Entering into a contract with another party, whether in writing or verbally, constitutes a legally binding agreement in most circumstances. However, verbal contracts can be more difficult to evidence particularly when it comes to enforcing the terms. It is therefore important to gather as much evidence relating to circumstances surrounding the oral agreement as possible to bolster your chances of proving the agreed terms.
Without a written agreement, the court will not know what terms were agreed when the oral contract was made. Therefore, witness evidence and industry practice will be relied upon by the court.
Vardags can assist in bringing or defending court actions relating to breaches or the enforcement of oral agreements. Vardags will assess the merits of your case and advise on the most suitable course of action to protect your business.
Under the Companies Act, shareholders are entitled to receive a number of company documents including the company’s annual accounts and director’s report within a set period of time.If you would like advice in relation to your right to access company documents in your capacity as shareholder, the time frames for the company to provide the same and the consequences of the company withholding this information, Vardags can assist.
This is taken very seriously by the courts and breaches of injunctions can result in being found guilty of contempt of court that can result in various penalties including a fine, imprisonment or the confiscation of assets.
The respondent can ask the court to vary a search order. This is only likely to be granted before the execution of the order where there are obvious errors in the documents that were produced by the claimant to the court. The claimant will have a return date to court following the execution of the order and usually the application to set aside or vary such an order will be done at this hearing. Where an order is granted and executed and it is then discovered that it should not have been made, the court can discharge the order.
Misrepresentation occurs when one party induces another party to enter into an agreement based on an untrue statement of fact or law. Misrepresentation can be fraudulent, negligent or innocent whether given by written or oral statement.Vardags assists companies with all areas surrounding misrepresentation. Vardags can advise you on ways to limit your liability for misrepresentation, can assist you with bringing a claim for misrepresentation or defending allegations/proceedings for misrepresentation. Vardags can also advise you on the remedies available under the various elements of misrepresentation.
A business is insolvent if it has insufficient assets to discharge its debts and liabilities. Trading whilst insolvent can lead to allegations of wrongful trading against its directors. Vardags can advise businesses of the consequences of trading insolvent and the options available to businesses to deal with corporate insolvency, including options which would allow the business to avoid closure.
A person may not operate as a director whilst they are subject to a bankruptcy order without the court’s permission. Losing a key member of the board can have significant consequences for the company and its future.
Unsurprisingly, disputes relating to the running of joint ventures are commonplace particularly when parties have differing views on the direction the business should be going. However, minor disagreements can lead to serious disputes between the management, partners and/or shareholders if left unresolved.Vardags can advise you and your business on how to deal with conflicting management ideas and how to avoid matters becoming contentious and leading to litigation between the parties.Vardags can advise on all aspects of director/partner exits relating to joint venture agreements from post termination restrictions, breach of confidentiality to rights and continuing rights under any partnership/shareholder/joint venture agreement.
Parties’ obligations are usually clearly agreed and set out in joint venture agreements. Where one party does not pull their weight, this can cause a strain on the joint venture and the parties’ commercial relationship.A party’s conduct or indeed lack of participation in a joint venture scenario may constitute a breach of the joint venture agreement itself. Vardags can assist companies dealing with a breach of a joint venture agreement or companies accused of breaching the terms of a joint venture agreement. In any instance, the first step will be to check whether the breach is capable of being remedied and whether the agreement allows for this. Vardags are conscious that on some occasions, commercial relations are equally as important as the agreement itself so will work to preserve those relations whilst protecting your company’s position.In instances where a breach cannot be remedied, Vardags can assist in bringing or defending court actions for breach of joint venture agreements. Vardags will assess the merits of your case and advise on the most suitable course of action to protect your business and the venture as necessary.
Unpaid invoices can have an enormously detrimental effect on your business, particularly in relation to maintaining a healthy cash flow.Vardags advises business on all aspects of debt recovery and will work with you to formulate a strategy to recover the money owed to your business. The Vardags team will advise on tactics and pressures you can apply to recuperate your losses and recommend whether to initiate court proceedings either for the unpaid debt or under the Insolvency Act.Vardags will also advise on any entitlement to interest whether under contract, Late Payment of Commercial Debts (Interest) Act 1998 or applicable court interest rates.
