High Court: Commercial Court judgments, 2006

A settlement agreement may preserve and define an existing debt while creating new contractual rights, including jurisdiction and waiver-of-immunity…

A commercial party does not ordinarily assume tortious responsibility for pre-contractual statements where the parties negotiate a detailed written contract…

An arbitral award is not unenforceable on public-policy grounds merely because evidence considered by the arbitrators disclosed an attempted tax fraud.…

Under a reinsurance clause requiring the reinsurer to follow settlements, liability may arise where the reinsured has disposed of, or bound itself to dispose…

A charterer’s agreement that a vessel may be taken out of the charterparty service for a third-party owner’s voyage creates a special arrangement outside the…

A safe-port warranty requires nomination of a port whose characteristics will, barring unforeseeable events, enable the vessel safely to reach, use and leave…

Following a full trial and an order for costs, the normal approach under CPR 44.3(8) is to order a payment on account before detailed assessment. The trial…

For service out of the jurisdiction, a dispute is “real” where the defendant holds disputed assets, does not recognise the claimant’s asserted entitlement, and…

Contractual charging provisions are construed objectively by reference to the agreement and its admissible commercial background when made. They cannot be…

The remoteness rule in Hadley v Baxendale is a composite principle, not two mutually exclusive rules. Loss is recoverable where, viewed with the knowledge…

A contractual variation must be established on the evidence and construed in its commercial context. A party cannot rely on an alleged condition for payment…

In a sophisticated commercial financing transaction, an arranger’s provision of information did not imply that it knew of no facts which might make that…

Interest is ordinarily awarded from the date on which the cause of action arose. The court may adjust that period where the claimant’s excessive delay was the…

A costs order must reflect the overall justice of the case. The court may make issue-based orders against an ultimately successful party without finding…

A trial court has jurisdiction to strike out a claim or severable part of it of its own motion during trial. The jurisdiction derives from the court’s…

In restricted visibility, vessels detected by radar or AIS must continue to comply with the collision regulations. A close-quarters situation may develop well…

A shareholders’ agreement may restrict majority shareholders from converting a private company into a public company and procuring a listing where that step…

A directive does not confer rights on individuals merely because its implementation would protect them or because it imposes supervisory duties on national…

An English court may restrain foreign proceedings where they breach an exclusive arbitration agreement, or where their pursuit is vexatious or oppressive. The…

Expert evidence in civil proceedings must be both properly admissible and reasonably required to resolve the proceedings. It must genuinely assist the trial…

An insurance warranty concerning facts that could give rise to a claim is construed in the context of the policy as a whole. It requires knowledge, or…

A claims co-operation clause requiring notification of a loss or losses refers to an actual loss suffered by third-party claimants, not an alleged, potential…

Directive 1999/31/EC, art 10, and its implementing regulations applied to existing landfill contracts, not merely contracts made after the Directive. Charges…

An arbitration clause using the expression any dispute arising under the charter was construed generously, as equivalent in this clause to disputes arising out…

For service out of the jurisdiction, the claimant need show a serious issue to be tried. Where the jurisdictional issue is intertwined with the merits, the…

Section 68 of the Arbitration Act 1996 permits intervention where a tribunal’s failure to comply with its duty to act fairly and give each party a reasonable…

Indemnity costs are exceptional. They require conduct or circumstances taking the case outside the ordinary standard-basis regime; dishonesty or moral blame is…

A finance agreement must be construed as a whole and in its commercial context. An express reservation-of-title and trust-receipt structure will not ordinarily…

A challenge to an arbitration award under sections 67 and 68 of the Arbitration Act 1996 must address the tribunal’s jurisdiction or an exceptional procedural…

On an application to serve proceedings out of the jurisdiction, the claimant must show a reasonable prospect of success, a good arguable case on the…

A bill of lading remains operative while contractual obligations remain outstanding. A consignee who demands delivery may become subject to contractual…

A contract is not formed merely because a party has agreed to the wording of a proposed document. The court must determine objectively whether the parties…

For an application for security for costs, the applicant must establish, on the balance of probabilities, that the claimant will be unable to pay an adverse…

Legal advice privilege protects confidential communications between lawyer and client for the purpose of giving or obtaining legal advice. It does not…

A freezing order protects against a real risk that assets will be dissipated so that a judgment remains unsatisfied. It does not provide security for the…

A letter of undertaking is construed according to its terms and the circumstances existing when it was made. A term requiring notice of proceedings will not be…

An application for permission to appeal should be made to the lower court at the hearing when the decision is made. The hearing may be adjourned to enable a…

Permission to introduce a late amendment depends on the overriding objective and the fair conduct of the trial. The court may permit clarification or limited…

Applications concerning service out of the jurisdiction, foreign defendants, act of state and non-justiciability should be determined by reference to the…

