High Court: Commercial Court judgments, 2005

Under the Arbitration Act 1996, service of a notice commencing arbitration may be effected by any recognised and effective means of communication. Email is not…

A claimant alleging that a lubricant was unfit for purpose must establish a sufficiently clear connection between the product and the damage. A failure…

An agent’s commission may extend beyond ordinary fees where the contract includes directly related other revenue. Revenue is directly related where it forms…

On an arbitration appeal under section 69 of the Arbitration Act 1996, the construction of contractual correspondence is a question of law or mixed fact and…

Pre-action disclosure is an unusual remedy. The jurisdictional conditions in Civil Procedure Rules 1998, Part 31.16(3), must be satisfied, and the court must…

For enforcement purposes, a state-owned company may be treated as an organ or department of the state where its formal corporate structure does not reflect its…

On an appeal under Arbitration Act 1996, the governing law of an underlying insurance policy and an incorporated reinsurance contract determines the meaning…

A court may look behind corporate structures and transactions where they are sham arrangements created dishonestly to conceal the true position and defeat…

Article 27 of the Brussels Regulation applies where proceedings in the courts of different Member States remain concurrent when the second-seised court…

For contractual service provisions to support deemed service under Civil Procedure Rules 1998, r 6.15, the claimant must show a sufficient contractual…

A non-party costs order is discretionary and depends on what is just in all the circumstances. The order is exceptional, but that means outside the ordinary…

A non-exclusive jurisdiction clause does not make the nominated forum exclusive, nor does it impose the stringent test applicable to an exclusive jurisdiction…

In a CIF sale, a reference to “laycan” does not necessarily create an agreed shipment period. Where no shipment period is agreed, a term requiring shipment…

A judgment obtained by deliberate concealment of material documents or knowingly false evidence may be set aside in the affected part. The claimant must show…

Where a tort involves the arrest and detention of a vessel, the applicable law is ordinarily the law of the country most closely connected with the arrest and…

Permission to issue a writ of execution more than six years after judgment is not governed by an inflexible requirement that delay be demonstrably justified or…

Article 8(c) of Warsaw-Hague requires a recognisable, discrete notice warning that the Convention may apply, governs the carrier’s liability and generally…

A claim form delivered by fax to solicitors who have indicated that they are authorised to accept service is served when the delivery is made by a permitted…

An arbitration clause referring disputes regarding the performance or interpretation of a contract may extend beyond contractual claims. It can include closely…

A state’s contractual waiver of sovereign immunity does not, without more, constitute submission to the English courts under section 2 of the State Immunity…

A non-party costs order is exceptional only in the sense that it falls outside the ordinary case. The court may make such an order where a non-party controls…

On an appeal under section 67 of the Arbitration Act 1996, an appellant may develop arguments falling within a broadly identified ground of jurisdictional…

An insurance broker must obtain cover which clearly and indisputably meets the client’s requirements. Where a policy is framed as group cover, broad references…

An employer or principal is vicariously liable for an agent’s fraudulent representation where the agent was held out as authorised to speak on the relevant…

In a project insurance policy, whether damage is imminent is assessed prospectively and objectively. The question is whether, on the facts then available, a…

Under a voyage charterparty, laytime cannot commence before the stipulated laydays unless the charterer gives the contractually required sanction or written…

In an application to restrain solicitors from acting for an opponent of a former client, the former client must establish that the solicitors possess…

A third-party debt order requires a debt owed by the third party to the judgment debtor. An ultimate beneficial interest does not itself create the necessary…

A performance bond is security for due performance, not a pre-estimate of the beneficiary’s recoverable loss. Unless the contract clearly provides otherwise…

Where parties agree the amount of security for costs for an entire application, the court should ordinarily hold them to that bargain. Further security should…

Challenges under section 68 of the Arbitration Act 1996 are confined to serious irregularities causing substantial injustice. The provision is not a route for…

The court may set aside a default judgment so that a dispute can be determined on its merits, but should not impose security merely to penalise conduct in…

A detailed agency agreement will not ordinarily support broad implied terms preventing the principal from making sales more difficult for the agent. Such terms…

