25/5/17
DEUTSCHE BANK AG v CIMB BANK BERHAD [2017] EWHC 1264 (Comm)
On a proper interpretation of article 7 of the UCP, an issuing bank is entitled to require a confirming bank to provide further information to prove that payment had in fact been made. But the court should not entertain requests seeking unduly to investigate a confirming bank's payment arrangements, in the hope that something by way of a defence would turn up.
25/5/17
PERSIMMON HOMES LTD v OVE ARUP & PARTNERS LTD [2017] EWCA Civ 373
A clause excluding "liability for any claim in relation to asbestos" was wide enough to cover liability arising from negligence. The contra proferentem rule has limited relevance to commercial contracts negotiated between parties of equal bargaining power and should only be used if there is genuine ambiguity as to meaning [52]. In commercial contracts the three-stage test for interpreting exclusion clauses suggested in the Canada Steamship case is more relevant to indemnity clauses than to exclusion clauses [56].
24/5/17
ORAKI v BRAMSTON [2017] EWCA Civ 403
On the facts, the judge below had been right to dismiss claims by a bankrupt that that a trustee in bankruptcy had acted in breach of duty. The court left open whether a trustee in bankruptcy can be liable at common law in negligence to the bankrupt, whether the bankrupt’s only remedy is under the statutory regime in the Insolvency Act 1986, and whether the trustee can have no liability after being released from office. Obiter remarks of David Richards LJ (at [217-220]) suggest liability may well exist in negligence even after release.
23/5/17
WILLERS v JOYCE [2017] EWHC 1225 (Ch)
Statements of case should be as concise as possible. It is not their function to 'tell the story' and over-lengthy statements of case are positively unhelpful for the purposes of case management. There may be instances where it is helpful to refer to particular items of evidence by way illustration, or to refer to authority, but normally it is far more helpful for a statement of case, and especially particulars of claim, to set out only the essential facts which are necessary to make out the cause or causes of action that are relied upon, broken down by reference to their constituent elements, and an explanation for the relief that is claimed. It is important that a clear distinction is made between the facts that are necessary to enable the defendant to understand the claim it has to meet and the facts upon which the claimant will wish to rely at the trial of the claim. All too often particulars of claim are a conflation of a statement of case and a witness statement [31].
23/5/17
THE RBS RIGHTS ISSUE LITIGATION [2017] EWHC 1217 (Ch)
Considers relevant considerations to be taken into account when the court is asked to order that security for costs be provided by a litigation funder under CPR 25.14. On the facts a professional litigation funder was ordered to provide £7.5m as security, but security was not ordered to be provided by a company which was providing finance but was not a professional litigation funder.
22/5/17
CASEHUB LIMITED v WOLF COLA LIMITED [2017] EWHC 1169 (Ch)
Considers principles to be applied to determine whether an assignment is ineffective on grounds of maintenance or champerty. The claimant took assignments of small consumer claims to recover cancellation fees on grounds that the cancellation provisions were unfair contrary to s 62 Consumer Rights Act 2017. The assignments were effective as the claimant had acquired the right to the sums in question, and the assignment of the claim to recover those sums was incidental to that right, not a bare cause of action. But the cancellation fees formed part of the price payable under the contracts (OFT v Abbey National, 2009) so s 64(1)(b) Consumer Rights Act 2015 prevented the claimant from challenging them under s 62.
19/5/17
BRITISH AIRWAYS PLC v AIRWAYS PENSION SCHEME TRUSTEE LTD [2017] EWHC 1191 (Ch)
Considers principles to be applied in construing the provisions of a pension scheme [408] and the basis on which challenges can be made to the exercise by trustees of discretionary powers [483]. On the facts, the challenges failed.
19/5/17
BREYER GROUP PLC v RBK ENGINEERING LTD [2017] EWHC 1206 (Ch)
Principles to be applied in striking out a winding-up petition considered and applied. On the facts the petition debt was disputed on bona fide and substantial grounds and the company had a potential substantial cross-claim. The petition was therefore struck out as an abuse of process.
19/5/17
TRILOGY MANAGEMENT LTD v HARCUS SINCLAIR (A FIRM) [2017] EWHC 1164 (Ch)
A claim against a firm of solicitors for allegedly altering a document without instructions was dismissed summarily as being time-barred. There was no prospect of the claimant establishing that the commencement of the limitation period for that breach was postponed by section 32 Limitation Act 1980. The alleged breach was not committed in circumstances in which it was unlikely to be discovered for some time. Nor was it arguable that the limitation period was extended under s 14A. The claimant could have acquired knowledge that the insertion of the additional words was instigated by firm at an early stage.
