He was due to pay half of the amount in August 2021, and the whole sum by the end of May 2022. Further, as part of the court hearing, it has been learned that his wife’s monthly maintenance has been halved to £30,000 without any notice.

Incidentally, Sir Barclay who was due to pay the legal fees for her wife has also defaulted on that payment leading her to be in a legal debt of £500,000.

He has been recently evicted from his luxury residence too, the court heard. Until now, his legal costs were supported by his daughter Amanda. The High Court has been told that Sir Barclay, once one of the richest men in the UK, is now relying on the mercies of his nephew to pay his legal fees.

In late 2021, his wife had petitioned the court to send Sir Barclay to jail for the default which she alleged was wilful. At that point, the judge had questioned the mental capacity of Sir Barclay before adjourning the matter.

The next date of the hearing has been fixed for April 6.

Image credit: theguardian.com

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Sophie Brackenbury

September 19, 2016: Our commercial dispute resolution team was recently instructed to advise on the enforcement of a debt owed to a German business (our client) by a UK company, as part of our debt recovery service.  The outcome was that we were able to enforce the debt effectively in the UK courts on behalf of our German client.

The process involved obtaining a European Order for Payment (EOP) in the creditor’s domestic court (in this case Germany), which could then be enforced in other European courts (in this case the English courts). This is possible owing to Regulation (EC) No 1896/2006 (‘the Regulation’), which provides a streamlined process for enforcing debts against parties in other EU member states where the amount is not disputed. In such circumstances, a creditor can file a standardised form with the courts in the relevant member state, wait for the courts to approve the application and issue the EOP, and then pursue enforcement of the debt. This means that the UK currently has favourable terms for enforcing debts compared with countries outside of the EU.

This process does, of course, now give rise to the question of whether – when Article 50 of the Lisbon Treaty has been triggered and the UK has left the EU at some point in a little over two years – it will still be possible – and if possible – whether it will be easy for (a) a business based in an EU member state to recover debts in the UK and (b) UK-based companies to recover debts in the EU.  The wider implications for UK businesses trading with European companies could be significant, including:

• A great deal more caution in terms of business dealings between UK and EU companies;
• The necessity to carry out more detailed and costly due diligence and credit risk assessment of new European customers;
• A fear – particularly among smaller organisations where significant unpaid levels of debt can affect cash flow to a catastrophic level – of doing business of any kind with European customers

Added to which, of course, is that this is just one example of what could be an incredibly nebulous set of circumstances and scenarios that UK businesses will be faced with once we trigger Article 50, and the myriad EU originating provisions that govern commercial life begin to unravel.

Perhaps, the most helpful parallel would be to look at the position in Denmark, which unlike other member states opted not to implement the Regulation and so falls outside of the EOP regime. If a party in Denmark wished to pursue recovery of a debt in another EU member state, it would need to pursue court proceedings in the relevant jurisdiction and rely on local enforcement laws in order to recover the debt. Likewise, parties in other EU member states will have to rely on Danish local enforcement laws, as would be the case if pursuing a debt in a non-EU member state. This includes EEA/EFTA member states, as the Regulation does not extend to these countries. As such, parties in the both the UK and the EU will likely have to follow the Danish example when pursuing debt recovery post-Brexit.

It’s not all doom and gloom, in that this is not necessarily a more difficult course of action, it’s just a different course of action to the one currently available. It does, however, require detailed consideration of the differences between each jurisdiction (which the current – ‘pre-Brexit’ – situation minimises by having a standardised application process). As such, while debt recovery proceedings in EU member states will still be possible following Brexit, it will be necessary for businesses to take different and often more complicated and costly processes into account when considering the risks of trading with European organisations.

So, where does this leave UK business?  Whilst the likely implications remain uncertain until we know what form Brexit will take, it will probably involve increased time and costs in pursuing debt recovery. Our advice is to plan your strategy carefully, not only in terms of debt recovery and enforcement, but also throughout your business, including your commercial agreements, relationship with employees etc.  This process should take into account the over-arching imperative to minimise risk to your business. Specifically, the following may be helpful as a starting point:

• As the UK has not yet triggered Article 50 and thereby the process to leave the EU (which itself will be a two-year process), there is still time to prepare.  The current position seems to be that the UK government will trigger Article 50 at some point early in 2017. However, you should start now, consult your professional advisers, and ensure you have a strategy in place.

