June 2020
30/6/20
LAMESA INVESTMENTS LTD v CYNERGY BANK LTD [2020] EWCA Civ 821
Summaries principles of contractual interpretation [18]. A clause in an agreement between banks for the loan of Tier 2 capital provided that the borrower would not be in default if it did not pay in order to comply with a mandatory provision of law. On its proper interpretation sanctions made by the United States against an indirect owner of the lender justified the non-payment of interest by the borrower and the clause was not limited to prohibitions which directly bound the borrower.
30/6/20
THE FINANCIAL CONDUCT AUTHORITY v ACADE LTD [2020] EWHC 1673 (Ch)
Considers whether activities by a company which did not have FCA authorisation had been regulated activities within the FSMA 2000. Considers whether the company had been “making arrangements” for investments within article 25 of the Regulated Activities Order (RAO) [193] and advising on investments within article 53 of the RAO [298]. Also considers the meaning of financial promotions [356], whether false or misleading statements had been made [379] and whether the individuals involved had been knowingly concerned in the contraventions [448] for the purpose of making restitution orders against them under s 382 FSMA. On the facts the contraventions alleged by the FSA had been made out and the individuals were found to have been knowingly concerned in the relevant infringements.
26/6/20
INFINITY DISTRIBUTION LTD (IN LIQUIDATION) v THE KHAN PARTNERSHIP LLP [2020] EWHC 1657 (Ch)
A deed of indemnity was ordered to be provided by a claimant as security for the defendant’s costs. The fact that the deed would increase the claimant’s own costs for which the defendant could be liable if the claim succeeded was not relevant in considering whether the deed was acceptable as security for costs.
26/6/20
CENTRAL BRIDGING LOANS LTD v ANWER [2020] EWHC 1745 (Ch)
Considers principles to be applied on an application for an extended civil restraint order (ECRO) [11]. On the facts and ECRO was justified.
24/6/20
INTERNATIONAL PIPELINE PRODUCTS LTD v IK UK LIMITED [2020] EWHC 1602 (Ch)
Considers principles to be applied on applications for security for costs against a company [12]. On the facts the threshold test was not met because defendants had failed to satisfy the court that there was reason to believe that the claimant would be unable to pay the defendant’s costs.
23/6/20
HELLARD v REGISTRAR OF COMPANIES [2020] EWHC 1561 (Ch)
Considers who has standing to apply to restore a company to the register under s 1029 Companies Act 2006. On the facts, the applicants had no standing.
23/6/20
HINDUJA v HINDUJA [2020] EWHC 1533 (Ch)
Considers principles to be applied on application to appoint a litigation fried under CPR Part 21, and on applications for orders restricting access to statements of case and other documents under CPR r 5.4C and transcripts under CPR r 39.9.
22/6/20
TARGET RICH INTERNATIONAL LTD v FOREX CAPITAL MARKETS LTD [2020] EWHC 1544 (Comm)
The claimant claimed losses caused by the alleged failure of the defendant to act on instructions (stop loss orders) requiring open positions in foreign exchange transactions to be closed out. The claim was dismissed. The court considered the extent to which duties under the FSMA 2000 may be relied upon as giving rise to co-extensive duties of care at common law [61]. The court rejected a submission that the COBS rules in the FCA Handbook were implied into the agreement between the parties [88]. The court considered the effect of the COBS rules on best execution [114] and held that even if they had been incorporated, they would not have been breached. Mere transmission of an instruction did not create a binding obligation on the defendant to do anything.
22/6/20
SINGULARIS HOLDINGS LTD v CHAPELGATE CREDIT OPPORTUNITY MASTER FUND LTD [2020] EWHC 1616 (Ch)
On its prior interpretation, a litigation funding agreement did not provide for reductions to damages for contributory negligence to be disregarded in assessing sums payable to the funder by the successful claimant.
19/6/20
BALENGANI v SHARIFPOOR [2020] EWHC 1571 (QB)
The claimant had not acted promptly in applying to set aside a court order and judgment. The court considered the principles to be applied in setting aside an order under CPR r 23.11 and a judgment made at a trial under CPR r 39.3(5), and the need to satisfy the requirements for relief from sanction in CPR r 3.9 in relation to both applications. Although the claimant had suffered significant injuries in an accident, he had known of the hearings but for reasons of his own had lost interest in his claim and had decided to take no further part in the proceedings.