Both shareholders and directors have the ability to call a general meeting providing the requisite steps have been taken in accordance with the Companies Act and the company’s articles. In anticipation of a general meeting, those calling the meeting may circulate proposed resolutions, which can include resolutions for the removal of directors.
If you fail to meet your responsibilities as a director (as outlined in the Companies Act 2006), then you could be disqualified from acting as a director. Disqualification can occur when a director is deemed ‘unfit’ to fulfil his duties in that role. Various organisations can apply to disqualify a director; these include the Insolvency Service and the courts.If you are facing director disqualification proceedings, Vardags can assist. We advise individuals and company boards alike on the implication of disqualification proceedings and defending proceedings.
If your business is owed money by an insolvent entity then you will understandably be concerned about recovery of that money. Vardags can advise on the procedure and commercial reality of recovering funds from insolvent entities.
Usually, when entering into a joint venture with other parties, a shareholder agreement is drawn up to govern the relationship between the shareholders and deal with the management of the company, dividend provisions, method for valuing shares and deadlock situations. It is always best to seek independent legal advice before entering into a shareholder agreement but Vardags understands that is not always practical.If you are concerned about the terms of your shareholder agreement and someone is seeking to enforce those terms, Vardags can assist. With unrivalled experience in shareholder disputes, Vardags offers commercial and straightforward advice to protect your interests and shareholding as necessary.
In today’s world, it is not unusual for businesses to contract with international parties domiciled outside of the UK, particularly in relation to the provision of goods (importing and exporting) and outsourced services.Where a dispute arises, the key is to check for governing law and jurisdiction provisions within the agreement. Vardags advises clients on a variety of cross-border contractual disputes where the agreements are governed by the laws of England and Wales. In cases where governing law is not expressly stated, Vardags can advise on the application of relevant international regulations like Regulation 593/2008 on the law applicable to contractual obligations (Rome I).
Entering into a contract with another party, whether in writing or verbally, constitutes a legally binding agreement in most circumstances. If one party to the agreement fails to meet their responsibilities in accordance with the agreement, this could result in a breach of contract.Vardags can assist companies dealing with a breach of contract or companies accused of breaching a contract. In any instance, the first step will be to check whether the breach is capable of being remedied and whether the contract allows for this. Vardags are conscious that on some occasions, commercial relationships are equally as important as the contract itself so will work to preserve those relations whilst protecting your company’s position.In instances where a breach cannot be remedied, Vardags can assist in bringing or defending court actions for breach of contract. Vardags will assess the merits of your case and advise on the most suitable course of action to protect your business.
A company is deemed insolvent if they cannot pay their debts as they fall due. If you suspect that a customer or client may be unable to pay sums owing to you, Vardags can assist.When a client or customer goes into administration or is subject to insolvency proceedings you may be concerned about your ability to recover money owed to your business.Vardags advises companies on all aspects of insolvency whether you are looking for advice on recovering money from an insolvent company or advice on your obligations under an agreement where the other party look to be/are insolvent.
Not every joint venture works out or generates a profit as intended by the parties at the outset. When things are not going to plan, the key is to agree strategy to salvage the venture or to find a way out.Vardags are experienced strategists and can assist your business in negotiations and provide advice before any disputes arise between the parties. Equally, when disputes arise (for example, in relation to the distribution of profit), Vardags can advise your business of its rights in law and under the joint venture agreement.
In certain circumstances, a shareholder in their own name or on behalf of the company can bring a claim against a director and/or third party for wrongs committed against the company.Vardags can advise you on your rights as a shareholder, including whether an unfair prejudice petition or winding up petition should be considered in the circumstances.
Trademark infringements occur when someone has used/copied exactly the same trademark as someone else, or where they are using a trademark so similar that the public is likely to confuse the two as coming from the same owner, without authorisation. Someone may have used your trademark as inspiration and ended up creating something so close to it that it then constitutes trademark infringement as it erodes the essential distinctiveness of your trademark. One does not have to be aware of another trademark in order to infringe it. As long as there is actual or constructive (i.e. you should have known) notice that a trademark exists it may be infringed.It is important to always be aware that unjustified threats regarding the infringement of a trademark are prohibited, and caution must be exercised at the outset of any dispute as a result.
If you have created copyright material, you will have copyright protection automatically without having to apply for it. Copyright is of fundamental importance to businesses, and breaches can have serious consequences. The main legal remedies available to you in this situation are damages, delivery up of the infringing material and an injunction requiring the copyright infringer to stop making further use of your material.