• As a first step, businesses, particularly those that rely on trade with the EU or where loss of trade with EU would have a significant impact, should carry out analyses, including the extent to which their business relies on pan-EU trade and, therefore, the risk that Brexit presents. For example, what percentage of your income relies on trade with other European countries?  What do you need to do to ensure that this continues? How much of that income could you afford to lose before it has a significant effect on your business?

We have been part of the EU (and its predecessors) for more than 40 years. That’s a long time and in that time, we have built up a complex and binding set of trade rules and procedures. Extracting ourselves from these will be complicated and there will be some pain. The uncertainty (and therefore increased risk) means it is important for all businesses, who rely to any degree on EU trade, to minimise that pain by planning early and putting a risk strategy in place.

Sophie Brackenbury handles Dispute Resolution at Shulmans LLP

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There is pent-up demand after years of sanctions but risks remain

June 10, 2016: Iran has remained outside the international business community for close to 40 years now. Hence when sanctions were lifted this January, it was a gold rush for many. Being the 29th largest economy by GDP, Iran’s return to the global economy is expected to generate a windfall for its civil aviation industry.

The potential is immense due to the pent-up demand after decades of sanctions. On a purchasing power parity (PPP) basis, the size of Iran’s economy sits somewhere between that of Australia and Turkey whose commercial airline fleets are in the range of 500-600 aircraft. In sharp contrast, Iran’s airline industry is believed to have an operational commercial fleet of just 175 aircraft, with one of the highest average ages in the world. A further 40 aircraft are grounded due to inability to maintain their airworthiness, an impact of sanctions.

Understandably, within hours of accepting the conditions laid out for lifting of sanctions, Iran announced a number of commercial deals, including one with Airbus for 118 aircraft with a valuation of $25 billion. Justin Dubon, Airbus Head of Global News, says the agreement is a significant step in the overhaul and modernisation of Iran’s commercial aviation sector and Airbus stands ready to play its role in supporting the process. “It has been publicly acknowledged in recent months that there is a need for some 400 new passenger aircraft to modernise and overhaul Iran’s commercial aviation sector, and this figure we believe is not exaggerated,” says Dubon.

Officially, Iran has quoted 581 as the number of aircraft it intends to fly by 2026.

John Strickland, director, JLS Consulting, says the Airbus and Iran Air agreement is only the beginning. “Demand for travel to/from Iran will be boosted by the large Iranian communities living in different parts of the world, including Europe and the USA,” says Strickland. There are estimated to be 5 million Iranians living abroad, many of whom will be looking to visit a more liberal Iran.

Boost to tourism

Iran scores high even as a tourist destination — it is home to 19 UNESCO World Heritage sites — and is looking to welcome 20 million tourists a year in the next 10 years.

Binit Somaia, director (South Asia) at Centre for Asia Pacific Aviation (CAPA), a consulting and research practice firm, says Iran currently receives around 5 million visitors annually of which approximately 50% is religious traffic to the important Shia shrines in the country. “A large proportion of the balance consists of people of Iranian origin. Pure leisure tourists are very few, but we expect the number to increase significantly as the market opens up. Iran offers a diverse range of unique tourism experiences, diverse natural attractions, and activities from skiing to diving,” he says adding that there is a need to invest in new hotel capacity to support the projected growth. Inbound traffic will also be boosted by increasing business and trade activity, adds Somaia.

The risks

However, despite all the opportunities there are risks involved as well.

With sanctions relaxed one is still faced with the challenge of entering a difficult market. Iran, according to latest data by Transparency International, ranks 130th out of 168 countries on the Corruption Perception Index.

Somaia feels that though Iran has the ability to absorb 300 aircraft over the next five years, there is a question mark on whether it will be able to do so. “I do not know how much of this is feasible in practice. Even in mature markets, such a rate of growth would place immense pressure on airport and airspace infrastructure. And it is will be particularly challenging for Iran, as the aviation ecosystem will need to adapt to a generational leap forward in aircraft technology,” he says.

