High Court: Commercial Court judgments, 2003

In a contract of bailment, where goods are lost while in the bailee’s possession and the contractual limitation applies only to specified causes of loss, the…

On a without-notice application for permission to serve proceedings outside the jurisdiction, full and frank disclosure extends to facts which might reasonably…

A foreign statutory right of direct recovery against an insolvent insured does not necessarily displace the terms of the underlying insurance contract. The…

A bank operating a foreign-exchange trading account may refuse instructions that would exceed the agreed trading limit or leave the account inadequately…

Part 20 proceedings are separate from the main action, even where they are tried together for case-management reasons. Costs normally follow the event in those…

Orders giving effect to foreign letters of request must provide assistance within the limits of the Evidence (Proceedings in other Jurisdictions) Act 1975…

A notice of readiness is prima facie valid only where the vessel is physically ready in all respects to load. That rule may be modified by contractual…

A non-exclusive jurisdiction clause gives a party a right to commence proceedings in the chosen jurisdiction, but the court retains a discretion to stay them.…

An injunction restraining foreign proceedings requires more than concurrent litigation and the fact that England is an appropriate forum. The applicant must…

Arbitration Act 1996, section 43, enables court assistance to secure a witness’s attendance to give evidence or produce specific documents for use in the…

A professional funder’s agreement to receive a share of recoveries does not, by itself, justify a non-party costs order. The court must balance three…

A jurisdiction clause in an underlying insurance contract is not incorporated into a reinsurance contract merely because the reinsurance is subject to the…

In a worldwide open cover written for a commodity trader, the insured’s duty of disclosure is limited by the broad range of circumstances which a prudent…

Permission to serve proceedings out of the jurisdiction should be set aside where the claimant cannot show that England is clearly the appropriate forum. An…

A contractual term purports to confer a benefit on an identified third party where, on its proper construction, it provides for payment to that third party.…

A contractual notice barring claims unless specified requirements are met must be understood as a reasonable recipient, knowing the contractual context, would…

A Commission decision on State aid, addressed to a Member State, may bind national courts within its scope, including its material findings and reasons. It…

Omitting a claim from the Particulars of Claim does not automatically prevent its later restoration by amendment. Abandonment and election are matters of…

Where a company is used as a vehicle for a joint venture conducted principally abroad, the place of incorporation does not by itself determine the law…

Summary judgment is inappropriate where a claim raises fact-sensitive or complex issues requiring investigation at trial, unless the court can confidently…

In a bailee’s insurance policy, wording covering goods held in trust for which the insured is responsible ordinarily limits cover to goods for which the…

A producing broker is generally liable to its placing broker for premiums, although special factors may establish direct contractual relations between the…

Under Article 11.1 of the 1976 Convention, “legal proceedings” include arbitration proceedings. A shipowner may therefore constitute an English limitation fund…

A party alleging that goods were contaminated must prove, on the balance of probabilities, that the contamination occurred at the relevant contractual stage.…

A reinsurance policy containing a follow the settlements provision may give the reinsurer a right to take control of negotiations and settlement. That right…

A non-party may obtain access to pleadings under Civil Procedure Rules 1998 rule 5.4(2)(c) where the documents are relevant to a legitimate purpose. Access to…

Applications to strike out, obtain summary judgment, or set aside service out of the jurisdiction should not determine fact-sensitive claims involving…

An arbitration clause referring proceedings “in relation to” an agreement uses wide language. It covers disputes about whether that agreement was varied…

For summary judgment, a defence or counterclaim must have a real prospect of success. An innocent misrepresentation by an agent may support rescission where…

A bank that describes an account as a client account may make a misleading statement if it knows that the account remains subject to rights of charge or…

A products liability indemnity covers liability for damages in respect of physical damage caused by the insured’s product after it has left the insured’s…

Security should not ordinarily be required as a condition of bringing a jurisdictional challenge under section 67 of the Arbitration Act 1996, which is brought…

A binding commercial contract requires agreement on the essential terms viewed objectively in its factual and commercial context. A court must not isolate a…

An entire agreement clause excluding usage or course of dealing may prevent implication of a term based on custom, but does not necessarily exclude a term…

An off-hire clause must be construed according to its wording and commercial context. A charterer who procures the vessel’s arrest during the charter cannot…

A documentary credit is autonomous from the underlying transaction, but autonomy does not give a beneficiary an unqualified right to enforce it. The court will…