Before acquiring a target company, an element of due diligence will have been carried out to investigate the target and assess the viability and financial liquidity of the target company. The findings of due diligence checks may have led to an adjustment of the purchase price or the alteration of the terms of the share purchase agreement.If you have engaged a professional (i.e. an accountant) to undertake due diligence on a target and that professional missed a key document or failed to advise on a specific point then you may have a claim for professional negligence, particularly if the professional’s failures led to you or your business to suffer substantial losses.
If you are worried that your opponent is about to get rid of valuable property or money so that you cannot get justice, you can apply to court to stop this happening. If the court considers that you have a good, arguable case, it may grant you a freezing injunction. This is an interim order that ‘freezes’ your opponent’s assets so that they cannot dispose of or use them until the main dispute is resolved. ‘Assets’ can include bank accounts, land, motor vehicles, shares, bonds and other financial instruments. If it is money you are concerned about, copies of the injunction can be sent to your opponent’s bank so that they can only withdraw such funds as are needed to cover reasonable living expenses.
All directors owe their company duties under the Companies Act 2006. These include, but are not limited to, the duty to exercise reasonable care, skill and diligence and promote the success of the company.If your company or board are taking action against you for breach of your fiduciary duties, you will need fast and pragmatic advice. Vardags can assist you either in an advisory capacity or in any proceedings under the Director Disqualification Act.
Employees seeking to use your confidential information, set up a rival business or poach your clients or staff can pose a serious threat to your business. Post-termination restrictions, known as restrictive covenants, are designed to prevent employees from carrying on these kinds of activities. If you are concerned that one of your employees or former employees is breaching their restrictive covenants, you may want to apply for an injunction to curb the potential damage to your business.
Legislation in England and Wales usually favours employers where there is a doubt as to whether an employee or their employer owns IP rights for the employees work. There are multiple statutory provisions which automatically give an employer the ownership of patents, copyright, database rights, unregistered designs and registered designs for works created by their employees in certain circumstances. If you are a consultant however, the rights to the product of the consultancy work will belong to you as the consultant unless there is an express contractual agreement to the contrary.
Your employer, whether they are the buyer, seller or intending to merge in a M&A transaction owes duties to their employees under employment law, including TUPE provisions.Vardags can provide expert advice in relation to your employment rights whether our advice is required before, during or after a merger of acquisition.
Entering into a contract with another party, whether in writing or verbally, constitutes a legally binding agreement in most circumstances. However, verbal contracts can be more difficult to evidence particularly when it comes to enforcing the terms. It is therefore important to gather as much evidence relating to circumstances surrounding the oral agreement as possible to bolster your chances of proving the agreed terms.Without a written agreement, the court will not know what terms were agreed when the oral contract was made. Therefore, witness evidence and industry practice will be relied upon by the court.
If a party has failed to meet their responsibilities in accordance with an agreement Vardags can advise your company on how best to enforce the terms of the agreement.In any instance, the first step will be to check for enforcement mechanisms and provisions under your agreement. Vardags are conscious that on some occasions, commercial relations are equally as important as the contract itself so will work to preserve those relations whilst protecting your company’s position.In circumstances where a party refuses to adhere to the terms of the agreement, Vardags can assist in bringing or defending court actions for breach of contract or to enforce the terms of the agreement. Vardags will assess the merits of your case and advise on the most suitable course of action to protect your business.
The actions that can be performed by the claimant is limited to the scope of the order itself:• Only property stated in the order that is under the control of the respondent can be searched and generally only property located in the UK• The courts are wary about granting this type of order in relation to personal property, such as the respondent’s family home.• If there are multiple addresses (or parties) covered by the order, then the orders will have to be served and executed at the same time to minimise advance warning being given.• The materials that can be copied and removed must be stated in the order• Privileged material or information that would incriminate the respondent in relation to a crime is exempt. The independent solicitor will need to assess these items to determine whether or not this is the case.
The claimant cannot force entry if the respondent does not comply with the order. The claimant will notify the court and proceedings for committal for contempt of court can be commenced at this point. It is also likely that this will reflect badly on the respondent in relation to the civil proceedings.
