July 2014
TIDAL ENERGY LTD v BANK OF SCOTLAND PLC [2014] EWCA Civ 1107
The claimant completed a CHAPS instruction form for the defendant to pay funds to a named company. As a result of alleged fraud, the account number and sort code stated on the form were not those of the named company. The receiving bank with the quoted sort code, credited the funds to an account with the quoted number but the account name was not that of the named company. The claimant claimed the defendant had not made an effective payment because the funds had not gone to the named company. The judge’s dismissal of the claim was upheld by a majority decision. By signing the CHAPS instruction, the claimant agreed to payment being made in accordance with the usual banking practice applicable to CHAPS payments. On the undisputed evidence, CHAPS payments were processed by reference to sort code and account number rather than account name. The defendant had discharged its mandate by carrying out the CHAPS instructions as it did.
31/7/14
SANTANDER UK PLC v NATIONAL WESTMINSTER BANK PLC [2014] EWHC 2626 (Ch)
Norwich Pharmacal orders would be made requiring banks which had received mistaken payments to disclose the name, address, telephone number and email address of the recipient account holder. An equitable wrong such as unjust enrichment is sufficient to engage the Norwich Pharmacal jurisdiction. Even though some of the sums involved were small, it was proportionate to make an order. But dates of birth of the recipients would not be ordered to be disclosed and there would be express restrictions on the purposes for which the claimant could use the information obtained.
30/7/14
PLAYBOY CLUB LONDON LTD v BANCA NATIONALE DEL LAVORO SPA [2014] EWHC 2613 (QB)
A bank was liable in negligence for an inaccurate reference to a casino confirming that an individual was trustworthy for £1.6m in any week. The issue of the reference was sufficiently closely connected with the role of the employee who provided it, to be regarded as issued in the course of her employment. The damages to which the claimant was entitled were reduced for contributory negligence in failing to examine more carefully cheques presented to it which turned out to be false.
30/7/14
SUNICO A/S v REVENUE & CUSTOMS COMMISSIONERS [2014] EWCA Civ 1108
SEBASTIAN HOLDINGS INC v DEUTSCHE BANK AG [2014] EWCA Civ 1100
These two cases consider principles to be applied by the Court of Appeal in making payment into court of a judgment sum a condition of the grant of permission to appeal.
29/7/14
PATEL v MIRZA [2014] EWCA Civ 1047
Money paid to a foreign exchange broker for spread betting on movements in listed share prices was recoverable. The spread betting company was a professional intermediary which acquired a security by entering into a contract for differences in the form of the spread bet. The broker had used insider information so an offence had been committed under s 52 Criminal Justice Act 1993, and the arrangement amounted to a criminal conspiracy. But the bet was not in fact placed and so long as an illegal contract has not been carried into effect to any extent, money paid under it can be recovered.
25/7/14
WALSH v NEEDLEMAN TREON [2014] EWHC 2554 (Ch)
A salaried partner was a mere employee and was not liable under s 14 Partnership Act 1890 on the footing of holding out.
17/7/14
BANK LEUMI (UK) PLC v AKRILL [2014] EWCA Civ 907
The judge below had been wrong to give summary judgment to a bank on a claim on a guarantee. The guarantor had a defence with a real prospect of success that representations had been made to him that the bank would only seek to enforce the guarantee in the event of a shortfall after realising security on a property. But as it was improbable that the defence would succeed, the defendant would be given conditional leave to defend and the case would be remitted to the High Court to decide what conditions to impose.
16/7/14
PREMIER TELECOM COMMUNICATIONS GROUP LTD v WEBB [2014] EWCA Civ 994
In the absence of any term to the contrary, when contracting parties agreed that shares should be sold at a value to be determined by an expert valuer, the expert’s valuation was binding and could not be challenged in court proceedings.
