High Court: Commercial Court judgments, 2011

Summary judgment may be granted in a fraud case where the claim is plain and obvious and the defendant has no real prospect of successfully defending it. The…

An award may be set aside under section 68(2)(g) of the Arbitration Act 1996 only where fraud in the arbitration caused, or will cause, substantial injustice.…

Where a share subscription agreement contemplates shares being held through a nominee, an obligation to allot and issue shares to the investor may be satisfied…

A broadly worded settlement agreement may release claims arising from the handling of an insured loss, including allegations of bad faith, dishonesty and…

A commercial agreement may be contained in several documents where the evidence shows that the parties intended them collectively to record their bargain.…

Contractual notice provisions which prescribe personal delivery or recorded delivery may provide a secure method of service without being exclusive. Notice may…

For service out of the jurisdiction, a claimant must show a serious issue to be tried, a good arguable case within a jurisdictional gateway, and that England…

Under clause 7 of GAFTA Form No. 120, a buyer’s notice must clearly claim an extension and state its duration. The notice must be construed as a whole. A…

A contractual limitation clause may apply to damages following a repudiatory breach if, on construction, its wording covers that breach. The former doctrine of…

A contractual warranty is not necessarily a pre-contractual representation. Where a negotiated commercial agreement states that the purchaser has not relied on…

Serious allegations of bad faith, inducing breach of contract and conspiracy must be supported by adequate particulars. A director’s office, including…

A freezing order may be granted against a non-cause-of-action defendant where the principal defendant has a debt, receivable or claim against that third party…

Deck cargo is excluded from the Hague-Visby Rules only where the contract of carriage states that it is to be carried on deck and it is so carried. A liberty…

Contractual performance warranties are construed by identifying what a reasonable person with the relevant background would understand the parties to have…

Permission to amend pleadings is a fact-sensitive exercise requiring a fair balance between the applicant’s ability to present the real dispute and prejudice…

Where a charterparty incorporates the Inter-Club Agreement 1996, its specific time-bar provision governs recovery claims under that agreement where it…

A guarantee issued by a financial institution is a demand guarantee where, on construction of the instrument as a whole, liability arises from a conforming…

Article 6(1) of the Judgments Regulation does not permit a claimant with no claim against an English-domiciled anchor defendant to found jurisdiction over a…

The court may grant anti-suit relief in support of an English-seated arbitration where foreign proceedings threaten the arbitral process or enforcement of an…

An arbitrator who has made a valid final award is generally functus officio. A subsequent breach of natural justice or other procedural irregularity does not…

Section 33 of the Arbitration Act 1996 requires an arbitral tribunal to give each party a reasonable opportunity to present its pleaded or advanced case. It…

In construing a contractual cost-allocation provision, the court must read the agreement as a whole and give its words their natural and ordinary meaning in…

Under CPR 7.6(2), an extension of time for service requires a good reason, ordinarily a difficulty in effecting service, and the claimant must have taken…

The bankruptcy exception in Article 1.2(b) of the Judgments Regulation applies where proceedings derive directly from bankruptcy and are closely connected with…

An arbitral award must be read as a whole, fairly and commercially. The court should avoid minute textual analysis directed at finding errors or…

Under Article 28, a court second seised has a discretion to stay proceedings concerning related actions. The applicant bears the burden of showing that a stay…

A contractual indemnity may be subject to a monetary cap where the agreement makes it subject to payment rules which, through incorporated definitions…

A demand for future hire does not waive a contractual right to terminate where, when the demand is made, the relevant grace period has not expired and no right…

On an application for summary judgment, a defendant must show a realistic prospect of successfully defending the claim or another compelling reason for a…

Under CONWARTIME 1993, an owner may refuse an order where there is a real likelihood, meaning a real danger, that the vessel will be exposed to acts of piracy.…

In a contingent earn-out agreement, an obligation to seek regulatory approval diligently requires reasonable application, industry and perseverance. It does…

Permission to serve proceedings out of the jurisdiction may be justified where a claimant has a legitimate commercial interest in obtaining an early…

Insurance wording which limits the common-law effect of a breach of warranty is construed objectively. Where the policy invalidates a claim only to the extent…

