High Court: Commercial Court judgments, 2010

An advance payment guarantee is construed as a whole and according to its commercial substance. Its label is not decisive. An undertaking to pay on demand…

For a threatened claim arising from online gambling losses, the applicable law is determined by the ordinary private international law rules for tort and…

Security under section 70(7) of the Arbitration Act 1996 should be ordered cautiously where the challenge is under section 67. In most cases, the applicant…

Under an all-risks policy, the insured ordinarily establishes an accidental loss, after which the insurer bears the burden of bringing the loss within an…

Under a multimodal bill of lading, once cargo is shown to have been delivered in good order and condition but outturned damaged, the carrier must establish…

A mortgagee exercising a contractual power of sale must act in good faith, take reasonable steps to obtain market value, and conduct the sale in a commercially…

When deciding whether to continue an interlocutory injunction, the court must assess the practical consequences of the order rather than rely on a rigid…

Contractual premium obligations are determined by the written rate schedules and agreed terms. A party cannot establish waiver or estoppel by relying on…

An anti-suit injunction may be granted where England is the natural forum and foreign proceedings are vexatious, oppressive or unconscionable. England need not…

A settlement expressed by reference to demurrage may settle all demurrage claims under a charterparty where the commercial context shows that the parties…

An application under section 67 of the Arbitration Act 1996 is a rehearing. The court must decide afresh whether an arbitration agreement exists. Where a…

A contractual calculation agent exercising a valuation discretion must act in good faith and rationally. A valuation is vulnerable where the agent adopts a…

For an interim mandatory injunction, the court must assess the adequacy of damages for each party and the balance of convenience. A positive order which…

The without prejudice rule protects genuine settlement discussions, including admissions and statements made during wide-ranging negotiations. Exceptions…

An innocent party’s conduct after a contractual breach breaks the chain of causation only if it becomes the true cause of the loss and destroys the causative…

Under the Arbitration Act 1996, the court’s statutory appeal jurisdiction from an international arbitration award is confined to questions of law. Party…

Where a party has clearly breached orders of the court, leave to issue sequestration may be granted even though no assets are presently known within the…

A broker may close out a client’s positions without prior notice where the contract makes that right exercisable on an event of default or where the broker…

An insurer’s agreement with a solicitor to provide after-the-event insurance for the solicitor’s clients does not ordinarily contain an implied term requiring…

A licence permitting an insurer to continue providing insurance cover required by the Bunkers Convention may preserve indemnity cover for the assured, even…

In insurance disputes, material non-disclosure requires proof both that the undisclosed circumstance would influence a prudent insurer and that it induced the…

Where a contract provides that a buyer may terminate after a specified delay “pursuant to” a termination article, the reference may incorporate the procedure…

Committal proceedings are civil applications within existing proceedings, not criminal trials or private prosecutions, although their quasi-criminal character…

On an appeal under section 69 of the Arbitration Act 1996, the court generally determines the question of law from the arbitral award and the relevant…

Where a claim and counterclaim raise the same issues, security for costs is generally inappropriate because the costs of defending the claim would also be…

In commercial insurance, a statement made before renewal may be impliedly repeated at renewal where it concerns a material feature of the risk and remains…

Under Marine Insurance Act 1906, an assured need only make a fair presentation of material facts sufficient to enable a prudent insurer to form a proper…

When foreign defendants are said to be necessary or proper parties, the court must assess the anchor claim, the common issues and whether England is distinctly…

A final anti-suit injunction may restrain a party from continuing foreign proceedings where, although not necessarily brought in breach of an arbitration…

Where the existence of an arbitration agreement is disputed, the court may decide the threshold issue itself or stay proceedings for determination by an…

For the purposes of Article 22.2 of Council Regulation (EC) 44/2001, the court must make an overall classification of the proceedings. An action is not…

On an application under section 51 of the Senior Courts Act 1981, the court may order disclosure where it is relevant to a live issue, unprotected by…

