High Court: Commercial Court judgments, 2009

Damages for wrongful premature termination of a time charter are ordinarily assessed by valuing the hire lost during the remaining contractual period, less…

A detailed written transaction will ordinarily govern the parties’ rights where it records the structure adopted to comply with sanctions and does not provide…

A contractual requirement that amendments or waivers be in writing does not prevent the parties making a separate collateral contract temporarily suspending…

An application under Arbitration Act 1996, section 68, is not an appeal on the merits. The applicant must establish a serious irregularity within the statutory…

Service of a notice commencing arbitration must be effected on the correct party, or on an agent with actual or ostensible authority to accept service. The…

For section 72 of the Arbitration Act 1996, a party takes part in arbitral proceedings if it participates in determining the merits after the tribunal has…

Under bond terms, an issuer’s failure to pay the trustee’s properly incurred legal costs can constitute an event of default without any additional requirement…

A court may correct an order under the slip rule where it did not intend to make an undisclosed amendment, and may alternatively vary it under CPR 3.1(7). A…

Under Article 23 of the Judgments Regulation, a jurisdiction clause must be supported by real consent or actual acceptance, clearly and precisely demonstrated.…

Where a cheque is governed by foreign law, the measure of damages for dishonour is determined by that governing law rather than automatically by section 57 of…

A court order obtained through fraudulent concealment or fraudulent representations may be set aside where the court would not have made the order if the true…

Summary judgment should be refused where a pleaded defence has a real, although weak, prospect of success. The court must not resolve disputed credibility…

Under an aircraft lease, supplemental rent becomes due on the contractual date calculated by reference to prior use. An invoice is not a condition of liability…

Insurance warranties requiring protective systems to be maintained in full and effective operation are qualified by provisions requiring defects to be promptly…

Contractual termination rights are construed by asking what a reasonable person, with the relevant background knowledge, would understand the parties to have…

A contractual close-out mechanism is not penal merely because it determines the amount payable by applying a valuation method rather than a fixed sum, or…

Where parties have selected English jurisdiction, a stay on forum non conveniens grounds requires a substantially heavier showing than under the ordinary…

Actual authority depends on the legal relationship between principal and agent, construed from the parties’ agreement, proper implications, trade usage and…

A voyage charterparty must be construed as a whole, without assuming that one part has precedence over another. Wording identifying a specified berth, or…

A party may accept an anticipatory repudiation where the other party’s words and conduct, viewed cumulatively and in context, clearly and absolutely evince an…

For service out of the jurisdiction under CPR 6BPD 3.1, a claimant must establish a good arguable case that the relevant contract exists. It is insufficient to…

Under a contractual hardware-budget and procurement scheme, a party may recover hardware costs both as contractual reimbursement and, where established, as…

An insurance broker must exercise reasonable skill and care to ascertain the client’s insurance needs, obtain cover meeting them, review proposed terms…

A third party debt order under CPR Part 72 may only attach a debt actually owed to the judgment debtor. It cannot be used to freeze a separate corporation’s…

A party may confer substantive jurisdiction on an arbitral tribunal through signed Terms of Reference, even where the underlying contract and arbitration…

Negotiated terms in a fixture recap prevail over incorporated pro forma terms only to the extent that the provisions are inconsistent. The court must construe…

For the purposes of compensation under Commercial Agents (Council Directive) Regulations 1993, an agency does not necessarily end when the main selling period…

A freezing order may be continued where the claimant has a good arguable case and the evidence establishes a real risk of dissipation. Alleged political or…

A reinsured must prove that a settlement falls within both the underlying cover and the reinsurance cover, on the balance of probabilities. A…

A contractual “Fundamental Defect” may arise from several breaches falling within the same warranty, and their consequences may be aggregated when assessing…

Contractual notice provisions must be construed in their commercial context, but clear and mandatory requirements as to timing ordinarily require strict…

Under the 1992 ISDA Master Agreement, the bankruptcy Event of Default in section 5(a)(vii)(2) contains two distinct alternatives: inability to pay debts as…