Under Arbitration Act 1996, a tribunal’s failure to address a distinct and important issue submitted for determination may constitute a serious irregularity…

In a sale contract containing laytime and demurrage provisions linked to a charter-party, the buyer’s obligation will generally be construed as an independent…

The court may order a defendant subject to a freezing injunction to disclose the identity of a third-party funder and the ultimate source of funds used for…

Summary judgment is appropriate only where the defendant has no realistic prospect of success. The court must avoid a mini-trial, while testing whether the…

On an appeal under section 69 of the Arbitration Act 1996, the court will not convert an alleged error of fact into an error of law merely because the…

Under legal expenses insurance, freedom to choose a lawyer must be effective and is not limited to a single choice. An insurer may take account of panel and…

Where a solicitor obtains an opponent’s confidential or privileged information without a previous solicitor-client relationship, the ordinary remedy is an…

For an EEA credit institution, an insolvency measure recognised under the Credit Institutions (Reorganisation and Winding Up) Regulations 2004 must receive…

An insolvency protection policy covering cancellation of travel arrangements may respond where the original tour operator becomes unable to perform, even if…

Ostensible authority to execute a guarantee is governed by the law applicable to the guarantee contract. A person who signs a guarantee as the chief executive…

For service out of the jurisdiction, the claimant must show a reasonable prospect of success. At that stage, contractual notice provisions may support an…

Under the Brussels Regulation, the mandatory lis pendens rule requires close attention to the identity of the parties, cause and object of the proceedings.…

Summary judgment is inappropriate where the defence, although improbable and facing significant evidential difficulties, cannot properly be described as…

When deciding whether to adjourn a contempt hearing, the court must balance the need for prompt enforcement with the defendant’s minimum right under European…

Promissory estoppel requires a clear and unequivocal promise, reliance on that promise, and an alteration of position or detriment. A statement that…

Reciprocal contractual indemnities allocating property damage on a knock-for-knock basis are not displaced merely because the damage occurs while works are…

A customer’s obligation to indemnify an issuing bank for liabilities incurred under confirmed letters of credit is governed by the facility agreement, unless…

The court retains discretion whether to impose a sanction after contempt has been proved. The primary, though not exclusive, purpose of contempt powers is…

The power to vary or revoke an order under CPR r.3.1(7) may be exercised where the court was materially misled or circumstances have materially changed. The…

A short notice of a vessel’s estimated time of arrival is not necessarily invalid or incapable of triggering contractual obligations under an FOB sale…

A recommendation concerning a structured investment is advice on its merits, rather than the mere provision of information, where the adviser expresses or…

An expert who has previously assisted one party may be restrained from acting for an opponent where there is a likely risk of misuse of confidential or…

A declaratory arbitration award may be enforced under section 66 of the Arbitration Act 1996 where entering judgment in its terms would provide a real material…

Where no compulsory statutory insolvency or bankruptcy regime requires pari passu distribution, the general rule is that the first judgment creditor to obtain…

A marine insurance follow clause requiring following underwriters to follow the lead underwriter’s decisions, surveys and settlements regarding claims within…

Where numerous County Court claims raise common and potentially important issues of insurance law, the Commercial Court may provide an appropriate forum for…

An arbitrator is removable for apparent bias only where the fair-minded and informed observer, having considered all relevant circumstances, would conclude…

A subsequent abuse of a corporate structure may justify unwinding sham or improper asset transfers, but it does not ordinarily make companies or individuals…

CPR 40.12 permits correction of an accidental slip or omission where necessary to give effect to the court’s actual intention. The rule is limited: it cannot…

A professional adviser retained to value and assess a speculative commercial property investment must exercise the skill and care of an ordinarily competent…

In foreign-relations matters, the courts and the executive speak with one voice. A certificate by the Foreign Secretary identifying the government recognised…

Under Arbitration Act 1996, s 9, a stay is mandatory where court proceedings concern a matter referred to arbitration under a valid arbitration agreement. The…

A guarantor undertaking performance of a charterparty is liable for the guaranteed party’s contractual defaults. A charterer may terminate for repudiatory…

Where a claimant establishes to the requisite high degree of probability that a binding arbitration agreement covers proceedings brought in a foreign court…

