High Court: Commercial Court judgments, 2013

An agent who secretly purchases property for his own account, intending to profit rather than bind the principal, acquires legal title himself. The principal…

A party alleging that a contract was subject to a condition precedent bears the burden of proving the alleged condition and its terms. Documentary evidence…

On an application to serve proceedings out of the jurisdiction, the claimant must show clearly and distinctly that England is the appropriate forum for the…

A party challenging an arbitral tribunal’s jurisdiction under Arbitration Act 1996 section 67 must normally raise each ground of objection during the…

Litigation privilege protects communications made when litigation is reasonably in prospect and for the dominant purpose of obtaining legal advice or evidence…

Indemnity costs may be ordered where the conduct of proceedings or the surrounding circumstances, assessed cumulatively, take the case outside the norm.…

Under GAFTA rule 21(a), a tribunal may admit a time-barred claim in either of two alternative circumstances: where the circumstances were outside the parties’…

Relief from sanctions for failing to provide security for costs requires consideration of all the circumstances, with particular weight given to efficient…

A contractual party may seek advice on whether a counterparty is in default and rely on contractual enforcement rights, provided it has not itself prevented…

A claimant that voluntarily brings essentially identical proceedings in England and another jurisdiction will ordinarily obtain a stay of the English…

A contractual delivery period must be construed according to the wording and commercial context of the particular agreement. Where an agreed three-day period…

Under a marine policy covering perils of the seas, a fortuitous grounding may itself constitute the insured peril, even if negligent navigation contributed to…

An anti-suit injunction may restrain foreign court proceedings brought in breach of an arbitration agreement, even where the claimant does not intend to…

A company may delegate wide-ranging authority to a de facto managing director, and must accept the consequences of that delegation. A director’s actual…

The statutory power to appoint a receiver where it is just and convenient is broad but not unfettered. The court may develop its equitable jurisdiction…

Summary judgment should be granted only where the opposing party has no realistic prospect of success. The court may decide a short point of law or…

On an application to discharge or continue a freezing injunction, a claimant need only show that it has a much better argument than the defendant at the…

Leave to appeal may be granted on a discrete issue where the court considers that issue arguable, even though the remaining challenges have no real prospect of…

A third-party debt order may attach only a debt which is owed solely to the judgment debtor and within that debtor’s free disposition. A contractual obligation…

Section 68 of the Arbitration Act 1996 concerns due process, not whether an arbitral tribunal reached the correct answer. Under section 68(2)(d), the court…

An investment adviser must exercise reasonable skill and care when recommending an investment. The advice must be suitable for the client’s objectives…

Permission to serve proceedings out of the jurisdiction requires the claimant to establish: a real prospect of success; a good arguable case that a…

A stay for forum non conveniens should be granted where the defendant establishes an available foreign forum that is clearly or distinctly more appropriate for…

A contract must be construed objectively, starting with its language and commercial context. Commercial common sense assists where the language permits…

Professional indemnity cover may extend to a trustee who provides services on behalf of an insured company, even where the trustee acts in a personal capacity.…

Where a contract provides for some disputes to be litigated and others to be arbitrated, there is no general presumption that the arbitration clause should…

In an unqualified follow-the-settlements clause, the reinsurer must follow a settlement where the recognised claim arguably falls within the reinsurance as a…

An arbitral determination may give rise to issue estoppel where an issue was necessarily decided and is relevant to later proceedings between the same parties…

An anti-suit injunction will not ordinarily be granted merely because foreign proceedings are vexatious, oppressive, weak or involve concurrent litigation. The…

Where an insurance document incorporates insurance and reinsurance arrangements, an arbitration provision may apply to both contracts even though the same…

A Lloyd’s broker’s duty to remit money received for its client is ordinarily performed reasonably promptly. Whether the duty is continuing depends on the…

When deciding whether England is the clearly or distinctly most appropriate forum for a foreign defendant, the court must assess the claim in the context of…

A defendant resisting enforcement of a domestic or New York Convention arbitration award may, in principle, seek security for its costs under CPR 25.12. The…

For the purposes of Article 28(3) of the Judgments Regulation, related actions are assessed by asking whether, in principle, it is genuinely desirable to hear…

Where a debt is governed by English law, whether it has been discharged is determined by English law. Foreign law governing security over foreign land cannot…

A statutory direct action against an insurer is contractual in substance where its essential content depends primarily on the insurance contract, despite…

Damages for breach of contract must reflect the claimant’s actual contractual loss. Where an innocent party accepts a repudiatory breach, it is relieved from…

A director’s duty to act in good faith is judged by the director’s honest view, but each director must inform himself and exercise independent judgment.…

A person who disputes the existence or validity of an arbitration agreement is ordinarily entitled to take no part in the arbitration and to resist enforcement…