19/6/20
VARIOUS CLAIMANTS v NEWS GROUP NEWSPAPERS LTD [2020] EWHC 1593 (Ch)
Considers principles to be applied when reliance is placed on deliberate concealment to postpone the limitation period under s 32 Limitation Act 1980 and the requirement that the deliberate concealment relied upon must have been of facts relevant to the breach of duty for which the claimant is suing, not breach of some free-standing duty [52].
19/6/20
OYSTEN v RUBIN [2020] EWHC 1726 (Ch)
Considers when it is appropriate for proceedings under CPR Part 8 to be heard by a Master or by a judge [10].
19/6/20
UNIVAR UK LTD v SMITH [2020] EWHC 1596 (Ch)
Summarises principles of rectification [195] including the distinction between a mistake as to the legal effect of words used in a document in contrast with the commercial or fiscal consequences of a mistake, the need for convincing proof and the modified effect of these requirements in the context of rectification of pension scheme rules. Also considers principles of estoppel by convention [349]. On the facts, the rectification claim succeeded so that provisions for inflation-linked pension increases based on the Retail Prices Index were effectively based instead on the Consumer Prices Index.
18/6/20
ESSEX COUNTY COUNCIL v UBB WASTE LTD [2020] EWHC 1581 (TCC)
Considers principles for the implication of terms of good faith in relational contracts [99] and a term that a contractual power or option is to be exercised within a reasonable time [373] [400]. On the facts the defendant had made a number of design errors and as a result had built a facility which could not pass the acceptance tests under a PFI contract for the design, construction and operation of a mechanical biological waste treatment plant.
18/6/20
LIV BRIDGING FINANCE LTD v EAD SOLICITORS LTD (IN ADMINISTRATION) [2020] EWHC 1590 (Ch)
The claimant sought summary judgment on claims that the defendant solicitors had paid away monies without obtaining security for loans advanced by the claimant. The court summarised the principles to be applied on applications for summary judgment [18] and principles governing the assessment of equitable compensation for breach of fiduciary duty [22]. The solicitors paid out the money in the knowledge that this was contrary to the conditions on which it was held so as to give rise to a breach of trust [33]. Equitable compensation was limited to losses falling within the scope of the firm’s duty to obtain a first charge [35]. In relation to loans where there was no evidence of any likely repayment and the court was satisfied that no loss would have been suffered if security had been provided, summary judgment was given for the full amount of the advances [36]. The court refused summary judgment in relation to loans where there was evidence that more than the sums advanced had been repaid [37] because claims for arrangement fees and interest required investigation at trial [38].
17/6/20
BRESCO ELECTRICAL SERVICES LTD v MICHAEL J LONSDALE (ELECTRICAL) LTD [2020] UKSC 25
The fact that a company is in liquidation and subject to the insolvency regime for set-off of mutual claims, does not prevent the company from bringing court proceedings to determine the value of its claim against another party, exercise a contractual right to go to arbitration [50-51], or refer its claim to adjudication [52]. The fact that summary enforcement of the adjudicator’s decision may not be allowed does not deprive adjudication of its potential usefulness [64-67].
17/6/20
SAINSBURY’S SUPERMARKETS LTD v VISA EUROPE SERVICES LLC [2020] UKSC 24
A fee (MIF) payable to a card issuer under the rules of Visa and MasterCard payment schemes, had the effect of restricting competition in breach of article 101(1) of the Treaty on the Functioning of the European Union and ss 2 and 9 of the Competition Act 1998. The MIF is passed on to retailers who have no ability to negotiate the fees down, so the fees are determined by collective agreement rather than competition. Considers principles of assessment of loss [194]. The extent to which the retailers mitigated their loss by passing-on the MIF to suppliers and customers could only be a matter of estimation. The law does not require unreasonable precision in proof of the amount [225]. Having held that the trial judge was wrong to find the MIF was exempt under article 101(3), the Court of Appeal should not have remitted that issue for reconsideration. To do so would allow re-litigation which is contrary to the principle of finality in litigation [240].
16/6/20
RE A COMPANY (APPLICATION TO RESTRAIN ADVERTISEMENT) [2020] EWHC 1551 (Ch)
The court was satisfied that coronavirus had a financial effect on the company before presentation of a winding-up petition within s 5(1)(c) of the Corporate Insolvency & Governance Bill. The court was not satisfied that the company would be insolvent even if coronavirus had not had a financial effect on the company, within the meaning of s 5(3) of the Bill. The court therefore exercised its discretion to restrain advertisement of a winding-up petition.