Enforcement of an arbitration award as a judgment under section 66 of the Arbitration Act 1996 is discretionary, but an unchallenged monetary award should…

A contractual term preserving interest after judgment prevents merger of the contractual right. It does not ordinarily exclude the creditor’s separate…

On an application for security for costs, the court must consider whether an order is just having regard to all the circumstances. Relevant considerations…

A contract may be binding on agreed core terms while leaving other terms for later agreement. A party’s later draft contract does not become part of the…

Contractual invoicing-back machinery incorporated into a trade contract may operate independently of contractual fault. Where the governing bylaw requires an…

A commercial contract is construed objectively in its factual and commercial context, but the court cannot improve its language merely to make the bargain…

For the purposes of recognising and enforcing a New York Convention award, an award is “binding” once ordinary recourse has expired or been excluded. A pending…

Under ISDA 92, payment netting is determined by construing the agreement as a whole and in its commercial context. Where the parties have elected aggregate…

On an appeal under section 69 of the Arbitration Act 1996, a contractual certificate-final regime may be altered by provisions giving the buyer a right to…

The supplied material contains no judgment text from which legal propositions or holdings can be identified.

For the purposes of a mandatory arbitration stay, the court must identify the substance of the controversy, rather than its formal presentation. Where related…

A foreign judgment setting aside the judgment on which an English default judgment is based may itself be refused recognition where recognition would conflict…

Where a time charter is repudiated and no market exists for the unexpired period at termination, damages are assessed by reference to the owner’s actual loss…

Article 27 of the Judgments Regulation applies only where proceedings involve the same parties, or materially identical parties, the same cause of action and…

Disclosure will not be ordered merely because a document may relate to the parties’ dispute. A document containing legal advice is privileged: its existence…

A derivative transaction may constitute a hedge even where it is in the money, leveraged, capped, subject to a target redemption feature or otherwise provides…

The court may permit expert evidence from a historian, political scientist or economist where the evidence can usefully summarise relevant material bearing on…

A party should not introduce a wholly new cause of action at a very late stage where doing so would disrupt the trial, prejudice other parties, or undermine…

On a return date for without-notice injunctions restraining enforcement of consent judgments and an arbitration award, the court must consider the usual…

Under an ISDA Master Agreement, a transaction which reaches its natural expiry while a condition precedent to payment remains unsatisfied does not retain a…

In an energy facultative reinsurance policy, the notation (100%) qualifying a limit or excess has its established market meaning: the limit or excess scales to…

Section 66 of the Arbitration Act 1996 provides a general enforcement procedure. Although ordinarily summary, it may be case-managed so that disputed factual…

The court may restrain a foreign arbitration under Senior Courts Act 1981, section 37, in exceptional circumstances, including where the parties’ consent to…

A right of first refusal is construed from the contract and its commercial context. In a supply agreement, it ordinarily requires the grantor to disclose the…

Applications alleging breaches of a freezing order should usually be determined promptly and before trial of the underlying action, because contempt…

An agreement to negotiate an investment and shareholders’ agreement in good faith is unenforceable where the proposed agreement leaves essential terms for…

A contractual deeming provision extending an indemnity for a continuing series of related events does not convert a post-completion claim caused solely by the…

Contractual obligations to use best endeavours or all reasonable endeavours are construed in context. Their content depends on the contractual objective, the…

A non-party costs order under Senior Courts Act 1981, section 51, is discretionary and does not require exceptional circumstances. The court should consider…

An issue estoppel arising from a foreign judgment requires a judgment of a competent court that is final, conclusive and on the merits, identity of parties…

Challenges under sections 68 and 69 of the Arbitration Act 1996 are subject to strict limits. Section 68 is a long-stop remedy for extreme procedural failures…

A contractual right of set-off expressed to cover any obligation may extend to obligations arising under a separate letter of credit, unless the relevant…

Acceptance of a vessel and signature of a protocol of delivery do not ordinarily prevent a buyer from claiming damages for breach of contract. Such an effect…

Contractual laytime provisions must be construed as a whole. Where a clause expressly permits notice of readiness to be tendered when the berth is occupied…

