May 2013
24/5/13
MAURITIUS COMMERCIAL BANK LTD v HESTIA HOLDINGS LTD [2013] EWHC 1328 (Comm)
Parties to contract can agree to vary the governing law and jurisdiction.
24/5/13
ELVANITE FULL CIRCLE LTD v AMEC EARTH & ENVIRONMENTAL (UK) LTD [2013] EWHC 1191 (TCC)
On the facts the defendant had not committed any breach of contract. But even if it had done so, clauses capping liability, excluding indirect loss and requiring claims to be brought within a year were not unreasonable contrary to the Unfair Contract Terms Act 1977 [284].
24/5/13
CREASEY v SOLE [2013] EWHC 1410 (Ch)
An arrangement for the defendant to farm part of the deceased’s land did not give the defendant exclusive occupation for agricultural purposes, so it could not be a tenancy within the Agricultural Holdings Act 1986. Nor did it give the defendant a right to occupy the land within the Trusts of Land & Appointment of trustees Act 1996 because the defendant's rights did not subsist in relation to the physical land, but only in relation to the an undivided share under a trust of the land.
24/5/13
GAVIN v ONE HOUSING GROUP LTD [2013] EWCA Civ 580
No term implied into a commercial lease for the landlord to repair retained parts of building. Exaggerating claim and unreasonably refusing offers to settle was sufficient to justify an award of indemnity costs.
23/5/13
ASPECT CONTRACTS (ASBESTOS) LTD v HUGGINS CONTRACTORS LTD [2013] EWHC 1322 (TCC)
A claim for a negative declaration that the claimant was not in breach of a construction contract was time-barred. The claimant could not rely on a new cause of action following an unfavourable adjudication under the HGCRA Scheme because there was no implied term in the construction contract that the party who lost the adjudication had a new cause of action to recover money paid to satisfy the adjudicator’s decision.
23/5/13
ROGERS v HOYLE [2013] EWHC 1409 (QB)
Contains an analysis of rules on admissibility of opinion evidence (in this case contained in an air accident investigation report) [53]. An air accident report containing statements of fact and opinion was admissible in a negligence claim against the pilot. It was for the trial judge to decide what weight to attribute to the report.
23/5/13
CHIANG v MISHCON DE REYA, (Ch)
The court was not satisfied on a summary judgment application that funds paid to solicitors had been subject to a Quistclose trust and could be said to have been paid away wrongfully.
23/5/13
CRINION v IG MARKETS LTD [2013] EWCA Civ 587
It is wrong for a judge to construct a judgment almost entirely on the basis of the written submissions of counsel for one party. The judge must demonstrate that he has brought his own independent judgment to bear and considered contrary submissions. On the facts the judge had done so despite extensive use of counsel’s submissions.
23/5/13
CRUZ CITY 1 MAURITIUS HOLDINGS v UNITCH LTD [2013] EWHC 1323 (Comm)
Order granted in aid of execution of arbitration award, requiring foreign defendants which had submitted to the jurisdiction, to disclose their assets.
22/5/13
NOVARTIS AG v HOSPIRA UK LTD [2013] EWCA Civ 583
To grant an interim injunction pending appeal the court must be satisfied that the appeal has a real prospect of success and assess all the relevant circumstances following judgment including the period of time before the appeal is likely to be heard and the balance of hardship to each party. The grant of such an injunction is not limited to cases in which a refusal would render the appeal nugatory.
22/5/13
HSBC BANK PLC v TAMBROOK JERSEY LTD [2013] EWCA Civ 576
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. Overruled the decision of the court below that 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 because no insolvency proceedings were pending or contemplated in Jersey.
21/5/13
R (ON THE APPLICATION OF CALLAND) v FINANCIAL OMBUDSMAN SERVICE LTD [2013] EWHC 1327 (Admin)
The fact that it had taken the FOS 6½ years to determine a complaint was not a breach of the complainant’s right to a fair trial under Art. 6 of the ECHR. Most of the delay was down to the complainant’s own conduct. Nor would an oral hearing have assisted in resolving the issues.