16/6/20
CROWTHER v CROWTHER [2020] EWCA Civ 762
Contains a useful summary of principles governing the making of freezing orders [47] - [48].
12/6/20
BENKEL v EAST-WEST GERMAN REAL ESTATE HOLDING [2020] EWHC 1489 (Ch)
Considers principles to be applied under CPR r 34.23 on an application for the court to request a court in an EU member state (other than Denmark) to take evidence for use in judicial proceedings. Also considers requirements to be satisfied on an application under CPR r 19.2(2) to join a party to proceedings.
12/6/20
GARDINER v TABET [2020] EWHC 1471 (Ch)
Considers principles to be applied on an application under CPR 31.17 for non-party disclosure of documents.
12/6/20
UMRISH LTD v GILL [2020] EWHC 1513 (Ch)
The court rejected defences to a claim on personal guarantees that the guarantees had not been delivered, and that the claimant was estopped from enforcing the guarantees by having said they would not be enforced. There had been sufficient unconditional delivery by sending a scanned copy of the guarantor’s signature [85]. The estoppel argument failed on the facts but the court also doubted that promissory estoppel can be relied on in relation to conduct before there is a legal relationship between the promisor and promisee [101].
11/6/20
PURBRICK v CRUZ [2020] EWHC 1465 (QB)
Considers principles to be applied on an application to discharge a freezing injunction for material non-disclosure [56], and in assessing whether the claimant had a good arguable use that the defendant was a party to a contract [83].
11/6/20
PEARCE v EAST AND NORTH HERTFORDSHIRE NHS TRUST [2020] EWHC 1504 (QB)
Summarises principles to be applied on a late application to amend a defence [10].
11/6/20
HEAT TRACE (UK) LTD v HEAT TRACE LTD [2020] EWHC 1418 (Ch)
Considers principles to be applied on an application to amend brought under s 35 Limitation Act 1980 to plead a new cause of action arising out of the same or substantially the same facts and matters as an existing claim [86]. On the facts the test was not satisfied. The factual investigation which would have to be undertaken if the proposed amendment was permitted went very significantly beyond that which would have been needed to address the original case.
11/6/20
OCADO GROUP PLC V McKEEVE [2020] EWHC 563 (Ch)
Considers principles to be applied on a hearing for criminal contempt. On the facts the claim did not disclose a prima facie case and was dismissed.
11/6/20
OCADO GROUP PLC v McKEEVE [2020] EWHC 1363 (Ch)
Considers when the court should review a draft judgment [5]. Considers requirements for a committal application [18] including specificity of grounds, where the grounds are stated and limitations on the circumstances in which the court will allow amendment of the grounds. Following analysis, the court refused to make a substantial change to its draft judgment.
11/6/20
BRAKE v GUY [2020] EWHC 1484 (Ch)
Evidence in a witness statement on an interim application cannot be disbelieved unless it is simply incredible [17]. Considers principles on which the court will order security for costs against an individual claimant under CPR 25.13(2)(g) because the claimant has taken steps in relation to his assets that would make it difficult to enforce an order for costs against him [36]. During the hearing the defendant conceded the test was not satisfied, but the court would not have ordered security in any event. The defendant was therefore liable to pay the claimant’s costs but there was nothing sufficiently out of the norm to justify assessment on the indemnity basis [75].
10/6/20
SCHOOL FACILITY MANAGEMENT LTD v GOVERNING BODY OF CHRIST THE KING COLLEGE [2020] EWHC 1477
Considers counter-restitution in unjust enrichment claims [9]. Also considers principles to be applied on an application for a stay of execution pending appeal. On the facts a stay was justified but the court refused to delay the running of interest under the Judgments Act [34].
10/6/20
DVB BANK SE v VEGA MARINE LTD [2020] EWHC 1494 (Comm)
Considers when documents other than a claim form may be served by an alternative method or at an alternative place [46] - [55] and the grant of permission to make a summary judgment application against a defendant who has not filed an acknowledgment of service [56] - [63].
