April 2013
29/4/13
BERG v BLACKBURN ROVERS FOOTBALL CLUB & ATHLETIC PLC [2013] EWHC 1070 (Ch)
A clause in a contract of employment allowed a football club to terminate a manager’s employment and pay him compensation in the sum of his basic salary for the unexpired term. It was not realistically arguable that the clause was a penalty, because it provided for payment in a specified event, not a breach of contract.
26/4/13
GRUPO HOTELERO URVASCO SA v CAREY VALUE ADDED SL [2013] EWHC 1039 (Comm)
Considers the effect of a clause in a loan agreement providing for an event of default if there has been a material adverse change (MAC) in the borrower’s financial condition [321]. The enquiry is not necessarily limited to changes in the company’s financial information: so the fact that the company had ceased paying bank debts was relevant. A material change is one which significantly affects the borrower’s ability to perform its obligations, particularly its ability to repay. A lender cannot rely on circumstances known at the outset but on the facts the borrower’s financial difficulties went well beyond those which had been known so there had been a MAC. There had also been other breaches by the borrower failing to provide information.
26/4/13
VARNEY v FORD MOTOR COMPANY LTD (Ch)
The court refused to order trial of a preliminary issue in large group litigation where to do so might lead to inappropriate assumptions being made at the main hearing, some witnesses might be required to give evidence twice, and it was likely to be quicker to have all issues decided at the same time.
25/4/13
WALSH v SHANAHAN [2013] EWCA Civ 411
When an agency terminated the former agent ceased to owe fiduciary duties so the principal ceased to be entitled as of right to an account of profits made thereafter by the agent by misuse of the principal’s confidential information. That was a tort and the judge had been right to hold that he had a discretion whether to order an account of profits as the remedy rather than damages. On the facts the judge’s decision to award damages and to refuse an account of profits as disproportionate, was unimpeachable.
23/4/13
EC03 CAPITAL LTD v LUDSIN OVERSEAS LTD [2013] EWCA Civ 413
Summarises the key ingredients for a claim in deceit, being a false representation, knowledge that the representation is false or being reckless as to its truth, an intention that it be relied on, reliance by the claimant and loss. Intent to deceive is not a separate element. On the evidence the trial judge had been entitled to find the claim had been made out.
23/4/13
BMA SPECIAL OPPORTUNITY HUB FUND LTD v AFRICAN MINERALS FINANCE LTD [2013] EWCA Civ 416
A clause in a loan facility provided for a prepayment fee in the event of ‘voluntary payment’ before the first anniversary. The agreement had been professionally drafted and listed specific circumstances amounting to voluntary payment. None of those specific circumstances applied, so no fee was payable despite the fact that the loan had been repaid on a voluntary refinancing. Where there are two possible constructions of a document, a court is entitled to prefer the one more consistent with business common sense, but business common sense is not to be elevated to an overriding criterion, does not refer to the individual judge's own notions of what might have been a sensible solution, and does not refer to business common sense from the point of view of one of the parties [24].
22/4/13
AZEVEDO v IMCOPA IMPORTACAO EXPORTACAO E INDUSTRIA DE OLEOS LTDA [2013] EWCA Civ 364
Where the terms of loan notes could be varied with the consent of 75% of noteholders attending a meeting, approved changes to postpone interest payments and the maturity date could not be challenged on the ground that the issuer which had proposed them had offered a payment to noteholders voting in favour as an inducement. The making of the payments was not subject to the pari passu principle because they had not come from funds held by the trustees of the scheme. Nor were they bribes as they were fully disclosed and available to all voting in favour.
22/4/13
IN THE MATTER OF MARCHES CREDIT UNION [2013] EWHC 1731 (Ch)
The court used its inherent jurisdiction to make an order to wind-up a credit union in circumstances of urgency where a resolution of the credit union to wind-up its affairs had been made by all active directors but there was doubt whether the board meeting had been validly convened.
19/4/13
JSC BTA BANK v ABLYAZOV [2013] EWHC 867 (Comm)
The claimant was entitled to simple interest on a judgment at the rate at which it could have borrowed money in the relevant period (on the evidence 7.3%). Compound interest was not appropriate because the claimant had not pleaded and proved how it would have used the money if it had been available to it.
18/4/13
STANDARD CHARTERED BANK v DORCHESTER LNG (2) LTD [2013] EWHC 808 (Comm)
A bank to which bills of lading were indorsed was the “holder” of the bills for the purpose of s 5(2)(b) Carriage of Goods by Sea Act 1992 and had title to sue on them even if it held them to the order of a beneficiary under a letter of credit.
16/4/13
MURRAY v NEIL DOWLMAN ARCHITECTURE LTD [2013] EWHC 872 (TCC)
Considers when the court may be prepared to allow an approved costs budget to be revised.
12/4/13
ROYAL BANK OF SCOTLAND PLC v HIGHLAND FINANCIAL PARTNERS [2013] EWCA Civ 328
Considers principles to be applied in setting aside court orders on grounds of fraud and deliberate concealment [106] and when equitable relief may be refused on grounds of ‘unclean hands’ [158].
12/4/13
RESOLUTION CHEMICALS LTD v H LUNDBECK A/S [2013] EWHC 739 (Pat)
Considers when there is sufficient privity of interest between companies to make it an abuse of process for one company to litigate the same issue as previously litigated by another company. The mere fact that the companies were in the same group and under the same control was not of itself enough. Nor is it enough that one company has a direct commercial interest in the outcome.
12/4/13
HSBC BANK PLC v TAMBROOK JERSEY LTD [2013] EWHC 866 (Ch)
Considers when a court can assist a foreign court under s 426 Insolvency Act 1986 by appointing an administrator of a company whose centre of main interests is abroad. Since no insolvency proceedings were pending or contemplated in Jersey, the English court had no power to appoint administrators in respect of the Jersey registered company at the request of the Royal Court of Jersey.
11/4/13
STOBART GROUP LTD v ELLIOTT [2013] EWHC 797 (QB)
Considers when it may be appropriate to give permission to bring proceedings to commit for contempt in respect of allegedly false statements in a document supported by a statement of truth, especially where the statements were made in support of a without notice application.
11/4/13
THOMPSON v NATIONWIDE BUILDING SOCIETY, Ch D
Where a mortgage fraud had been perpetrated by the applicant falsely claiming to be buying a property, the lender was entitled to trace part of the mortgage advance into the hands of the defendant who had temporarily loaned the balance of the supposed purchase price to the applicant and whose loan had been repaid. The court had been entitled to find that the defendant had dishonestly assisted the applicant and the defendant had not satisfied the court that the funds he received were not part of the claimant’s advance.
11/4/13
ANDERSON v LONDON FIRE & EMERGENCY PLANNING AUTHORITY [2013] EWCA Civ 321
A clause in a collective pay agreement for staff pay in year 3 to increase by 2.5% or 1% above National Joint Council salary scale did not fail for uncertainty or as an agreement to agree. Applying ordinary rules of contractual interpretation, the clause was to be read as if the words ‘whichever is the greater’ had been included. It would have been obvious to the employer that no other meaning would reflect a deal the staff union would have contemplated when the agreement was negotiated.
6/4/13
REGISTRATION OF COMPANY RECEIVERSHIP APPOINTMENTS
New Companies House Forms RM01 & RM02 to be used for notice of receiver/manager’s appointment or ceasing to act.
APRIL 2013
LAND REGISTRY PRACTICE GUIDE 76 – CHARGING ORDERS
Guidance on charging orders and protecting them by unilateral notices, restrictions and pending land actions.