High Court: Commercial Court judgments, 2012

A carrier is liable under the Hague Rules where the vessel is unseaworthy at the commencement of the voyage and that condition causes the loss. Causation may…

A contractual consent provision requiring a party to act in a commercially reasonable manner imports an objective standard. The question is whether a…

Under the Arbitration Act 1996, a challenge to substantive jurisdiction is determined afresh. The court first identifies any express or implied choice of law…

A contractual approval obligation qualified by the requirement that approval not be unreasonably withheld requires an objective assessment. The question is…

Permission to bring committal proceedings for false statements verified by a statement of truth should be granted only with great caution. The applicant must…

Where a foreign defendant challenges the jurisdiction of the English court, a summary judgment application should ordinarily be listed after the jurisdiction…

Contractual security for arbitration costs may cover arbitrators’ fees where the wording, read in context, covers the costs incurred in defending the…

Under section 70(7) of the Arbitration Act 1996, security or payment into court may be ordered only for money specifically payable under the challenged award.…

A secret payment or other undisclosed benefit to an agent, or to a person directed by the agent, is a bribe where it creates a realistic possibility of…

A restraint in a negotiated business sale is enforceable where it protects a legitimate business interest and goes no further than reasonably necessary. The…

Under an NYPE clause 15 off-hire provision, charterers must show both that a prescribed event prevented the vessel from fully performing the service…

Statutory terms as to satisfactory quality apply to an English-law contract for the sale of a second-hand vessel unless clearly excluded. Under Sale of Goods…

An applicant seeking relief without notice must present the case fairly. That duty extends to material facts, legal difficulties and potential defences. The…

Confidentiality attaching to arbitration materials is not lost merely because some information about the arbitration has been disclosed, or because an arbitral…

An application under section 67 of the Arbitration Act 1996 may proceed where no agreed arbitral appeal or review process is available. The statutory slip rule…

A charterparty is not frustrated by applying an inflexible rule that repair costs exceeding the vessel’s value automatically discharge the contract. The court…

Contractual and arbitration wording must be construed as a single exercise, considering the language, the relevant background and, where appropriate…

Clear contractual language must be applied according to its natural meaning. Commercial considerations cannot justify rewriting an unambiguous agreement. Under…

In construing commercial finance agreements, the court must give effect to the language used, read in its commercial context. A proof-of-default clause does…

On applications to strike out or obtain summary judgment in cartel-damages claims, the court should not decide that a claim is bound to fail where further…

An extension of time for a challenge to an arbitral award under Arbitration Act 1996, ss 67 or 68, is exceptional. The court must give particular weight to the…

An indemnity given to enable a damaged vessel to enter and discharge at a port does not, without clear language, guarantee payment of the port’s ordinary…

Under section 25 of the Civil Jurisdiction and Judgments Act 1982, the court may grant worldwide freezing and disclosure orders in support of substantive…

A non-exclusive English jurisdiction clause will ordinarily prevent a party relying on forum non conveniens grounds that were foreseeable when the agreement…

A derivative action may be available outside the company context where special circumstances make it necessary to avoid injustice. An alternative remedy is…

A pre-trial disclosure order ancillary to a freezing injunction should ordinarily remain within the injunction’s ambit and serve its effective operation. The…

A bill of lading statement that cargo was shipped in apparent good order and condition is a representation based on the honest and reasonable, non-expert…

A security trustee acting under an intercreditor agreement must comply with the contractual limits on its powers and, when exercising a mortgagee-like power of…

Where a contract imposes a unilateral obligation but specifies no time for performance, a term requiring performance within a reasonable time may be implied…

Contractual documents must be construed together to ascertain what a reasonable person, with the relevant background knowledge, would have understood the…

A contractual minimum purchase obligation is not reduced to nil by wording which merely explains how the minimum was calculated. A minimum annual obligation in…

An application for judicial recusal must be made as soon as practicable. A sufficiently informed failure to object may amount to waiver, particularly where the…

An anti-suit injunction enforcing an English-law arbitration agreement requires a high degree of probability that the foreign proceedings fall within the…

Under the statutory implied term of satisfactory quality, goods may be defective because of an inherent and latent characteristic not covered by contractual…

Permission to amend pleadings should be granted where the proposed claim is sufficiently arguable to have a real prospect of success. At that stage the court…

A challenge under section 68 of the Arbitration Act 1996 is a high-threshold, long-stop remedy for extreme procedural failures. Substantial injustice requires…