17/5/13
JSC BTA BANK v ABLYAZOV, EWHC (Comm)
In contempt proceedings it had been held that the defendant was the beneficial owner of a flat rather than a witness who had claimed to be the owner. On an application for a charging order the same witness was not entitled to claim to be owner of the flat. The principle that it is an abuse of process to make a collateral attack on a judgment can extend to witnesses as well as parties.
17/5/13
JUMANI v MORTGAGE EXPRESS, Ch D
Receivers were appointed over a portfolio of buy-to-let properties under mortgages which gave the mortgagee the right to require all mortgages to be redeemed together rather than individually. The claimant alleged an oral agreement had been reached to allow him to pay off the arrears and have the receivers discharged on some properties. The claim failed. The alleged agreement would have varied the mortgage terms and was inherently improbable. On an objective analysis and applying commercial common sense, nothing discussed had been intended to give rise to a binding agreement.
16/5/13
MANTON HIRE & SALES LTD v ASH MANOR CHEESE CO LTD [2013] EWCA Civ 548
Considers the duty of a claimant to mitigate by accepting offers of remedy. Although a claimant must act reasonably in mitigating loss, the standard is not high. The hirer of a fork lift truck which was too big to manoeuvre in the hirer’s premises did not fail to mitigate by refusing the supplier’s proposals to modify the vehicle. The proposals to modify had not been made with sufficient detail.
14/5/13
UNITED MARINE AGGREGATES LTD v GM WELDING & ENGINEERING LTD [2013] EWCA Civ 516
A judge had been wrong to disallow 50% of a party’s costs without giving that party an opportunity to be heard or to address argument on the matter.
13/5/13
MELLI BANK PLC v HOLBUD LTD, (Comm)
The fact that an Iranian bank had its assets frozen on being designated under Council Decision 2008/475/EC, did not prevent a facility agreement from being performed, nor had the agreement been frustrated. The defendant could have sought a licence to continue to make payments to the bank, but had failed to do so. The defendant had not accepted any repudiation of the agreement and was therefore liable for the commitment fee payable to the bank.
13/5/13
SLICK SEATING SYSTEMS v ADAMS [2013] EWHC B8 (Merc)
Costs of an action were summarily assessed at the sum claimed which was within the costs budget and where assessment on the indemnity basis was appropriate in view of the nature of the claim and the defendant’s conduct.
10/5/13
R C BREWERY LTD v COMMISSIONERS OF HM REVENUE & CUSTOMS [2013] EWHC 1184 (Ch)
The court refused to make an order under s 127 Insolvency Act 1986 validating payments by a company to solicitors and counsel to resist attempts to wind-up the company. The company did not appear to have a genuine defence and had merely been trying to buy time.
9/5/13
BNY CORPORATE TRUSTEE SERVICES LTD v EUROSAIL-UK 2007-3BL PLC [2013] UKSC 28, [2013] 1 WLR 1408
Loan notes were issued on terms that those with lowest priority would not be redeemed until 2045 but the trustee could serve an enforcement notice in certain default events, including if the issuer was unable to pay its debts within s 123 Insolvency Act 1986. An option was given for another company to purchase the notes for nominal consideration if the trustee determined that the issuer was unable to pay its debts. The issuer managed to maintain interest payments, but its accounts showed liabilities in excess of assets. Claims that the issuer was unable to pay its debts within s 123 failed. For the purpose of the balance sheet test in s 123(2) the court has to be satisfied on a balance of probabilities that a company has insufficient assets to meet its liabilities, including prospective and contingent liabilities which might not be reflected in statutory accounts. It is inappropriate to apply a test of whether a company has reached the point of no return. The court could not be satisfied that the issuer was in default until much closer to 2045. The existence of the option would have made no difference as it did not affect the issuer’s liabilities.