An advance payment bond must be construed as a whole and in a commercially sensible manner. Where its operative wording covers sums due under the underlying…

For service out of the jurisdiction, the claimant must show that it has much the better of the argument that the contract is governed by English law. Under…

For the purposes of European competition law, an undertaking is an economic unit which may comprise several legal entities. Where one entity within the…

A carrier’s contractual covenant not to sue servants, agents or subcontractors may be enforced by anti-suit injunction where the claimant has a practical…

Under an FOB sale contract incorporating GAFTA No. 49, a vessel is presented in readiness to load when it has arrived, is moored at a suitable berth, and no…

An arbitration clause referring disputes about the amount of a contractual payment may extend to disputes concerning payments which will fall due in the…

Jurisdictional provisions which permit a defendant to be sued outside the state of domicile require narrow construction. A claimant seeking jurisdiction under…

A contractual notice of readiness may be governed by specific clearance provisions which allocate the risk of delay. Where a charterparty clause addresses…

Under Supreme Court Act 1981, a non-party costs order may be made where a person effectively controls proceedings and seeks a potential financial benefit.…

On a summary judgment application concerning an on-demand performance or advance payment guarantee, the bank must show a real prospect that it will establish…

Temporary unenforceability under section 77 of the Consumer Credit Act 1974 suspends the creditor’s remedies. It does not extinguish the creditor’s contractual…

An exclusive jurisdiction clause must be construed in the context of the agreement as a whole. A clause requiring each contracting party to submit disputes…

A failure to comply with an order for judgment-debtor disclosure supports committal only where the breach is proved to the criminal standard and was a wilful…

Under Article 17 of the Lugano Convention, the claimant must show clearly and precisely that the parties reached consensus on English jurisdiction. The…

Documentary credits require strict compliance, but strict compliance is not identical to literal compliance in every circumstance. Documents must be assessed…

Under a charterparty substitution clause, an incoming vessel need not be delivered at the precise geographical location where the outgoing vessel was…

The Chabra jurisdiction is substantive in character and can be exercised only after the court has established territorial jurisdiction over the third party.…

Accounting standards require recognition of an asset or liability only where there is sufficient evidence of its existence and it can be measured with…

A jurisdiction clause stating that the courts of England are to have jurisdiction, coupled with an express liberty for one party but not the other to sue…

Under Article 23 of the Brussels Regulation, a party seeking to displace the ordinary jurisdiction of the defendant’s domicile must establish a good arguable…

Under a carefully negotiated option agreement, a party entitled to withhold consent to an ancillary planning agreement must apply the contractual test agreed…

A transaction is a loan where one party receives money and assumes an obligation to repay it, even if the transaction is documented as a swap and the amount…

On an application for interim injunctive relief, the court applies the usual principles governing injunctions, including adequacy of damages and the balance of…

Contractual jurisdiction is determined by construing the jurisdiction agreements in the context of the parties’ overall contractual relationship. Where several…

An arbitration clause excludes the statutory right to appeal on a question of law under section 69 of the Arbitration Act 1996 only if the contractual wording…

When reviewing an arbitral award for serious irregularity, the court reads the award as a whole and fairly. It does not conduct minute textual analysis or seek…

In challenges to an arbitral award under the Arbitration Act 1996, an obligation to open a letter of credit will ordinarily be a promissory rather than a…

For a jurisdiction agreement under Article 23 of the Brussels I Regulation, consensus must be established clearly and precisely. Where consensus is presumed…

Without-prejudice communications made during negotiations resulting in a settlement agreement may be admitted to determine the agreement’s terms and meaning…

Under Article IV, Rule 6 of the Hague Rules, a shipper is liable for loss resulting from the shipment of dangerous goods whose true dangerous character was…

A shipowner who lawfully withdraws a vessel for non-payment of hire may recover reasonable remuneration and expenses from the cargo bailor for holding the…

A breach of listing rules or market-abuse provisions under the Financial Services and Markets Act 2000 does not create a private damages action where…

