Public Sector Banking & Finance ICT. Insolvency. Professional Negligence Commercial Contracts. Sale of Goods & Services Costs.

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1 CEDR Accreditation: CEDR Panel Member Since: Languages: Location: English United Kingdom Popular with clients for commercial disputes Chambers Guide 2014 Andrew Eastgate Very good and very constructive.not wish washy. Chambers Guide 2015 Overview Andrew Eastgate has conducted more than 100 mediations since being accredited by CEDR at the end of He is appointed to mediate a broad range of commercial disputes, from commercial contracts and agency through to disputes arising on the sale of businesses and financing, as well as shareholder and partnership issues. Professional Background Andrew qualified as a solicitor in 1980 and spent the majority of his career in the law as a corporate finance partner at Pinsent Masons in Birmingham. His clients included public and private UK companies, multinationals and public sector bodies across a broad range of industries including ICT, food, manufacturing and support services. He advised companies and their owners on all aspects of their businesses including mergers and acquisitions, fundraising, joint ventures and commercial contracts. Andrew combines his mediation practice with his position as a non-executive director of two substantial businesses. He is chairman of Epwin Group plc, a manufacturer of low maintenance building products employing over 2000 people in the UK which floated on AIM in July Andrew is also senior independent director of Headlam Group plc. Headlam, which is listed on the London Stock Exchange, is Europe s leading distributor of floorcoverings. Expertise Agency Agreements ICT Public Sector Banking & Finance Insolvency Professional Negligence Commercial Contracts NHS & Healthcare Sale of Goods & Services Costs Partnership & Shareholder Trusts, Wills & Probate Distribution Agreements Property Warranties Employment & Workplace 1

2 Dispute Experience (Non-Neutral work in italics) Agency Agreements Andrew has considerable experience of claims by agents under the Commercial Agents Regulations, involving claims for unpaid commissions, notice periods and for compensation with particular emphasis on the valuation of compensation claims. Disputes also concerning the application of the Regulations and the nature of the relationship (i.e. whether it amounted to an agency or not). Businesses involved have included food and drink; engineering spares; electrical goods; garden tools and sportswear. Claim against a land agent for acting in breach of his authority in relation to the contract for the sale of milk quota, with issues of scope of actual and ostensible authority. Claim against agent for exceeding authority. Banking & Finance Actions by banks to recover secured loans and enforce security. Defences/counterclaims have included undue influence relating to the giving of security and claims against the bank for negligent advice. Claim against a bank under the Prevention of Harassment Act 1997 arising from the activities of the bank s collections department. Proceedings under finance leases. Equipment leased has included construction equipment and high specification photocopiers. Defences involving breach of warranty and misrepresentation. Actions for the recovery of loans made to directors and for the enforcement of personal guarantees. Action by bank against landlord of borrower for negligent misstatement on reference. Claim by property developer against Bank alleging that the Bank had taken funds from an account without authorisation, leading to substantial losses. Claim under a standard bank guarantee and charge. Defence on grounds of variation to underlying loan agreement and breach of duty to guarantor. 2

3 Claim for mis-selling of interest rate swaps. Litigation run in parallel to redress procedure, which had awarded compensation to claimant. Issues around consequential loss and costs Commercial Contracts Claim for payment of for supply of engineered parts. Set off/counterclaim alleging wrongful invoicing over a period of two years. Consideration of role of end user in settling terms of sub contracts. Claim for fees following termination of three year contract for the provision of services. Issues of actual/ostensible authority of employee signing contract as well as interpretation and measure of loss. Action for damages for breach of implied term of contract for the import of foodstuffs. Litigation arising out of termination of long term franchise agreement. Issues as to duration of contract and measure of loss. Damages claim following breach of contract for the sale of motor vehicles. Consideration of possible claim by manufacturer under terms of distributor s agreement. Numerous warranty claims including relating to installation of a factory cooling system; supply and installation of a materials handling system; bulk supply of carpet for fitting in a group of hotels. Damages for breach of consultancy agreement entered into following the sale of a business. Costs Actions for recovery of costs by professional advisers. Defences and counterclaims have involved allegations of negligence, absence of retainer or contract of engagement and exceeding scope of retainer as well as questions of construction. Solicitors, arising from numerous matters carried out under a panel authority. Accountants, seeking to recover abortive costs following a proposed sale of a client s company. Architects, claiming from a local authority for work done on a proposed new educational establishment. Estate agents for commission arising on sale of holiday park. 3

