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1. Eva and Herman are getting married in the stylish Adelphi Hotel in California. They are famous film stars that promote clean living and monogamous living. They have done a deal with ‘Goodbye’ Magazine to sell exclusive coverage of the wedding reception. The British publication ‘Oh Wow’ a celebrity magazine published in London decides to send Julian their rookie reporter in disguise as a cake decorator to the reception. He sneaks in on the day of the wedding with a secret camera and is able to get access to the reception where he takes a photograph of Eva kissing the best man Enrique. This photograph is sent to the London office and is published that evening in the latest edition of ‘Oh Wow’.


Advise Eva and Herman as to the possible interim relief that they may be able to take out against Oh Wow magazine in London.


2. Will’s software business is in trouble, and the crisis has spurred him to think of the moral debt he owes a number of people.


Will becomes concerned about all the customers who have paid money to his company, Doors Ltd, for software that has not been shipped to the warehouses. He wants this money to be returned to the customers, should Doors Ltd go into liquidation, and asks the company accountant to place all pre-shipment order money in a separate bank account called ‘Pre-shipment Customer Safety Account’.


Further, Will becomes worried that the shareholders of Doors Ltd will receive nothing this year and so wishes to provide substantial sum of money to be paid out to these shareholders. He believes that he can transfer £4, 000,000 from his personal wealth to Doors Ltd on the basis that it should be used to pay the dividend – but that if Doors Ltd should go into liquidation before declaring the dividend, then the money should return to Will’s personal assets and not go to Doors Ltd.


Will has lunch with his old friend Steve Whitby, from whom Will says he learned everything he knows about software. He says to Steve: ‘My personal wealth comes from the knowledge that you taught me – from now on my wealth is your wealth too’. At the end of their lunch meeting, Will gives Steve four of his bank cards and writes down all the PIN numbers for him.


Advise Will on the viability of his plans for Doors Ltd, and as to any implications of his lunch with Steve.

Possible interim relief options for Eva and Herman against Oh Wow magazine

1.Eva and Herman are couples, who are also film stars. They have sold their exclusive photography rights of their wedding to goodbye magazine. An unauthorized photographer from Oh wow magazine gains access to the venue and takes pictures before sending them to the head office in London. The photos are then published.

 The first issue to consider the two film stars Eva and Herman promoting clean and monogamous living. Secondly, whether Oh wow magazine has the right to publish and sell photos from the wedding. Finally, whether the oh wow magazine had the right to commercially publish the photos for public viewership and public domain.

Merits of the case

According to Senior courts ACT 1981, which states that the high court is at free to order an injunction or choose a person who receives in all cases for the court to appears to be just and convenient to do so. Due to this ACT of the equity and trust the couples can appeal for interlocutory injunction restraining publication order in the court. However, there are facts that the two need to consider before they make appeal to induct or not.  The jurisdiction of such decisions remains with court after considerations that the court seem conversant with. This therefore means that there is no law regarding these rules, but the judges and the jury look at what might be for the decision before they eventually make it. Based on this section, therefore it is important to focus on past case scenarios and determine the way ahead of the two couples if they have a chance

About the case of American Cyanamid vs Ethicon limited, the Lord Diplock in his judgement seek to determine if the two companies had a commercial deal. The interlocutory appeal concerns on the patent deal was based on the case that they are disintegrated in a commercial contract signed by both parties. In his judgement, he recognized that there existed a deal between the two companies and this provided for absolute sutures for the court to go ahead and award an interlocutory injunction for the American Cyanamid company.

With the fact that, there exist a commercial deal between the couples, Eva and Herman, and the goodbye magazine, it therefore means that the two parties were entitled to commercial confidence. Any picture taken or published during the wedding or an hour before or even after has a commercial value tagged to it. With commercial value attached to it there is need for confidentiality. The two couples are entitled to protect the photos; they are within their legal rights to sue the Oh wow magazine for publishing the photos without their consent. Following the judgement given by Lord Diplock during the American Cyanamid vs Ethicon limited, it is very considerable for the couples to seek an interim injunction from the court.

