Author: Chris Alexander

Much has been made of the interference of Prince Charles in the row surrounding development of the Chelsea Barracks site in London, some of the most expensive residential real estate in the world.  The resulting litigation between CPC Group Limited (“CPC”) and Qatari Diar Real Estate Investment Company (“QD”) has been widely reported particularly because of the connection to the heir to the throne.  While Prince Charles’ involvement does raise interesting legal issues regarding royal political interference, the key issues in dispute between the parties have been glossed over to some extent.

Contract

CPC and QD entered into a joint venture for the acquisition of the Chelsea Barracks site in the form of a Guernsey based special purpose vehicle called Project Blue (Guernsey) Ltd (“PB”) which applied for planning permission for the development of 638 residential units, a hotel and various other community facilities. 

CPC then sold its interest in PB to QD for an initial payment of just under £38 million and a deferred payment mainly dependant upon the success of the planning application up to a combined total of £81 million.  QD was under an express obligation to use all reasonable but commercially prudent endeavours to achieve the triggers for payment of the deferred consideration and to act in good faith.

As we now know, His Royal Highness then expressed his displeasure at the architectural merits of the scheme contained in the planning application to his royal counterparts in Qatar.  Boris Johnson also expressed differing architectural concerns.  The planning application was then withdrawn, potentially in breach of QD’s obligations to CPC.

 Proceedings

 With the planning application withdrawn, CPC faced a much longer wait for their second payment and sought a number of declarations that QD were in breach of their obligations and for further or other relief.  QD responded to the claim by alleging that CPC had acted contrary to the requirement for good faith by forcing QD’s hand after Prince Charles had intervened and that QD had in turn accepted this repudiatory breach bringing the joint venture to an end (in their favour). 

 Mr Justice Vos held that in withdrawing the Planning Application, QD were in breach of their contractual obligations although not in breach of their obligation of good faith.  CPC were also declared not to have acted contrary to their requirement of good faith.  However, it was not a complete victory for CPC, who did not get all of the declarations sought and the question of what damages they may be entitled to, was left for another day as were costs.

 Conclusion

 With the sale contract still in force, a new planning application will probably be submitted in due course and CPC may well still receive payment of the deferred consideration, albeit somewhat later than they would have liked.  What therefore did this litigation achieve?  Mr Justice Vos identified that had the parties focused upon resolving their mutual problems rather than digging in for an expensive fight then the dispute could well have been avoided.  That sentiment often rings true whether the sums involved are millions, thousands or just hundreds of pounds. 

Conditional payments or conditional obligations are commonplace in many land transactions, particularly where development is involved and while in most instances royal intervention won’t be an issue, conditionality is a fertile ground for disputes.

Author: Jacqueline Button

Public sector employees worried about their pay and pensions aren’t the only ones affected by the new government’s clamp down on spending.

Property Week reported last month (4/6/10) that on 24 May Whitehall’s Efficiency and Reform Group announced a halt to lease extensions in the current financial year that do not have Treasury approval. The government is also planning to exercise break options which it has this year, including at Eland House, Victoria Street SW1, the 24,200 sq ft headquarters of the Communities and Local Government Department.

A client of ours has had a similar experience – a government department tenant, initially keen to renew their lease have backed out of negotiations and will be relocating to cheaper premises. (Spare a thought for the staff – no pay rise, no pension and forced to work in the back of beyond).

So landlords of public sector bodies must beware – your once star tenants are fading. Check break dates and expiry dates. If any are coming up soon, you may find yourself looking for a new tenant.

Author: Guy Thomas 

Everyone knows that Julius Caesar “came a cropper” on the “Ides of March” (15th March).

Well, supporters of Pompey’s CVA may yet come to dread the week containing the Ides of July (15th July 2010). Predictions and augers can (as Caesar found out) be tricky, with that in mind, Thursday, 15th July looks likely to be last day when Her Majesty’s Revenue & Customs (HMRC) can issue a challenge against Portsmouth City Football Club’s Company Voluntary Arrangement (CVA).

Following the last meeting of Pompey’s creditors on 17th June 2010, there was a lot of positive publicity for the Joint Administrators of Portsmouth City Football Club.  The Chairman of that meeting (at which the CVA was approved) was Mr Andrew Andronikou (one of the joint Administrators of Pompey).

HMRC challenge?

If HMRC do decide to “have a go” then they are likely to chuck the kitchen sink at it in the hope that one of the other issues raised might be sufficient to force a reconsideration of the CVA approval. Likely grounds for the application include:

1. The reduction of HMRC’s “creditors” vote from £37,768,387.13 to £23,895,044.67? i.e. taking away their ability to veto the CVA.

2. The inclusion of the “Football Creditors” in the vote of “unsecured creditors” when they should have been treated as “secured borrowers”? 

3. The inclusion of supposedly secured creditors like Portpin (Mr. Chanirai) and Ocadia (Mr Gaydamak) in the vote of “unsecured creditors”.

