High Court: Commercial Court judgments, 2008

In reinsurance, contractual formation depends on an objective analysis of offer, acceptance and intention to contract. Scratching a Lloyd’s slip is common…

Where unauthorised transactions cause a claimant to lose premiums, the loss is recoverable even if no claim has yet been made under the relevant bond. A…

A wide exclusive jurisdiction clause in a settlement agreement may extend to claims preserved by a fraud carve-out, where the agreement’s commercial purpose is…

A jurisdiction clause submitting both parties to the courts of a country, while expressly preserving only the bank’s right to sue elsewhere, may require the…

Under section 68 of the Arbitration Act 1996, the court intervenes sparingly. A tribunal need not address every argument or explain every step in its…

An English court may restrain proceedings before a foreign arbitral body where those proceedings breach an arbitration agreement seated in England. The…

An indemnity costs order is compensatory, not punitive, and remains a departure from the norm. The court must consider all the circumstances, including the…

A party to a bill of lading containing an express London arbitration clause breaches that agreement by using a foreign arrest for the ulterior purpose of…

An arrest of a vessel abroad is permissible where its sole purpose is to obtain reasonable security for a claim which must be arbitrated or litigated in…

The doctrines of act of state and non-justiciability may prevent an English court from investigating foreign sovereign conduct, even where the parties wish the…

An obligation in an insurance policy to give immediate written notice of an occurrence may be a condition precedent to liability where the policy establishes a…

A detention notice under the Merchant Shipping Act 1995 is not retrospectively validated by reliance on a statutory power which the detaining officer did not…

A novation which substitutes a party into an existing contract may bind that party to the contract’s arbitration clause, including in respect of a dispute that…

An indemnity requiring charterers to provide bail or other security to prevent, or secure the release of, a vessel from arrest creates an accrued obligation…

Fair disclosure under a share sale agreement is assessed objectively and in context. A purchaser need not be sent on a paper chase through complex documents.…

An arbitral tribunal’s decision is an award as to substantive jurisdiction according to its substance, not its label. The court asks how a reasonable recipient…

Where a share sale agreement provides for a cash alternative but does not expressly state its payment date, the court may construe the agreement commercially…

In a forum non conveniens application, the court must first determine whether the proposed foreign forum is available and suitable for the interests of all…

In cross-border claims based on dishonest assistance, knowing receipt or unjust enrichment, the applicable law is not selected simply because the proceedings…

The court’s ancillary jurisdiction under section 51 of the Supreme Court Act 1981 is not confined to ordering disclosure of litigation funders’ names. It…

Permission to withdraw an admission is discretionary and must be determined by applying the factors in paragraph 7.2 of the practice direction to Civil…

Summary judgment is inappropriate where the evidence leaves a real prospect that a factual issue will be resolved at trial, particularly where oral evidence…

Proceedings between professional insurers are not subject to the special jurisdiction rules for insurance in Section 3 of the Judgments Regulation. Those rules…

The jurisdiction to appoint a receiver by way of equitable execution under Supreme Court Act 1981, section 37(1), is governed by justice and convenience and is…

Where apparently absolute charterparty obligations coexist with a clause incorporating the Hague-Visby Rules, the provisions should be reconciled if reasonably…

A judgment creditor may bring a fresh action on an earlier judgment where the action is brought for a legitimate enforcement purpose. The action is not an…

Section 38 of the Partnership Act 1890 preserves partners’ authority after a general dissolution only so far as necessary to wind up the partnership’s affairs…

A surety’s equitable protection against impairment or release of security may be excluded or modified by the guarantee’s express terms. A clause permitting the…

A contractual term is capable of engaging the law against penalties only where it has contractual effect, imposes an obligation or prohibition on the customer…

A non-party costs order is discretionary and fact-sensitive. It may be made where a non-party is more than a funder and is a real party who controls or…

Under the Insolvency Regulation, the law of the Member State where insolvency proceedings are opened generally governs their effects. That rule is subject to…

The Riot (Damages) Act 1886 is founded on the responsibility of the relevant police authority for maintaining order, rather than creating an unrestricted…

A contractual obligation to take all reasonable actions without unreasonable delay to manufacture a product may include developing the product from its actual…

Contract terms are determined objectively from the parties’ communications and conduct. In commercial negotiations using an “accept/except” format, a response…

Under section 16 of the Gaming Act 1968, credit means time to pay for gaming losses. It may be provided unilaterally, but the deferral or postponement must be…

Security for costs may be ordered where an award creditor seeks security for costs incurred in resisting an appeal against an arbitral award, particularly…

Default judgment is available where defendants have been duly served, have not acknowledged service or defended the claim, and the relevant period has expired.…

A bank is not bound by a guarantee issued by an employee unless actual authority, ratification or ostensible authority is established. Ostensible authority…