Where parties agree to arbitration seated abroad and governed by foreign law, the English court should be slow to interfere with the arbitration or determine…

A contractual participation in an oil concession may be granted by reference to a corporate group where the agreement, properly construed, identifies the…

Commercial contracts are interpreted from the language used, read in its contractual and factual context. Background material cannot displace clear wording or…

An anti-suit injunction may be granted where foreign proceedings are vexatious, oppressive or unconscionable and the English court has a sufficient legitimate…

The doctrine of frustration applies only where a supervening event, without default, fundamentally or radically changes the contractual obligation. Increased…

For the purposes of the implied term of fitness for purpose, a specialist manufacturer may reasonably rely on a raw-material supplier’s expertise as to the…

A court may order a trial on the merits in the defendant’s absence where that course is likely to produce a judgment more capable of enforcement than a default…

For the purposes of Section 5 of the Judgments Regulation, whether an agreement is an individual contract of employment is determined autonomously by reference…

A time charterer gives an absolute warranty that cargo loaded will be lawful and will not expose the vessel to capture or seizure. The relevant risk is…

An arbitral tribunal’s jurisdiction depends on the true construction of the parties’ arbitration agreement. A transaction set-off based on a separate contract…

Where a contract contains an English arbitration clause, the court should hold the parties to their bargain unless the party resisting an anti-suit injunction…

Costs incurred by a claimant in investigating and mitigating a conspiracy may be recovered where they are sufficiently attributable to the tort and the…

A director or agent who acts bona fide and within the scope of authority ordinarily incurs no personal liability for procuring the company to breach its…

A contract procured by duress is voidable, but the right to avoid it at common law requires the claimant to be able to provide counter-restitution. The…

Ostensible authority requires a representation traceable to the principal, or to an agent whose own authority is so traceable, and reasonable reliance on that…

Interim injunctive relief should not ordinarily be granted without notice in a substantial commercial transaction unless there is a proper evidential and…

In an arbitration, naming the wrong corporate entity does not necessarily make the proceedings a nullity. The court must determine objectively, by construing…

An arbitral tribunal must give each party a reasonable opportunity to present its case and answer the opposing case. Where a tribunal determines the merits of…

For conflict-of-laws purposes, a claim framed under a foreign law as a non-contractual civil wrong may constitute an issue relating to tort, even where the…

Deceit requires a false representation of fact, made fraudulently and intended to induce reliance, which in fact causes loss. The meaning of a statement…

Where parties agree that no contract will arise until specified terms are signed, that requirement is ordinarily a condition precedent to contractual…

On an application for an interim injunction restraining termination of a complex outsourcing contract, the claimant must first show a real prospect of…

In an FOB sale, a contractual laycan ordinarily identifies the period within which the buyer must present the vessel and give notice of readiness. It does not…

A defence may be struck out where it discloses no reasonable grounds in law or advances a case which cannot succeed on the pleaded facts. A motor insurance…

The court may grant interim relief in support of substantive enforcement proceedings abroad, including proceedings concerning the enforcement of judgments.…

Under UAE law, an arbitration clause can exclude the ordinary jurisdiction of the courts only if it falls within the statutory authorisation for arbitration.…

In an arbitration seated in England, the tribunal controls the conduct of proceedings while a jurisdiction challenge under section 67 of the Arbitration Act…

Under CPR 31.16, the jurisdictional conditions for pre-action disclosure must be distinguished from the subsequent discretionary decision. The threshold is…

Whether an arbitration clause referring any dispute confers jurisdiction is a matter of construction, assessed in the contractual and factual context. A…

An exclusive jurisdiction clause should ordinarily be enforced unless strong cause or strong reasons justify departure. The risk of inconsistent decisions may…

Under section 79 of the Arbitration Act 1996, the court may extend time for an application under section 57 only where available recourse to the tribunal has…

In an arbitration conducted under institutional short-procedure rules, a termination notice must unequivocally identify the date on which the procedure ends. A…

Summary judgment under CPR Part 24 is inappropriate where the claim has a real prospect of success and resolution requires findings on substantially disputed…

Where contractual terms are assembled from several documents and discussions, the court must construe the agreement objectively by considering the relevant…

Legal professional privilege belongs to the client and ordinarily continues until waived. However, the client may contractually grant an insurer access to…

Discontinuance and an offer to pay indemnity costs do not necessarily end the court’s jurisdiction over costs. Disputed entitlement, outstanding application…

Marine insurance cover described as being subject to the vessel being in class refers to the particular classification stated in the policy, rather than to any…

Article 17 of the Brussels Convention requires agreement to a jurisdiction clause to be clearly and precisely demonstrated. A person who was not party to the…

