Contract, commercial and consumer dispute barrister advice

Contract disputes can arise from formal written agreements, informal arrangements, oral promises or the purchase of goods and services. The central questions are often what was agreed, whether the agreement has been broken and what remedy is available.

The barrister can help you understand your legal position, assess the strengths and weaknesses of your case and decide what practical steps to take next.

Contract, commercial and consumer disputes we may be able to help with

Breach of contract

A breach of contract occurs where a party fails to perform an obligation required by the agreement.

Advice may cover:

• what contractual obligations were agreed;

• whether a breach has occurred;

• whether the breach is sufficiently serious to justify termination;

• defective, incomplete or late performance;

• refusal or failure to supply goods or services;

• failure to make an agreed payment;

• whether the other party has prevented performance;

• whether a contractual excuse or defence applies;

• the losses caused by the breach; and

• the remedies potentially available.

Written, oral and informal agreements

A contract does not always need to be contained in a formal signed document. Agreements may sometimes be made orally, through correspondence, by conduct or by a combination of these.

A barrister may advise on:

• whether a binding contract was formed;

• what terms were agreed;

• whether the parties intended to create legal relations;

• disputes about oral promises;

• agreements reached through email, messages or correspondence;

• unsigned documents;

• incorporation of standard terms;

• changes made after the original agreement;

• the significance of the parties’ conduct; and

• what evidence may establish the agreement.

Interpretation of contractual terms

Parties may agree that a contract exists but disagree about what a particular term means or how it applies.

Advice may concern:

• the natural meaning of the contractual wording;

• apparently inconsistent provisions;

• defined terms;

• conditions, warranties and intermediate terms;

• payment and performance obligations;

• limitation and exclusion clauses;

• indemnities;

• notice provisions;

• force-majeure clauses;

• entire-agreement and variation clauses; and

• the effect of commercial context.

Unpaid invoices and disputed debts

An unpaid invoice may involve a straightforward failure to pay or a wider disagreement about the goods or services supplied.

A barrister may advise on:

• whether the invoiced sum is contractually due;

• disputed work, goods or services;

• payment dates and contractual conditions;

• interest and compensation for late payment;

• deductions, credits and set-offs;

• counterclaims;

• personal guarantees;

• claims against individuals, companies or partnerships;

• the prospects of recovering the debt; and

• whether court or insolvency proceedings may be appropriate.

Where a statutory demand, bankruptcy petition or winding-up petition is involved, our Insolvency and Bankruptcy page may be more appropriate.

Defending a disputed debt

A person or business facing a claim may dispute the existence, amount or enforceability of the alleged debt.

Advice may cover:

• whether a contract was formed;

• whether the claimant performed its obligations;

• defective or incomplete performance;

• whether the sum claimed has been calculated correctly;

• payments already made;

• set-off and counterclaims;

• limitation;

• misrepresentation;

• unfair or unenforceable terms;

• the identity of the contracting parties; and

• the available defence and supporting evidence.

Damages and contractual remedies

The appropriate remedy will depend on the nature of the agreement, the breach and the resulting loss.

A barrister may advise on:

• recovery of the contractual debt;

• compensation for financial loss;

• the reasonable cost of repair or replacement;

• loss of profit;

• wasted expenditure;

• loss of opportunity;

• repayment of money or deposits;

• mitigation of loss;

• remoteness and foreseeability;

• agreed or liquidated damages;

• restitution;

• declarations or injunctions;

• specific performance; and

• whether the likely remedy justifies the cost and risk of proceedings.

Evidence and limitation periods

Contract and consumer claims must be supported by evidence and commenced within the applicable limitation period.

Advice may concern:

• the date on which the breach occurred;

• when payment became due;

• which limitation period may apply;

• acknowledgment or part-payment of a debt;

• contracts, quotations and terms;

• invoices and payment records;

• emails, messages and correspondence;

• photographs and technical evidence;

• witness evidence;

• expert reports;

• pre-action correspondence; and

• the consequences of delay.

Termination of contracts

Ending a contract without a valid legal basis or without following the required procedure may itself amount to a breach.

A barrister may advise on:

• contractual termination rights;

• termination for serious or repudiatory breach;

• notice requirements;

• cancellation provisions;

• acceptance of a repudiatory breach;

• affirmation of the contract;

• suspension of performance;

• the effect of termination on continuing obligations;

• payment for work already completed;

• deposits and advance payments;

• damages following termination; and

• the consequences of wrongful termination.

Misrepresentation and misleading statements

A party may have entered into a contract because of an inaccurate or misleading statement made before the agreement.