With reference to the case of Mosley vs News group newspaper, the court of appeal during their judgement didn’t find valid to consider breach of contract. Upon such judgement the infringement that came along in the existing conduct of inconsistency with the pre-existing relationship. The judge considered evidence of reasonable expectations of privacy and stood by it. The couples Eva and Herman have the evidence of breach of contract. They have the picture that was taken by Julian since, it was published by the Oh wow magazine and is in the public domain. They also have proof that Julian was not a cake decorator as recorded before but rather a journalist with an intention. Considering the two evidences and referring to the American Cyanamid case, it is quite evident that there is enough evidence that will put the Oh wow magazine out of the claim of patency. Just like Max Mosley was granted an interlocutory injunction, restraining Ethicon from infringing such patency so will the Oh Wow magazine be ordered until further trial order is arraigned for.

Legal issues related to commercial contracts, breach of privacy and confidentiality

According to the case by Douglas vs Hello company of 2001, there was introduction of the privacy and confidentiality issue. The Hello company published photos of Douglas without his consent having been a celeb. Douglas, therefore in his submission to court claimed that the company has breached privacy and confidentiality by publishing his photos while his wedding photo contract was awarded to Ok magazine. The court determined three tests for confidentiality and ruled in favor of Douglas before awarding Ok magazine £1,033,156. The test for confidentiality and privacy include:

Obligation for confidence, right to private occasions and there should be clear communication about not taking pictures during the wedding event. The English court after considering these three tests for confidentiality ruled in favor of Douglas.

The three requirements of achieving confidentiality in Eva and Herman case have all been approved making the act by the Oh wow magazine a breach of confidence. There is an obligation of confidence. The obligation for confidence is that the two are famous film stars and there is need to protect and preserve their public image. By publishing this picture, the obligation for confidentiality has been flouted.

Confidentiality according to the law must arise, only on private occasions. The occasion although has a mass following it is privatized. It is privatized by the sense that it takes place in a specific hotel, where only few guests can attend. Only a few people like journalist can access the hotel venue. It is for this reason that Julian sneaks in as a cake decorator. This acts as proof that the occasion was privatized.

The people involved in the occasion must make it clear that no photographic pictures are to be taken. The communication is clear about not taking pictures. It is for this reason that Julian, the journalist enters with a secret camera. Had it not been so, she would have not sneaked in a spy-camera.

Having looked at the three prospective of breaching confidentiality, the Oh wow magazine and their journalist Julian have breached the rule of confidentiality and the couples are likely to be granted an interim injunction for the publication of the pictures taken during the wedding reception.

The Heeling sports limited and another vs youngsters and other claim to patency. This is because the Heeling sports who were the original owner of the contract were denied their right of patent immediately as originally applied. Through this appeal, led by judge Pumfrey, the house of lords on a 3-2 judgement ruled in favor of Heeling sports and awarded it patent. They agreed to patent as they were trying to prevent abuse on the youngsters. Eva and Herman can also apply this application based on this fact. The Oh wow magazine has a committed the offence of breach of contract and privacy by publishing photos originally meant for goodbye magazine. The damages of the same, economically must be suffered by the Oh wow magazine. These circumstances of confidence act in favor of both the couples and the good-bye magazine which might be paid well in determination of what consequences the pictures might have caused.

Viability of Will's plans for Doors Ltd

During the case of Cambridge vs British Broadcasting Corporation, the court dissenting opinion of the Lords was based on the part of the duties of the BBC. They established that a media corporation is supposed to report to the public the news, however bad or good. The reception at Eva and Herman should be publicized. The two are celebrities who have many followers and are also ambassadors of healthy living and monogamous living which the circulating picture is totally against. 

2.Will is right to be concerned about the company, but his plans are likely to work in the following ways considering the cases referred to.

