Dispute at Pillings

[Thorfast]

It seems that an awful lot of people are working (?) at Pillings Lock Marina.

Did anyone ever find out what their annual wages and NI bill was?

[NigelMoore]

I have just been reading the May issue of 'Canal Boat'.

 

They report that PL has said 'he plans to take CRT to court on the grounds that the fee it billed to Quorn was unfair', and the PL 'indicated his intention to seek an injunction preventing CRT blocking off the marina on these grounds'.

 

Sounds like an unguarded phone interview quote. It is surely far too late to now claim unfair contract, and besides, ‘unfair’ as a legal term has more restrictive application than in normal use.

 

The “Unfair Contract Terms Act 1977" deals mainly with evasion of liabilities through use of contractual terms, which cannot, under the terms of this Act, be held capable of avoiding liabilities that would otherwise be lawful.

 

Section 11 on “reasonableness” is interesting –

 

“(1) In relation to a contract term, the requirement of reasonableness for the purposes of this Part of this Act, section 3 of the Misrepresentation Act 1967 . . . is that the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.”

 

Obviously, this was one contract entered into with eyes wide open, although s.11(5) does say – “It is for those claiming that a contract term or notice satisfies the requirement of reasonableness to show that it does.” That rather places CaRT in the position of having to justify the reasonableness, rather than PL having to take up the burden of proving it unreasonable.

 

It is in Schedule 2 of the Act that a mixed bag of “Guidelines” for Application of the Reasonableness Test offers some potential avenues for PL: -

 

“The matters to which regard is to be had . . . are any of the following which appear to be relevant —

 

“(a) the strength of the bargaining positions of the parties relative to each other, taking into account (among other things) alternative means by which the customer’s requirements could have been met;

 

“( b ) whether the customer received an inducement to agree to the term, or in accepting it had an opportunity of entering into a similar contract with other persons, but without having a similar term;"

 

The “Unfair Terms in Consumer Contracts Regulations 1999” is rather more helpful to PL than I at first thought it would be –

 

s.5.”Unfair Terms”

 

(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.

 

Under the circumstances, it could just be that BW/CaRT’s insistence that the NAA is a standard contract agreed with the industry prior to negotiating with the potential marinas, is potentially an ‘own goal’ – if PL really was going to chance his arm. But it is rather late in the day. Then too, on whose behalf would he be suing? the contract was with the company in liquidation; only the liquidator can sanction such a lawsuit on behalf of that contracting party.

 

[adam1uk]

One wonders what bait was/is being used to tempt Roy into a position that could have a very negative effect on his future legal career.

It must be more than a token salary. Dividends? If the marina makes a loss as they claim, there won't be any...

It could be that he's just helping out a friend, and has been told he won't have to do anything. He's agreed to have his name down as company director, and an email address has been set up in his name. But I bet the emails go to PL rather than Roy. With studying etc, I can't see him doing much hands on stuff - probably just signing the odd document.

[Paul G2]

 

Under the circumstances, it could just be that BW/CaRT’s insistence that the NAA is a standard contract agreed with the industry prior to negotiating with the potential marinas, is potentially an ‘own goal’ – if PL really was going to chance his arm. But it is rather late in the day. Then too, on whose behalf would he be suing? the contract was with the company in liquidation; only the liquidator can sanction such a lawsuit on behalf of that contracting party.

 

 

A couple of other points:

 

In order to sue CRT, PL is most likely going to have to pay legal fees up front. I doubt any attorney would take this case on a contingency basis. Legal fees for a lawsuit like this can run into the hundreds of thousands of pounds. Considering PL's propensity towards not paying his creditors, I'd imagine any attorney would want a retainer well beyond PL's ability to pay. I suppose Mr. Steadman could be stupid enough to agree to a blank check to an attorney on PL's behalf, but that is really hard to conceive.

 

Taxes and government fees are not a contractual obligation. They are sums that the government takes under penalty of some pretty harsh laws. A good argument could be made that CRT, as successor to a government agency, and acting to enforce policies that are, in fact, taxation, has no obligation to negotiate with anyone about the terms of their contracts.

 

Can you imagine if the motor vehicle department were forced to negotiate ALL registration renewals? To take it one step further, imagine what would happen if you told your insurance company that you wanted them to negotiate the terms of their insurance policy with you. Tears of laughter would be streaming down their faces as they bid you adieu.