When an application to extend the validity period for serving a claim form is made before expiry, the court has a discretion under CPR r.7.6(2). There is no…

A long-term contract is construed by reference to the objective meaning of its words and the factual background reasonably available when it was made. Later…

A guarantee is construed according to its ordinary and natural meaning. Where the guarantee limits liability by reference to the debtor’s underlying…

Contract formation is determined objectively from the parties’ communications and the relevant background reasonably available to both parties. Agreement on…

Under a CIP sale, the seller must arrange carriage on usual terms and in a customary manner, and must procure insurance which is valid when obtained and…

Exclusive jurisdiction under Article 22(2) of the Council Regulation No. 44/2001 depends on the proceedings’ principal subject matter, assessed by an overall…

An application under section 68 of the Arbitration Act 1996 requires both a specified serious irregularity and substantial injustice. A tribunal’s failure to…

A contractual risk-allocation clause does not exclude liability for negligent performance unless clear and unequivocal words do so. An indemnity for unsuitable…

A jurisdiction challenge should ordinarily be determined at the earliest reasonable opportunity. The possibility that the court may need to anticipate a…

An arbitration agreement requiring arbitrators to belong to a particular religious community is not, merely for that reason, unlawful discrimination.…

Under CPR 13.3, a real prospect of successfully defending a claim does not by itself justify setting aside a regular default judgment. Promptness is a very…

Fraud allegations in civil proceedings are proved on the balance of probabilities. The seriousness of the allegation affects the assessment of inherent…

Service of a claim form on a defendant’s solicitor by fax is valid only where the rules permit service on that solicitor and the solicitor has the necessary…

Summary judgment may be granted where a defence has no realistic prospect of success. The court must avoid a mini-trial, but need not accept factual assertions…

On an appeal under section 69 of the Arbitration Act 1996, contractual construction requires the court to identify what the agreement, read as a whole and…

A claimant may commence or continue English proceedings despite a foreign judgment on the same cause of action where that judgment is unenforceable or not…

Standard contractual terms may be incorporated into an oral agreement through prior dealings, documentary confirmation and part performance. A requirement to…

In an FOB sale, the implied term of satisfactory quality under the Sale of Goods Act 1979 may extend beyond delivery on to the vessel for a reasonable time.…

A guarantee can be supported by consideration even if executed after the underlying contract. Where it forms part of a single transaction, the promisee’s…

Administrators may seek secondary insolvency proceedings in another European jurisdiction where that step advances the proper purposes of the administration…

A drop-down clause in a global insurance programme must be construed according to its wording and context. It does not automatically provide excess cover for a…

For the purposes of the State Immunity Act 1978, state ownership, control, financing or the appointment of directors does not by itself make an entity a…

Goods may be of unsatisfactory quality even where their physical condition is not intrinsically defective. The court may take account of the contractual…

A contractual pricing mechanism referring to the bill of lading date is not ordinarily qualified by an implied term restricting it to dates resulting from…

Summary judgment is inappropriate where the contractual identity of the parties, the surrounding transaction, or an agent’s authority depends on disputed and…

At the interlocutory stage, an applicant for an anti-suit injunction must establish a high degree of probability that the foreign proceedings breach an…

A bailee bears the burden of proving that it exercised reasonable care and that any failure to do so did not cause the loss. The burden is not shifted merely…

An express agreement that arbitration is to take place in a specified country will ordinarily designate that country as the juridical seat, particularly where…

A counterclaim must identify a coherent cause of action and plead the facts necessary to establish it. English law recognises no general tort of malicious…

In deceit, inducement is established where a fraudulent misrepresentation materially influences the claimant’s conduct. It need not cause a change of strategy…

In determining costs, the court applies the general rule that the unsuccessful party pays the successful party’s costs, assessed by commercial reality rather…

A case-management stay may assist a foreign insolvency, but the power is tightly constrained where the parties have chosen the English courts by an exclusive…