10/6/20
Considers principles of legal advice privilege [4]. On the facts a risk register prepared by in-house counsel, minutes of meetings and a script prepared by a lawyer for the chairman of a meeting, did not record legal advice and were not privileged.
9/6/20
THE PUBLIC INSTITUTION FOR SOCIAL SECURITY v RAJAAN [2020] EWHC 1498 (Comm)
Considers the extent to which disclosure of information will be ordered in aid of a freezing injunction [18].
8/6/20
TINKLER v FERGUSON [2020] EWHC 1467 (QB)
Considers when proceedings will be struck out as an abuse of process involving re-litigation or a collateral attack on an earlier judgment [34], or where litigating the claim will yield no tangible or legitimate benefit [46].
5/6/20
SCIPION ACTIVE TRADING FUND v VALLIS GROUP LTD [2020] EWHC 1451 (Comm)
Considers the right of a possessor or bailee of goods to sue for damages for loss of the goods [74] and the applicable law in cases of claims to possession of goods [88]. In the case of contractual bailment, the applicable law is the law governing the contract [91]. Considers whether a contract of bailment precludes the bailee from denying the bailor’s title and right to possession [101]. The Torts (Interference with Goods) Act 1977 does not extend to contractual claims where concurrent liability exists in contract and tort or bailment. It only applies to claims in tort [108]. Considers when a party is estopped from denying the validity of security [119]. On the facts a pledge was valid under the applicable law [214]. Considers the measure of loss recoverable by a pledgee [219], valuation and mitigation [239].
5/6/20
SOFER v SWISSINDEPENDENT TRUSTEES SA [2020] EWCA Civ 699
Considers principles for pleading dishonesty [23]. In pleading dishonesty against a corporate body, a failure to identify at the outset the directors, officers or employees who had the relevant knowledge, is not a reason to strike out an allegation of dishonesty on the part of the company [32].
5/6/20
TRW PENSIONS TRUST LTD v INDESIT COMPANY POLSKA SP ZOO [2020] EWHC 1414 (TCC)
Considers when an application to change the name of a party should be dealt with under CPR r 17.4(3) on grounds of mistake or as an application to substitute a party under CPR r 19.5, and the principles applicable under CPR r 19.5(3)(a) to an application to substitute a party. On the facts an application to change the name of the second defendant from TP ICPAP plc and to substitute it with TP ICAP Group Services Ltd, succeeded.
4/6/20
VARIOUS CLAIMANTS v NEWS GROUP NEWSPAPERS LTD [2020] EWHC 1436 (Ch)
Considers principles to be applied when reliance is placed on deliberate concealment to postpone the limitation period under s 32 Limitation Act 1980. The facts concealed must be facts which make up the cause of action, not merely evidence to prove it [32]. The claimant must plead facts which have been concealed from him personally, but if there is more than one claimant they can each rely on the same facts in a generic pleading [47]. The deliberate concealment relied upon must have been of facts relevant to the breach of duty for which the claimant is suing, not breach of some free-standing duty [56].
4/6/20
SC v UNIVERSITY HOSPITAL SOUTHAMPTON NHS FOUNDATION TRUST [2020] EWHC 1445 (QB)
Considers when a hearing should be held in court rather than remotely.
4/6/20
WOLLOFF v CALZATURIFICIO RODOLFO ZENGARNI SRL [2020] EWHC 1433 (Ch)
Considers principles to be applied in making orders against EU nationals for disclosure of information to liquidators under s 236(3) Insolvency Act 1986.
4/6/20
MVV ENVIRONMENT DEVONPORT LTD v NTO SHIPPING GMBH & CO KG [2020] EWHC 1371 (Comm)
Considers when an agent with no express authority, has implied actual authority [37] or ostensible authority [45] to enter into a contract on behalf of a principal. On the facts the agent had no such authority so the principal was not a party to the contract [47].
4/6/20
COPELAND v BANK OF SCOTLAND PLC [2020] EWHC 1441 (QB)
A possession order had been made in favour of a mortgagee at a hearing which the defendant did not attend. The defendant appealed against the court’s refusal to set aside the possession order. The appeal court considered CPR r 39.3 and summarised principles to be applied [11]. On the facts the appellant’s defences stood no real prospect of success. The court considered when a defendant has good reason not to attend the possession hearing on medical grounds [72]. Although the test applied by the court below had been too rigorous, the court had correctly concluded that the defendant had not demonstrated good reason.