Paul Lyons, Strategy Director, IBA (International Bureau of Aviation), states that another area requires more clarification is US licence approval for any aircraft containing more than 10% components from US companies.

Lyons, in his report titled ‘Iran: Minimising risk and Maximising opportunity’, states that regardless of the fanfare, cash is at a premium and many of the airlines are already heavily in debt. “This raises two concerns: how will purchases be funded, and what options will the seller have if a deal goes sour? The banking system is out-dated and there are question marks around the robustness of the legal system – unsurprising given the lack of international interaction,” Lyon writes in the report.

Though there are some who fear a return of sanctions, in practicality it will be difficult. “It gets tougher to reinstate sanctions as Iran’s economy gets tied to the world economy.  That said, if Iran keeps being belligerent (threatening Israel with annihilation), many companies will hold back. The lower the price of sanctions coming back, the easier they are to reinstate,” says Addison Schonland, founder and partner, AirInsight, a commercial aviation consultancy.

“Despite the positive nature of the Airbus deal, the majority of industry leaders we have spoken with highlight the various hurdles to negotiate – be they legal, regulatory, political, or commercial. Care will be needed in order to minimise risk and maximise opportunity,” adds Lyons.

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2nd December 2013

In case you hadn’t heard yet, there are changes coming to the Federal Rules of Civil Procedure (FRCP) and these rule changes will greatly impact eDiscovery. Even though the new rules have not been finalized yet, it is likely advisable for litigators to begin to incorporate these new principles into their practice now in order to avoid playing catch up later. Chief among these principles is proportionality (which of course is nothing new, but will certainly seem new to many of our colleagues in the bar who are less well versed in the philosophy of proportional discovery).

In a recent article in Litigation World, Matthew Gillis and Nadine Weiskopf make the argument that proportionality will become an increasingly important facet of eDiscovery and offer some practical advice on how to turn philosophy into action.  Among the coming changes that best reflects the spirit of proportionality, we will finally have a more limited scope of what is and is not discoverable (long-time critics of proportionality will often cite the current standard of “reasonably calculated to lead to the discovery of admissible evidence” was so tensile it could be stretched to fit just about any discovery request).  The main goal is to limit the information demanded and produced during discovery to that which is “proportional to the needs of the case.” This new limit will (can? should?) help to prevent litigators from using discovery as a weapon against opposition with limited resources. It also protects litigants from having to expose possibly damaging information that is not relevant to the case at hand.  However, as with all rules there is always the chance that judges and parties will differ in their understanding of the rules.  For instance, on its face it would seem the rule change would prevent legal teams from asking for five years’ worth of email if they only really need email from the last six months.  But what if the requesting party can persuade the judge that five years really is needed (by doing nothing more than making the type of argument that today could carry a motion to compel such information – after all, are judges going to instantly change their understanding of the purpose and process of discovery?).  Nonetheless, as a result of this amendment, litigators should start thinking now about how to better hone their eDiscovery requests to target the specific information they need.  In many ways it is sad to think we needed amendments to the Rules to cause this to happen – litigators should have always been thinking of ways to target the information they need, and they should have abandoned the out dated “you never know what you will find” mentality that has driven the costs of discovery over the edge.

As Gillis and Weiskopf astutely point out, a way to achieve results in a world of proportionality-based eDiscovery is to use early case assessment technology to plan ahead.  A main benefit of this technology is that it helps to identify relevant information as early as possible in the discovery process and could allow a responding party to more narrowly collect information subject to review (and thus, lowering processing costs which are still one of the major pain points when it comes to eDiscovery costs).  But a corollary advantage is that it helps to locate information that is either missing or detrimental to a case up front. Litigators can use this technology to quickly evaluate whether to pursue a case, settle a case, defend it, etc. In litigation, knowledge truly is power as the more information I have the more skillful I can act as an advocate by uncovering everything we need to know sooner rather than later during eDiscovery.  The day before the production is due to the other side is not the time to discover you have a problem – even if that is when many litigants who insist on using more primitive review processes  do learn they have a problem.