With reference to the case of Barclays Bank limited vs quit close investment, the R limited company sought a loan from a financier. The financier being Quit close investment. The company took the loan which was only meant for the customers in case the liquidation happened, and dividends paid. The company having gone into involuntary liquidation the customers had to get paid. The appellant who are the quit close company claimed the money already in the special account. Notice that this is the same dilemma facing Will and his company. The judge Lord Wilberforce, in his ruling held the decision of trust by awarding the trust to the customers of the Rolls Razor company. He established that the essence of bargain by the two company was held in the trust that both created a mutual obligation through creating a new account. The R company therefore become a trustee even before gaining its bankruptcy status. The lender of the loan therefore received the mutual benefit.

Evaluating such a plan and the judge’s ruling, it therefore makes Wills plan for his company and his customers Viable. The money must be held in trust for those who paid it, in this case the customers. For the trust condition to be met the following should be achieved; the certainty of intention. How certain is will with going on with his plans. If he is certain then trust is gained. Beneficiaries and the subject matter is also an element of gaining trust. During trust it must be stated clearly in writing that the beneficiaries of the account created are customers and not any other group of stakeholders. The subject matter is the reason why the trust must be done. For Will’s case, it is because, the company is in debts. If all this condition of trust is met, then Will’s first plan might be viable.

It is important for the new account to be named as customer true deposit account. The judge in his ruling on Re- Kayford case investment determined that the virtue of naming a new account to customer fixed account is a declaration to the effect of the trustees who should be paid after bankruptcy. The customers in Wills case are therefore responsible for the cash, deposited in the fixed and named account. Like the judge committed, this is a perfect debt case transformed to trust.

To determine viability of this plan it is important to consider the Twinsectra limited vs Mr. Yardley. In this case Mr. Yardley was sued for using money meant for investment to pay off some debts. The debt was worth 357,720 euros. The suing part argued that the Mr. Yardley had broken trust by since they argued the money was bound by trust. In the judgement, Lord Hoffman considered a purely subjective test. He held that for a person to be held responsible for breach of trust they must be aware by their own dishonest standards about the mistrust. The same must apply to other honest individual to the same case. Based on this reasoning the Judge held that Yardley was innocent.

By this judgement it is logical to conclude that the action by Will is viable. Taking Will as the creditor be awarding money from his general asset to the debtor, the Doors limited, he becomes an insolvent. His money is therefore refundable with or without achieving the purpose for which it was awarded. If it doesn’t achieve, in this case doesn’t pay the shareholders then trust is not achieved. When trust is not achieved, the resulting trust is in the favor of the creditor who originally gave the amount. In this case the subject is Will, who gives the Door limited 400000. The door limited therefore holds the amount as a trustee. With this explanation, Will’s second plan is viable.

In the same case of Juliet Bellis and co vs Challinor and others Lord Millet had a different judgement opinion. In his judgement Lord Millet had the opinion of trust mirrored in three different approaches. The lender, the borrower, the purpose and no one, in the sense that the beneficiary remains in suspense. The beneficial interest is reviewed if the purpose of the trust is not achieved. In the English law therefore, the interest or the remaining amount doesn’t go back to the lender. However, Millet characterized that the interest must go back to the lender, until the purpose for which it is meant is fulfilled on the resulting trust. With the reasoning of Lord Millet, the plan of Will is extremely Viable. However, the implication of trust, requires that if the money fails and doesn’t become the pay of dividends, it becomes a property of Doors Limited. This is according to specific trust; this way the money cannot be deposited to Will’s personal account but to the company’s account. At this point the plan no longer becomes Viable for Will.

The implications of this case will be drawn from the case of Paul vs Constance 1977. Ms. Paul and Mr. Constance shared an account that was only labeled to the name of Mr. Constance. Later with the death of Mr. Constance, Mrs. Constance claimed the account was hers and needed her share of the amount. They both, Ms. and Mrs. Paul appeared each claiming to own the account.

The judge in his ruling awarded Ms. Paul the right full account owner. His decision was based on the following considerations. Using declaratives in more than one occasion clearly convey a declared message that the fund is his, the deceased as much as it is for the one he is speaking to. The exact words used were, “this money is as much yours as it is mine”. It is the exact same statement that Will use during his meeting with Steve. Will might have acted unaware of the subtleties of equity.  