A charterparty exception for delay caused by specified events does not require the charterer first to nominate a particular berth. The court should ask whether…

Contractual meaning is determined objectively, by reference to the words used and the relevant background known or reasonably available to the parties. A…

Where an arbitral tribunal decides that it has substantive jurisdiction and the applicable rules provide no arbitral appeal on jurisdiction, a challenge under…

Section 68 of the Arbitration Act 1996 provides a limited supervisory jurisdiction. A tribunal fails to deal with an issue only where it has not determined a…

The court may appoint a receiver under section 37 of the Senior Courts Act 1981 within existing proceedings to ensure that a defendant is represented at trial.…

Cross-examination in aid of asset disclosure is an exceptional remedy. The jurisdiction is broad and may be exercised whenever it is just and convenient. An…

A claimant may pursue litigation against a person who was not a party to an earlier arbitration, even where the litigation requires allegations inconsistent…

Permission to deal with assets subject to a freezing order, whether prospective or retrospective, involves a broad discretion. The court must consider all the…

Permission to serve proceedings seeking declaratory relief out of the jurisdiction requires a real, practical justification for the English court’s…

The English court may sanction a scheme of arrangement for a foreign company where a sufficient connection with England is established and the company falls…

A seller may maintain an action for the price of goods only within the circumstances identified by section 49 of the Sale of Goods Act 1979. Property may pass…

A charterparty tax clause requiring reimbursement of US gross transportation tax applies to tax levied on income attributable to transportation under the…

In construing a sophisticated commercial agreement, the court should consider business common sense and the commercial consequences of competing constructions.…

In a civil fraud case, the standard remains the balance of probabilities, but the evidence must have cogency commensurate with the seriousness of the…

A company director who causes a company to purchase its own shares with company funds is liable to restore the resulting loss where the transaction is…

A state-owned enterprise that restructures as a limited liability company under the applicable Chinese registration machinery continues as the same legal…

Owners may intervene to require shippers to pay freight directly to them where the contractual arrangements do not exclude that right. The intervention need…

Contribution between jointly liable parties is determined by what is just and equitable, having regard to responsibility for the same damage. Where contractual…

A sophisticated commercial agreement must be construed as a whole, by reference to its language, structure, commercial purpose and admissible background. A…

A contract is not necessarily void for uncertainty merely because important matters are expressed to be agreed later. The court must construe the agreement and…

On an appeal under section 69 of the Arbitration Act 1996, a voyage charterer may be unable to rely on frustration where the event relied upon was caused by…

At the interlocutory jurisdiction stage, the court must avoid conducting a mini-trial. Where the evidence is sharply conflicting on an issue also to be decided…

The principle of open justice may be restricted to protect witnesses, but only where a sufficiently cogent case establishes that the restriction is necessary.…

A war risks clause must be construed with the charterparty as a whole and in its factual context. An owner may refuse an order where the clause applies, even…

Under standard loan-market transfer terms, a payment calculated by reference to the lender’s overall return may accrue in respect of the period before…

In civil proceedings alleging accessory liability for breach of trust, the applicable dishonesty test is objective. The court determines the standard of…

Article 6(1) of the Lugano Convention permits a foreign defendant to be joined where an English-domiciled anchor defendant is already involved and the claims…

A freezing order is construed in the light of its purpose and as reasonably understood by the businessman to whom it is addressed. Its relevant assets are…

Whether an oil well is an appraisal well depends on its primary or predominant purpose. That purpose is assessed objectively from what the participants…

A professional adviser does not owe a duty of care to an investor merely because the adviser knows that its client will refer to its involvement when seeking…

In a split trial, a successful party on discrete preliminary issues is not automatically entitled to an immediate costs order. The court must exercise its…

A charterer may rely on a contractual exception for restraint of princes where the relevant detention was caused by an unlawful governmental demand, even…

Whether an instrument is a guarantee or a demand bond is determined by construction of the instrument as a whole, in its commercial and contractual context…

Where a charterparty warrants consumption as “about” a stated figure, the warranted performance is a range. Underperformance is assessed against the upper…

For service under Civil Procedure Rules 1998, a defendant may have more than one usual residence. The question is whether the property has the quality of a…

On an application to vary a freezing order, the question is whether there is a good arguable case that the judgment debtor retains a proprietary interest in…

Security for costs against a claimant resident outside the jurisdiction is justified only where enforcement of a costs judgment would be impossible, or would…