For the purposes of Article IV Rule 6 of the Hague Rules and the corresponding common-law obligation, dangerous goods ordinarily means goods capable of causing…

An indemnity costs order requires conduct which takes the litigation out of the norm. Moral condemnation is unnecessary, but ordinary unsuccessful advocacy is…

A solicitor advising on commercial litigation must exercise reasonable skill and care both in forming legal opinions and in communicating them clearly. An…

The court supervising a group litigation scheme may adapt the scheme’s procedures, including consequential time limits, where this is necessary to control the…

A time charterer’s approximate redelivery notice does not, without more, operate as a contractual option or impose an implied term preventing later changes of…

Where parties choose a contractual non-exclusive jurisdiction, parallel proceedings in a non-contractual forum will ordinarily be vexatious and oppressive if…

Under Arbitration Act 1996, section 44(3), the court may preserve assets in support of arbitration where the tribunal cannot yet act effectively and the case…

For jurisdiction under article 5(3) of the Judgments Regulation, harm caused by the non-receipt of money occurs where the money ought to have been received.…

Proceedings seeking declaratory or anti-suit relief to protect contractual arbitration rights fall outside the scope of Council Regulation (EC) No 44/2001…

Under an all-risks marine policy, the insured must show that the loss was accidental, in the sense that it was not inevitable. Probability, even very high…

For limitation purposes, actual damage in professional negligence is fact-specific. Where the professional’s duty is to ensure that a transaction has…

A contractual provision is a penalty where its predominant function, assessed when the contract was made, is deterrence rather than compensation. The…

Vicarious liability for a borrowed employee depends principally on who had the right to control the manner of the relevant work. Contractual labels are…

Where parties have agreed an exclusive jurisdiction clause, the chosen forum generally overrides convenience considerations that were foreseeable when the…

On the proper construction of a contract providing for an independent expert to determine operational bases used to calculate additional costs, a determination…

Under an off-hire clause, a vessel is efficient only if it is able to perform the service required by the charterers at the relevant time. Travelling in the…

In an appeal against registration of a Member State judgment under the Judgments Regulation, the court considered whether the appeal should be stayed pending…

Section 14(4) of the Arbitration Act 1996 requires a broad and flexible assessment focused on substance rather than form. A communication is sufficient where…

Permission to appeal is governed by a restrictive test. It may be granted only where the proposed appeal has a real prospect of success or there is another…

The scope of an expert determination is determined by the agreement recorded in the parties’ joint letter of instruction. Earlier negotiations cannot be used…

A signed term sheet can create a binding commercial contract where, assessed objectively, its wording, execution and surrounding exchanges show an intention to…

In contribution proceedings, the relevant damage is the damage for which both defendants are liable, not necessarily the claimant’s total loss or the amount…

Pre-action disclosure under CPR 31.16 is available only where the statutory conditions are satisfied and disclosure is desirable to dispose fairly of…

Where statutory machinery gives a tribunal exclusive jurisdiction to determine the validity or amount of a tax assessment, the High Court cannot make a binding…

Relief for unfairly prejudicial conduct requires conduct affecting the petitioner in the capacity of a shareholder. Conduct occurring before the petitioner…

In a collision claim, the claimant bears the burden of proving, on the balance of probabilities, that the loss was caused by the defendant’s wrongdoing. A…

Where a contract is amended by a later instrument, the termination payment must be construed by giving effect to the words actually agreed, read in their…

Section 31 of the Civil Jurisdiction and Judgments Act 1982 provides a comprehensive regime for recognising and enforcing foreign judgments against states. It…

A payment made to a customs administration is not a bribe merely because it is paid in cash or negotiated at a local administrative level. The court must…

Declaratory relief should be framed with care where the contractual status of terms, or their incorporation into individual contracts, remains fact-sensitive.…

Security for costs may be ordered against a defendant who brings a counterclaim where, in substance, the counterclaim goes beyond self-defence and has an…

Under Arbitration Act 1996, the court should support, rather than review, a tribunal’s properly made peremptory order. Section 42 does not make the court a…