About the Author:

Drew Lewis is eDiscovery Counsel with Recommind.  In this role he consults with outside counsel and in house legal departments about effective discovery strategies and the benefits of implementing predictive coding solutions. Prior to joining Recommind, Drew worked as a commercial litigator with Baker Donelson out of the firm’s Nashville office.  Drew has handled all aspects of discovery in his representation of clients, and through his private practice developed a streamlined approach to discovery that was helpful to resolve litigation favorably while still keeping costs in alignment with the budget of the client.

Source: Recommind, Inc

The post The Importance of Proportionality in eDiscovery appeared first on International Finance.

21st November 2013

Dark data, otherwise known as unstructured, unmanaged, and categorized information is a major problem for many organisations (and many don’t even know it). Many organisations don’t have the will, systems or processes in place to automatically index and categorize their rapidly growing unstructured dark data and instead rely on employees to manually manage their own information. This reliance on employees is a no-win situation because employees have neither the incentive nor the time to actively manage their information so dark data continues to pile-up all over the organisation. This accumulation of dark data has several obvious problems associated with it:

• Dark data consumes costly storage space and resources – Most medium to large organisations provide terabytes of file share storage space for employees and departments to utilize. Employees drag and drop all kinds of work related files (and personal files like personal photos, MP3 music files, and personal communications) as well as PSTs and work station backup files. The vast majority of these files are unmanaged and are never looked at again by the employee or anyone else.
• Dark data consumes IT resources – Personnel are required to perform nightly backups, DR planning, and IT personnel to find or restore files employees could not find.
• Dark Data masks security risks – File shares act as “catch-alls” for employees. Sensitive company information regularly finds its way to these repositories. These file shares are almost never secure so sensitive information like personally identifiable information (PII), protected health information (PHI, and intellectual property can be inadvertently leaked.
• Dark data raises eDiscovery costs – Organisations find themselves trying to figure out what to do with huge amounts of dark data, particularly when they’re anticipating litigation. Almost everything is discoverable in litigation if it pertains to the case and reviewing GBs or TBs of dark data can push the cost of eDiscovery up substantially.

Dark Data…it’s a good thing?

Many organisations have begun to look at uncontrolled dark data growth and reason that, as Martha Stewart use to say….”it’s a good thing”. They believe they can run big data analytics on it and realize really interesting things that will help us market and sell better. This strategy misses the point of information governance, which is defined as;

a cross-departmental framework consisting of the policies, procedures and technologies designed to optimise the value of information while simultaneously managing the risks and controlling the associated costs, which requires the coordination of eDiscovery, records management and privacy/security disciplines.

Data has risks associated with it as well as cost beyond its daily cost of storage. Let’s consider the legal implications of dark data.

Dragging dark data out of the legal shadows

Almost everything is discoverable in litigation if it’s potentially relevant to the case. The fact that tens or hundreds of terabytes of unindexed and unmanaged content is sitting on file shares means that those terabytes of files might have relevant content so it may have to be reviewed to determine if they are relevant in a given legal case. That fact can add hundreds of thousands or millions of dollars of additional cost to a single eDiscovery request. For example, according to a CGOC survey in 2012, on the average 1% of data is subject to legal hold, 5% is subject to regulatory retention and 25% has some values to the business leaving 69% with no real legal, regulatory or business reason to be kept. So for a given 20 TB file share, on the average 1% or 200 GB is potentially relevant to a given eDiscovery request. 200 GB of content can conservatively hold 2 million pages that might have to be reviewed to determine relevancy to the case. These same 2 million pages of content would cost $1.5 million to review using standard manual review processes. The big question that has to be asked is how many of these 2 million pages were considered irrelevant to the business and should not have been kept? Considering the same 69% number from the survey mention above; 2 million docs * 69% = 1.38 million docs that should have been deleted and would never had to have been reviewed for the case.

Dark data equals higher discovery costs so make dark data visible so that you can find it, manage it, and act on it.

