Archive for April 22nd, 2013

Best endeavours vs. Reasonable Endeavours
Michael Lowry, partner and Team Leader for Stephens Scown’s Cornwall Family Team

Frequently, when parties reach a divorce settlement, the Applicant Solicitor will draft a Consent Order to include an obligation as an undertaking to the Court that “best endeavours” will be used to procure the release of one party (usually the Husband) from liability under a mortgage of the former matrimonial home.

This undertaking is usually accepted without any debate recognising that it would be impossible for the party to accept an absolute obligation as opposed to best endeavours considering it is a third party; here the mortgage company, who will ultimately release the party from the mortgage.
However, the definition of “best endeavours” is a classic grey area with little family case law as guidance. A term which evidently invokes an expectation of performance also carries a risk of non performance as there is no set definition on what must be achieved through the performance of a best endeavour.

Guidance can be found in the case of Lyons v Lyons [2010] where Rimmer LJ comments that a best endeavours undertaking is “one that imposes a high burden of responsibility”.

It is in commercial cases that the most useful guidance can be found. An obligation to use best endeavours has been held to constitute as following:

1. To do what can reasonably be done in the circumstances (Terrell v Mabie Tood & Co Ltd (1952))

2. To leave no stone unturned (Sheffield District Railway Company v Great Central Railway Company (1911))

3. Will not require actions which would be detrimental to the financial interests of the company or would undermine commercial standing or goodwill (Rackham v Peek Foods Ltd (1990))
Performance of a best endeavour obligation steers towards the necessity to take all practicable action.

In comparison, “reasonable endeavours” imposes a fair less onerous performance on the obligor. Rhodia International Holdings Ltd v Huntsman International LLC [2007], another commercial case, presents the obligation to follow one course of action and not all courses of action.
A comparison of the two definitions then determines that a reasonable endeavour obligation probably only requires the obligor to take one reasonable step, whereas a best endeavours obligation most likely requires the obligor to take all reasonable steps available.
Commercial law evidently is attempting to define the boundaries between best and reasonable endeavours. However, within the family context, the grey area in definition remains open to interpretation by the Courts. A Solicitor must therefore be comfortable with the degree of difference between the two. Such knowledge on board, a Solicitor would be mindful to advise their client what specific action must be taken in compliance. Similarly, a draftsman will be wise to set out a particular course of action specifically required to guide not only the Obligor but also the Court in determining if the clause or paragraph has been complied with.

Appropriate advice and accurate drafting therefore will limit the inherent risk which comes with a best or reasonable undertaking to the Court.

By Michael Lowry

Michael is a partner and Team Leader for Stephens Scown’s Cornwall Family Team. With offices in Exeter, Truro and St Austell, Stephens Scown Solicitors support some of the South West’s key sectors with specialist legal advice. For more information please visit http://www.stephens-scown.co.uk/

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How To Deal With Bullying At Work

Workplace bullying is more common than what people may realise. Employees that are being bullied can suffer from stress, lose self-confidence and not do their job properly, not to mention how miserable it makes them.

What is bullying?

Bullying can be described in several ways – an abuse of power that undermines, embarrasses or hurts a person and also behaviour that can be offensive, insulting or intimidating. Some examples of bullying in the workplace could be having someone spreading malicious rumours about you, intimidating you physically, making threats about your job or using abusive language towards you.

What can you do?
This can be a tough one to deal with. Firstly you should talk about it. Don’t keep quiet about it, as this is probably what the bully wants you to do! Talk to as many work colleagues, family and friends about it so that they know what is going on. They can offer you a great level of support and may have some advice for you.

Don’t retaliate! As tempting as it may be, this only makes things worse and is a BAD idea!

If you think you are being bullied at work you could start by keeping a diary of all the incidents. Note down date and time and what occurred. If you have witnesses you can also ask them to record what happened. If you are suffering from stress, you should seek medical advice and keep a record of this also. You can then bring this to your employer’s attention. A good idea is to write a formal letter to your employer so you are clearly bringing the bullying to your employer’s attention and there is a permanent record of this if needed for future reference. Remember to keep a copy for your own records!

Your employer may not be aware of the situation you are in and you need to let them know. It is then your employer’s responsibility to sort the issues out. Hopefully your employer will sort things out successfully and professionally and you can go back to getting on with your usual work. It is up to your employer to provide a safe environment for you to work in and take action when required to keep it that way.

If you don’t have higher management to turn to you could try seeking out your union official and asking them for advice or else a health and safety officer where you work.
If your employer does nothing, you could then file a personal grievance against your employer for failing to provide a safe workplace.

If things do not turn out as you hoped and do not get resolved, they could in fact make the situation worse and you may have to seek legal advice to see where you stand and what you can do about your situation. Before you look to head down that track it might pay for you to think seriously about looking for employment elsewhere. Court cases can become stressful and you may be in for a battle so ask yourself first if it is worth it?

Unfortunately, leaving your job should not be something you are forced into. It should be the bully that is leaving. If you leave then the bully will probably find another target and the cycle will continue. So try leaving this as a last resort if you can.

This article was written by Diane Povey who is a specialist in accident at work claims and employment law.

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