A contractual notice exercising an option is valid only if it complies with the agreement’s express requirements. Errors may be disregarded where the notice…

Where a contract divides a day rate into a fixed capital element and an operating cost element, and provides that the latter will be verified, corrected…

On a summary judgment application, the claimant must show that the defendant has no real prospect of successfully defending the claim. The court should avoid a…

Judgments Act interest should ordinarily run from the date of the costs judgment. Deferral requires particular circumstances making application of the general…

A contractual obligation to transfer permits, licences or registrations may extend to registrations renewed during successive distribution agreements, even…

Urgency is a jurisdictional threshold for interim relief under Arbitration Act 1996, section 44. Where there is sufficient time to constitute the arbitral…

In a berth charterparty containing a WIBON provision, the allocation of congestion risk and the construction of a strike exception are distinct questions.…

Proceedings are not an abuse merely because a claimant has an ulterior purpose, provided the proceedings are also pursued for a legitimate purpose reasonably…

On a challenge under section 67 of the Arbitration Act 1996, the court must determine jurisdiction for itself by rehearing the issue. A fixture recap naming a…

Extensive deployment of privileged material in interlocutory proceedings for the purpose of advancing a party’s case on the substantive merits engages…

For a continuing business deprived of a contractual franchise, damages are ordinarily measured by the profits lost as a result of the breach, comparing…

A letter of indemnity issued for delivery of cargo without production of original bills of lading is construed commercially and straightforwardly. Delivery may…

Jurisdiction under the Judgments Regulation may be established through an exclusive or non-exclusive jurisdiction agreement where the claimant has the better…

An English court order properly made against a person subject to its jurisdiction must be obeyed according to its terms. Conflicting foreign court orders do…

An exclusive jurisdiction clause remains effective unless the other party’s conduct clearly and unequivocally demonstrates an intention to abandon it.…

Termination for repudiatory breach ordinarily discharges future contractual obligations, while accrued rights and ancillary obligations survive. A purchase…

A signed term sheet may create binding legal relations even though further documents and details remain to be agreed. The question is assessed objectively from…

Permission to serve proceedings out of the jurisdiction must be assessed by reference to the claim properly advanced when permission was sought. A claimant…

An arbitration agreement cannot be established independently where the alleged underlying contract remained subject to signature and stamping. Where…

In a shipbuilding contract, the builder bears responsibility for design development needed to satisfy existing contractual, classification and regulatory…

An arbitral tribunal may make a partial award under section 47 of the Arbitration Act 1996. Such an award is final and binding as to the matters determined…

In a cargo-damage claim under bills of lading incorporating the Hague Rules, the carrier bears the burden of proving that loss or damage, or an identified part…

An agent who exceeds actual authority is strictly liable for loss caused by the breach, but causation must still be established. The court must assess what…

Section 66 of the Arbitration Act 1996 permits an award to be enforced as a judgment where doing so will secure the award’s material benefit. This can include…

For service out of the jurisdiction in a contractual claim, the claimant must establish a good arguable case that the relevant contract exists and that the…

Where successive forward freight agreements are brought under a later master agreement, the later terms and elections may govern earlier transactions if the…

Under section 9 of the Arbitration Act 1996, a party seeking a stay must establish a written arbitration agreement. The party resisting the stay must then…

Under the 1992 ISDA Master Agreement, where the Second Method and Loss apply following Automatic Early Termination, the Non-defaulting Party must account for a…

Permission to appeal should be refused where the proposed appeal has no real prospect of success and there is no other compelling reason for it to be heard. A…

A person liable to account for profits cannot discharge that liability through a payment made under a distinct contract which neither purports nor is intended…

On a summary judgment application, a defence supported by apparently credible evidence should be rejected only where it has no real prospect of success. The…

A Scott v Avery arbitration clause in the standard FOSFA form may exclude applications to the English court for ancillary relief, including a freezing…

Under an introducing broker agreement, entitlement to continuing commission depends on the agreement read objectively and in its commercial context. An account…

In an execution-only foreign exchange relationship, informal trading-floor opinions do not create a general advisory duty. A contractual exclusion of advice is…