About the Author:

Nick is Recommind’s director of product marketing and product strategy. He leads a global team tasked with developing marketing strategy across Recommind’s products. Nick joined Recommind from The 451 Group, a technology industry analyst company he co-founded. He started and ran its information management practice and was known as a thought leader in areas such as e-Discovery, enterprise search, text analytics and unstructured data management. Nick has a BA in Philosophy from Middlesex University and an MSc in Computing Science from the University of London.

Source: Recommind

The post Discovering Dark Data appeared first on International Finance.

30th August 2013

APA Group (APA) Australia’s largest natural gas infrastructure business owning more than $ 12 billion of energy assets announced in April 2013 that it will not progress to acquire Envestra without due diligence. “Until we get access to due diligence, we’re not going anywhere,” Mr. McCormack, Managing Director of APA Group said of the present status of the approach to Envestra share. “We remain open to discussion if Envestra wants to do so in due course”. The pipeline operator is offering 0.1678 APA per share for every Envestra share. We have heard of the term “due diligence” quite often by companies, auditors and promoters or the board of directors, but what does the term mean and why is due diligence undertaken by companies?

Due diligence is the process of evaluating a prospective business decision by getting information about the financial, legal and other aspects of the other party, it is done when buying a business, the buyer spends time going through the financial condition of the business, customer records, legal obligations and other documents. This process is carried out because the prospective buyer wants his/her opinion of the business to see whether the decision is good. The term due diligence is a legal term borrowed from the securities industry and it is undertaken to avoid any pitfalls when acquiring a company and to make sure all the records of the firm are available and have been independently verified, in some respects it is similar to an audit. When due diligence is undertaken  all the documents of the firm are assembled and reviewed, inputs from the management are taken into consideration and a team of financial experts, lawyers and accountants descend on the firm to analyze it.

Who undertakes “due diligence”?

Buyers will usually involve professional advisors to assist in the due diligence process, the due diligence team will include accountants ( to investigate financial data such as balance sheet, profit and losses etc), lawyers ( to assess the legal, contractual and mandatory compliance issue) and specialists relevant to the industry or market sector in which the business operates.

Process

Due diligence is a process which includes detailed review of all aspects of a business or a situation including financial, legal, insurance, technology, competitors as well as general company information. The process involves the investor, accountant and an attorney. In a business purchase, it is usually performed after the intent to purchase documents has been signed but before the formal purchase agreement. During the process of due diligence the company should appoint a person as a due diligence co-ordinator who undertakes to interface with the team, collect all materials required by the due diligence team and oversee activities in the process. A due diligence team shall prepare the plan in key areas such as marketing, legal, financial, controls and technical.

The Marketing plan includes the following details:

• Brief history, vision, statutory compliances and growth trajectory
• Details on the company’s products and services, manufacturing details, uses of the products and services to the consumers
• Guarantee and Warranty conditions
• Comparison of the company’s products and services to those of competitors, difference in pricing etc.
• Area of market segmentation
• Strengths and weaknesses of the company relative to the competitor
• Sales strategy like advertising campaigns etc.
• Customer after sales service

Legal

• Name and registered owners of the company
• Copies of memorandum of association ( if applicable), tax paid details etc
• A list of lawsuits filed against the firm ( if any) and their jurisdiction
• Copy of licenses, copyrights, patents granted to the firm
• Legal opinion on the licenses, copy rights and the lawsuits filed and verify the impact of such law suits (whether it will have an impact on the functioning of the company in the longer/shorter run)

Financial Plan

Income statements of the firm, Audited balance sheets, cash flow statements

Control Plan

• Method of accounting adopted
• Payment terms, collection of debts
• Monitoring of sales
• Monitoring of orders and shipments
• International accounting standards followed
• Cost accounting system
• Names of the banks that the company deals with and their credentials
• Frequency of internal audits and procedures
• Frequency of external audits and procedures

Technical Plan

• Description of the manufacturing process
• Suppliers of equipment, software, services
• Human resources and infrastructure
• Import restrictions or licensing (if applicable)
• Environmental issues and how they are addressed

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