However, he acted in terms of the domestic relationship and situation that he shared with Steve. Bearing in mind that Will claims that Steve is a mentor to him and the judgement ruling in Adams vs Kensington Vestry is even more proof. The belief that Steve will do right to the disposal of the same, the words that he used present a clear declaration that the assets and funds that are owned by him, they can share equally. “my wealth is your wealth too.” Such a declaration is a justification of trust between the two parties and that Steve can inherit all the wealth that Will has.

However, the last part of the judgement to the Bieber vs Teather Limited case gives Will a simple advantage but, in the end, it might not work, the high court considered that the binding settlement was reached and the teathers paid the same settlement sum of money. The judge declares that for one to become a trustee of an account must do something that is equivalent to that account and at that point is when an agreement is binded. There must be deposits and withdrawals which Steve hasn’t done in any of the accounts but since Will has given Steve all the account cards and information Steve is at will to do the same.

References

Anderson, C.L., 2017. Taking Flint. Hous. J. Health L. & Pol'y, 17, p.107.

Chang, K., Li, Y. and Yi, H.C., 2018. Does Geographic Proximity Change the Passiveness of Equity Ownership by Bank Trust?. International Review of Finance,p.133.

Chen, S.Y., Wu, W.C., Chang, C.S., Lin, C.T., Kung, J.Y., Weng, H.C., Lin, Y.T. and Lee, S.I., 2015. Organizational justice, trust, and identification and their effects on organizational commitment in hospital nursing staff. BMC health services research, 15(1), p.363.

Clements, R. and Abass, A., 2018. Complete Equity and Trusts: Text, Cases, and Materials. Oxford University Press. Pg. (233)

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Cremers, K., Gaessler, F., Harhoff, D., Helmers, C. and Lefouili, Y., 2016. Invalid but infringed? An analysis of the bifurcated patent litigation system. Journal of Economic Behavior & Organization, 131, pp.218-242.

Frydman, C., Hilt, E. and Zhou, L.Y., 2015. Economic effects of runs on early “shadow banks”: Trust companies and the impact of the panic of 1907. Journal of Political Economy, 123(4), pp.902-940.

Handayani, D., 2017. Legal Principles of Evidence on Civil Cases in Public Judiciary. Hang Tuah Law Journal, 1(1), pp.111-127.

Herinckx, Y., 2014. Liability for Inappropriate Interim Measures in Commercial Arbitration. Pp 103-107

Huebner, M.S. and Klein, D.S., 2015. The Fiduciary Duties of Directors of Troubled Companies. American Bankruptcy Institute Journal, 34(2), p.18.

Kalleberg, A.L., 2015. Financialization, private equity, and employment relations in the United States. Work and Occupations, 42(2), pp.216-224.

Kennedy, R., 2018. Walker v City of Birmingham Revisited. The Supreme Court Review, 2017(1), pp.313-336.

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Markham, J.W., Gabilondo, J. and Hazen, T.L., 2017. Corporate Finance: Debt, Equity, and Derivative Markets and their Intermediaries, 4th. West Academic Publishing. Pp 104-109

Morley, M.T., 2017. Nationwide Injunctions, Rule 23 (b)(2), and the Remedial Powers of the Lower Courts. BUL Rev., 97, p.615.

Panesar Sukhninder Edwards & Stockwell 2015. Equity and Trust law. P. 221

Pattenden, R. and Sheehan, D., 2016. The law of professional-client confidentiality. Oxford University Press.pg 331.

Schaefer, J.K., 2015. Court Assistance in Arbitration-Some Observations on the Critical Stand-by Function of the Courts. Pepp. L. Rev., 43, p.521.

Schneider, S.R., 2015. Is Debt vs. Equity Different in a Partnership?.pp 122

Stout, Lynn A., and Margaret M. Blair Gower, 2017. "A team production theory of corporate law." In Corporate Governance, pp. 169-250.

Telecan, S.F., 2016. Civil Tort Law or the Paradigm Shift towards the Study of Civil Illicit. SUBB Jurisprudentia, p.5.

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