9/5/13
FUTTER v THE COMMISSIONERS FOR HER MAJESTY'S REVENUE & CUSTOMS [2013] UKSC 26
The rule in Hastings-Bass (by which a trustee’s exercise of discretion may be ineffective for failure to take into account relevant considerations) only applies if the trustee’s mistake is sufficiently serious to be a breach of duty. Here trustees had taken professional advice and could not be said to have acted in breach of duty. But the advice had not addressed adverse tax consequences and voluntary dispositions undertaken relying on the advice could be set aside for mistake. Although mere ignorance is insufficient to set aside such a disposition for mistake, conscious belief or tacit assumption is enough and could be inferred. (This decision is more often referred to as Pitt v Holt.)
8/5/13
TSG BUILDING SERVICES PLC v SOUTH ANGLIA HOUSING LTD [2013] EWHC 1151 (TCC)
On its proper construction a contract which gave each party the right to terminate at any time and for any reason did not require the party which terminated to act reasonably in doing so, nor was there an implied term of good faith requiring it to do so. No compensation was therefore payable on termination.
8/5/13
CONSOLIDATED FINANCE LIMITED v COLLINS [2013] EWCA Civ 475
The claimant and an associated company offered a scheme to the defendant bankrupt to provide funds to enable her to obtain the annulment of the bankruptcy order. The effect of the scheme was that the associated company initially provided the funds to the defendant and following the annulment the borrowing was refinanced by the claimant. The indebtedness was not provable in the bankruptcy because the loan post-dated the bankruptcy order. But the loan agreement with the claimant was a restricted-use credit agreement within s 11(1)(c) Consumer Credit Act 1974. It was not an exempt agreement and was unenforceable without a court order under s 127 because it had not been properly executed.
7/5/13
NEW FALMOUTH RESORTS LTD v INTERNATIONAL HOTELS JAMAICA LTD [2013] UKPC 11
Although a shareholder had no authority to sign a company contract, the contract had been ratified by a board meeting and was binding.
3/5/13
STANDARD BANK PLC v VIA MAT INTERNATIONAL LTD [2013] EWCA Civ 490, [25]
Skeleton arguments should be short and concise. They are not a vehicle for extended advocacy.
3/5/13
JONES v SECRETARY OF STATE FOR ENERGY & CLIMATE CHANGE [2013] EWHC 1023 (QB)
The court had power under CPR r 44.3(6) (now 44.2(6)) to order payment of pre-judgment interest on costs. The rate is in the court’s discretion and in this case the rate charged under agreements to fund the claimant’s disbursements was allowed.
2/5/13
HAMID v FRANCIS BRADSHAW PARTNERSHIP [2013] EWCA Civ 470
Summarises principles to be applied cases where the identity of a contracting party is in issue [57]. A contract signed by an individual below a trading name used by a company of which he was a director, bound that individual personally where the other party did not know the trading name was used by the company and the individual had not made it plain that the contract did not bind him personally.
2/5/13
HERON v TNT (UK) LTD [2013] EWCA Civ 469
A solicitor can act for an impecunious client even if he knows the client will not be able to pay his or the other side’s costs. The failure of a solicitor to obtain ATE insurance did not make the solicitor liable to a non-party costs order.
2/5/13
NATIONAL MERCHANT BUYING SOCIETY LTD v BELLAMY [2013] EWCA Civ 452
An all monies guarantee for the liabilities of a company which had been given when the guarantor had been a director of the company, was enforceable for increased liabilities incurred after the guarantor had resigned as a company director. The guarantee had been given for a contemplated course of dealing, not for a specific contract, and the liabilities had been incurred within the scope of those dealings. The guarantee could not be construed as covering only a facility with a credit limit of which the director had been aware before his resignation.
1/5/13
J D WETHERSPOON PLC v HARRIS [2013] EWHC 1088 (Ch)
Witness statements should not recite events of which the witness has no direct knowledge nor should they provide a commentary on documents in a trial bundle [39].
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