4 Planning costs following successful appeal. Distribution Agreements Dispute relating to construction of long term exclusive distribution agreement relating to bathroom fixtures with particular reference to duration. Breach of contract claim concerning distribution agreement for cosmetics. Issues relating to consignment stock arrangements with claim for missing stock. Claim for damages from alleged early termination of long term agreement for distribution of software in Europe. Several mediations involving damages claims for termination of Distribution Agreements. Dispute over construction of long term trade mark licence relating to household goods. Litigation following termination of three year exclusive distribution agreement relying on breach of minimum purchase requirements. Employment & Workplace Recovery of salary overpaid by public body. Claim relating to bonus payable to former employee of solicitors practice. Unpaid bonus by former solicitor s employee. Dispute between two professional services firms following defection of two directors and 20 professional staff. Allegations of conspiracy, breach of restrictive covenants and breach of confidentiality obligations. ICT: Information, Communication & Technology Defective IT services claims. Inadequate performance of software. Contract for the supply and installation of new computer system. Claimed repayment of fees and cost of management/employee time. Counterclaim for unpaid invoices. 4

5 Insolvency Action by liquidator against former director for repayment of loans and dividends wrongfully paid. Action by liquidator (funded by HMRC) for wrongful trading against alleged shadow director. NHS & Healthcare Two separate mediations of disputes between Trusts and individual dentists relating to NHS Dental contract, with claims for recovery of overpayments. Dispute between NHS body and a local healthcare provider as to amounts payable under a contract. Partnership & Shareholder Dispute between UK and German 50/50 shareholders in UK packaging joint venture. Dispute between former directors and shareholders of company in liquidation relating to ownership of company property. Dissolution of solicitors practice following expulsion of one partner. Dispute between partners in solicitors practice leading to suspension and subsequent expulsion of one partner. Enforcement action/claim for damages for breach of restrictive covenant against former partner in accountants firm. Action by investor in IT company against co shareholders and directors for damages for breach of duty and of restrictive covenants. Dispute between shareholders of failed US telecoms joint venture including claims for misappropriation of funds, default on promissory note, deceit and fraudulent misrepresentation. Dissolution of packaging joint venture, with issues including compulsory purchase of shares, termination of employment contract and claim under a personal guarantee. Dispute between family shareholders relating to the terms of a trust arising under a will, and the conduct of the family companies affairs with claim for unfair prejudice. 5

6 Claim for unfair prejudice and wrongful dismissal by shareholder in design company with issues of quasi partnership. Dispute between original owners of a company and a 75% investor. Claim for unfair prejudice, breach of consultancy agreement and issues of ownership of intellectual property. Professional Negligence Negligence claims against solicitors where the underlying matters were commercial/property including litigation against a holiday company and conveyancing (with contingent liability on planning and environmental matters). Solicitors negligence claims. Substantial claim for architects fees. Property Litigation between family members for rent arrears and repossession of property. Claim to set aside transfer on grounds of undue influence. Dispute relating to ownership of property and repayment of loans following dissolution of family business. Bank actions for enforcement of security. Dispute between former cohabitees as to entitlement to share of property under Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). Action for possession with counterclaim of undue influence. Dispute on calculation of deferred consideration from purchase of commercial property. Damages claim for failure to complete long lease granted to developer. Claim by the owner of property (acting through her son because of health issues) against property manager for an account of secret profits arising from the grant of a lease to a company controlled by the manager s wife (which had not been disclosed). Public Sector Mediation between city council and waste management contractor with claim for unpaid invoices, liquidated damages and counterclaim for breach of contract. 6

