Company Law & Business
Company Law and Business Advisory Service
At Mercantile Barristers our members have in-depth knowledge and experience of the workings of businesses and all aspects of business and company law. Our clients range from sole traders, partnerships, limited liability partnerships (“LLP”), limited liability companies (“LTD”), public liability companies (“PLC”) and unincorporated associations. Our legal advice extends to start-ups, small and medium size enterprises, large corporations, private investors, venture capitalists and business angels.READ MORE
Our Direct Access Barristers specialise in Business Law advise across a broad range of business, corporate and commercial matters from formation, mergers and acquisitions, franchising, project and corporate finance, insolvency, reconstruction and recovery, transfer or sale/disposal. We also assist our clients with devising efficient legal frameworks for profitable commercial transactions and relationships as well as sound corporate governance.
We have a particular expertise in assisting our business and corporate clients, including their professional advisors such as accountants and financial advisors with the rectification or removal of financial statements and validation statements lodged with statutory bodies such as Companies House or Her Majesty’s Revenue and Customs (“HMRC”) which may otherwise have an adverse impact on their enterprise.
Business & Company Dispute Resolution Service
Disputes are often an unavoidable part of business and commercial relationships and transactions. This may be internally amongst business partners, shareholder disputes within a company, or amongst company directors or trustees. All sorts of disputes may arise when one party considers that their position is being prejudiced or that the other party is taking undue advantage of their privileged position. In such cases, our business advisory team at Mercantile Barristers has the necessary experience to thoroughly understand alleged grievances, and is able to forensically appraise the matter in order to give hard hitting tactical and strategic advice. We are then able to take both pre-emptive and retrospective legal steps to protect, or recover, our clients’ position.
Business and commercial disputes also arise externally when there is a breach of contract by one party against the other, a tort of negligence is committed in the course of a professional relationship, or where a party has breached a statutory duty. Whether you are the injured party or the party alleged to have caused the injury, our Barristers are able to give practical expert legal advice to optimise the outcome for you and can assist by way of a negotiated settlement, mediation, adjudication, arbitration or litigation.
In commercial dispute resolution our Barristers appear in the full range of Commercial and Chancery courts and tribunals in England and Wales as well as internationally where necessary and we regularly act for incorporated as well as un-incorporated corporations and regulatory institutions.
Mercantile Barristers’ company and business law practice covers:
Legal Assistance for Asset, Project & Corporate finance
Legal Assistance for Banking & Financial Services
Legal Assistance for Company Formation, Mergers & Acquisitions and Buyouts
At the inception of any enterprise it is imperative that the promoter should chose an appropriate structure for the new business after proper consideration of all the circumstances. It may be a sole trader, limited liability company, a publicly quoted company or even an unincorporated association. Our members at Mercantile Barristers are able to advise and assist with formation and incorporation. When merging with, acquiring or buying out another business, our commercial barristers are also capable of advising on all aspects of the applicable law and most efficient vehicle for the acquisition. As necessary, we can also assist with due diligence, risk analysis, negotiations and drafting all necessary documentation to secure the effective and efficient transfer of all assets including intellectual property assets.
Confidentiality, Non-Disclosure and Non-Compete Agreements
It is always essential to protect certain business secrets otherwise the business may lose its unique proposition in the market or suffer other harm or disadvantage. A non-disclosure agreement (“NDA”) is in essence, a contract between two or more parties which outlines certain confidential material, knowledge, or information that the parties wish to share with one another for a particular purpose but which they wish to restrict access to by others outside their agreement. Some employers may even require certain employees to sign an NDA before they start work, or during their employment from time to time. Similarly a non-compete agreement will prevent the receiving party from unfairly competing with the disclosing party due to the material, knowledge or information which that party has acquired as a result of the disclosure.
An NDA could give protection where one party may need to disclose confidential information such as formulas, recipes, sales and marketing information, trade secrets, technical designs and drawings, or other similar information which would give the other party an unfair advantage if they disclosed it to a third party or otherwise used it for other purposes. It is therefore prudent that an appropriate NDA is entered into before sensitive information is disclosed.
Our members at Mercantile Barristers are adept at advising on the necessity for protection and are skilled in crafting sound NDAs and non-compete agreements that protect our clients’ legal interests and are capable of withstanding judicial scrutiny or challenge. We can also review and amend your existing NDA or non-compete agreement to confirm its efficacy.
Unlike the company’s articles of association, a shareholders’ agreement is a private document, enforceable in the same way as any other contract and therefore is not available to the public via Companies House. A shareholders’ agreement can be entered into between all, or a selection of, shareholders in a company. Such agreements can regulate the relationship between the shareholders, the management of the company, ownership of the shares and the protection of the shareholders. A shareholders’ agreement is principally useful where the directors and shareholders of a limited company are the same people, as company law assumes that all companies are run by a board of directors who are not necessarily shareholders of the company.
Often businesses are set up without protecting their shareholding or particular interests without an agreement or a contract. Due to the likelihood disagreements it is prudent not to leave matters to chance. As such our clients are advised at the outset to provide for potential disputes within a shareholders’ agreement. Shareholders’ agreements can contain provisions that pre-empt disagreements and set out appropriate ways for addressing disputes quickly and cost effectively.