Typically, partnership agreements will contain provisions for departing partners restricting them from poaching clients and employees of the firm, dealing with clients of the firm and soliciting clients of the firm. Despite such provisions, there is always a risk that a departing partner may act in breach of these express provisions.If there is a breach of post-termination restrictions, Vardags can assist. Vardags will review the restrictions in the first instance to ensure their enforceability. Vardags will then advise you on the appropriate action to take against the former partner, whether this be by written correspondence, court action or injunctive proceedings. Vardags will discuss all options and scenarios with you in order to agree the most appropriate course of action for your business.
All well drafted agreements will have incorporated notice provisions which clearly set out the ways in which notice may be given and delivered to another party. In well drafted agreements, it is important that these notice provisions are strictly adhered to in order to avoid disputes as to the validity of the notice in the future.Where notice provisions are silent, it may not be clear when notice would be deemed served, whether notice may be given by email or fax etc. Again, this ambiguity can lead to disputes.Vardags is experienced at advising on all aspects of notice, from reviewing notice provisions, giving notice and determining the validity of a received notice.
This solicitor must explain the order in everyday language to the respondent so that they understand what it means.
The applicant is able to apply for the injunction:(a) On notice which means that the other side will be notified about the application hearing(b) Without notice which means that the other side is not notified about the hearing and cannot be present. The applicant will need to present very strong reasons why this should be granted
It is possible to apply for an injunction once court proceedings have commenced or before they have started in cases where it is in the interest of justice to do so, for example because evidence may be destroyed or funds dissipated. The court has to decide that it would be just and reasonable to grant the injunction. The granting of injunctions is discretionary and will depend on the individual facts of each case
It is therefore vital to seek injunctive relief if you suspect that a creditor or other party intends to present a winding-up petition. At Vardags, we can help you act fast to prevent damage to your business.
Disagreements and issues will normally always arise in the course of business, particularly in joint ventures where multiple parties are involved. However, some disagreements are harder to resolve especially where there has been regretful conduct by another party. If one party’s conduct has caused you, your business or the joint venture harm then you will need to take professional advice.Vardags will look at what you and the business want to achieve, what you seek to protect and how you envisage moving forwards. Having understood your needs, Vardags can offer geared, practical and straightforward advice on the best way to deal with another party’s conduct going forwards.
It can be daunting when a senior employee leaves an organisation, not only because of the loss to the business but the potential confidential information they hold by virtue of their seniority.Vardags can advise on all aspects of director/partner exits from their post termination restrictions, breach of confidentiality to their rights and continuing obligations under any partnership/shareholder agreement.
Working alongside our elite team of divorce lawyers, Vardags can advise on all aspects of insolvency during divorce or intended divorce proceedings. Combining inter departmental knowledge, Vardags can provide expert advice if you are considering divorce proceedings whilst facing an insolvency situation either in your personal capacity or with your business.
All directors owe their company duties under the Companies Act 2006. These include, but are not limited to, the duty to exercise reasonable care, skill and diligence and promote the success of the company.
The Companies Acts of 1985 and 2006 provide shareholders with specific rights. Your company’s articles of association and/or a shareholders’ agreement may confer additional rights to shareholders. It is important that the company understands their shareholders’ rights particularly when shareholder action is threatened. Shareholder actions can take the form of unfair prejudice petitions, derivative actions and winding up petitions.
If you become aware of someone using your original work in theirs and they are publishing it as though it is their own without your permission, then they may have infringed on your copyright. Their work must be substantially different to yours or they run the risk of interfering with your rights. It is acceptable to use the work of others as inspiration, but if part or the whole of their work is substantially copied from your original work, your rights are likely to have been breached.There is a fine line with copyright law which means infringements are not always clear at first. If you have used facts in your original work which are widely available in the public domain, someone simply using these same facts will not have infringed your copyright. Likewise, copyright law only protects the expression of ideas, so relatively simple and abstract ideas that are quite general will not be protected. Your original expression of an idea, however, will be.If your original work has been copied without your permission, or you have been accused of using someone else’s original work without their permission, the team at Vardags will be able to provide you with detailed advice on whether a copyright has been infringed and the best course of action to take forward to protect your position.