A contractual waiver of recourse clause referring to directors, executives and equivalent representatives is construed according to its agreed contractual…

A contractual discretion to award a bonus must be exercised rationally and not perversely. The fact that some bonus was paid does not prevent a claim that the…

An option agreement may impose a continuing obligation to offer earlier delivery where the specified contingency occurs during the currency of the resulting…

An arbitral tribunal may reconsider an earlier jurisdictional ruling where the parties treat that ruling as open to review and do not challenge the tribunal’s…

Where a contract gives one party a discretion to value assets following termination, the discretion must be exercised honestly and reasonably. The valuation…

Issue estoppel may prevent a party from relitigating jurisdictional issues decided by a competent foreign court, even where that decision is under appeal and…

A compromise of an insurance claim is a contract and may, in principle, be rescinded for misrepresentation. The public policy favouring finality does not…

Summary judgment is appropriate where a claim has no realistic, rather than fanciful, prospect of success. The court must avoid a mini-trial, particularly…

A non-national religious or customary system cannot ordinarily constitute the governing law of a contract where the applicable conflicts rules require the law…

Variation of a freezing injunction is governed by the interests of justice. The applicant must show that the variation is appropriate and provide the evidence…

Under a securities lending agreement, a notice need not use the word “terminate” if, viewed objectively by a reasonable recipient with knowledge of the…

Contractual provisions specifying passenger capacity and standing density may constitute design criteria rather than operational limits. A court should not…

For contractual causation, the but for test establishes a necessary causal link but is not sufficient. The relevant question is whether the act or default was…

A broker’s post-placement duty depends on the circumstances. Where the broker identifies information that may materially affect cover, the broker must exercise…

Under an unamended clause 8 of an NYPE time charter, responsibility for loading and stowage is allocated to the charterers as between the owners and…

A sub-broker may owe a direct duty of care in tort to the principal or insured where its conduct objectively amounts to an undertaking to provide professional…

Recognition of a foreign judgment under Article 34.2 of the Judgments Regulation must be refused where the judgment was given in default of appearance and the…

A challenge under section 68 of the Arbitration Act 1996 is a supervisory remedy, not an appeal on the merits. The applicant must establish a serious…

A person at the helm of a motor vessel must keep a proper lookout and follow a clear visual course. Electronic navigational aids do not displace that…

Under Article 8(2) of the Rome Convention, the question whether it is unreasonable to determine consent by the law chosen in the contract must be approached…

Where an insurance extension covers claims against an umbrella organisation arising from claims against a member firm, words describing the member firm as…

For the purposes of a challenge under section 67 of the Arbitration Act 1996, the court conducts a rehearing of the jurisdictional issue and asks whether the…

For jurisdiction in tort, the place where the harmful event occurred may be either the place of the event giving rise to the damage or the place where the…

A co-operation agreement between separate companies does not create a partnership merely because the parties pursue a common commercial objective or share…

Section 69 of the Arbitration Act 1996 permits parties to exclude the statutory right of appeal on a question of law by incorporating an exclusion agreement by…

Under the Arbitration Act 1996, a tribunal may determine different aspects of a reference in separate awards under section 47. That power may be exercised in…

A contractual notice provision must be construed in its commercial and procedural context. Where a notice initiates an expert determination procedure, it need…

A towage obligation to proceed at utmost dispatch requires the maximum speed consistent with normal navigation and ordinary use of the tug’s engines. A…

A contractual restriction on assignment may prevent a third party from enforcing the contract even where the contractual benefit has been declared to be held…

Under Article 29 of the CMR, loss caused by wilful misconduct removes the carrier’s liability limitation. Wilful misconduct requires misconduct going…

Where a charterer has duties to provide and load a full cargo, liability for deadfreight or related loss depends on causation and contractual attribution. A…

Under Article III, rule 1 of the Hague-Visby Rules, a carrier’s non-delegable duty to exercise due diligence to make a vessel seaworthy generally begins when…

The court may set aside a default judgment on a claimant’s application where the claimant has a good claim and leaving the judgment in place would effectively…

Inspection of disclosed documents may be withheld where the disclosing party has a right or duty to withhold inspection, including a duty of confidentiality…

A contractual right to terminate for a material payment breach may extend beyond repudiatory breach. Materiality depends on the contract, the breach, its…

A freely negotiated non-exclusive English jurisdiction clause, coupled with English law, ordinarily gives a strong prima facie basis for retaining proceedings…

A party may be prevented from raising a new case at a later remedies hearing where it could and should have been advanced at the liability trial. The court…

A liability policy ordinarily indemnifies only liability actually incurred to a third party, not merely arguable liability, unless its wording clearly provides…

Whether an arbitration clause is incorporated by reference is a question of construction assessed against the contract as a whole and its commercial context. A…