An inspection company instructed to certify the quality of goods must exercise independent judgment and reasonable care. Its certificate must accurately and…

A contractual force majeure clause does not ordinarily release a party from an obligation merely because performance has become more expensive or commercially…

Challenges under sections 67 and 68 of the Arbitration Act 1996 concern jurisdiction and serious procedural irregularity, not correction of an alleged error of…

On an application to stay proceedings on forum non conveniens grounds, the court must assess the dispute as a whole and determine whether another forum is…

Direct payment by a contractor’s employer to a nominated supplier does not, without more, transfer title to the employer or make the goods employer-provided…

For service out of the jurisdiction, the claimant must show that England is clearly the appropriate forum. The court must consider the substance and overlap of…

A letter of undertaking must be construed objectively in its commercial context, but the court must enforce the bargain the parties actually made. Commercial…

For purposes of the Contracts (Rights of Third Parties) Act 1999, the relevant contract is the contract under which the insured risk occurred and the…

A charterparty clause requiring the master to reject cargo subject to clausing of the bill of lading must be construed in its commercial context. “Clausing”…

A claimant seeking to stay proceedings which it voluntarily commenced must establish very rare circumstances. The benefits of a stay must clearly outweigh the…

An insurer may avoid a non-marine reinsurance contract where the insured knew, or deliberately failed to discover, material circumstances and failed to make a…

Permission to appeal an arbitration award under Arbitration Act 1996, section 69, requires a genuine question of law. A party cannot recast disagreement with…

A contractual time limit for commencing arbitration runs from the date on which an adjudicator gives the decision, where the decision has been effectively…

A contractual repayment clause is construed according to its natural meaning in the agreement’s commercial and factual context. Where the wording is clear…

Under CPR 17.4(2), an amendment adding a new claim after expiry of limitation is permissible only where the new claim arises from the same or substantially the…

Jurisdiction for proceedings arising out of international carriage by road is governed exclusively by article 31 of the CMR. The provision is wide enough to…

A final anti-suit injunction may be revoked under CPR rule 3.1(7) or the inherent jurisdiction where a fundamental subsequent change of circumstances removes…

Industrial action by private trade-union organisations may fall within the scope of the freedom of establishment. A measure which hampers or makes…

An application under section 68 of the Arbitration Act 1996 is a limited supervisory remedy. The court should read an award reasonably and commercially, with…

When deciding whether to extend time for serving a claim form, the court must exercise its discretion in accordance with the overriding objective. The reason…

For the purposes of an off-hire clause, a vessel may be detained where a physical or geographical constraint prevents her performing the service required by…

A party may seek a negative declaration in the courts identified by the jurisdiction rules for tort claims, even while denying that any tort was committed. The…

Permission to amend a statement of case should be refused where the proposed claim is statute-barred, does not arise from the same or substantially the same…

When a party seeks a stay in favour of a foreign court, it must establish a sufficiently strong evidential basis that an applicable exclusive jurisdiction…

In facultative reinsurance, the presumption of back-to-back cover does not justify incorporating every term of a following insurer’s separate participation.…

Under a time charterparty requiring hire to be paid in advance, charterers cannot deduct anticipated off-hire unless the contract permits it. Hire due on the…

A non-party seeking access to documents generated in court proceedings ancillary to arbitration must overcome the confidentiality attaching to the arbitral…

The doctrine of non-justiciability does not prevent an English court from determining a challenge under section 67 of the Arbitration Act 1996 to the…

A broker’s duty may continue after an insurance policy is placed where the alleged breach concerns a later communication of material risk information.…

Where related commercial disputes generate arbitration, foreign proceedings and satellite litigation, the court may direct the parties to undertake urgent…

Enforcement of a New York Convention award may be adjourned while a bona fide challenge proceeds in the country of origin. The court exercises a broad…

Under war risks cover, deliberate or reckless damage caused by a person acting maliciously may constitute an insured peril, unless the assured was complicit in…

A party that has submitted to the jurisdiction of the English court, conducted the proceedings there for a substantial period and agreed that they should take…