Section 2(4) of the Carriage of Goods by Sea Act 1992 does not create a separate cause of action. A bill of lading holder sues on the rights vested in it under…

On an application for summary judgment on accepted bills of exchange, the defendant must show a real prospect of establishing a defence or counterclaim at…

A buyer’s failure to pay a contractually required deposit may amount to repudiatory breach where the contract makes payment a condition of performance. A later…

On an application to strike out committal proceedings, the court should determine only whether the application is abusive, procedurally incurable, or has no…

On an application under Civil Procedure Rules 1998, Part 24, a claim or counterclaim may have a realistic prospect of success yet be sufficiently improbable to…

Committal for contempt is available only where the court is sure that an alleged contemnor breached a clear and unambiguous order. The claimant bears the…

Under a liability policy excluding contractual liabilities unless the liability would have existed without the contract, the court must answer the contractual…

On an application to set aside service out, the claimant must show a good arguable case, realistic prospects of success and that England is clearly and…

A contractual provision is not a penalty merely because the stipulated payment may exceed the loss ultimately proved. The question is whether, viewed at the…

Where a defendant breaches disclosure obligations ancillary to a worldwide freezing order, the court may make an unless order debarring a defence or permitting…

A contractual grace period for payment of margin must be respected before non-payment becomes an Event of Default where the contract expressly requires notice…

An enhanced disclosure order is exceptional and fact-sensitive. Serious allegations, substantial sums, reputational issues and the possible absence of direct…

Reliance or wasted-expenditure damages are governed by the fundamental compensatory principle in Robinson v Harman: the claimant must be placed, so far as…

An insurance renewal term may be contractually effective even though the parties contemplate a fuller wording later, provided the agreed words have substantive…

A broker may establish entitlement to commission under the effective cause test even if the eventual buyer does not negotiate through the introducing broker.…

A guarantee described as imposing primary obligations is not necessarily a demand bond. The court must construe the instrument as a whole, considering its…

Pre-action disclosure under CPR 31.16 requires separate consideration of jurisdiction and discretion. The applicant must show more than a speculative…

Money obtained by fraud is held by the fraudulent recipient on constructive trust and may be recovered and traced in equity. Where funds are transferred…

A stay for forum non conveniens is granted only where another available court has competent jurisdiction and is clearly or distinctly the more appropriate…

In a battle of standard terms, contract formation is determined objectively, applying ordinary principles of offer and acceptance while taking the factual…

A receiver may be appointed before judgment in support of a freezing order where the freezing order does not adequately protect against dissipation. Evidence…

An employee who receives undisclosed commissions from a contractor dealing with his employer acts in a conflict of interest where the arrangement affects his…

An anti-suit injunction requires proof of a clear breach of the relevant arbitration agreement. A party does not breach an arbitration clause merely by joining…

In ATE insurance, the insured’s underlying factual case remains material. The relevant question is whether there was a fair presentation of the overall risk…

Damages for wrongful repudiation of a time charter are ordinarily assessed by comparing the contractual rate with the prevailing market rate for the unexpired…

An anti-technicality clause protecting charterers from withdrawal for late hire payment must be construed according to its wording and in light of its…

An arbitrator’s error in applying the law chosen by the parties does not, without more, amount to an excess of jurisdiction or serious irregularity. A…

Costs following an unsuccessful strike-out or summary judgment application must reflect the evolving state of the pleadings. A defendant who ultimately fails…

A stockbroker providing an Execution Only service is not generally required to assess the suitability of transactions or prevent a client from taking excessive…

For jurisdictional purposes, an employment contract is made where acceptance of the relevant terms is received in an instantaneous communication. A previous…

A laytime exception referring to a partial interruption of the business of a port may cover interruption at a particular berth. The interruption need not be…

An implied representation is assessed objectively in its commercial context, including qualifications and the recipient’s sophistication. An assumption drawn…

Under a time charterparty, hire remains payable unless charterers clearly bring the loss of time within an off-hire exception. Ambiguity is resolved in favour…