For physical damage to a repairable chattel, the claimant’s loss is the diminution in value caused by the damage. The ordinary and conventional measure is the…

Where a charterparty provides for a minimum cargo quantity but does not specify the overage rate for a particular voyage, the omission does not mean that no…

On an application to set aside service out of the jurisdiction, the claimant must show a serious issue to be tried, meaning a claim with a real prospect of…

Section 68 of the Arbitration Act 1996 is a high-threshold, longstop remedy. The court does not intervene merely because it might have assessed the evidence…

Promissory warranties in marine insurance policies are construed narrowly because breach may discharge the insurer regardless of causation. A warranty that a…

Openly disclosed consent payments offered on equal terms to all members of a bondholder class do not ordinarily constitute bribery, invalidate a vote or breach…

The court may order disclosure ancillary to an injunction where it is necessary to police and make the injunction effective. The scope of disclosure must…

Where a contractual power permits one party to form an opinion affecting another’s rights, the opinion must be formed honestly, in good faith and in a rational…

Insurance wording covering “theft” ordinarily includes employee theft unless expressly excluded. A court should not imply an employee-theft exclusion merely…

Under Council Regulation 1346/2000/EC, insolvency proceedings may be regarded as opened before formal proceedings under national law where an insolvency…

A judgment obtained by fraud or dishonest concealment will be set aside only where the fresh material was operative in obtaining it and fundamentally changed…

Declaratory relief does not require an independent cause of action. The court must generally identify a real and present dispute, assessed pragmatically by…

Permission to serve proceedings out of the jurisdiction requires satisfaction of four cumulative requirements: a jurisdictional gateway, a serious issue to be…

An agreement to use good faith and reasonable endeavours to negotiate or agree further agreements is unenforceable where there are no objective criteria by…

Subscription applications for an investment scheme are not ordinarily subject to implied conditions precedent which are unclear, evaluative or concern future…

A contractual term deeming all online trading under an account to be authorised is ineffective unless incorporated into a binding contract. An online platform…

The court has jurisdiction under Senior Courts Act 1981, section 37, to make ancillary orders needed to secure the effectiveness of an injunction. The…

In marine insurance, proximate cause means the real efficient cause. A court is not required to choose between two rival explanations where the evidence does…

A freezing injunction requires more than an arguable claim. The claimant must show a real risk that a judgment or award will go unsatisfied because assets may…

A contractual requirement that emissions credits may be used under the EU emissions trading scheme concerns practical usability as well as legal eligibility. A…

Retrospective validation of service outside the jurisdiction under CPR 6.15 is exceptional and requires special circumstances. Mere speed or convenience is…

In an international sale of goods, the law chosen to govern the contract may also govern closely connected claims based on pre-contractual statements. The…

In an aircraft lease, “airworthy” means fit or safe for the carriage of passengers by air. The assessment concerns the aircraft’s actual condition, assuming…

An innocent party may affirm a repudiated contract and claim the contractual price where it can perform its obligations without further performance by the…

For the purposes of a stay under section 9 of the Arbitration Act 1996, proceedings are “in respect of” a referred matter where that matter will foreseeably…

Challenges to arbitral awards based on serious irregularity must be brought promptly. Under Arbitration Act 1996, a party which participated in the arbitration…

Under CPR 6.15(2), retrospective validation of service requires both steps which brought the claim form to the defendant’s attention and a good reason for…

For summary judgment, the court must dismiss a claim only where the claimant has no real prospect of success and there is no other compelling reason for trial.…

A contract of affreightment may arise from the parties’ conduct where their conduct, viewed cumulatively, objectively demonstrates contractual intention. The…

Permission to amend pleadings should generally be granted so that the real dispute can be adjudicated, provided prejudice can be compensated in costs and the…

Arbitration falls outside Council Regulation (EC) 44/2001. An arbitral tribunal is therefore not bound by the Regulation’s principle of effective judicial…

A shipowner exercising a possessory general average lien may retain cargo until reasonable security is tendered. Taking security does not waive the lien unless…

A contractual right to terminate on notice is not displaced by informal assurances unless those assurances amount to a binding promise or actionable…

Where proceedings concern the validity of company resolutions or entries in public registers situated in a non-member state, the English court may give a…

The standard basis is the normal basis for costs assessment. Indemnity costs require conduct or circumstances taking the case outside the norm. Conduct need…