16/7/14
FHR EUROPEAN VENTURES LLP v CEDAR CAPITAL PARTNERS LLC [2014] UKSC 45
The Court of Appeal had been right to hold that where an agent receives a secret commission in breach of the fiduciary duty owed to his principal, the agent held the money on trust for his principal, so the principal had a proprietary claim to it. Cases suggesting that there is no trust are wrong.
15/7/14
RE K (A CHILD) [2014] EWCA Civ 905
A judge should have recused herself from a committal application because the decision and comments made by the judge on applications relating to the respondent’s failure to return his son to the jurisdiction and likely imprisonment ,gave the impression that the judge had already decided the committal application. The judge should also not have required the respondent to give evidence on the committal application which is a criminal proceeding in relation to which the respondent should have been told that he had an option whether to give evidence.
11/7/14
GREENWICH MILLENNIUM VILLAGE LTD v (1) ESSEX SERVICES GROUP PLC [2014] EWCA Civ 960
The rule in Canada Steamship v R (that an indemnity is not to be construed to include the consequences of negligence of the party indemnified unless this is stipulated expressly or by necessary implication) is a rule of presumed intention. In the case of a construction contract, a failure by the party indemnified to spot defects perpetrated by its contractor or sub-contractor should not ordinarily defeat the operation of an indemnity clause, even if that clause fails expressly to encompass damage caused by the negligence of the party indemnified. So an indemnity covered loss caused by a sub-contractor in respect of workmanship defects that led to a flood, even though the defects should have detected on an inspection by the indemnified party. In any event, the sub-contractor was liable in negligence.
11/7/14
IN THE MATTER OF LEHMAN BROTHERS INTERNATIONAL (EUROPE) [2014] EWHC (Ch)
In proceedings for breach of contract the court refused to order disclosure of documents relevant to a different negligence claim which the applicant had reserved the right to bring but which it had not yet pleaded.
11/7/14
When construing the terms of a tradable financial instrument the court should test any interpretation against the commercial consequences. It is not the case that commercial considerations have no role to play in deciding whether a particular meaning is ambiguous. Applying the right approach, a clause which allowed reinvestment of money if the ratings of the senior notes "have not been downgraded below their initial ratings", was referring to a downgrade from the original rating of the notes at the time of the reinvestment, and not any historic downgrade which had been followed by a subsequent upgrade back to the original rating.
10/7/14
KOUSOUROS v O”HALLORAN [2014] EWHC 2294 (Ch)
Considers the limits of joint interest privilege and loss of privilege. When a solicitor was jointly instructed but was later consulted on the mater in dispute by one party, those communications could be privileged.
10/7/14
SCHRODER EXEMPT PROPERTY UNIT TRUST v BIRMINGHAM CITY COUNCIL [2014] EWHC 2207 (Admin)
Once a liquidator has disclaimed a lease, the landlord has the right to immediate possession and is the owner of the unoccupied property for the purpose of liability for non-domestic rates. The position is not affected by any right which a guarantor may have to call for an overriding lease under s 19 of the Landlord & Tenant Covenants Act 1995 if the guarantor has not exercised that right.
10/7/14
SMITHTON LTD v NAGGAR [2014] EWCA Civ 939
Considers when an individual may be a de facto or shadow company director [16]. On the facts the trial judge had been entitled to hold that the evidence did not establish that the defendant had been involved in the company’s management. Nor was the defendant liable under s 190 Companies Act 2006 for entering into a substantial property transaction with the company without members’ approval, because the defendant had not acquired any asset from the company.
10/7/14
SRJ v PERSON(S) UNKOWN [2014] EWHC 2293 (QB)
The court refused to make an order under s 37 Senior Courts Act 1981 requiring disclosure by a solicitor of the identity of a client. Considers whether a client’s identity can be the subject of legal professional privilege.
8/7/14
CREDIT & MERCANTILE PLC v NABARRO [2014] EWHC (Ch)
Considers the circumstances in which a mortgage lender can be entitled to recover from a negligent solicitor, the lender’s whole loss from entering into a mortgage transaction. Where a solicitor failed to report that planning permission was for development extending to adjoining land on which the lender had no security, the lender’s loss was limited to the difference between the actual value of a property and its value with planning permission capable of being implemented.