Entering into a contract with another party, whether in writing or verbally, constitutes a legally binding agreement in most circumstances. If one party to the agreement fails to meet their responsibilities in accordance with the agreement, this could result in a breach of contract.Vardags can assist you with dealing with a breach of contract or if you are accused of breaching a contract. In any instance, the first step will be to check whether the breach is capable of being remedied and whether the contract allows for this. Vardags are conscious that on some occasions, commercial relationships are equally as important as the contract itself so will work to preserve those relations whilst protecting your company’s position.
In specific circumstances, directors may be required to provide personal guarantees when a company borrows money. A director’s personal guarantee creates a secondary obligation to support the primary loan. This means that if the company defaults in any way, the lender may call on the personal guarantor to fulfil the borrower’s obligations (usually payment obligations).
If a company goes into insolvent liquidation or insolvent administration and the director(s) ought to have known that there was no prospect of avoiding the insolvency, the director could be made liable to contribute to the assets of the company. This is known as a director’s personal liability for wrongful trading.Alternatively, if it appears that business has carried on with the intent to defraud creditors, then liability could arise for fraudulent trading. Directors are not the only people who could be liable for fraudulent trading, anybody who is a party to the business carrying on trading with the intention to defraud creditor could be liable too. For fraudulent trading, the court may order the accused party to contribute towards the creditor’s pool of assets available for distribution.Vardags can advise on director(s) liability for wrongful trading and fraudulent trading and advise on applications made by an administrator against them.
It is important to seek legal advice as soon as a winding-up petitions is served on your business. Vardags can assist you with working out a commercially viable strategy for your business to deal with the insolvency proceedings.Vardags can advise businesses in relation to injunctions restraining the advertisement of proceedings, defending proceedings and/or negotiating with the creditor(s) to withdraw or dismiss the petition.
If the company's affairs are being or have been conducted in a manner that is unfairly prejudicial to the interests of the shareholders then a shareholder may seek an order from the court requiring the company to refrain from doing the prejudicial act or provide for the purchase of the aggrieved shareholder’s shares amongst other remedies.Vardags can advise you on your rights as a shareholder, including whether a derivative action or winding up petition should be considered in the circumstances.
The courts recognise that this is a very draconian and extreme order and the so there are various safeguards in place to protect the respondent:• The claimant has to provide full and frank disclosure to the court when making the application. This is done in the form of an affidavit that sets out the facts that are being relied upon and will include relevant evidence• The claimant must give an undertaking in damages in case it is later discovered that the claimant should not have been granted this order• An independent solicitor is appointed to supervise the execution of the order and to provide a report on this. • Usually, the order must be served on a weekday during working hours to allow the respondent the opportunity to get legal advice
Enforcement of disclosure or obtaining evidence is not the aim of these orders. Their sole purpose is preservation of relevant information or property. They are used to ensure that relevant information or property is available and not destroyed.
If the seller party has given an untruthful warranty under a share purchase agreement, this could have major consequences for the buyer of the target business. In these situations, a party may have a claim for misrepresentation or have grounds to make a claim under the provisions of the share and purchase agreement.On the other hand, if you were the seller party and were not advised by your solicitors about the extent of the warranties given, or your solicitors drafted unlimited indemnities in respect of the warranties, then you may have grounds for a professional negligence claim against the instructing solicitors at the time the share purchase agreement was being drafted and negotiated.Vardags offers clients an efficient and outcome focused approach in all circumstances.
These orders were previously referred to as Anton Piller Orders. Courts can grant these orders in order to preserve evidence or property. This can be because the item is the subject of an action or because a question has arisen in an action in relation to that item. The purpose of the order is to find and preserve the relevant information or property. Search and seize order are very expensive to obtain and also to execute and are only granted where it has been determined as strictly necessary in the interests of justice. This is because they are a serious infringement of the respondent’s rights and freedoms.
If you are involved in a dispute and you are worried that your opponent is going to destroy documents or property that are needed as evidence, a search order will allow you to get into their home or workplace to search it and then take the evidence away for safekeeping. Search orders are often granted in support of intellectual property claims such as copyright issues, but they can also be obtained in cases of fraud, shareholders’ disputes, breach of confidence and even matrimonial proceedings.
If you have been served with an injunction, you should contact us immediately to obtain legal advice. You must be very careful not to do anything that might breach the injunction, as this is generally punishable as contempt of court and could lead to you being imprisoned. You should also make sure you preserve any evidence that might be relevant to your case.The experienced team at Vardags can advise you as to the best strategic response for your specific circumstances. Acting quickly and responding in an appropriate manner is crucial, and having expert advice from Vardags can help you avoid potentially very damaging ramifications.