Advice may concern:

• whether a legally actionable representation was made;

• statements of fact, opinion or future intention;

• whether the representation was false;

• whether it induced the contract;

• fraudulent, negligent or innocent misrepresentation;

• non-disclosure where a duty to disclose may arise;

• exclusion of liability for representations;

• rescission of the contract;

• bars to rescission; and

• claims for damages.

Defective goods

Consumers and businesses may have claims where goods are faulty, unsafe, incorrectly described or unsuitable for their intended purpose.

A barrister may advise on:

• whether goods were of satisfactory quality;

• fitness for a disclosed purpose;

• compliance with their description or sample;

• responsibility for inherent or developing faults;

• rejection of goods;

• repair or replacement;

• price reduction or refund;

• warranties and guarantees;

• losses caused by defective goods; and

• the evidence needed to establish the defect.

The applicable rights may differ depending on whether the purchaser acted as a consumer or in the course of business.

Poor workmanship and inadequate services

A dispute may arise where a service has not been performed with the skill, care or quality expected.

Examples may involve:

• repair and maintenance services;

• installation work;

• vehicle repairs;

• cleaning, removal or storage services;

• consultancy or administrative services;

• event or hospitality services;

• incomplete or delayed performance;

• failure to achieve an expressly agreed result;

• the reasonable cost of remedial work; and

• claims for consequential loss.

Where the dispute concerns building or substantial construction work, our Building and Construction Disputes page may be more appropriate.

Supply and distribution agreements

Commercial relationships may involve continuing obligations for the manufacture, supply, purchase or distribution of goods.

Advice may cover:

• exclusive and non-exclusive arrangements;

• minimum-purchase requirements;

• pricing and payment provisions;

• quality and delivery obligations;

• forecasts and orders;

• territorial restrictions;

• rebates and commissions;

• performance targets;

• termination and notice provisions;

• post-termination obligations;

• retention of title; and

• liability for defective or late supplies.

Consumer cancellation rights

Consumers may have statutory cancellation rights where a contract was made online, by telephone or away from business premises. Other rights may arise under the agreement itself.

A barrister may advise on:

• whether statutory cancellation rights apply;

• information the trader was required to provide;

• when the cancellation period began;

• whether cancellation was communicated effectively;

• exceptions to the right to cancel;

• responsibility for return costs;

• deductions from a refund;

• digital content and services begun during the cancellation period;

• contractual cancellation provisions; and

• entitlement to repayment of a deposit or advance payment.

Unfair terms and exclusion clauses

Contractual terms may seek to restrict a party’s rights or exclude liability. Their enforceability will depend on the type of contract, the wording used and the applicable statutory controls.

Advice may concern:

• exclusion and limitation clauses;

• terms allowing unilateral changes;

• excessive cancellation charges;

• automatic-renewal provisions;

• disproportionate financial penalties;

• terms restricting refunds or remedies;

• whether a consumer term is transparent and fair;

• whether a term was properly incorporated;

• statutory controls applying to business contracts; and

• the consequences if a term is unenforceable.

Motor vehicle sales

Disputes about cars and other vehicles may involve defects, inaccurate descriptions, finance arrangements or attempts to reject the vehicle.

A barrister may advise on:

• whether the vehicle was of satisfactory quality;

• fitness for purpose;

• inaccurate mileage, history or description;

• mechanical or electrical faults;

• whether the fault existed when the vehicle was supplied;

• rejection, repair, replacement or price reduction;

• warranties and dealer guarantees;

• private sales and trade sales;

• responsibility of a dealer or finance provider; and

• recovery of losses caused by the defective vehicle.

Motor vehicle repairs

Disputes may also arise between vehicle owners, garages and repair businesses.

Advice may cover:

• whether repairs were authorised;

• estimates, quotations and additional work;

• the quality of the repair;

• damage occurring while the vehicle was held by the garage;

• responsibility for recurring or additional faults;

• disputed invoices;

• a garage’s claimed right to retain the vehicle;

• wrongful retention, conversion or bailment;

• recovery of the vehicle; and

• the reasonable cost of corrective work.

Insurance disputes

Insurance disputes may arise where an insurer refuses a claim, offers less than the policyholder considers appropriate or alleges that policy requirements have not been satisfied.

A barrister may advise on:

• the interpretation and scope of policy cover;

• exclusions and conditions;

• alleged non-disclosure or misrepresentation;

• notification of the claim;

• compliance with claims conditions;

• causation of the insured loss;

• valuation and the amount payable;

• underinsurance or average clauses;

• allegations of fraud or exaggeration;

• delay in investigating or paying a claim;

• cancellation or avoidance of the policy;

• property, motor, travel or business-interruption claims;

• complaints to the insurer; and

• whether court proceedings or referral to the Financial Ombudsman Service may be appropriate.

Loan and credit agreements

Disputes may arise about the existence, meaning, enforceability or performance of a loan or credit agreement.