8/7/14
DWF LLP v SECRETARY OF STATE FOR BUSINESS INNOVATION & SKILLS [2014] EWCA Civ 900
The judge below had wrongly refused permission to amend a claim form in proceedings brought by solicitors to challenge the fairness of a decision to reject its tender to undertake panel work for the Insolvency Service. Applying the same principles as would apply to the interpretation of contracts, the proposed amendment did not introduce a new cause of action and could therefore be made outside the primary limitation period.
8/7/14
CALDERO TRADING LTD v LEIBSON CORP LTD [2014] EWCA Civ 935
Dismissing an appeal, the court observed that wholesale disregard of the Practice Direction on appeals by serving skeleton arguments exceeding 25 pages, and a failure to use common sense to work out what bundles were needed for the appeal, could lead to strict adverse costs orders [46].
8/7/14
AKHTAR v BOLAND [2014] EWCA Civ 943
The no costs rule for small claims in CPR 27.14(2) applies to appeals in small claims to the Court of Appeal.
4/7/14
CAPITA (BANSTEAD 2011) LTD v RFIB GROUP LTD [2014] EWHC 2197 (Comm)
Contains useful summaries of the general principles for interpretation of contract terms and the special treatment given to the interpretation of clauses relied on to exempt a party from the consequences of his own negligence or to indemnify him against loss caused by such negligence [14-15]. On the facts the purchaser under a share sale agreement was liable to be indemnified by the seller only for losses whose effective cause was wrongful conduct before the transfer date.
4/7/14
BODO COMMUNITY v SHELL PETROLEUM DEVELOPMENT CO OF NIGERIA LTD [2014] EWHC 2170 (TCC)
The court explained the dangers of making cost awards on an issue basis and refused to do so.
4/7/14
AGEAS (UK) LTD v KWIK-FIT (GB) LTD [2014] EWHC 2178 (QB)
When assessing damages for breach of contract by reference to the value of a company or other property at the date of breach, if the value depends on a future contingency, account could be taken of what was subsequently known as a result of events subsequent to the valuation date if where that was shown to be necessary to give effect to the compensatory principle. On the facts it had not been shown that assessment at the date of breach offended the compensatory principle or resulted in a windfall to the claimant.
4//7/14
DENTON v TH WHITE LTD [2014] EWCA Civ 906
Explains the test for relief from sanction in Mitchell v News Group Newspapers. A judge should address the application in three stages. First, identify and assess the seriousness and significance of the failure. If the breach is neither serious nor significant, relief will usually be granted. Second, consider why the default occurred. Third, evaluate all the circumstances of the case, giving particular weight to CPR r 3.9(1)(a) (whether the breach has affected the efficient conduct of litigation at proportionate cost) and (b) (the need for compliance with the rules). Parties must co-operate to avoid satellite litigation. Parties unreasonably refusing extensions of time or relief from sanctions should be penalised in costs. This may include substantially reducing costs of a successful party at the end of a case or awarding indemnity costs against an unsuccessful party.
4/7/14
NORCROSS v GEORGALLIDES [2014] EWHC (Comm)
Steps taken to serve a claim form amounted to good service under CPR r 6.15. Although the form had been delivered to the wrong address and the claimant had not taken reasonable steps to locate the correct address, the defendant had become aware of the proceedings during the validity of the claim form and had suffered no prejudice.
4/7/14
ENVIRONMENT AGENCY v CHURNGOLD RECYCLING LTD [2014] EWCA Civ 909
Copy documents and electronic data cannot be the subject matter of the tort of conversion so the court cannot order them to be delivered up.