3/6/20
COLT TECHNOLOGY SERVICES v SG GLOBAL GROUP SRL [2020] EWHC 1417 (Ch)
The court granted an injunction restraining presentation of a winding-up petition in relation to a debt disputed on grounds of illegality. Considers applicable principles [30] and the so-called Ralli Brothers principle that a contractual obligation will not be enforced where doing so would require the commission of a criminal offence in the place where the obligation falls to be performed [33].
3/6/20
CARILLION PLC (IN LIQUIDATION) v KPMG LLP [2020] EWHC 1416 (Comm)
Considers principles for pre-action disclosure under CPR r 31.16 [66]. The application must not encompass documents which will only be relevant, if at all, as background, nor documents which might merely lead to a train of enquiry. The documents must be likely to be within the scope of standard disclosure in regard to the issues which are likely to arise. If a request is too broad, the court can modify the order appropriately [69]. It is sufficient that the documents will enable the pleadings to be more focused and avoid later amendments [76]. On the facts the court did not consider it appropriate to exercise its discretion to order pre-action disclosure [86].
3/6/20
YUZU HAIR AND BEAUTY LTD v SELVATHIRAVIAM [2020] EWHC 1539 (Ch)
The court imposed a sentence of 18 months imprisonment on a defendant for failing to respond to an order requiring disclosure of assets, but the order was suspended for 21 day to give the defendant time to apply to clear his contempt and ask for his release or discharge.
3/6/20
SERAFIN v MALKIEWICZ [2020] UKSC 23
Considers when a judge’s conduct of a trial will be considered unfair having regard to the extent to which the judge intervened in the proceedings [40] especially if the proceedings involve a litigant in person [46]. The judge had exhibited a barrage of hostility and had used immoderate, ill-tempered and at times offensive language which had caused a trial to be unfair. A re-trial was ordered.
2/6/20
RE A COMPANY (INJUNCTION TO RESTRAIN PRESENTATION OF A WINDING-UP PETITION) [2020] EWHC 1406 (Ch)
The court granted an injunction to restrain presentation of a winding-up petition based on unpaid rent taking into account the prospective change in the law announced in the Corporate Insolvency and Governance Bill 2020 prohibiting winding-up petitions from being presented for non-compliance with a statutory demand served in the period 1 March - 30 June 2020.
2/6/20
McKAY v THE ALL ENGLAND LAWN TENNIS CLUB (CHAMPIONSHIPS) LTD [2020] EWCA Civ 695
On an application to commit a defendant for contempt for failing to comply with an order requiring him to provide information to the claimant, the judge hearing the application ought to have reminded the unrepresented defendant of his right to silence and his privilege against self-incrimination before asking him questions. The judge should have asked if the defendant was content to proceed without legal representation and whether he might wish to apply for an adjournment. The judge should have given consideration to imposing a non-custodial sentence and given the defendant an opportunity to make a plea in mitigation. The defects were not, however, so grave as to require the committal order to be set aside on appeal, as they had resulted in no unfairness or injustice.
1/6/20
PCP CAPITAL PARTNERS LLP v BARCLAYS BANK PLC [2020] EWHC 1393 (Comm)
Considers waiver of privilege [48] and the distinction between reference to the effect of legal advice as opposed to its contents [50]. On the facts, reference to legal advice in the Bank’s witness statements had amounted to a waiver [100].
1/6/20
GREGOR FRISKEN LTD v CARL [2020] EWHC 1385 (Comm)
Considers when a person who signs a contract in his own name is regarded as contracting personally even if he is an agent [54], the liability of an agent for an unidentified principal [95], and the inadmissibility of extrinsic evidence [139].
1/6/20
EZAIR v CONN [2020] EWCA Civ 687
Although a purchaser under a contract of sale obtains an equitable interest in the property sold, the rights of the purchaser remain at all times subject to the terms of the contract [47]. Prior to completion of the contract the purchaser does not have an equity in the property which he can transfer to a sub-purchaser so as to be binding as against the vendor [49]. Without an assignment of the purchaser’s rights, the sub-purchaser could not make a claim against the vendor for a transfer of the property.
1/6/20
DE SENA v NOTARO [2020] EWHC 1366 (Ch)
Considers principles regarding the award of costs on the indemnity basis [9], payment on account of costs [50], time for payment [60], and interest on costs [63].