Advice may cover:

• whether a binding agreement was made;

• whether the loan was made to an individual or business;

• the amount advanced and the balance outstanding;

• repayment terms;

• interest and default interest;

• fees and other charges;

• variations or refinancing;

• oral or informal loan agreements;

• whether the agreement is regulated;

• compliance with statutory requirements;

• default and acceleration of repayment; and

• the remedies available to the lender or borrower.

Disputed loans between individuals or businesses

Money transferred between family members, friends, directors, shareholders or associated businesses may later be disputed.

A barrister may advise on:

• whether the payment was a loan, investment, gift or capital contribution;

• the agreed repayment date;

• whether interest was payable;

• oral agreements and informal arrangements;

• conditional loans;

• loans repayable on demand;

• payments already made;

• set-off and counterclaims;

• limitation periods;

• the evidence needed to establish the agreement; and

• recovery or defence of the amount claimed.

Consumer credit disputes

Consumer-credit agreements are subject to statutory and regulatory requirements which may affect enforcement and the remedies available.

Advice may concern:

• whether the agreement is regulated;

• the form and contents of the agreement;

• pre-contract information;

• notices and statements;

• default notices;

• termination and enforcement;

• the creditor’s compliance with statutory requirements;

• whether an unfair relationship may exist;

• the amount legally recoverable;

• time orders or other court remedies;

• liability of a connected lender; and

• complaints to the lender or Financial Ombudsman Service.

Responsible and affordable lending

A borrower may allege that a lender failed to assess whether credit was affordable or lent in circumstances where repayment was likely to cause serious financial difficulty.

A barrister may advise on:

• the information available to the lender;

• creditworthiness and affordability assessments;

• the borrower’s income, expenditure and existing commitments;

• repeat or escalating borrowing;

• whether further enquiries should have been made;

• regulatory lending standards;

• causation and financial loss;

• the relevance of the borrower’s own information or conduct;

• complaints and redress; and

• whether the matter is better pursued through an ombudsman or the courts.

Not every breach of a regulatory rule automatically gives rise to a civil claim. The particular agreement, borrower and legal basis of the proposed claim must be considered.

Personal guarantees

A personal guarantee may make an individual responsible for the debts of a company, partnership or another borrower.

Advice may cover:

• the meaning and extent of the guarantee;

• whether liability is capped or unlimited;

• continuing guarantees;

• compliance with signing and witnessing requirements;

• whether the guarantee was supported by consideration;

• alleged misrepresentation, undue influence or economic pressure;

• the significance of independent legal advice;

• variation of the underlying loan;

• whether the guarantor has been released or discharged;

• demands made under the guarantee;

• liability between co-guarantors;

• indemnities; and

• enforcement against the guarantor’s assets.

Corporate guarantees and indemnities

Companies may provide guarantees, indemnities or security for the obligations of related companies or other borrowers.

A barrister may advise on:

• corporate authority to enter the transaction;

• board approval and decision-making;

• the interpretation of the guarantee or indemnity;

• conditions precedent to liability;

• the relationship with the underlying debt;

• amendments to the principal finance documents;

• demands and enforcement;

• limitation and exclusion provisions;

• contribution between guarantors; and

• the effect of insolvency.

Mortgages and secured lending

A mortgage or legal charge gives the lender security over property if the borrower fails to meet the agreed obligations.

Advice may concern:

• the terms and validity of the mortgage or charge;

• the amount secured;

• mortgage arrears;

• disputed interest and charges;

• default notices and demands;

• entitlement to possession;

• possession proceedings and possible defences;

• the lender’s power of sale;

• duties when selling secured property;

• redemption of the mortgage;

• sale proceeds and mortgage shortfalls;

• priority between competing charges; and

• the effect of guarantees or additional security.

Different rules may apply to residential regulated mortgages and commercial lending secured against property.

Enforcement of security

Commercial finance may be supported by charges over land, company assets, receivables, equipment or other property.

A barrister may advise on:

• whether the security was validly created;

• registration and priority;

• fixed and floating charges;

• debentures;

• enforcement events;

• appointment and powers of receivers or administrators;

• sale of secured assets;

• competing claims to the property;

• redemption and release of security;

• challenges to enforcement; and

• the effect of the borrower’s insolvency.

Where bankruptcy, administration or winding-up proceedings are involved, our Insolvency and Bankruptcy page may be more appropriate.

Interest, charges and account balances

Disagreement may arise over the amount said to be due under a banking or finance agreement.

Advice may cover:

• calculation of contractual interest;

• variable interest rates;

• default interest;

• arrangement, administration or termination fees;

• early-repayment charges;

• whether fees were properly incorporated;

• disputed account entries;

• allocation of payments;

• capitalisation of interest;

• statements of account;

• excessive or allegedly unfair charges; and

• the evidence required to establish the correct balance.