Exclusion clauses in standard marine war-risk insurance policies must be construed by reference to their general wording and commercial context. A…

A person who is not expressly restrained by a freezing injunction may be committed for contempt where his conduct deliberately interferes with, or assists or…

A contractual security mechanism must be construed by reference to the language of the agreement, its commercial context and the relationship between…

Under Articles 27 and 28 of the Judgment Regulation, a court is seised only if the relevant national procedural law makes the document effective to institute…

Under Article 31.1 of the CMR, a claimant must establish a jurisdictional connection in respect of each defendant sued. Article 36 identifies the carriers who…

Permission to serve an arbitration claim out of the jurisdiction is discretionary. Even where the claimant establishes a good arguable case that the…

A national court should refer a question under Article 267 TFEU only where an answer is necessary to enable that court to give judgment. The prospect of future…

Under Civil Procedure Rules 1998, r 25.7, an interim payment may be ordered where the defendant has admitted liability for a sum, or where the court is…

A framework agreement governing carriage, storage or related services does not itself create a contract for every later shipment. A specific shipment must…

A contractual termination clause must be exercised through a communication which makes its nature and purpose sufficiently clear, particularly where…

Commercial parties may allocate risks and limit liability through negotiated contractual terms. Limitation clauses are construed as part of the agreement as a…

A clearing broker exercising a contractual right to close out a client’s positions after default acts primarily to protect its own interests. The broker’s…

In construing an off-hire clause, the court must begin with the ordinary and natural meaning of the words used, considered in the context of the clause and the…

A post-judgment worldwide freezing order may be continued where there is a real risk of dissipation and it is just and convenient to do so. Disclosure…

The High Court may vary a receivership order where changed circumstances make additional powers just and convenient to preserve assets and make the…

For the purposes of Article 23 of the Lugano II Convention, a jurisdiction agreement must be established clearly and precisely. At an interlocutory stage, the…

An insured must establish legal liability before claiming indemnity under a liability policy. A guilty plea is admissible under Civil Evidence Act 1968…

A contractual break fee may constitute unlawful financial assistance where it facilitates a proposed acquisition of shares and materially reduces the target…

The court may compel a contemnor who has gone into hiding to surrender to the tipstaff where that order is just and convenient to make an existing committal…

A claimant alleging fraud in civil proceedings must prove the allegation on the balance of probabilities. The seriousness of the allegation may affect the…

Clear and comprehensive contractual language may exclude conditions implied by the Sale of Goods Act 1979, even though the contract does not use the word…

Economic duress may arise from pressure which is not unlawful in itself, although this will be unusual in a commercial context. The question is whether the…

An allegation of contempt based on circumstantial or secondary evidence succeeds only where the evidence is cogent and reliable and the only reasonable…

On an appeal under section 69 of the Arbitration Act 1996, the court should not revisit a tribunal’s evaluative conclusion merely because a contractual…

Section 70(4) of the Arbitration Act 1996 permits further reasons only where they are necessary for the court properly to consider an arbitration application…

A bank may rely on an instruction given by a company’s directing mind even where the instruction does not strictly comply with the account mandate, provided…

The High Court has jurisdiction under section 37 of the Senior Courts Act 1981 to grant an anti-arbitration injunction in appropriate cases. This includes…

Payments made under a professional indemnity policy may qualify as Mitigation Costs where they are reasonably and necessarily incurred with the expected and…

On an application for summary judgment, the court must determine whether a claim or defence has a real prospect of success. The application is not a summary…

Validity of an arbitration agreement is determined by its applicable law, separately from the law governing the underlying contract. Where the arbitration is…

Under clause (2) of CONWARTIME 1993, a vessel is “exposed to War Risks” where there is a real likelihood that it will be exposed to the relevant peril in the…

At common law, mesothelioma liability is based on negligent exposure to asbestos which materially increases the risk of disease. Where the Compensation Act…

On a summary judgment application, the court may rely on findings made after a full trial where the pleaded case would require evidence inconsistent with those…

For marine insurance purposes, a circumstance is material only if it would influence the thought processes of a prudent insurer in assessing the risk. The test…

The meaning of a contractual provision must be determined from the contract as a whole. The wording is the starting point, but apparent clarity does not…

The proper law of a separable arbitration agreement is determined by the law with which it has its closest and most real connection. Where the parties choose a…

Where further sums fall due after proceedings begin, the court may permit amendment to include them. There is no absolute rule preventing reliance on a cause…