 

Anyway, the fact that PL continues to bluster rather than actually file suit speaks volumes. I think the simple fact is that he most likely cannot afford the cost of an attorney, and bluster is all that he has left.

[David Mack]

 

Sounds like an unguarded phone interview quote. It is surely far too late to now claim unfair contract, and besides, unfair as a legal term has more restrictive application than in normal use.

 

The Unfair Contract Terms Act 1977" deals mainly with evasion of liabilities through use of contractual terms, which cannot, under the terms of this Act, be held capable of avoiding liabilities that would otherwise be lawful.

 

Section 11 on reasonableness is interesting

 

(1) In relation to a contract term, the requirement of reasonableness for the purposes of this Part of this Act, section 3 of the Misrepresentation Act 1967 . . . is that the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.

 

Obviously, this was one contract entered into with eyes wide open, although s.11(5) does say It is for those claiming that a contract term or notice satisfies the requirement of reasonableness to show that it does. That rather places CaRT in the position of having to justify the reasonableness, rather than PL having to take up the burden of proving it unreasonable.

 

It is in Schedule 2 of the Act that a mixed bag of Guidelines for Application of the Reasonableness Test offers some potential avenues for PL: -

 

The matters to which regard is to be had . . . are any of the following which appear to be relevant

 

(a) the strength of the bargaining positions of the parties relative to each other, taking into account (among other things) alternative means by which the customers requirements could have been met;

 

( b ) whether the customer received an inducement to agree to the term, or in accepting it had an opportunity of entering into a similar contract with other persons, but without having a similar term;"

 

The Unfair Terms in Consumer Contracts Regulations 1999 is rather more helpful to PL than I at first thought it would be

 

s.5.Unfair Terms

 

(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

 

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.

 

Under the circumstances, it could just be that BW/CaRTs insistence that the NAA is a standard contract agreed with the industry prior to negotiating with the potential marinas, is potentially an own goal if PL really was going to chance his arm. But it is rather late in the day. Then too, on whose behalf would he be suing? the contract was with the company in liquidation; only the liquidator can sanction such a lawsuit on behalf of that contracting party.

 

Surely the fact that the standard NAA contract was developed in conjunction with the trade body (to replace an inconsistent ad-hoc approach which had applied previously), and has since worked successfully for all the other 50+ marinas with the same agreement would tend to support the view that the NAA is indeed reasonable (in law).

[Ray T]

From the above Leicester Mercury article:

 

"Mr Herbert said the marina made between £25,000 and £30,000 per week during the summer, compared to £4,000 in the winter.

He said: "This is our peak time when we try to get the money in the bank to last us through the winter."

Mr Lillie said: "It's a disgusting disregard for a business that is paying tax and employing 25 people.

"I'm probably going to have to make someone redundant. There's been no forethought at all."

My adaptation of a PP & M song

 

Where has all the money gone, long time passing?

Where has all the money gone, long time ago?

Edited March 29, 2014 by Ray T

[DaveP]

The “Unfair Terms in Consumer Contracts Regulations 1999” is rather more helpful to PL than I at first thought it would be –

 

 

No it isn't - it wasn't Lillie who entered into the contract as a consumer, it was QM(whatever)in the course of trade so the regulations don't apply.

 

---------------------------------------------------------------

3. (1) In these Regulations–

 

“the Community” means the European Community;

 

“consumer” means any natural person who, in contracts covered by these Regulations, is acting for purposes which are outside his trade, business or profession;

 

...

 

4. (1) These Regulations apply in relation to unfair terms in contracts concluded between a seller or a supplier and a consumer.

 

----------------------------------------------------------------

[Wilber]

RR was working hard in at the marina today....

[costalot]

I have just been reading the May issue of 'Canal Boat'.

 

They report that PL has said 'he plans to take CRT to court on the grounds that the fee it billed to Quorn was unfair', and the PL 'indicated his intention to seek an injunction preventing CRT blocking off the marina on these grounds'.

 

Sound as if this is going to get even more interesting to follow.

 

On the point of marinas not being able to fill their moorings..........we have overwintered at the new marina at Cropredy.....I was toldby them on Thursday that they only have about 6 empty moorings available.

The difference between a well organised and run marina, and one that isn't?