On an application to serve proceedings out of the jurisdiction, the claimant must show clearly that England and Wales is the proper place for the claim. The…

An issuing bank is not liable in damages to a beneficiary where a confirming or nominated bank has already honoured the credit. Its obligation is then to…

Under the Norwegian Saleform 1993, an obligation to deliver a vessel with its national and international trading certificates valid and unextended refers to…

For recognition under the Credit Institutions (Re-organisation and Winding-up) Regulations 2004, a winding-up must be opened by the administrative or judicial…

A party seeking rectification must prove a continuing common intention, an outward expression of accord, continuation of that intention when the document was…

For a claim under the Misrepresentation Act 1967, a credit rating and accurate scenario analysis do not, without more, represent that a complex financial…

A financial adviser’s informal discussions with a client may remain within the scope of an advisory agreement. The surrounding circumstances affect the…

When exercising the enforcement jurisdiction under section 37(1) of the Senior Courts Act 1981, the court must treat justice as the overriding consideration…

Litigation privilege requires both a reasonable prospect of litigation when the document was created and a sole or dominant purpose of obtaining advice or…

A corporate veil may be pierced where a company is deliberately used as a fraudulent device or façade to conceal the involvement and liability of those…

Where relief from a procedural sanction is conditional upon compliance with a specified obligation, failure to satisfy the condition ordinarily leaves the…

A marine insurer may waive a breach of warranty by estoppel where its conduct clearly represents that it will not rely on the breach, the assured relies on…

A charterparty warranty that a vessel is approved by named oil companies, qualified by “to the best of Owners’ knowledge”, may impose a continuing obligation…

A post-judgment freezing order is not a mechanism for interfering with ordinary commercial transactions merely because a judgment debtor is unwilling or unable…

An insurer relying on a policy exclusion bears the legal burden of bringing the loss within it, although the evidential burden may shift. An exclusion for…

A counter-guarantee without an express choice of law is governed under the Rome Convention. A tacit choice requires a genuine common intention demonstrated…

A foreign insolvency composition does not discharge an obligation governed by English law where the binding rule is that contractual discharge is governed by…

A technical manual supplied by a manufacturer is not incorporated into a contract merely because the parties use it as a reference document. Whether…

Under Article 3 of the Rome Convention, an express choice of law in a related contract may demonstrate the parties’ choice for another contract with reasonable…

Where parties structure payments under separate agreements for a distinct commercial purpose, the court must construe the transaction in that form, provided…

A contractual time limit for commencing arbitration may bar the underlying claim, rather than merely the remedy, where the contract read as a whole shows that…

Contractual language must be construed in its commercial and factual context, but commercial common sense cannot justify rewriting relatively clear terms. A…

A foreign state’s ownership or control of a claimant does not convert the claimant’s pre-existing private law claims into claims enforcing sovereign authority.…

In insurance, moral hazard may constitute a material fact where the insured’s dishonesty increases the likelihood of dishonest reporting or presentation of a…

A contractual time-bar clause providing that a claim must be commenced within 12 months of “final discharge or termination” may create two alternative trigger…

An insurance broker must take reasonable steps to obtain cover which clearly meets the client’s requirements and must draw attention to onerous or unusual…

An English court may restrain an arbitration seated in another EU Member State where the arbitration falls outside the scope of the jurisdiction regime and the…

Section 68 of the Arbitration Act 1996 is a longstop remedy for extreme procedural failures causing, or likely to cause, substantial injustice. A tribunal must…

In excess reinsurance, the point at which underlying cover is eroded is determined by when liability arises under the original insurance programme, including…

Under German law, contractual construction proceeds in two stages. The court first determines whether the parties had a common subjective intention. If none is…

For an application to serve proceedings out of the jurisdiction, the claimant need only show a serious issue to be tried and a claim with a reasonable prospect…

An agreement marked subject to contract ordinarily creates no legally binding commitment. In pre-contractual negotiations, promissory estoppel, estoppel by…

An undisclosed principal may enforce, and be bound by, a contract made by an agent acting within the scope of the agent’s actual authority. In an ordinary…

Under Articles 27 and 28 of the Jurisdiction Regulation, seisin is determined autonomously by the lodging of the document instituting proceedings or an…