On an application for summary judgment, the court must ask whether the claim has no realistic prospect of success. A claim resisting enforcement of a foreign…

Statements of case must clearly and concisely identify the facts relied upon. Unreasonably vague or incoherent pleadings may be struck out where doing so is…

Business interruption cover responds only to loss caused by physical damage to the insured property, unless a policy extension provides otherwise. Where wider…

Article 22(2) of the Brussels I Regulation applies only where proceedings are principally concerned with the validity of decisions of an entity’s organs. The…

Summary judgment requires the claimant to establish that the defendant has no real prospect of successfully defending the claim and that there is no other…

For the purposes of Article 28 of the Council Regulation (EC) No 44/2001, the court first seised is determined by applying the autonomous rules in Article 30.…

Pre-action disclosure is available only where the statutory and procedural conditions are satisfied. The applicant must show a properly arguable substantive…

On an application to serve proceedings out of the jurisdiction, the claimant must show that each claim falls within a jurisdictional gateway, raises a serious…

Under a double-proviso follow settlements clause, the reinsured must prove on the balance of probabilities that the compromised claim fell within both the…

On an application under section 18 of the Arbitration Act, the court’s role is ordinarily limited to deciding whether there is a good arguable case that an…

A contractual provision allowing cancellation for delayed delivery may also provide the agreed remedy for expenses, where its wording and commercial context…

A party repudiates a contract where its communications and conduct objectively evince a clear intention not to be bound. An honest mistake about contractual…

When the Hague-Visby Rules are incorporated into a time charter, the expression “contract of carriage” in Article 1(c) refers to the bill of lading where that…

Acceptance of leased goods does not necessarily prevent a claim for damages or total failure of consideration arising from breach of an express delivery…

Double insurance requires co-ordinate liabilities under two policies covering the same insured, interest, subject matter and risk. The parties may modify or…

The jurisdiction to grant a freezing order against a third party is not confined to assets beneficially owned by the judgment debtor or held on trust for it.…

A party entitled to enforce an arbitration clause may seek declaratory and anti-suit injunctive relief in the English courts even though no arbitration has…

An insurance broker must take reasonable steps to ensure that the policy obtained is suitable for the client’s needs. This includes explaining the duty to…

A contractual finance-lease mechanism must be construed from the language and structure of the particular lease. Commercial or accounting descriptions of…

On an application to amend pleadings facing strike-out or summary judgment, the court should permit the amendment unless it is incoherent, abusive or has no…

Pending proceedings to challenge an arbitration award do not mean that the award has been set aside or suspended. Recognition or enforcement may therefore be…

A party seeking permission to amend must show that the proposed case is arguable and has a realistic prospect of success. A contract for the transfer of loan…

Permission to serve proceedings out of the jurisdiction requires a sufficiently arguable case on the merits, a good arguable case on the relevant…

In conversion, the ordinary measure of damages is the market value of the goods when converted. That measure is not reduced merely because the claimant’s…

On a summary judgment application, a claimant cannot recover the contractual price where delivery and payment are concurrent conditions and the claimant cannot…

Permission to serve proceedings out of the jurisdiction should not be sustained unless the claimant shows that each cause of action has a reasonable prospect…

Contractual releases are construed objectively, by reference to the language used, the commercial purpose of the agreement and the relevant background known to…

The ordinary test for remoteness in contract remains whether the type of loss was within the parties’ reasonable contemplation when contracting as not unlikely…

Orders restricting public access to court proceedings, documents or reporting should be made only where necessary for the proper administration of justice. The…

A sub-broker’s entitlement to commission depends on the agreement made with the lead broker. Where the agreement gives the sub-broker a share of commission…

Where a contract gives an innocent party alternative termination rights with different consequences, the party must communicate clearly and unequivocally which…

A post-judgment disclosure order may support enforcement of the judgment, including enforcement against assets alleged to be held by a related company in…

