March 2014
28/3/14
LITTLEWOODS RETAIL LTD v REVENUE & CUSTOMS COMMISSIONERS [2014] EWHC 868 (Ch)
In a claim for an indemnity for overpaid VAT, the court considered the application of the principles of issue estoppel, the extent to which companies in the same group are to be regarded as privies [214], contractual estoppel [229], and abuse of process [243]. The court held that the loss of use of the overpaid tax should be compensated by an award of compound interest.
28/3/14
RELFO LTD v VARSANI [2014] EWCA Civ 360
The judge below had been entitled to infer that funds which a director caused a company to transfer to another company’s account were the source of money paid by that company to the defendant. What matters is that there has been an exchange of the value of the claimant's property into other property for which it was substituted, and so on down the chain of substitutes (Foskett v McKeown, 2001). There is no need for the payments to be in chronological order so long as they are made in exchange for a promise of reimbursement. There was also an alternative claim in unjust enrichment. Although any principle for recovery in unjust enrichment from indirect recipients needed refining in later cases, here on the judge's findings, as a matter of substance, or economic reality the defendant was a direct recipient or the causal connection between the payment and receipt was sufficiently made out.
28/3/14
HARRISON v MADEJSKI [2014] EWCA Civ 361
A judge had been entitled to find that the sale of a car at auction had excluded its personalised registration mark, and that the buyer had been unjustly enriched by acquiring the mark. The enrichment was rightly measured as the mark's market value, not the lower value the buyer assigned to it at the auction. Subjective value could be defeated by a claimant proving that the defendant had received an incontrovertible benefit, or that the defendant had requested or freely accepted the benefit (Benedetti v Sawiris, 2013). The judge had been entitled to make a Bullock order for payment by the purchaser of the claimant’s unsuccessful costs of a claim against the auctioneers as second defendants.
27/3/14
MITCHELL v NEWS GROUP NEWSPAPERS LTD [2014] EWHC 879 (QB)
Applications for non-party disclosure of witness statements obtained by the police were refused as the witnesses, who has objected to disclosure on grounds of confidentiality were not represented and their objections had not been properly put in evidence.
27/3/14
CO-OPERATIVE GROUP LTD v CARILLION JM LTD [2014] EWHC 837 (TCC)
Having regard to the applicable principles [10], an application by the defendant for permission under CPR 14.1(5) to withdraw or qualify admissions was refused. An application by the claimant to adduce additional expert valuation evidence was also refused having regard to the limited time available before trial.
27/3/14
LENI GAS & OIL INVESTMENTS LTD v MALTA OIL PTY LTD [2014] EWHC 893 (Comm)
Analyses the applicable principles for claims in deceit. On the facts the claim failed as no implied representations had been made nor was causation made out.
27/3/14
WEST v IAN FINLAY & ASSOCIATES [2014] EWCA Civ 316
Considers the application of the Unfair Terms in Consumer Contracts Regs 1999 to an exclusion clause in a construction contract effectively limiting a contractor’s liability for loss for which it was responsible with others to the level of contribution which would be payable under the Civil Liability (Contribution) Act 1978 (regardless of the insolvency of the others who were liable). On the facts the clause was fair. It also satisfied the requirement of reasonableness in the Unfair Contract Terms Act 1977. The court also considered the correct approach to the award of interest [75] and the level of awards of damages for distress and inconvenience [84]. On the facts interest at 4.5% pa over base was appropriate and damages for distress were reduced to reflect the guidance in AXA Insurance UK Plc v Cunningham Lindsay UK (2007).
26/3/14
NEWLAND SHIPPING & FORWARDING LTD v TOBA TRADING FZC [2014] EWHC 864 (Comm)
The court considered the appropriate costs order where both claim and counterclaim succeeded. A CPR Part 36 offer made before two claims had been de-coupled, ceased to be effective once the claims had been separated into two actions.
25/3/14
HURD v TPL HOLDINGS LTD [2014] EWHC (Ch)
The court refused summary judgment dismissing a minority shareholder's unfair prejudice petition. Under s 996 Companies Act 2006. Although the proposals which had given rise to the complaint had been withdrawn, relief was still possible given what had been proposed and the manner in which it had been driven forward.
21/3/14
FUJITSU SERVICES LTD v IBM UNITED KINGDOM LTD [2014] EWHC 752 (TCC)
Contains a useful analysis of the principles of contractual construction when considering exclusion clauses and the circumstances in which contracting parties may assume fiduciary duties. On the facts a clause excluding the liability of a main contractor to a sub-contractor for loss of profits was effective, there was no fiduciary relationship between the parties and no duty of good faith was owed.