Our Commercial Barristers at Mercantile Barristers advise on all forms of shareholders’ agreements arising out of all business transactions from investment to Joint Ventures (“JVs”) and from start-ups to mergers. We are also able to draft shareholder agreements with a commercial eye and business acumen which are fundamental necessities to protecting clients’ interests.
Matters usually dealt within shareholders’ agreement range from: policies on dividends and transfer of shares; disputes between shareholders; protection of minority shareholders; restrictive covenants; rights and liabilities upon a company sale; shareholders’ rights to appoint directors; transfer of shares and share valuation thereafter; and many more.
Shareholders agreements can be flexible and cover a plethora of matters which are of relevance to your business. No two companies are the same and it is therefore important, if the agreement is to be of value, to have an agreement which is tailored to meet the particular concerns and structure of each company. Our barristers will understand your company’s specific requirements so your agreement is drafted to suit you.
Directors Roles and Duties
The Companies Act governs the general duties of a director of a UK limited company. Directors have authority to bind the company to contractual arrangements and obligations; and to incur liabilities on its behalf. This authority has certain caveats which must be considered by prospective directors as well as shareholders. Directors are usually employees of a company, notwithstanding that they will have more power and responsibility than their colleagues. It is therefore vital that their rights, duties and authority are properly documented within their employment or service contracts.
At Mercantile Barristers, our barristers are adept at understanding the particular standards required of decision makers and leaders in your business; advising on the most appropriate form of agreements to curb or expand a director’s authority; and drafting appropriate employment or service contracts to protect the business.
Within a director’s service contract, it is important to include clauses that require a director to act within their powers; promote the success of the company; exercise independent judgment; exercise reasonable care, skill and diligence; avoid conflicts of interest; avoid accepting benefits from third parties; and to declare all personal interests in proposed transactions.
In addition to these general duties, a company may want to impose other duties on the director and these should also be included in the service agreement together with the consequences of failure to comply.
It is not uncommon that directors may also hold shares in the company. As such, shareholders’ agreements and employment or service contracts ought never to contradict each other but should always work together to stipulate the consequences for breach of either document. For example, a majority shareholder may not want a director that has been dismissed for gross misconduct continuing to hold shares in the company. Our barristers are available to advise on such provisions.
The main purpose of written agreements is to provide a clear framework to govern a commercial transaction or relationship including the distribution of rights, risks and obligations - whether that is with your customers and suppliers, partners, co-shareholders or your funders.
A well negotiated and drafted contract will seek to minimise the imbalance of risks on you or your business against the rewards receivable. One of our members at Mercantile Barristers could be an invaluable asset to you in achieving this objective. They will ensure that you do not enter into vague or uncertain agreements that are unenforceable or disadvantageous to you.
Our barristers are used to advising on and drafting agency agreements; collaboration agreements; confidentiality and exclusivity agreements; distribution and supply agreements; e-commerce agreements; franchise agreements; joint venture agreements; manufacturing agreements; procurement and outsourcing; service level agreements; software licences; technology transfer agreements; and terms and conditions of business.
Insolvency, Reconstruction & Recovery
When a party becomes unable to meet their financial obligations when they fall due, the incidence of insolvency arises for consideration. A creditor may have commenced insolvency proceedings by way of a Winding Up Petition (in the case of a company) or a Bankruptcy Petition (in the case of an individual). When matters of insolvency and recovery arise, the barristers at Mercantile Barristers are able to give strategic and tactical legal advice to administrators, liquidators, company directors, creditors and debtors alike on their essential next steps.
As a general rule, where a debt is owed by a company, a petition may be issued if the debt is due now; the creditor has demanded it and it remains unpaid; the debt is undisputed; and the debt is £750 or more. Where the debt is owed by an individual, the creditor can only serve a Statutory Demand or file a Bankruptcy Petition where the debt is for £5,000 or more. The advertisement of a winding up petition can damage a company’s reputation within a very short period. The company will have 10 days from the date of the winding up petition to prevent the winding up being advertised.
Our barristers at Mercantile Barristers specialise in presenting and defending winding up petitions presented against companies for the non-payment of a demand or debt. Where necessary our barristers could bring their considerable skills to negotiate debt with both creditors and debtors to achieve a settlement.
If a negotiated settlement is not obtainable, our barristers are used to obtaining appropriate injunctions in the High Court to preserve the status quo, especially where the petitioning creditor refuses to refrain from presenting or advertising the winding up petition. Also, our barristers are able obtain Validation orders from the Court to allow directors to access funds or dispose of the company’s assets as appropriate if a winding up petition has been presented.
If either you or your company has been served with a bankruptcy petition or statutory demand; or if a bankruptcy order has already been made against you; or your Trustee or the Official Receiver is seeking a sale of your house or other property, our barristers can assist with advice and representation in court as necessary. It is recommended that you contact Mercantile Barristers for timely advice on your options going forward.
Our barristers’ advice also extends to: acting for landlords on defaulting tenants; administration, liquidation, Company Voluntary Arrangements and Receiverships - for companies, directors, banks/lenders, regulatory bodies, insolvency practitioners, creditors both before and after the commencement of the insolvency process; advising distressed companies; and all forms of insolvency litigation including antecedent transactions and directors' claims.
Insurance & Reinsurance
Sale & Carriage of Goods and Services