Another thought on the proposed request for an injunction against CRT blockading the marina entrance.

 

If the original NAA no longer exists because it was with QMP, which is now in self imposed receivership. On what grounds could PL request an injunction?

[matty40s]

RR was working hard in at the marina today....

The Bistro dishwasher packed up again???

[NigelMoore]

 

No it isn't - it wasn't Lillie who entered into the contract as a consumer, it was QM(whatever)in the course of trade so the regulations don't apply.

 

I thought I'd replied to this earlier, but my 3 mobile broadband has obviously freaked again.

 

You are right, so only the 1977 Act applies - and that, of course, applies only to the contracting parties. From the moment of appointment of a liquidator, the office holders cease to hold office as being involved in the contract, so have no more say in the matter.

 

Is there any standing as a shareholder though? Even if they have to obtain the consent of the liquidator?

[Graham Davis]

From my recollection the liquidated company is now run officially and legally by the Liquidator, therefore only he can issue any action.

Another mistake by PL!

[NigelMoore]

This is my understanding. I just have a query as to whether any shareholder can request consent from the liquidator?

 

Alternatively, PL may be thinking he can bring an action based, somehow [beyond my ken], on grounds that he and others are affected by a third party's actions? Can't see it.

[Paul G2]

The Bistro dishwasher packed up again???

 

Now that's mean - and funny too.

 

[Alan de Enfield]

NigelMoore, on 29 Mar 2014 - 7:27 PM, said:

 

Alternatively, PL may be thinking he can bring an action based, somehow [beyond my ken], on grounds that he and others are affected by a third party's actions? Can't see it.

 

C&RT took moorers licence renewal money even though they knew they were going to announce a blockade the marina ?

[John Holden]

 

C&RT took moorers licence renewal money even though they knew they were going to announce a blockade the marina ?

 

As they'd said that any boats planning to stay in the marina wouldn't be liable for the licence I would think they assumed that those wanting to pay didn't intend to stick around.

[Alan de Enfield]

John Holden, on 29 Mar 2014 - 7:44 PM, said:

 

As they'd said that any boats planning to stay in the marina wouldn't be liable for the licence I would think they assumed that those wanting to pay didn't intend to stick around.

 

Yes - but - they didn't announce this until Jan 2014, they must have made the decision prior to this (Nov, Dec ?) and during that time took licence payers cash.

[tupperware]

 

I thought I'd replied to this earlier, but my 3 mobile broadband has obviously freaked again.

 

You are right, so only the 1977 Act applies - and that, of course, applies only to the contracting parties. From the moment of appointment of a liquidator, the office holders cease to hold office as being involved in the contract, so have no more say in the matter.

 

Is there any standing as a shareholder though? Even if they have to obtain the consent of the liquidator?

 

 

I seem to recall that Mr Lillie junior was quoted in some article as conceding that "CRT hold the legal and moral high ground". I can not now trace this quote but the NBW article at http://www.narrowboatworld.com/index.php/news-flash/6669-pillings-marina-debacle does quote the gentleman concerned about QMP's non-dense of the CRT action thus:

 

"QMP Ltd told CaRT in November 2013 that it would not contest their High Court action—we did not even submit a defence. There was no point as the NAA contract was so watertight that trying to defend it would have just escalated everyone's legal costs by another £100k and CaRT had already won the minute they got me to sign it in March 2007."

 

Perhaps the quote I recall was included in this article but has been edited out?

 

Whichever is the case, it does seem remarkable to hear that the ex-senior management of a failed company is now considering some kind of legal action having not taken the opportunity to defend the case central to his claim of unfairness. Quite where the money would come from to fund such a vexatious action is anyone's guess and on quite what authority Mr Lillie junior might imagine he is acting, a deep mystery.

[NigelMoore]

 

C&RT took moorers licence renewal money even though they knew they were going to announce a blockade the marina ?

 

Plausible perhaps - but it's a funny one, as CaRT have said they would refund the unused portions of the licences already paid for those who chose to stay?

Whichever is the case, it does seem remarkable to hear that the ex-senior management of a failed company is now considering some kind of legal action having not taken the opportunity to defend the case central to his claim of unfairness.

 

This brings into play the legal doctrine of "res judicata" i.e that if you have had the opportunity to plead your case in prior proceedings, you can't have another chance if you failed to do so then.