If these or any challenges like them succeed then a 75% majority cannot be achieved. No 75%, no CVA. No CVA? Well let’s just say the Championship will be a harsher place with a further point deduction for Pompey.

Et tu Pompey?

To read the full article, click here.

Author: Victoria Wells

The sudden death last month of former “Diff’rent Strokes” star Gary Coleman has highlighted the importance of having a valid Will, and keeping it up to date.

Despite his showbiz background, Gary’s personal circumstances were in some ways not that different to many of us, with both an ex-wife and a former girlfriend on the scene, and the lack of clarity around his wishes has led - perhaps inevitably - to dispute between the two.

There is also uncertainty about what to do with his ashes, surely a situation which none of us would want our loved ones to be left in.

In his 1999 Will, Gary gave instructions about his funeral, that he wanted it conducted by people who had no financial ties to him and who “can look each other in the eyes and say they really cared personally for Gary Coleman”.

He also in the Will appointed a close friend as his executor.

In 2005 it appears that Gary made a new Will, in favour of his then girlfriend, Anna Gray. The Will specified that he did not want any sort of funeral service.

Following his marriage to Shannon Price in 2007, he made a “homemade” Will, in which he named his wife as his sole beneficiary. Apparently this was signed, but not witnessed, so lacks full testamentary validity. They divorced in 2008.

Perhaps inevitably, Ms Price and Ms Gray are now in dispute about who should administer Gary’s estate, and who is entitled to that estate. Ms Gray argues that they were together for eight years, and that the 2005 Will is the valid “last Will and Testament”. Ms Gray contends that, as they were still living together at Gary’s death, despite their divorce, she is entitled to be treated as his “wife”.

A lawyer has now been appointed by the courts to sort out the mess, and in the meantime both Gary’s ashes and his estate remain in limbo.

The heartache and expense of all of this could all have been avoided if Gary, following each major change of circumstance in his life, had taken professional advice to ensure that his latest Will matched his current situation and that his belongings and his funeral would be dealt with as he wished, by the people he wanted.

Author: Nathanael Young

Attack and Counterattack

Recent news stories have highlighted the lengths FIFA are prepared to go to in protecting its brand.

Last Monday’s Holland v Denmark game saw 36 female supporters wearing orange mini dresses participating in an ambush marketing stunt for the Dutch beer brand Bavaria.

Ambush marketing, the practice of finding a way to promote a brand at a high profile event without paying a sponsorship, has long been a marketing strategy of Bavaria. At the 2006 world cup in Germany, 1000 fans wearing branded underwear were denied entry to a Holland game, and more recently it has been targeting the Dutch national team matches.

FIFA has promised to come down hard on any brand trying to highjack the tournament and this was the case last Monday. The group of women were ejected from the stadium and two of the 36 were later arrested. In addition to this, the ITV pundit Robbie Earl has been sacked by ITV as it has emerged that some of the tickets used by Bavaria were from the ex-Jamaica and Wimbledon midfielder’s  allocation;  which he was  prohibited from redistributing to third parties.

Logo or No Logo

With the world cup now in full swing, businesses around the country have included references to the event in their advertising and promotional activity in a bid to cash in on its popularity. Some of those are official sponsors, who have paid millions to be able to do so; however, a considerably large number of businesses haven’t paid for the privilege. They simply seek to associate their business  with the  pride and passion that the tournament evokes, with the ultimate aim of increasing sales. However it does come with some risks attached.

Many business may not be aware of the extent to which FIFA have rights over and above ordinary trademark or copyright protection in South Africa.  FIFA has every motivation to stamp out such practices, which threaten the sponsorship revenues from their official partners. It already has trademark protection over a number of words, like ‘2010 FIFA World Cup’ and images, such as its official emblem for the tournament. The host country has gone so far to keep FIFA and its sponsors happy, it has created a new list of prohibited marks under special legislation, even including the use of ‘2010’ on its own, which is not a trademark. 

For businesses operating in the UK, the situation is rather less draconian.  However,  there are reports that FIFA has obtained a ruling against a sports bar near the Loftus stadium using phrases such as ‘World Cup 2010’.

Things to Remember…

 The most important guidance is to always avoid the using of any FIFA artwork or branding – such as its logo or the ‘man kicking ball’ official 2010 world cup emblem. For more information and guidance about when you can cannot use World Cup related terms, FIFA has provided a Public Information Sheet which states what is acceptable and the terms of use.
Use of the term ‘World Cup’ or similar phrases is less likely to be an issue, although each situation is different, so it is important to take legal advice in order to avoid prosecution.

Author: Julie Gingell

Could you dedicate just one office tea break to fundraising for a great charity?
As close friends of the Willow Foundation, SA Law is helping to promote their latest national fundraising initiative. And the concept couldn’t be easier! Simply schedule an office tea break to raise money. Staff could be asked to make a small donation to attend; cakes and biscuits could be sold; or you could simply hold a raffle. You could even charge a fee for each tea  bag - the more exotic the tea bag the higher the donation!