In assessing whether commercial parties reached a binding agreement, the court must consider their words and conduct objectively, viewed in their commercial…

Under section 103(2)(b) of the Arbitration Act 1996, a party resisting enforcement may prove that it was never bound by the arbitration agreement on which the…

Where a voyage charterparty names a specific port but does not expressly warrant berth safety, a safe-berth warranty is not automatically implied merely…

Contractual obligations are determined from the language of the contract read in its commercial and factual context. A general obligation concerning…

A broadly worded arbitration agreement covering all disputes is not displaced by a service of suit clause unless the contract clearly shows that intention. The…

Article 27 of Council Regulation (EC) 44/2001 requires comparison of the cause and object of the relevant proceedings, between the same parties. The assessment…

Under the State Immunity Act 1978, property of a foreign State is liable to execution where it is, at the relevant time, used or intended for use for…

For summary judgment, the applicant must show that the claim or counterclaim has no real prospect of success and that there is no other compelling reason for a…

A structured financial note must be construed according to its commercial purpose and express terms. Where it passes through the economic returns and risks of…

The clean hands maxim does not deprive a claimant of equitable relief merely because the claimant has engaged in misconduct. The misconduct must have a…

A party claiming litigation privilege bears the burden of proving that litigation was pending or contemplated and that the communication was created for the…

A contractual covenant preventing sellers from claiming against a company’s directors, employees or officers may extend to claims based on personal duties…

A person who merely handles goods temporarily, or holds access to premises where goods are stored, does not thereby become a bailee. Bailment requires…

On a summary judgment application, the court may determine contractual construction where the necessary evidence is available and the parties have had a proper…

A case-management stay in favour of related foreign proceedings requires rare and compelling circumstances. The burden is particularly strong where the English…

A freezing injunction in support of arbitration may be maintained where the applicant has a good arguable case on liability and quantum and shows a real risk…

Section 25 of the Civil Jurisdiction and Judgments Act 1982 does not confer jurisdiction to grant interim relief merely because parallel foreign proceedings…

On an application to set aside permission to serve proceedings out of the jurisdiction, the merits threshold is the same as on an application for summary…

Contractual jurisdiction clauses must be construed against the background of all agreements forming part of the parties’ relationship. Where different…

An arbitral award will not readily be reopened on public-policy grounds where the tribunal had jurisdiction, considered the alleged illegality, gave detailed…

Permission to serve proceedings outside the jurisdiction requires a reasonable prospect of success, a good arguable case that a jurisdictional gateway applies…

Procedural defects in an application to enforce an arbitral award do not automatically invalidate the resulting order. Under CPR 3.10, the court may remedy an…

A contractual notice requiring performance of an obligation must provide the information and cooperation necessary to enable performance within the contractual…

Claims may be struck out as an abuse of process where the court, having structured earlier litigation to determine all claims of a particular type, is asked to…

A public liability policy covering sums legally payable as damages may extend to statutory compensation which is imposed on a public authority for an…

A post-contractual laycan notice under a voyage charter may define an essential part of the parties’ obligations. Once given, it is irrevocable unless the…

Under CPR 44.3(8), the relevant “court” is the court division or jurisdiction that made the original costs orders, rather than necessarily the same judge. The…

The court may direct a separate trial of an issue where it is substantial, potentially determinative, manageable within the available court time, and likely to…

A construction/erection all-risks policy does not ordinarily cover completed plant once it becomes operational, although the parties may agree wider…

In a ship sale contract, the place of documentary closing does not necessarily determine where the purchase price must be paid. Payment is governed by the…

A contractual minimum-throughput obligation may be a primary obligation to provide a revenue stream, rather than a secondary obligation triggered by breach.…

Insurance cover is not ordinarily relevant to apportionment under the Civil Liability (Contribution) Act 1978. Non-causative factors may be considered only…

Under a charterparty giving charterers an option to nominate the delivery port, the option will ordinarily carry an obligation to nominate. That obligation…

A notice of default under a GAFTA contract may constitute a repudiatory breach, but that depends on the sender’s objective intention assessed from all the…

Express financial limits in a binding authority or management agreement govern the agent’s authority to issue bonds. A side agreement concerning allocation of…

A reinsurance contract may be concluded through exchanges which use shorthand, provided the contractual terms are objectively ascertainable from the placing…

A bank’s provision of information, opinions and recommendations through a product salesman does not, without more, create a general contractual or tortious…

A reinsurer’s denial of liability does not ordinarily terminate the reinsured’s continuing obligations under a claims co-operation clause. The clause may…

Where an English order requires a company to provide information about assets outside England and Wales, a foreign court order restraining that disclosure may…

Permission to amend pleadings should be granted where the amendment permits effective adjudication, prejudice can be compensated in costs, and the public…

When an arbitral award is entered as an English judgment under section 101(3) of the Arbitration Act 1996, the resulting judgment debt attracts interest under…