4/7/14
NOVOSHIP (UK) LTD v NIKITIN [2014] EWCA Civ 908
If an agent or employee receives a bribe which he then shares with another, he is in breach of his fiduciary duty in then negotiating other transactions with that other person for as long as he has not disclosed the matter to his principal [54]. A defendant found to have dishonestly assisted another’s breach of fiduciary duty in this way has the same responsibilities as an express trustee and can be ordered to provide an account of profits [92]. That is so even if the dishonest assistance does not involve the misapplication of trust property [93]. Although causation of loss is not required to be established when seeking an account of profits for breach of fiduciary duty, causation is required in a claim for an account of profits from a dishonest assistant who is not himself a fiduciary [107]. This requires more than “but for” causation [108]. Although the defendant had obtained the use of certain vessels by such dishonest assistance, the effective cause of his profit had been an unexpected change in the market [115], so causation was not made out in this respect. In addition, the remedy of an account against a dishonest assistant who is not a fiduciary is discretionary [119] and it would be disproportionate in relation to the defendant’s use of the vessels. The judge had been entitled to award interest on the judgment (expressed in US$) at 2.5% over 3 month $ LIBOR.
3/7/14
BLAKE LAPTHORN SOLICITORS v ABBEY LIFE TRUST SECURITIES LTD [2014] EWHC (Ch)
A new claim had been correctly permitted to be introduced by amendment of an existing professional negligence claim outside the primary limitation period. The existing claim was for negligent advice as to the effect of a deed. The new claim, for negligent advice as to the certification of the deed, arose out of substantially the same facts within s 35 Limitation Act 1980 & CPR r 17.4(2).
3/7/14
JOBANPUTRA v MODI [2014] EWCA Civ
It was not appropriate to make a non-party costs order against a third party solicitor who had given misleading information by wrongly certifying a copy document as a true copy but who had taken no part in the litigation.
2/7/14
POWER v MELOY WHITTLE ROBINSON SOLICITORS [2014] EWCA Civ 898
Steps already taken by the claimant to bring a claim form to the attention of the defendant solicitors constituted good service under CPR r 6.15. The defendant knew everything it needed to know about the claim, that the claimant intended to pursue the action and had attempted to serve the proceedings on the defendant through the court. The correspondence and discussions between the solicitors made it plain that the claim was acknowledged to be live and was consistent with service having been treated as effected within the period of validity of the claim form.
2/7/14
EDMOND DE ROTHSCHILD SECURITIES (UK) LTD v EXILLON ENERGY PLC [2014] EWHC 2165 (Comm)
On its true interpretation, a contract entitled the claimant to a success fee if the stated event occurred regardless of whether the claimant was the effective cause of that event. This accorded with business common sense because it would have been difficult to establish whether the claimant had been the effective cause.
2/7/14
DIL v COMMISSIONER OF POLICE OF THE METROPOLIS [2014] EWHC 2184 (QB)
There may be cases where on policy grounds a party can properly refuse to admit or deny an allegation and can be regarded as unable to admit or deny the fact within CPR r 16.5 [24]. On the facts, with the exception of information in relation to two individuals, there was no legitimate policy reason for the police commissioner to refuse to plead a positive defence.
2/7/14
GUL BOTTLERS (PVT) LTD v NICHOLS PLC [2014] EWHC 2173 (Comm)
Considers principles of mitigation and avoidable loss in a claim for breach of contract [22]. On the facts the innocent party had not acted unreasonably in refusing to enter into a new agreement with the party in default.
2/7/14
ROCHESTER RESOURCES LTD v LEBEDEV [2014] EWHC 2185 (Comm)
A draft complaint which a defendant sent to a claimant was a ‘first shot’ at settlement discussions and therefore covered by without prejudice privilege.
1/7/14
EMIRATES TRADING AGENCY LLC v PRIME MINERAL EXPORTS PRIVATE LTD [2014] EWHC 2104 (Comm)
A clause in a contract required the parties to seek to resolve a dispute by friendly discussions in good faith and within a limited period of time before the dispute may be referred to arbitration was unenforceable. The court was not bound by authority to hold that the clause was unenforceable. It was enforceable, but on the facts the required discussions had taken place.
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