19/5/17
EMMOTT v MICHAEL WILSON & PARTNERS LTD [2017] EWCA Civ 367
Considers the principles to be applied on an application by a judgment creditor for payment of funds out of court under CPR 72.10.
18/5/17
SUTTON HOUSING PARTNERSHIP LTD v RYDON MAINTENANCE LTD [2017] EWCA Civ 359
Applying principles of contractual interpretation in Rainy Sky v Kookmin (2011) and Arnold v Britton (2015), the court concluded that the parties must have intended (and any reasonable person standing in the shoes of either party would have intended) the contract to specify certain minimum acceptable performance standards.
17/5/17
VANDEN RECYCLING LTD v KRAS RECYCLING BV [2017] EWCA Civ 354
Considers when satisfaction of a consent order made to give effect to an agreed settlement of a claim in tort will bar claims against other tortfeasors, whether joint or several, liable for the same damage. On the facts, only a claim for conspiracy was barred by this principle. Claims relating to different breaches of duty and losses were not barred and should not have been summarily dismissed.
17/5/17
ERGO POIST’NOVA A.S. v BARLIKOVA [2017] EUECJ C-48/16
Considers circumstances in which under Council Directive 86/653/EEC a commercial agent can be required to refund commission.
15/5/17
O’ KEEFE v CANER [2017] EWHC 1105 (Ch)
A claim pursuant to s 212 of the Insolvency Act 1986 for misfeasance and breach of directors' duties in respect of the payments from bank accounts of companies incorporated in Jersey was held to be a claim for breach of fiduciary duty and not a claim in tort, for the purpose of ascertaining the applicable limitation period in Jersey law.
12/5/17
ASHFAQ v INTERNATIONAL INSURANCE COMPANY OF HANNOVER PLC [2017] EWCA Civ 357
An insurer had been entitled to avoid an insurance policy for non-disclosure and misrepresentation by the insured in failing to advise the insurer that the insured property had been let to students. The Unfair Terms in Consumer Contracts Regulations 1999 had no application because the insured had taken out the policy for business purposes and not as a consumer.
12/5/17
FINDCHARM LTD v CHURCHILL GROUP LTD [2017] EWHC 1108 (TCC)
It is an abuse of process to put in an unrealistically low cost budget in an attempt to obtain a tactical advantage.
10/5/17
BATURINA v CHISTYAKOV [2017] EWHC 1049 (Comm)
The claimant claimed to have been the victim of a fraud by which the defendant misused funds which the claimant provided under a contract relating to property developments in Morocco. The court reviewed the applicable principles of contractual interpretation [88], implying contract terms [117], deceit [139], breach of fiduciary duty [179] and refective loss [227]. On the facts, the claims failed.
8/5/17
The SFO sought a declaration that documents created by a company and its solicitors when carrying out an internal investigation into alleged corruption within the group, were not covered by privilege. The court held that litigation privilege does not cover third-party documents created to obtain legal advice on avoiding possible litigation. Nor is a criminal investigation by the SFO adversarial litigation for the purpose of a claim to litigation privilege. Criminal proceedings are not in reasonable contemplation unless the prospective defendant knows it is realistic to expect a prosecutor to be satisfied that there is enough material to stand a good chance of securing a conviction. Legal advice privilege cannot be claimed for communications between a lawyer and someone other than the client. In a company context, it attaches only to communications between the lawyer and the individuals authorised to obtain legal advice for the company. Communications between solicitors and other employees are not covered. A note of what a solicitor was told by a prospective witness is not, without more, covered by legal advice privilege.
5/5/17
BHS GROUP LTD (IN ADMINISTRATION) v RETAIL ACQUISITIONS LTD [2017] EWHC 1057 (Ch)
Considers applicable principles of cross-claim or set-off in response to a winding-up petition. On the facts there was no cross-claim or set-off sufficient to give rise to a genuine dispute on substantial grounds. Also considers insolvency on the balance sheet and cash-flow bases. On the facts the debtor was insolvent and a winding-up order was made.
5/5/17
VALD NIELSEN HOLDING A/S v BALDORINO [2017] EWHC 1033 (Comm)
On an application for additional security for costs, the court ordered the claimants to increase the security previously paid by £200,000. There had been a material change in circumstances since security had originally been ordered, because permission had been given to re-amend the claim and the original trial date had been adjourned.
2/5/17
GODFREY MORGAN SOLICITORS v ARMES [2017] EWCA Civ 323
The court below had been wrong to allow an amendment to join the firm as a defendant outside the limitation period. The firm had been added as a defendant, not substituted for another party, so the case did not fall within CPR 19(5)(a) which is only concerned with substitution.