profitable past it once knew and of producing the kinds of returns expected by its shareholders and creditors.