Laytime and demurrage exceptions in a voyage charter must be construed according to the stage of the maritime adventure reached and the charter as a whole. A…

A cargo-liability policy covering warehousing liabilities ordinarily responds to liabilities owed to contractual customers under the insured trading…

Under a denial-of-access extension, the insured peril was the insured being hindered in using the railway infrastructure, where the hindrance was caused by a…

In marine insurance, reports of specific allegations of corruption, fraud, official investigation or suspension may be material facts requiring disclosure.…

A contractual obligation to participate in a sales promotion may include the associated costs, including the cost of promotional goods, where that is the…

Damages for tortious loss must be proved on the balance of probabilities, but mathematical precision is unnecessary where the nature of the loss makes…

For service out of the jurisdiction, the claimant must show a good arguable case within CPR 6.20, a serious issue to be tried, and that England is clearly or…

In a contractual damages claim, the ordinary market-difference measure applies where an available market for substitute goods, vessels or services exists. But…

Under the Arbitration Act 1996, a party challenging an arbitral tribunal’s substantive jurisdiction must act within the statutory time limit. Failure to…

An arbitral tribunal must itself determine the facts, analyse the law and formulate the reasons for its award. A draftsman may assist only by expressing the…

In a time charter, an express period stated as “more or less in charterers’ option” forms part of the period during which the charterer may use the vessel as…

For the purpose of an insurance policy providing cover on a single-claim basis, the number of claims is determined by the underlying facts and the reality of…

A shipper’s consent to sub-bailment on any terms extends to terms commonly used in the relevant trade, including a sub-bailee’s general lien, unless the term…

Where contractual machinery for payment depends on an anticipated event which becomes impossible through circumstances not contemplated by the parties, the…

Under a time charterparty, a recap of a separate voyage charterparty normally provides information rather than a clear order to the Master. The contractual…

Section 51 of the Supreme Court Act 1981 gives the High Court power to order a non-party to pay litigation costs. That power carries an ancillary power to…

Pre-action disclosure is discretionary and requires strict compliance with the conditions in rule 31.16. The applicant must identify a sufficiently credible…

A statement of existing fact may constitute a collateral warranty where, objectively assessed in its contractual setting, the parties intended its truth to be…

General words incorporating a charterparty into a bill of lading do not ordinarily incorporate ancillary arbitration or jurisdiction clauses. Such a clause…

A late acknowledgment of service does not automatically defeat an application for judgment in default. The court may permit late filing where it is a genuine…

CPR 62.10 creates a special regime for arbitration claims. Claims concerning serious irregularity under section 68 of the Arbitration Act 1996 are ordinarily…

An agent bank collecting a cheque for a correspondent bank may be entitled to an implied indemnity where it acts on the correspondent’s instructions and its…

A full reinsurance clause ordinarily makes the reinsurance back-to-back with the underlying insurance. It incorporates the relevant terms governing the scope…

In a CIF or C&F sale, the validity of a declaration of shipment is generally assessed by its express terms and timing. Shipment means loading goods on board a…

The Warsaw Convention provides an exclusive framework for claims arising from international carriage by air. Domestic procedural rules must not produce a…

Competition authorities may obtain a warrant to search business premises where the statutory conditions are met and there are reasonable grounds to suspect…

A claimant who has satisfied a judgment may obtain equitable subrogation where that payment has relieved another defendant of a restitutionary liability and it…

An anti-suit injunction restraining proceedings brought in breach of an arbitration agreement concerns the enforcement of the agreement to arbitrate. It…

Permission to use exchanged witness statements for another purpose under CPR 32.12 is discretionary. The court must balance the policy protecting the…

At the interlocutory stage, a claim for damages for infringement of Article 81(1) of the EC Treaty is arguable where a company forming part of the same…

A follow-the-settlements clause binds reinsurers to an insurer’s admission or compromise of liability, including disputes about the scope of the underlying…

Permission to amend a pleading should be granted where the proposed claim has a real prospect of success, arises from the same or substantially the same facts…

For the purposes of Council Regulation (EC) No 44/2001, a jurisdiction agreement must be demonstrated with clear and precise consensus. In an insurance…

An injunction to restrain breach of an express negative covenant remains discretionary. The court must consider whether monetary relief is adequate, whether…

Costs and expenses incurred in foreign proceedings may be recoverable as damages where those proceedings are brought in breach of an exclusive jurisdiction…

A liner conference may constitute a collective entity where its decision-taking structure enables members to adopt a common market strategy, including uniform…