If you are served with an injunction then it is vitally important that you follow whatever is stated in the order, but also get immediate legal advice on your case and what route should be followed. These orders can be incredibly lengthy with reams of evidence attached. Ensuring that you have expert legal advice straight away can ensure the best outcome in your circumstances. Your lawyer will determine whether the claimant has complied with all the requirements that are necessary to obtain such an order and that they made full disclosure to the court. If this was not done, then you may have the right to receive damages. Having strong legal representation will also ensure that your rights are protected and that the claimant does not act outside of the remit of the order in a manner that it unreasonable or oppressive.
If you are served with a search and seize order, then it is crucial that you get expert legal advice immediately before the order is executed. You must comply with the order so you are not in contempt of court, but good representation will ensure that it is determined whether the claimant has complied with all the requirements that are necessary to obtain such an order and that they made full disclosure to the court. If this was not done, then you may have the right to receive damages. Having strong legal representation will also ensure that your rights are protected and that the claimant does not act outside of the remit of the order in a manner that it unreasonable or oppressive.
There are various legal mechanisms which prevent shareholdings being diluted, save for when those rights have been dis-applied by the company. Where pre-emptive rights have not been dis-applied any issue of equity securities must only be carried out on a pre-emptive basis.If a company tries to issue new shares and you are concerned this may affect your current shareholding, Vardags can advise you on your rights and advise on the remedies available to you.
If you have developed a product or article, design rights protect the appearance of the whole or part of your work. This includes products/articles in three-dimensional form or for two-dimensional designs such as surface decoration and texture. We understand that these designs are often a fundamental asset for an individual or business and therefore protecting design rights is important.
It is important to deal with statutory demands as soon as possible to avoid winding-up proceedings being presented against your business. For demands served on companies, a company will have 21 days from the date of service to protect its position.Vardags will consult with you to work out a commercially viable strategy best suited for your business. This can involve advising businesses on obtaining injunctions to restrain the presentation of winding proceedings, injunctions restraining the advertisement of proceedings and defending proceedings.
There are a range of orders that can be granted that:• Restrict how assets are used, known as freezing injunctions • Allow the claimant to search and seize items on a person’s property• Require the respondent to give details of the location of an asset• Require that property is delivered to the claimant• Require the respondent to reveal the location of property or assets• Are used in relation to insolvency law
A deadlock scenario will usually occur in 50:50 joint ventures where neither party to the joint venture has a majority. In these circumstances, no agreement can be reached without one party conceding.Vardags advises businesses on deadlock scenarios, particularly in relation to deadlock provisions in joint venture agreements. Where an agreement is silent, will look at what you and the business want to achieve, what you seek to protect and how you envisage moving forwards. Having understood your needs, Vardags will explore the various options available to you which may include selling shares, acquiring shares, share buy-backs, third party buy-ins or court action.
If you are being harassed by somebody or you are a victim of nuisance or trespass, you may in a position to apply to court for an injunction to stop this behaviour from continuing. Injunctions can be granted in a wide range of cases, from incidents of antisocial behaviour and housing-related nuisance to bullying on social media and even fly-tipping. Whether such an application is appropriate to your case will depend on your circumstances and the nature of the behaviour in question. Vardags can assist you in examining the options available to you and advising you on the best course of action to help you resolve the problem.
These used to be known as Mareva Injunctions and they prevent a party from disposing of assets or dealing with them in any way including hiding them or diminishing their value. The purpose of this order is to protect the assets until the case is finalised. The order has to state the maximum assets that are covered by the freezing order- it cannot be open-ended. These orders also generally only cover assets located in the England and Wales.
Because these orders are so intrusive, the courts have a high threshold before they will grant such as order without giving the respondent notice. The claimant has to show the following apply:• They have an extremely strong prima facie case• The actions of the respondent have caused very serious damage to the actual or potential interests of the claimant• They have clear evidence that the respondent possesses the incriminating documents or items and that there is also a real possibility that the respondent will destroy or dispose of these items if notice was givenIf the above conditions are satisfied, then the court has to determine whether the harm that will be caused by the execution of order is disproportionate or excessive in relation to preserving the material. If it decides that this is the case, then it will not grant the order.