Dispute Resolution & Commercial Litigation

During the course of everyday business life, legal disputes and problems can still arise. So it’s important to receive the help of an experienced legal specialist who is able to offer practical and reliable advice.

The litigation solicitors at McHale Muldoon have built upon years of experience within the field and recognise alternative means of settling a dispute before resorting immediately to a court proceeding.

Commercial clients can sometimes face the prospect of lengthy and expensive proceedings when a case isn’t resolved properly. We offer cost effective, practical solutions to any legal problem associated with commercial litigation and dispute resolution to ensure you take the right steps throughout the case.

We have built up a wide range of specialist legal services which we can advise on including:

Every business has and must accept bad debts. However it is paramount for all businesses, especially in the current climate, to recover monies owed to them for their services and products.

If a debtor, whether individual or company, is not paying , despite your reasonable requests for monies outstanding, you do have further options to recover the money.

Debt recovery options include a stern letter, statutory demand, threatening and pursuing bankruptcy, threatening and pursuing winding up a company and issuing proceedings at Court.

At McHale Muldoon we have enjoyed success in recovering debt on behalf of a wide range of clients in a risk and commercially effective manner. A benefit of instructing us, as solicitors, is that we can identify and consider any potential disputes arising from the debt and therefore the most cost effective way for you to pursue the debt.

We have commercial experience in recovering debt from individual and company debtors. We offer advice on the most practical cost efficient methods of recovering debt, depending on the amount owed and the debtor themselves.

Many small and medium-sized businesses have been mis-sold interest-rate hedging products. These products were sold, alongside loans to purportedly protect businesses from fluctuations in interest rates which could affect their loan repayments.

There are broadly four types of products: swaps, caps, collars and structured collars. 

The products are, by their nature, complex and it is therefore common for a business not to be aware which product, if any, they have been sold. However, the products can lead to a significant increase in loan repayment as they rely on a degree of speculation as to interest rates that affect the loan.

The FSA in the UK has found that major retail banks, including Barclays, HSBC, Lloyds and RBS, had poor sales methods. They did not fully inform businesses as to the benefits and risks of the products, assess if the products were suitable for the business’ circumstances, advising on products when they were not authorised to and financially rewarding employees for selling the products which may have skewed their judgment.

Example Hedging Contract

The following provides an example of a typical SWAP contract:

 

  • The contract was sold on the basis interest rates were more likely to rise than fall with little or no mention of the ramifications of falling/low interest rates.
  • Bank Funding is structured over a specified term at 2% + Base Rate (typically c5% at the time)
  • A hedge contract SWAPs the payment of base rate (c5 %) for a fixed rate 5.5% (+ 2% margin)
  • If Base Rate rises (above the 5% example) the hedge contract settles the difference thereby creating a fixed rate
  • Maximum interest paid is fixed at 7.5% (5.5% fixed rate + 2% margin) and protects against rate rise
  • Whilst this structure caps rate rises what happens if they fall significantly? A number of contracts had limits on how much rates could fall and be covered by the hedge contract
  • Many hedge contracts also included collars which allowed the fixed rate to move within a range in line with Base Rate movement
  • However when Base Rate fell below the collar floor, contracted into the hedge facility, the Company became liable for the shortfall cost in addition to their contracted fixed rate + margin
  • With Base Rate at 0.5% many of these contracts have breached their terms and applied significant additional cost to Companies, in many instances with serious consequences and implications
  • These contracts have cost Irish businesses significantly more than they were intended to mitigate

At McHale Muldoon we have experience in advising and recovering monies for business clients regarding claims against the banks to recover monies lost as a result of being mis-sold an interest rate swap product.

*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.

Professionals, due to their qualifications and their high fees, have high standards expected and imposed upon them than others. Where a professional’s work or advice is not up to this standard, which leads to monetary or other loss, you may be entitled to recompense.

At McHale Muldoon we have specialist expertise in professional negligence claims for business and individual clients. We appreciate the need for business clients to maintain a commercially focussed approach to these disputes. We also appreciate that individuals need clear and sound advice regarding their circumstances.

