LawMate addition, losing the contract would mean losing a

LawMate 62 Newarke Street Leicester LE1 5AN Our Ref: CO: BAN00773 8th January 2018 Mr. Lawrence Machin 30 Nottingham Street Melton Mowbray LE13 1NN Have You Tried Restarting It v Computer Break, Dispute Dear Mr Machin, Thank you for attending my office on Thursday to discuss your dispute with computer break. Following our last conversation, we talked about moving forward with the theme of the “interest based” approach using the Harvard model as a way to begin. Remember that engaging in this form of preparation will not preclude you from going down a particular path, it will only aid you in making informed decisions about the right option that will satisfy your interests. HYTRI’S INTERESTS · To Maintain and Improve HYTRI’s reputation. · To have a steady stream of business in order to build on HYTRI’s growing name. Termination of the contract and or prolonged dispute will not allow this as it would damage the reputation of the business’s reputation, thereby hurting your core business in Melton Mowbray. In addition, losing the contract would mean losing a steady stream of business and the opportunity to build on HYTRI’s growing name. ALTERNATIVES Litigation This is one option which is available to you, however, I would suggest that this should be the last resort. You should be aware by now that the cost of litigation is usually high and the process, time consuming. According to the guardian, since 2013 for claims exceeding £5000, court fees usually start at £410 and increases to 4.5% of the value once the claim hits £10,000. While for claims in excess of £100,000 the fee is now 5%. Not to talk of the cost for solicitors and barristers which may vary from £200 – £500 per hour. Costs would usually vary depending on the grade, however. While courts will assure you of an end result, it is usually determined based on your legal rights and as a result, litigation may not be so helpful in satisfying your broader interests. Another point to be aware of is that adversarial litigation ultimately takes the control of the finality of the disputes out of your hands. I also observe that there have been allegations against HYTRI about the quality of repair work provided to customers which is a reason CB decided to terminate the contract for cause. Although CB did not expressly define what cause means in the contract, it is common for businesses to terminate their contracts for cause if the other party did not hold up the end of their bargain or their performance was either not up to par or was done incorrectly. Seeing as the contract specifically gave CB the right to terminate for cause, I would anticipate that this issue will be one of the main focus of the legal process as you would have to invalidate their right to terminate for cause by proving you held up your end of the bargain. This may also not be in your favor if customers attest to the fact that the quality of repairs where indeed not up to par. Furthermore, I note that you are also claiming for anticipated profits as well the annual retainer for over 2.5 years. Although, CB initially agreed to pay for these, this is not enforceable unless consideration. This means that because CB has not performed their obligation yet as it is meant to be in the future, HYTRI cannot be paid these amounts until they hold up their own end of the bargain. It can only be enforceable if their performance has been executed and is motivated by the offer or promise of payment by the other party which is what the law recognizes as good consideration which is enforceable. Therefore, HYTRI still has a chance of claiming £60,000 pounds for their unpaid work as their performance was executed and motivated by CB’s promise to pay. In Tweddle v Atkinson 1861 it was established that the promise “it must be the promisee (the person to whom the promise is made) who provides consideration. Furthermore, in Pao On v Lau Yiu Long 1980 AC 61 Lord Scarman states that the “The act must have been done at the promisor’s request…” Reflecting on the interests of HYTRI, going to court is unlikely to provide an outcome that is entirely satisfactory outcome for your business. Going to court would mean lack of privacy therefore any adverse allegations made about HYTRI will be made in a public setting. Given the importance of reputation you have placed on maintaining the reputation of HYTRI, the airing of HYTRI’s contractual performance, whether false or not is unlikely to be desirable. In addition, this process can usually take longer as opposed to some other forms of ADR and it is usually costly. It is clear HYTRI will not get all the money it’s claiming for which would mean that even if HYTRI does win some money, they would still be out of pocket as the costs awarded by the courts rarely cover the full cost of litigation. Other scenarios may include a loss leaving you with an uneconomical legal bill in addition to any damages awarded against you. In many cases, parties are usually ordered by the courts to participate in ADR before the matter can proceed to trial. Consequently, it is common that parties who proceed down the litigation route are ordered back to attempt mediation or some other form of ADR. Additionally, a document may need to be produced to show that you have taken reasonable steps to resolve the matter out of court. Essentially, it should also be noted that most