An accountant or other financial expert may be required where the calculation depends on a lengthy or complex account history.

Misrepresentation and financial agreements

A borrower, guarantor or investor may allege that they entered into an agreement because of inaccurate or misleading information.

Advice may concern:

• representations about the cost or risk of borrowing;

• statements about interest rates or repayment obligations;

• the availability or value of security;

• representations made to a guarantor;

• statements by brokers, dealers or intermediaries;

• undisclosed commissions;

• whether the representation induced the agreement;

• exclusion or non-reliance clauses;

• rescission; and

• damages or other redress.

Bank accounts and payment disputes

Disputes may arise about transactions, restrictions or decisions affecting a personal or business bank account.

A barrister may advise on:

• unauthorised transactions;

• disputed payment instructions;

• payments made following fraud or deception;

• account freezes or restrictions;

• closure of an account;

• refusal or delay in executing a payment;

• payment mandates and authority;

• chargebacks;

• recovery of mistaken payments;

• breach of contractual or statutory duties; and

• complaints to the bank or Financial Ombudsman Service.

If fraud is continuing or funds have recently been transferred, the bank and appropriate authorities should be contacted immediately. The ordinary Barristerly booking process is not an emergency fraud-recovery service.

Vehicle finance agreements

Vehicle finance disputes may involve hire purchase, personal contract purchase, conditional sale or other credit arrangements.

Advice may cover:

• the terms of the finance agreement;

• liability of the dealer and finance provider;

• defective or misdescribed vehicles;

• rejection, repair or replacement;

• deposit and part-exchange payments;

• voluntary termination;

• early settlement;

• excess-mileage or condition charges;

• default notices;

• repossession or return of the vehicle;

• undisclosed or disputed commission;

• termination following breach; and

• the balance claimed after termination.

Asset finance and leasing

Businesses may acquire equipment, vehicles or machinery through hire, leasing or asset-finance arrangements.

A barrister may advise on:

• whether the arrangement is a lease, hire-purchase agreement or secured loan;

• ownership of the financed asset;

• rental and repayment obligations;

• delivery or performance problems;

• defects in the equipment;

• warranties and supplier responsibility;

• default and termination;

• repossession;

• sale or disposal of the asset;

• termination payments;

• guarantees and indemnities; and

• shortfall claims.

Default and termination

A lender may seek immediate repayment or enforcement where a borrower is alleged to have defaulted.

Advice may concern:

• whether an event of default has occurred;

• the validity of a demand or default notice;

• acceleration of the debt;

• contractual notice and cure periods;

• cross-default provisions;

• termination of further lending facilities;

• enforcement of guarantees or security;

• repossession of financed assets;

• whether the lender has waived or varied its rights;

• the borrower’s defences or counterclaims; and

• the consequences of wrongful termination or enforcement.

Complaints and the Financial Ombudsman Service

Some banking and finance disputes may be dealt with through the financial institution’s complaints procedure and, where the complainant is eligible, the Financial Ombudsman Service.

A barrister may advise on:

• whether the dispute may fall within the Ombudsman’s jurisdiction;

• the institution’s final response;

• the applicable complaint deadline;

• the evidence supporting the complaint;

• the potential remedies;

• whether to accept an Ombudsman decision;

• the relationship between an Ombudsman complaint and court proceedings; and

• whether litigation may be more appropriate.

What advice can the barrister provide?

Depending on the questions accepted, the barrister may help you understand:

• whether a binding agreement exists;

• what the contractual terms mean;

• whether a breach or misrepresentation has occurred;

• whether a debt is recoverable or defensible;

• whether a contract has been validly terminated or cancelled;

• your rights concerning defective goods or inadequate services;

• whether an exclusion or unfair term may be enforceable;

• the strengths and weaknesses of your position;

• the remedies and damages potentially available;

• what evidence or expert opinion may be required;

• whether negotiation, mediation, an ombudsman or court proceedings may be appropriate; and

• the practical steps you should consider taking next.

• the meaning and effect of the loan, guarantee or finance agreement;

• whether the agreement may be regulated;

• whether a borrower, lender or finance provider has breached its obligations;

• whether a demand, default notice or termination appears valid;

• whether a guarantee or security may be enforceable;

• the correct basis of the amount claimed;

• the strengths and weaknesses of your position;

• what financial or expert evidence may be required;

• whether a complaint, negotiation, ombudsman referral or court proceedings may be appropriate; and

• the practical steps you should consider taking next.

Barristerly is an independent booking and introduction service connecting clients with participating independent Public Access barristers. Barristerly is not a firm of solicitors or a barristers’ chambers and does not itself provide legal advice.