[tupperware]

 

No pronouncement from Chris Herbert either - he undertook many pages ago to tell us what sums had been paid to CaRT.

 

PL is getting desperate if he only now thinks of suing CaRT for unfair treatment As someone said before, he signed up to it without duress, why didn't he squeal then?

 

That he did and, as I recall, more than once. I was puzzled at the time as to his motives for offering to publish such information which, according to some calculations I posted would suggest that any such sums were likely to be very small. Quite how this gentleman concluded that the credibility of the marina company, in which he appears to hold no formal position, was enhanced by his making a commitment and then failing to deliver on it is something of a mystery.

 

We appear to be deep into the land of make-believe when quotes about injunctions start flying around.

[MtB]

This is my understanding. I just have a query as to whether any shareholder can request consent from the liquidator?

 

Alternatively, PL may be thinking he can bring an action based, somehow [beyond my ken], on grounds that he and others are affected by a third party's actions? Can't see it.

 

I'd say the shareholders are in the same boat as all the other creditors. Once the IP has finished rescuing the company or liquidating it as he sees fit, they may or may not get some (or all) of their investment returned. But there would be nothing special about their status as shareholders which allows them to direct the IP in his decisions. In fact it would be outrageous if they was!

 

MtB

[tupperware]

 

Plausible perhaps - but it's a funny one, as CaRT have said they would refund the unused portions of the licences already paid for those who chose to stay?

 

This brings into play the legal doctrine of "res judicata" i.e that if you have had the opportunity to plead your case in prior proceedings, you can't have another chance if you failed to do so then.

 

Indeed so, particularly as Mr Lillie junior is quoted by NBW as not having defended the CRT action on grounds including that CRT's case was watertight. Furthermore, as NBW has also reported Mr Lillie junior as having resigned his directorship of QMP around the time the wheel fell off it and QMP is now in the hands of the IP, one does wonder on what authority the gentleman concerned imagines he might be acting?

 

We now seem to be travelling in fantasy land which might demonstrate that the end-game is fast approaching.

 

I'd say the shareholders are in the same boat as all the other creditors. Once the IP has finished rescuing the company or liquidating it as he sees fit, they may or may not get some (or all) of their investment returned. But there would be nothing special about their status as shareholders which allows them to direct the IP in his decisions. In fact it would be outrageous if they was!

 

MtB

 

Quite so MtB and I am puzzled as to what capacity Mr Lillie imagines he might represent a company in liquidation from whose management he reportedly resigned. The expenses of mounting such a case (which formed part of the decision of QMP not to contest the action brought by CRT according to quotes in NBW) would certainly not be small and may, I suspect, even were it to come to court be struck down as vexatious.

[haggis]

I must admit, I was surprised that the magazine published what Lillie is supposed to have said when it was so obvious that he was living in fantasy land.

 

Haggis

[tupperware]

It seems that an awful lot of people are working (?) at Pillings Lock Marina.

Did anyone ever find out what their annual wages and NI bill was?

 

I seem to recall a quote from Mr Lillie junior in NBW that claimed a workforce of over 20 although whether this included part-time cleaners and those working for the engineering company based onsite was unclear. It does seem a remarkably large number for a marina which does not host a hire fleet. Even at minimum wage, the monthly salary bill including employer's ERC must come to a fairly hefty whack. These employees will, of course, be employed by PLM, not QMP so quite what this has to do with the wheel falling off QMP must be considered something of a mystery to all except, perhaps, Mr Lillie junior.

[Peter X]

Here's an interesting hypothesis. What if, for medical reasons or because he's absent/unreachable, Mr Steadman knows nothing of the winter's events? Let's look at the evidence for his activity:

 

December's court case: dealt with by PL.

 

Formation of 750LLtd as a subsidiary of QMH: Maybe just dealt with by PL and/or RR; would it need Steadman's signature as majority shareholder of QMH for QMH to receive the shares in the new company?

 

The IP disclaiming QMP's freehold, which reverts to Steadman: Maybe the IP just sends off documents to the Land Registry and posts some notice to Mr Steadman, but doesn't need any reply, or if he does is still awaiting it?

 

PLT receiving the freehold according to PL. Phil Spencer says he wants to see documentary evidence of this.

 

Not a lot of evidence is it?