An insured seeking business interruption indemnity must establish both insured material damage and compliance with any policy condition precedent requiring…

Under section 68(2)(d) of the Arbitration Act 1996, an arbitral tribunal must deal with every essential issue necessary for a fair determination of the…

On a summary judgment application, the claimant must show that the defence has no real prospect of success and that there is no compelling reason for trial.…

A sale described as “as is” may still contain a contractual quality term. Its effect depends on the objective meaning of the agreement and the commercial…

An exclusive jurisdiction clause may survive the termination or replacement of the main contract sufficiently to permit the designated court to determine…

On an application for conditional summary judgment, a defendant who says that payment into court would stifle the defence bears the burden of proving that…

On an application to continue a worldwide freezing order, the court must balance the duty of full and frank disclosure against the without-prejudice rule.…

Exclusion clauses using “indirect or consequential loss” ordinarily exclude only losses falling within the second limb of Hadley v Baxendale. Specified…

Capture by pirates does not necessarily create an actual total loss under the Marine Insurance Act 1906. Actual total loss requires irretrievable deprivation…

In assessing contractual damages for negligent advice, the court must identify the loss caused by the breach in a fact-sensitive way. Where correct advice…

When deciding whether a witness’s account is reliable, the court may test it against independently proved objective facts, contemporaneous documents, the…

An arbitration clause covering disputes arising out of or relating to an agreement may extend to disputes under an earlier, closely connected agreement. The…

A contractual power to close out leveraged trading positions may be exercised where the customer is in default, or where the broker reasonably considers…

For the purposes of the Financial Services and Markets Act 2000 (Rights of Action) Regulations 2001, a corporate customer suffers loss “in the course of…

The equitable jurisdiction to relieve against forfeiture is confined to appropriate and limited cases. It generally requires a transfer of proprietary or…

A guarantor’s liability under a continuing guarantee depends on the underlying obligations and the guarantee’s terms. Where a contract requires delivery…

Whether an agreement is in substantially the form of an earlier draft is a question of substance, assessed objectively by comparing the agreements as a whole…

In construing interlocking commercial agreements, the court must read the documents together and give effect to their commercial purpose. A limited-recourse…

Under Arbitration Act 1996, contractual arbitration time limits may be extended only within the strict framework of section 12. The court must first ask…

Parties to an f.o.b. sale contract may mutually affirm and keep the contract alive after the contractual delivery period has passed, provided their objective…

Compensation under Part G of a Network Code is assessed by identifying loss consequential upon a Network Change. The relevant comparison is between the train…

A party may interview an opponent’s employee or former employee, but neither the witness nor the interviewing party may disclose or seek information protected…

A contempt finding requires intentional conduct, with knowledge of the facts making the conduct a breach of the order. For a company, deliberate conduct by an…

Economic pressure may constitute duress where it is illegitimate and induces a payment or contractual variation. A threat to breach an existing contract will…

A guarantee must be construed strictly, particularly as to time limits, but construction must also avoid an absurd or commercially ineffective result. A demand…

Where information disclosed under a freezing order is subject to restrictions, the court may permit disclosure to the claimant where this is necessary to…

Where a contract provides security for repayment if contemplated transactions are not completed, the security should not be realised before the secured party…

Article 16 of UCP 600 requires an issuing bank to act in accordance with the disposal statement made in its refusal notice. That obligation applies after the…

Under English law, a contract may be binding without a witnessed signature, initials on every page or a signature by the person who first negotiated the…

A contractual success fee based on an entry multiple should ordinarily compare the enterprise value with the EBITDA current for the transaction, which may be a…

A force majeure clause is construed according to its wording and commercial context. Financial difficulty, reduced profitability, increased expense and adverse…

General words may incorporate an arbitration clause where the parties are incorporating terms of an earlier contract made between themselves. The court should…

The ex turpi causa rule is flexible and policy-based. An unlawful act engages it only where the conduct is sufficiently serious and involves moral turpitude or…