20/3/14
BARCLAYS BANK PLC v UNICREDIT BANK AG [2014] EWCA Civ 302
A bank's refusal to consent to the early termination of guarantees it had given in respect of loan portfolios had been exercised in "commercially reasonable" manner in the terms of the guarantees because early termination would have deprived the bank of significant revenue over the remaining term of the transaction. The bank had been entitled to take account of its own interest in preference to that of the counterparty to the guarantees.
20/3/14
DA ROCHA-AFODU v MORTGAGE EXPRESS LTD [2014] EWCA Civ 454
A mortgage condition allowed a mortgagee in possession to dispose of chattels left on the premises after seven days. The mortgagee had discharged its duty as an involuntary bailee by disposing of the mortgagor’s chattels in line with that condition. Although the mortgage also gave the mortgagee power to remove and store chattels, the mortgagee had not been obliged to do that before disposing of the items.
20/3/14
FONS HF (IN LIQUIDATION) v CORPORAL LTD [2014] EWCA Civ 304
The judge below had been wrong to decide that a charge expressed to charge shares, debentures and other securities in a specified company did not charge rights under an agreement by which the chargor had provided unsecured loans to that company. The court of appeal considered cases on the meaning of debenture [27-34] and concluded that there was nothing in the charge to prevent the reference to debentures from carrying its ordinary meaning of an acknowledgment of debt recorded in a written document. A simple loan agreement was therefore a debenture within the scope of the charge.
19/3/14
APEX GLOBAL MANAGEMENT LTD v FI CALL LTD [2014] EWHC 779 (Ch)
Security for costs would not be ordered where issues giving rise to a cross-claim could not be separated from the original claim so that an order that the claimants provide security for costs would effectively be giving the defendants security for the costs of their own claim.
14/3/14
YOUR RESPONSE LTD v DATATEAM BUSINESS MEDIA LTD [2014] EWCA Civ 281
A service provider could not exercise a common law lien over the electronic database it had managed for the defendant. It is not possible to exercise a common law lien over intangible property.
14/3/14
OTKRITIE INTERNATIONAL INVESTMENT MANAGEMENT LTD v URUMOV [2014] EWHC 755 (Comm)
If relevant recoveries are made prior to judgment which reduce the damage suffered by the claimant, they should usually reduce the amount of any judgment in favour of the claimant. If the defendants are jointly and severally liable, there should usually be no appropriation. Otherwise it might be correct that the claimants had a choice as to how recoveries were to be appropriated if what was proposed was not "obviously unsustainable".
12/3/14
DUNHILL v BURGIN [2014] UKSC 18
Considers the test to be applied in assessing capacity to conduct proceedings. The general rule that a contract made by a person who lacks capacity is valid unless the other party knew, or ought to have known, about the incapacity does not apply to a consent order made in legal proceedings. CPR Part 21 invalidates a consent order involving a protected party if made without the appointment of a litigation friend and court approval, even if the protected party’s lack of capacity had been unknown at the time of the compromise.
11/3/14
WELLESLEY PARTNERS LLP v WITHERS LLP [2014] EWHC 556 (Ch)
Solicitors were negligent in drafting an option in a limited liability partnership agreement which allowed an investor to withdraw half its capital contribution in the first 41 months of the agreement. The firm had not been given instructions to include that provision. The court summarised the principles to be applied in assessing loss of business profits on the basis of a loss of chance claim [183].
6/3/14
MIAH v JALIL [2014] EWCA Civ 341
Having granted relief from sanction for late service of witness statements a judge had been wrong not to grant an adjournment of the start of the trial. The defendants were not prepared for trial and had reasonably assumed that an adjournment would follow relief being granted.
6/3/14
Where recoverable damages were limited or excluded by a contractual provision, an applicant for an interim injunction can properly argue that damages would not be an adequate remedy for a threatened breach of contract.
5/3/14
BANK ST PETERSBURG v ARKHANGELSKY [2014] EWHC 574 (Ch)
Committal proceedings for contempt of court are the appropriate remedy for an alleged breach of a freezing injunction, not an application for a declaration that the respondent had acted in breach.
5/3/14
HAGUE PLANT LTD v HAGUE [2014] EWHC 568 (Ch)
Permission to re-amend particulars of claim was refused on grounds of proportionality. The claim had been running for 2½ years, the proposed re-amendments were extensive and to allow them would lead to further extensive judicial time being expended at the expense of other litigants.
4/3/14
FOOTBALL DATACO LTD v STAN JAMES (ABINGDON) LTD [2014] EWHC 504 (Ch)
Permission to amend particulars of claim for a fifth time was refused. The new allegation could have been made from the outset and the application was made after the hearing of a split trial and pending an appeal to the Supreme Court.
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