Our advice and approach is always user-friendly, practical, commercial and aimed towards achieving the best outcome for clients. We appreciate that litigation is not always the most effective way of recovering monies and therefore always consider mediation, arbitrations and adjudications.

We specialise in Claimant work but also provide Defendant advice against all types of professionals, including:

  • Solicitors
  • Construction professionals
  • Accountants
  • Independent Financial Advisors (IFAs)
  • Actuaries
  • Valuers and Surveyors
  • Architects
  • Auctioneers

Regarding funding your claim, we can accept instructions on a private paying or, if we consider the prospects of success to be sufficient a Conditional Fee Agreement basis.

It is crucial as a Director and/or Shareholder to ensure that the companies articles of association are fit for the companies circumstances and needs. Sometimes it is impossible to avoid disputes but ensuring that the companies articles are on the right footing to deal with them will save time and expense in dealing with them.

Disputes arise for a variety of different and varying reasons from business direction, payment of dividends to shareholders or the breaking down of a professional relationship. The most cost effective and practical starting point, when a dispute arises, is to understand your legal rights and obligations within the framework of the company.

At McHale Muldoon we are experienced in disputes arising between directors and/or shareholders and the options they have in resolving disputes. We carefully consider the articles of association, who has control of the board, who has control of shareholder meetings and all other relevant aspects. We provide you with commercial, practical and clear advice as to your rights, obligations and options.

Articles of association often provide that the parties enter mediation where a dispute arises. We have practical experience of mediation and therefore can advise you from the beginning to conclusion of your dispute.

However, some dispute are not suitable for mediation and our experience in commercial litigation allows us to advise clients on resolving disputes through the Courts, where appropriate.

The most practical and cost-effective way of avoiding and dealing with partnership disputes, whether a traditional partnership or LLP, when they arise is to ensure the partnership agreement is suited to the partnership.

A good partnership agreement will provide for how disputes are resolved and will provide that the partnership can be dissolved in certain circumstances. This only works, however, if the partners are willing to effectively agree on how they will part and who is entitled to what. We all know that, due to the nature of businesses and human nature, this is often not the case.

Where the dispute is not relatively amicable, other methods available are mediation, arbitration, adjudication and Court proceedings.

At McHale Muldoon we appreciate that emotions, as well as business factors, can effect the relationship between partners which can make disputes more difficult to resolve.

We appreciate the need for a practical, commercially focussed and cost-effective approach to agreements and steer clients in the right direction.

At McHale Muldoon we provide advice in relation to all types of property disputes in a practical, cost-effective and commercial way. Types of property disputes we deal with include:

  • Serving compliant notices under the Housing Act
  • Rent recovery
  • Service charge arrears
  • Possession and forfeiture actions
  • Deposit disputes
  • Dilapidation claims
  • Lease renewal applications and rent reviews
  • Rent recovery and possession actions
  • Boundary, rights of way, easements, trespass and restrictive covenants disputes

The most important first step to take, in order to resolve whatever dispute you have, is to obtain advice and establish your legal position. If you do not do this at an early stage, much time and money can be wasted.

We recognise that litigation can be costly and therefore advise clients as to alternative yet effective methods of achieving their goal.

The two most fundamental concerns for businesses, once they have negotiated the price and quantity of a product they have purchased, is that the product is of satisfactory quality and fit for purpose. The Sales of Goods and Supply of Services Act 1980 implies these two terms into all sales of goods contracts. If goods are not of satisfactory quality and fit for purpose, you have a cause of action to seek redress.

From toy dolls to tarmac, any product can be defective. If a product is defective and it effects your ability to provide or sell services and products you have the right to seek recompense from the supplier and/or manufacturer of the product.

At McHale Muldoon, we provide commercially sound and cost-effective advice to obtain the recompense you deserve. There are various options with regards to recovery and we will sit down with you in order to discuss your circumstances and identify the best one for you. We pride ourselves on providing practical advising and, where necessary, being proactive and forthright in putting clients in the position they want to be in.