Author: Guy Thomas 

In the run up to today’s creditor’s meeting at Pompey’s Fratton Park, Guy Thomas has been commenting in www.sportingintelligence.com on the background to today’s meeting and the options available to the creditors of Portsmouth City Football Club (In Administration) when they vote. Click here to read more.

Authors: Steve Kenneford & Caroline Beale

There still appears to be confusion over the obligation to provide Home Information Packs since the announcement to suspend the same on the 21st May 2010.

The situation is as follows:-

Any/all properties marketed prior to the 21st May 2010 will require a fully compliant HIP.   Any properties marketed after the 21st May 2010 will no longer require a HIP but will require an Energy Performance Certificate to be provided at the cost of the seller.   The cost of the local authority and drainage searches will once again fall upon the Purchaser. 

So, effectively, with the exception of the EPC which is being retained, the last 4 years and probably the 3 before that (whilst we were all preparing ourselves for the new HIPS revolution) were a complete waste of time, effort, money and a further erosion of our already depleted rainforests in terms of the monumental waste of paper involved. Thanks for everything Yvette (Cooper)!

It remains to be seen whether any further changes will be made and we will keep you advised.

Author: Guy Thomas 

An interesting piece from Business Advisory and Insolvency specialists BDO that reminds directors of football clubs that as the fans enjoy the thrill of the competition in South Africa, it shouldn’t distract them from their own issues closer to home.

www.bdoadvisorybites.co.uk/index.php?id=298&uid=6270

Author: Guy Thomas

A businesses relationship with its lender will always go through changes, particularly when the environment in which the business operates changes. Whilst we may wish it otherwise when borrowing, most lenders are very conservative organisations. As such they are more likely than not to react in specific and predictable ways to different stimuli.

Put another way, whilst it pays to try and understand how your businesses lender operates, some things are always going to get a reaction and that reaction may be harsher then you anticipated or planned for.

One such example is when businesses spring “surprises” on their lender.

One almost universally accepted way to “fall out” with a lender is to surprise them with a major event without given them forewarning or without seeking their comments/approval.

A bank recently stepped in before the owners of a company could sell their business (a wholesale bakery business) after they found out the shareholders of the company had tried to buy the company themselves for a significantly reduced price.

The Sunfresh Baker which produces over 40million muffins for supermarkets and small shops each year, is a family owned business. It’s  Directors Mark and Stephen Taylor, who are also brothers, tried to buy their £9m turnover bakery for a mere £50,000 after struggling to pay creditors. However the abortive sale was halted when Israeli-based Bank Leumi discovered the chain of events and urgently placed the company into administration appointing an Administrator of their choice.

It is believed that the directors, had not informed the bank’s UK asset finance arm about the transaction in advance, despite the bank owning a floating charge over the bakery’s assets.  In a bid to safeguard the position of creditors, Leumi appointed MCR as administrators. Following a second valuation by MCR on an “in-situ basis,” the Taylor’s were asked to pay another £70,000 for the business. The Taylors eventually bought the company for £120,000.  According to MCR documents, the brothers paid £35,000 as initial consideration and are due to pay monthly instalments of £5,000 until October to make up the full amount.

A total of 167 creditors were owed £3.4m but it is not clear how much each will receive. Leumi, owed £1m for invoice finance, is expected to get its money when debts are collected. However Barclays, which extended £132,000 overdraft facilities; is less certain to see a return.

A full report of the administration and conduct of directors is expected to be submitted to the Insolvency Service within six months.

Prior to the insolvency the company last filed accounts for the year to the end of October 2008. These showed a pre-tax loss of £365,337 and it had net liabilities of more than £200,000. According to draft accounts, it made a profit of £1.1m on sales of £9.4m in the year to October 1, 2009.

The sale of the business has saved 140 jobs at the company, which will now trade as Taylors the Bakers.

Helpful hints for company directors and owners facing insolvency:

1. Consult an insolvency specialist. Insolvency is a complex area with many pratfalls for the unwary. Taking advice at an early stage can help avoid the easy mistakes and help you plan the way ahead for yourself and the business
2. Keep your creditors informed. If you don’t keep them informed then they will assume the worst and act accordingly, wouldn’t you?
3. Review the circumstances regularly. Looking at it once and assessing the situation is not enough; having taken advice, mark out a plan, review the plan and ensure roles and responsibilities have been clearly set out within the management and encourage open discussion about how it is being implemented
4. Keep a record for yourself. Sadly, although we hope for the best you must plan for the worst. Things can and do go wrong. If they do and your decisions are reviewed it will often be done several months hence and with hindsight. Keep a written record of your key decisions and the evidence you had to hand when they were made. Do not assume that record will be available to you in several months time
5. Try to treat creditors equally. A common difficulty for directors in these circumstances is the pressure to treat some creditors better than others.  Although the pressures to do so will be great, you must always take advice before agreeing to this. It is a very common criticism for directors of insolvent companies and can even lead to personal liability
6. No surprises…. As above, banks really, really hate surprises an act accordingly when they find out.