times disputes settled in court damage the relationship of the parties and make it difficult for them to work together in the future. For these reasons, I would not recommend that Litigation should be considered as a way of settling this dispute, at least not until other alternatives have been considered. Arbitration This is a private process whereby both parties agree to be bound the decisions of an arbitrator. This decision is usually referred to as an award. The arbitrator tribunal will consist of a single arbitrator or panel, with expertise in the subject area of the dispute. This process differs from court in that it is less formal. In section 1b of the Arbitration Act (AA), it states that “parties should be free to agree how their dispute is resolved…” Therefore, the parties have flexibility of deciding the dispute be decided in line with commercial fairness rather than the strict legal rules. Moreover, because this method is informal it means there will be more flexibility as opposed to court proceedings, making the process faster and the dispute resolved quicker. This is because a date for arbitration can be obtained sooner as opposed to a date for trial. Another advantage of using the arbitration method is that it is less expensive than going to court. For example, the cost of prepping for an arbitration is less than prepping for a trial. Partly because, the rules for evidence is not as strict. Therefore, documents submitted can be relied upon instead of having to bring witnesses to testify. Furthermore, the fact that the arbitration award is legally binding is a benefit for the parties because it may be difficult to appeal. As a result, the arbitration process will end the dispute, giving finality to the arbitration award which is not often the case in trial decisions. This can also have adverse effects however as parties will be unable to change a decision they believe to be erroneous. For this reason it may be more desirable for HYTRI and CB to maintain control over the outcome of the dispute. Therefore, it is advisable that mediation be considered as a better alternative. Mediation This process involves an impartial arbitrator who works with both parties to decide by identifying the legal issues and assessing the legal strengths of the case. Thus, assisting the parties in reaching a resolution that is equally beneficial. The onus is left on the parties to choose the most desirable option for resolving the dispute, however. As a result, both parties will feel a sense of commitment to the outcome, provided they are able to reach a mutual agreement. Because mediation proceedings are informal, disputes take a couple of hours or a few sessions with the mediator to be resolved as opposed to court proceedings which may take months or years for a dispute to be resolved. Hence, reducing the cost of the dispute. However, protracted mediation can be costly as you would be expected to pay for the mediator’s time as well as expert advice given it is still less expensive than court proceedings. Furthermore, lack of formality can also be a detriment however, it is often that you may find that mediators are not legally trained and as result as parties may be deprived of procedural and constitutional protections which is usually guaranteed in courts. This can happen when parties involved have varying levels of power or/and resources which may result in unfair settlements for less-well positioned parties. Therefore, to prevent such inequality from affecting settlements, it is always advisable for the legal counsels of each party to be present during mediation to avoid inequitable settlements. Mediation also protects the confidentiality of the parties involved and the content of their discussions as the process it is a private process. Ground rules, moderated by the mediator are usually put in place agreed to as part of the process that aremoderated by the mediator. These would help control communication issues that may arise during disputes. Seeing as the finality of the dispute is in the hands of the parties, and the process is safeguarded by the mediator, mediation can lead to effective communication and have a positive effect on the relationship between the parties, even if it does not ultimately achieve resolution. Ultimately, it is advisable that mediation be chosen as the form of Alternative dispute resolution because as previously mentioned the involvement of a third party may keep things moving in order to achieve a resolution. Secondly, the fact that the parties have control over the outcome means you can decide on an alternative which will be satisfying for both parties. Thirdly, as already stated, because it is confidential HYTRI does not necessarily run the risk of damage to their reputation which is the most important thing for both HYTRI and CB. Lastly, choosing to go down this route rather than going to court may salavage the relationship of both parties. Thus, HYTRI need not worry about having a steady stream of business opportunity and can have the opportunity to build on their growing name and reputation. Mediation has also been proven to have a very high success rate where direct negotiations fail and is usually recommended by the courts before your dispute can be heard in court. If you have any further questions, feel free to book an appointment to discuss things in more detail. I look forward to hearing your response on