September 2013
SEPTEMBER 2013
Contains recent FOS case studies involving mis-selling of interest rate hedging products and packaged bank accounts.
26/9/13
MAHTANI v SIPPY [2013] EWCA Civ 1820
Stay of enforcement of a costs order pending appeal set aside as the appellant had not satisfied the court that some irremediable harm would ensue without a stay.
26/9/13
IPCOM GMBH & CO KG v HTC EUROPE CO LTD [2013] EWHC 2880 (Ch)
On the application of a third party under CPR r 40.9 an order for disclosure affecting the third party’s confidential information was varied.
25/9/13
HELLARD v CARVALHO [2013] EWHC 2876 (Ch)
Contains a useful summary of directors’ duties especially when company insolvency is looming [87]-[99].
20/9/13
DEUTSCHE BANK AG v UNITECH GLOBAL LTD [2013] EWHC 2793 (Comm)
In a claim by a bank for repayment of credit facilities, the defendant was given permission to plead repudiatory breach of an implied term that the bank would not seek to manipulate LIBOR. But permission to plead various other alleged defences was refused. There was an issue estoppel arising from an earlier judgment preventing a claim for rescission for misrepresentation. It made no difference that an appeal was pending against that judgment. Illegality in setting LIBOR could not render the credit and swap agreements void. The agreements did not comprise exchange contracts for the purpose of exchange control legislation. Unsuitability of the swap and manipulation of LIBOR could not be regarded as unusual features of the contractual relationship requiring disclosure and in any event did not affect the defendant's liability as primary obligor. A no set-off clause prevented there being a defence of set-off.
20/9/13
PAGE v HEWETTS SOLICITORS [2013] EWHC 2845 (Ch)
A claim for secret profits was not brought within the limitation period because the request to the court to issue the claim had not been accompanied by the correct court fee.
13/9/13
TIDAL ENERGY LTD v BANK OF SCOTLAND PLC [2013] EWHC 2780 (QB)
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 claim failed. By signing the CHAPS instruction, the claimant agreed to payment being made by CHAPS. 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.
13/9/13
SECRETARY OF STATE FOR BUSINESS, INNOVATION & SKILLS v HAWKHURST CAPITAL PLC [2013] EWHC 4219 (Ch)
Considers when a provisional liquidator may be appointed without giving a cross-undertaking in damages.
12/9/13
The destruction of a warehouse in a fire during the 2011 London riots had been caused by persons riotously and tumultuously assembled together within the meaning of the Riot (Damages) Act 1886 s 2(1). Compensation payable under s 2(1) was limited to physical damage to the premises and did not cover consequential losses such as loss of profit or rent.
12/9/13
WEST v TAYLOR-DUNCAN [2013] EWHC 4394
Extended civil restraint order made against claimant who had persistently issued claims and made applications which were totally without merit.
10/9/13
EARP v KURD [2013] Ch
Considers principles to be applied to determine whether a legal charge is a sham transaction [135]. Although the charge had been granted to ensure that the chargor had no valuable interest in the charged property in the event of his bankruptcy, it was not a sham but effective to secure certain advances made to the chargor.
5/9/13
NESTEC SA v DUALIT LTD [2013] EWHC 2737 (Pat)
Exhibits to witness statements cannot be obtained by third parties otherwise than by application to the court under CPR r 5.4C.
3/9/13
TORRE ASSET FUNDING LTD v THE ROYAL BANK OF SCOTLAND PLC [2013] EWHC 2670 (Ch)
RBS was agent for lenders (super senior, senior and junior) participating in a securitised loan portfolio. The court dismissed claims of breach of duty brought against RBS by junior lenders which suffered losses when the borrower failed to pay. RBS’s duties were defined in the loan documentation which did not oblige it to notify junior lenders of the borrower’s financial difficulties. Its obligation was only to notify them when it became aware of an event of default. It had also only been obliged to pass on business plans presented for approval of a restructuring proposal, and had not been required to pass on plans only provided for review rather than approval. Although RBS had mis-stated to junior lenders the purpose of a proposed restructuring, that had not caused loss because the proposal had in any event been rejected by the lenders as a whole.
3/9/13
LIBERTY MERCIAN LTD v CUDDY CIVIL ENGINEERING LTD [2013] EWHC 2688 (TCC)
A construction contract could not be read as if the contractor was not the company named in it, nor would it be rectified to have that effect. The fact that a tender and letter of intent had named a different associated company and that company had started the work, was not enough to establish a mistake. The named contractor had been existence (all be it dormant) at the time of the contract and had understood the intention to be that there was to be a change making it the named contractor. But following termination of the contract the contractor remained liable to procure a guarantee, bond and warranties as those provisions survived termination, and the contractor was liable for breach of them.
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