Protecting and asserting intellectual property rights, such patents and trademarks, can be the difference in a business’ success and failure. For the same reason businesses must tread carefully in order to avoid disputes whilst maintaining their rights.

If you are unsure as to your intellectual property rights or have been accused of infringing somebody else’s, the best and most cost-effective way of resolving the dispute is to take legal advice at the earliest opportunity. You will then know your position at law and be able to take a commercial decision based on this.

At McHale Muldoon we have experience in dealing with intellectual property claims and disputes on behalf of a wide variety of businesses in many scenarios. We provide practical, straight-forward and commercial advice as to your position and what options you have in protecting and asserting your intellectual property rights. The Intellectual Property Office provides dispute resolution services which can be more cost-effective than going through the Courts. However, where parties are unwilling to cooperate, we have the expertise to take your case to the Courts.

If you are being accused of breaching somebody else’s intellectual property rights, it is important that you respond to this appropriately. Many businesses invest highly in their intellectual property rights and are often highly aggressive in defending them.

As such, they will not hesitate in incurring legal fees which, ultimately, you may be liable for. It is therefore very important to take advice quickly.

In legal terms, an injunction is an equitable remedy that requires a party to do or refrain from doing a certain act. You must establish that the party has or will breach your legal or equitable rights or has or will behave in an unconscionable manner. If an injunction is applied for and obtained, the party who breaches the injunction will face sanctions which is usually in the form of compensation.

In practical terms, injunctions can be appropriate in various circumstances. However, the aspect which is common to all injunctions is that the party applying for the injunction must have grounds for applying for the injunction. The grounds are usually that the applying party will or may suffer a loss if the injunction is not granted. If the matter is urgent an interim injunction can be applied almost immediately.

In a commercial context reasons for obtaining injunctions include:

  • Preventing a party from distributing information to another party or parties which will detriment the businesses reputation and therefore ability to trade
  • Non-performance of contracts
  • Freezing assets to stop their distribution
  • Intellectual property infringements
  • The cost of obtaining an interim injunction or injunction will vary depending on the circumstances. However, most injunctions will cost thousands of pounds.

At McHale Muldoon we will provide you with advice on the appropriateness of an injunction in the circumstances in clear and practical manner.

Defamation is defined as a statement made to third parties about another party which causes them loss or harm. A defamatory statement can be made in writing or orally. The most common defences to a defamation claim is that the statement made was true or made with the mistaken belief that it was true.

In a commercial context, defamatory statements can potentially have a significant impact on a business’ ability to trade and therefore make them lose money. If you believe a party has made a defamatory statement, you may be entitled to seek recovery of all losses you have suffered as a result of the statement.

The most important step to take, if you believe a defamatory statement has been made which effects you, is to obtain legal advice at the earliest opportunity. Early steps will increase your chances of proving your claim.

At McHale Muldoon, we have the expertise to provide you with realistic and commercially sound advice as to what steps to take if a defamatory statement has been made against you or your business.

Due to the economically trying times we find ourselves in businesses, however commercially aware and diligent they may be, can find themselves unable to meet their creditors demands for repayment. There are various options which creditors can take to recover their debt from you. Often the most desirable way is to reach a commercially amicable agreement to discharge the debt.

However, creditors can be aggressive in recovering debt by initiating insolvency proceedings against your business which can ultimately result in the company being wound up which can be devastating.

If your business is struggling to pay its debts, has been threatened with Court proceedings or served a statutory demand, the best way to resolve the dispute is to seek legal advice at the earliest opportunity. Only then will you know what commercial options are open to you.

At McHale Muldoon we have experience of acting for both creditors and debtors in debt dispute and insolvency proceedings. We are therefore extremely well placed to advise clients as to the likely outcome of any action and therefore the most appropriate steps they should take.

If your business cannot reach an agreement with its creditors, have been served with a statutory demand or threatened with Court proceedings, we are here to help you.

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