7 Dispute with former employees of local authority funded company relating to setting up new business. Repayment of monies paid under a mistake by a public body. Question of interpretation of long term outsourcing contract. Sale of Goods & Services Numerous mediations of disputes on contracts for the supply of goods and services. Claims often involve arguments under the Sale of Goods Act as well as points on construction of contracts and damages including for consequential loss. Long term contract for the supply of floorcovering to hotel chain. Exclusive contract for the supply of cooking oil to catering company. Agreement for maintenance of commercial vehicle fleet. Supply and installation of conveyor system in automotive assembly plant. Supply and installation of cooling plant to manufacturing facility. Counterclaims/third party actions under Sale of Goods Act in litigation by leasing companies. Claim for negligence/breach of warranty in relation to outsourced back office services. Supply and installation of material handling equipment to fuel plant. Purchase and uplift of second hand electrical generator sets. Manufacture and supply of labels for supply to food manufacturer. Claim against bailee of goods. Action for recovery of monies paid under a mistake. Damages claim relating to bulk supply of carpet fitted by third party in national chain of hotels. Claim and counterclaim on supply of copying equipment. Damages (following grant of an injunction) against subcontractor of specialist consultancy services. Claim under consultancy agreement entered into on sale of business. 7

8 Warranty claim on investment in US telecoms joint venture. Claim for damages arising out of termination of contract for the provision of coach services. Dispute between HR Services provider and its client relating to monies due under agreement for services. Action for unpaid invoices/dishonoured cheques with counterclaim for damages for loss of profit arising from breach of contract. Trusts, Wills & Probate Various probate disputes including several between family members, often with the family home being the main asset and perhaps occupied by one of the litigants as their home. Arguments relating to undue influence. Warranties Numerous warranty claims arising from sales of companies and businesses including disputes on completion accounts, restrictive covenants and claims for fraudulent misrepresentation as well as claims for breach of warranty. Claims related to Accountancy businesses, Builders merchants, Distributors, Electrical engineers, Nursing homes, Marketing consultants, Property companies. Warranty claim relating to sale of marketing company, with counterclaim for deferred consideration. Dispute arising out of a management buyout of an insolvency practice. Litigation under the accounts warranties and tax indemnity, as well as further warranties in respect of uncrystallised liabilities. Issues of construction, disclosure and limitations, as well as disagreement over the operation of an escrow account. Personal Style Andrew s style is straightforward. He manages a process which enables the parties to negotiate realistically with a view to achieving a position where they can make a decision. By far the majority of Andrew s mediations result in settlement and Andrew manages the mediation with a view to ensuring that clients obtain value even if they decide not to settle. 8

9 Feedback Directories Highly recommended by interviewees - Chambers Guide to the Legal Profession 2013 Popular with clients for commercial disputes - Chambers Guide to the Legal Profession 2014 Very good and very constructive not wishy washy - Chambers Guide to the Legal Profession 2015 Feedback - Clients doesn t give up but keeps working hard to achieve a settlement even when one looks unlikely calm professional approach concentrated minds on the real issues brings a positive element to the mediation whilst being realistic about the formation of a potential settlement his persistence was a key factor in a deal being done enabled dialogue to continue, resulting in a settlement at a time when all options appeared to have been exhausted The net effect was that a settlement was achieved in a case which, if I am honest, my counterpart and I did not think would settle. quickly builds rapport and uses this trust to encourage them to take a commercially realistic approach We came out with a settlement that was beyond my client's expectations. Professional Skills Qualified as a solicitor with Stephenson Harwood in Partner in Pinsents (now Pinsent Masons) from 1985 until 2004, including being head of corporate finance in Birmingham from 1997 until Clients included major UK and international businesses as well as smaller public and private companies. Accredited by as a mediator by CEDR in Appointed to CEDR Solve panel in

10 Currently Chairman of Epwin Group plc and senior independent director of Headlam Group plc. 10