A petition under section 459 of the Companies Act 1985 may be struck out where the pleaded conduct has no real prospect of justifying relief under section 461.…

A representation of expectation or belief in insurance negotiations is true under section 20(5) of the Marine Insurance Act 1906 if made in good faith. It does…

A syndicated loan agreement may restrict transfers of both rights and obligations to entities within its contractual definition of a transferee. The phrase…

A Lloyd’s broker is not generally bound by an implied contract or market custom to provide an underwriter with placing or claims documents formerly shown to…

A party generally cannot make a second application to the High Court to reopen a perfected judgment where the issue has been decided after full argument and an…

A person entitled to enforce rights arising under an insurance contract takes those rights subject to the contract’s arbitration clause, whatever the mechanism…

Where an insurer becomes subrogated to a claim which is subject to a binding arbitration agreement, the duty to arbitrate may form an inseparable part of the…

A binding contract may arise even though some matters remain to be agreed, if the parties’ words and conduct objectively show an intention to be bound. The…

For jurisdiction based on the place of performance of a contractual obligation, the claimant must establish where the contract required that obligation to be…

A contractual limitation clause may bar an insurance claim where the insured had discovered the relevant loss more than the permitted period before issuing…

Similar fact evidence in civil proceedings must first be logically probative of an issue, assessed in a fact-sensitive manner. If admissible, the court retains…

In a unilateral option contract, an option must be exercised in exact compliance with the offer. Where the agreement requires notice declaring the option and…

An undertaking given to the court must be construed by reference to its express terms. Contempt for breach requires proof to the criminal standard. The…

A carrier does not breach its contract, or misrepresent the carriage arrangements, where transhipment forms part of the agreed delivery process and the shipper…

A contractual chain does not automatically prevent a specialist adviser from owing a concurrent duty of care in tort to the ultimate beneficiary of the advice.…

A clause in the Shelltime 4 form making cargo claims subject to the Hague-Visby Rules applies to claims sufficiently connected with cargo and measured by…

An individual who invests through a company cannot ordinarily claim personally to be the bank’s customer where the accounts, contracts and investments are in…

A contractors’ all-risks policy may provide for cover during a temporary stoppage, but the court must construe the words actually used. Where work has wholly…

An arbitration award cannot ordinarily be challenged under section 68(2)(g) of the Arbitration Act 1996 merely because witnesses may have lied. The applicant…

Under the CMR, a carrier which accepts goods for carriage cannot rely on contractual provisions that derogate from the Convention. A restriction stating that…

An implied indemnity in a time charterparty protects owners against loss caused by compliance with charterers’ lawful employment orders only to the extent that…

Damages for repudiation of a long-term charterparty are governed by the compensatory principle. The usual date-of-breach measure, based on an available market…

Where a charterparty expressly provides a remedy for unclean holds on delivery or at the first loadport, that provision governs the entitlement to place the…

In construing a reinsurance contract made under a facility, the wording must be read in its factual and commercial context, including the facility’s purpose…

A company’s capacity to contract is governed by the legal limits on its constitution and permitted business activities. The absence of a foreign-trade permit…

Contractual warranty damages compensate the claimant for the difference between the value of the business as warranted and its actual value. They do not…

Arbitration proceedings issued in the name of a dissolved company are not necessarily a nullity. The court must determine objectively, by construing the…

A solicitor who conducts litigation without the authority of the apparent client may be ordered summarily to compensate the opposing party for recoverable loss…

A marine insurance policy is valued only where it specifies the parties’ agreed value of the subject matter. The words “sum insured”, used without wording of…

Where a commercial contract requires payment against an invoice and expressly prohibits set-off, deduction, withholding and counterclaim, the buyer must…

An arbitral tribunal’s jurisdiction is founded on the parties’ consent and the true construction of their arbitration agreement. A claimant’s submission to the…

Recognition of a foreign arbitral award may be considered independently of enforcement. Under section 103(2) of the Arbitration Act 1996, the court’s…

In a voyage charterparty, words providing that strikes and other causes interrupt laytime only when beyond the consignee’s control apply to both the specified…