Under Article IV rule 5(a) of the Hague-Visby Rules, the liability limit is calculated by reference to the gross weight of goods physically lost or damaged…

Under Civil Procedure Rules r 13.3, a default judgment may be set aside where the defendant shows a real prospect of successfully defending the claim and has…

Contractual provisions will not exclude common-law remedies for repudiatory breach unless the contract uses clear words. A clause regulating delay, termination…

Under Article 23 of the Judgments Regulation 44/2001, validity of a jurisdiction agreement is an autonomous question of European law requiring the party…

Insurance cover is not avoided merely because an insured operation increases the chance of an insured peril. A change in risk must alter the risk described and…

Regulation 6(2)(b) of the Unfair Terms in Consumer Contracts Regulations 1999 excludes only an assessment relating to the adequacy of the price or remuneration…

Delay in prosecuting proceedings does not automatically constitute an abuse of process. The court must assess all the circumstances, including the reasons for…

An underwriting agency agreement must be construed objectively, in its commercial context, without assuming the parties’ intention from general agency law. A…

CPR Part 38 applies to arbitration claims. A claimant may discontinue without leave, but a defendant may apply to set the notice aside. The court has a broad…

Six years’ delay does not create a general rule against enforcement by third party debt order. The special permission regime for writs of execution under RSC…

A contractual obligation to comply with an incorporated trading policy may require a distributor to secure compliance by its sub-distributors, not merely to…

Under section 103(5) of the Arbitration Act 1996, an enforcement court may reconsider an earlier adjournment where there has been a significant and causally…

Whether an intermediary is a commercial agent under the Commercial Agents (Council Directive) Regulations 1993 depends on whether it negotiates sales on behalf…

Under Arbitration Act 1996, an agreement by all parties that an appeal on a question of law may be brought removes the need for leave under section 69(2)(b).…

Where an order is made without a hearing under the Civil Procedure Rules, an objecting party may apply to set it aside. The court hearing that application must…

An exclusion of claims arising from the failure of machinery to perform its intended function may apply to an integrated fire protection system, including its…

Under State Immunity Act 1978, a state-owned entity with separate legal personality, financial and administrative independence, and control over its day-to-day…

For rectification, the court must identify the parties’ common intention when the relevant contractual instrument was made. In the London insurance market, the…

A contractual pricing schedule confirmed by the parties governs telecommunications charges unless a different rate is agreed. An oral agreement for a…

A freezing order supporting foreign arbitration is exceptional. The applicant must establish an arguable underlying claim, a real risk that conduct concerning…

International organisations enjoy the immunity required by the United Kingdom’s obligations under public international law. Treaty provisions conferring broad…

A verbal “paid” advice given by a collecting bank does not establish deceit unless the representor dishonestly intended it to convey a false representation of…

Contractual information obligations must be construed in their commercial context. A shareholder’s right to information may extend to appointing accountants to…

Orders under CPR 71.2 requiring an officer of a corporate judgment debtor to attend court for questioning are directed to the individual officer, not to the…

A contractual take-or-pay provision may be subject to the rule against penalties where the payment obligation is linked to breach of a minimum-order…

An interim payment of costs should be ordered only for the amount the receiving party will almost certainly collect. The applicant bears the burden of proof…

A case-management stay pending related foreign proceedings requires very strong reasons. The defendant must show that the benefits of a stay clearly outweigh…

Recognition or enforcement of a New York Convention award may be refused on public-policy grounds only in exceptional circumstances. The conduct relied on must…

An undisclosed principal may intervene in and take the benefit of a contract unless the contract, expressly or by implication, makes the agent the true and…

The proper construction of an insurance policy is determined objectively from its language, read in its commercial and factual context. A prior slip may assist…

An anti-suit injunction enforcing an arbitration agreement should ordinarily be sought promptly and before the foreign proceedings are substantially advanced.…

Where interconnected commercial agreements govern software licensing and system service, they must be construed together. An earlier umbrella agreement does…

A profit-sharing clause must be construed according to its wording and the charter party as a whole. Where a clause provides that optional years are to be…

In a life assurance claim, the claimant must prove the death of the life assured on the balance of probabilities. Where insurers allege fraud, they bear the…

Pre-action disclosure under Civil Procedure Rules 1998, r 31.16, cannot substitute for pleading. The applicant must show that the documents sought would…

Summary judgment may be appropriate in a fraud or deceit claim where the evidence, including documentary and expert evidence, leaves the defendant with no…

Pre-action disclosure under CPR 31.16 requires a focused request for documents which are more probably than not within the scope of standard disclosure in the…

Contracts made contemporaneously as part of one business transaction should be read together. A later agreement supersedes an earlier agreement only where…

An agreement containing a detailed procedure for individual disputes creates a self-contained code. A provision allowing disputes affecting a group of claims…