An interim declaration should not determine the ultimate question whether money represents the proceeds of crime. That issue requires a final determination…

On an interim application which would effectively determine the dispute, the court must assess the likely outcome on the available material and adopt the…

A concessionary freight agreement which fixes rates for goods carried for an importer’s account does not, without clear contractual language, impose an…

Under the 1976 Convention, the term “shipowner” includes a charterer only where the charterer is exposed to liability in a capacity analogous to ownership…

For Article 21 of the Brussels Convention, the court first seised is identified by asking when proceedings became definitively pending under the national law…

Under clause 28(c) of GAFTA 78, the date for assessing damages is generally the date on which the party in default failed to perform the obligation which…

Insurance cover for loss of income caused by interference with a vessel’s scheduled itinerary requires actual interference with the vessel’s operation…

For a tort involving events in several countries, the general rule under Private International Law (Miscellaneous Provisions) Act 1995, section 11(2)(c), is…

Under CPR 44.3, costs remain subject to the general rule that they follow the event, but the court should be ready to make issue-based orders where a party has…

Reinsurance arranged for an underwriting pool may be construed as a composite reinsurance of each member’s several liability, even where the wording identifies…

A contractual mechanism may be construed by reference to its language, commercial purpose and factual matrix. Where an agreement fixes a contribution by…

On an application to set aside joinder or strike out a claim, the court must ask whether the pleaded claim has a real prospect of success. The pleaded facts…

In case management, the court may revisit an earlier procedural order where circumstances have materially changed. A construction issue may be tried as a…

A contractual term in an insurance or reinsurance slip must ordinarily be construed according to the words used, read in their commercial context. The…

Materiality for the purposes of an insurer’s duty of disclosure is assessed when the risk is placed, by reference to the information then available to the…

A ship mortgagee exercising a power of arrest must act in good faith for the purpose of obtaining repayment of the secured loan. The mortgagee owes no general…

Costs should reflect the justice of the case and the parties’ responsibility for the litigation. Where a party’s unauthorised alteration of a document caused…

In construing a contractual loss-payment provision, the discounting date is determined by the contract’s wording and scheme. A total loss does not itself…

In contingency insurance, a warranty requiring the assured to ensure that necessary permits are obtained must be strictly complied with. A government approval…

Money paid under a causative mistake of fact is recoverable in restitution unless the recipient proves a good-faith change of position. A recipient who knows…

Under the 1999 ISDA Credit Derivatives Definitions, a bond is not rendered contingent merely because the holder may elect to exchange it for shares. The…

For jurisdictional purposes, a corporation’s central administration and principal place of business are questions of substance rather than form. The court must…

An auditor’s liability is limited by the scope and purpose of the duty undertaken. A negligent failure to require provisions in accounts may support recovery…

For legal advice privilege, relevant communications between a corporation and its former officers may remain internal communications rather than communications…

A default judgment must be set aside under CPR Part 13.2 where a required condition for entering judgment was absent, including where the claim form was not…

An insurer may avoid for non-disclosure only where the undisclosed fact was material and its non-disclosure actually induced acceptance of the risk on less…

For the purposes of the Financial Services Act 1986, an option is assessed when it is granted, not when it is exercised. A later sale contract cannot remove…

An insurance warranty requiring trade waste to be swept up, bagged and removed daily must be construed in light of its purpose. In a material-damage policy…

Where a contract is discharged by breach and an available substitute market exists, damages will ordinarily be assessed by comparing the original contract…

In a reinsurance transaction, a request for information about losses incurred on a programme ordinarily concerns losses reported to the relevant reinsured and…

A judgment obtained by perjury may be set aside where fresh evidence, unavailable with reasonable diligence at the original trial, establishes deliberate false…

In a voyage charter, an exception excluding delay in getting into berth operates according to its wording and commercial context. It may protect charterers…

A party that has freely agreed to an English jurisdiction clause will ordinarily be held to that bargain unless strong reasons justify departure. Foreseeable…

Under a specific-account credit insurance policy, a credit limit applied to the aggregate qualifying debt outstanding when the insured peril occurred, rather…

Where English proceedings between parties subject to the English jurisdiction are issued first, the English court should ordinarily determine whether England…

Contractual construction begins with the words chosen by the parties, read in their factual and commercial context. The court may depart substantially from…

A foreign judgment may create an issue estoppel in English proceedings, but only where the foreign court gave a final decision after a full contestation on the…