Where an amendment agreement provides that it will become null and void if not executed, the parties generally revert to their rights and obligations under the…

A securities lending agent must exercise the contractual standard of care when selecting and managing collateral investments. Investment guidelines define the…

A challenge under section 68(2)(d) of the Arbitration Act 1996 concerns due process, not the correctness or quality of an arbitral tribunal’s reasoning. The…

Specific incorporation of a charterparty’s “law and arbitration clause” may incorporate an English court jurisdiction clause where the charterparty contains no…

For jurisdiction under the Lugano Convention, the characterisation of a claim is objective. A claim falls within Article 5.1 only where the relevant obligation…

For jurisdiction purposes, a claimant need only establish the applicable jurisdictional basis to the required good arguable standard; the court need not…

For relation back under the Limitation Act 1980, an amendment alleging a concerted practice may introduce a new cause of action, distinct from an existing…

On an application to set aside service out of the jurisdiction, the claimant must show a serious issue to be tried, a good arguable case that a jurisdictional…

Contract formation depends objectively on the parties’ words and conduct and on the terms they regarded, or the law regarded, as essential. Parties may become…

Under the 1992 ISDA Master Agreement, successive margin calls do not supersede an earlier unpaid call unless the parties’ conduct withdraws it. An instruction…

Permission to amend a defence should be granted only where the proposed amendment has a real, rather than fanciful, prospect of success. A prior decision…

For compensation under the Riot (Damages) Act 1886, the assembly must constitute riot under the Public Order Act 1986 and must also be riotously and…

Relief from sanctions for late service should be determined by considering all the circumstances and the demands of justice. The court must enforce compliance…

A worldwide freezing injunction may be continued against a non-party to an arbitration where there is a good arguable case that the company is owned and…

A freezing order must respect the separate immunity of a central bank under the State Immunity Act 1978. Where a central bank is a separate entity, its…

An implied representation arises only where a reasonable representee, viewed objectively in context, would understand that a representation was being made…

On an application to set aside a default judgment under Civil Procedure Rules 1998 Part 13.3, the defendant need show only a real prospect of successfully…

A continuing warranty making insurance cover void upon breach must be construed by its ordinary and natural meaning, informed by the contractual background and…

A mortgagee selling mortgaged property to a connected purchaser bears a heavy onus. It must show that it used its best endeavours to obtain the best price…

EU sanctions freezing designated persons’ funds and economic resources do not, without more, freeze or discharge their contractual liabilities. A contractual…

A safe port warranty promises safety, not merely reasonable safety. A port is unsafe where the vessel is prospectively exposed, during arrival, use or…

A material breach of an “unless” order ordinarily takes effect, but the defaulting party may seek relief under Civil Procedure Rules 1998, Rule 3.9(1). The…

Summary judgment is appropriate only where the claim is hopeless or has no real prospect of success. The claimant need not show that its case will probably…

A contractual close-out power may permit a broker to execute equal and opposite transactions and then calculate the resulting balance under a separate…

A gift may be recovered where it was made under a causative mistake of sufficient gravity concerning the legal character or nature of the transaction, or a…

A contractual success-fee mechanism may be varied by subsequent agreement or conduct where the parties objectively abandon the original method for calculating…

In a marine insurance claim, an insurer must establish both materiality and actual inducement before avoiding for misrepresentation or non-disclosure. A…

A defendant seeking to set aside a regularly obtained default judgment must show a real prospect of successfully defending the claim or some other good reason.…

In a mid-term broker change, commission for business under a binding authority, quota share treaty or declaration-based policy is generally earned when…

A contractual warranty concerning subscriber numbers may count subscriptions rather than individual persons where the wording and background reasonably…

An arbitral tribunal does not breach its duty of fairness merely because it makes an immediate consent award after a party defaults on a settlement agreement…

A representation made in a commercial transaction may continue to operate while the representee acts upon it. When circumstances make it false, the representor…

An employee occupying a senior position of trust may owe fiduciary duties closely analogous to those owed by a company director, even without being a director.…

In sanctioning a scheme of arrangement and associated reduction of capital, the court held that shareholders need separate classes only where their rights…

Where freezing and receivership orders were properly made on the basis of a defendant’s beneficial ownership, a later assertion that third parties acquired the…

Where a winding-up petition is founded on a debt subject to a valid arbitration agreement, an essential dispute about that debt falls within section 9 of the…

A demand under a performance bond or refund guarantee must comply with the requirements identified by construing the guarantee. The beneficiary need not use…

The general rule is that the unsuccessful party pays the successful party’s costs, but the court retains a broad discretion under the Civil Procedure Rules. A…

A limitation fund under the 1976 Limitation Convention may be constituted by a guarantee in England only where English legislation makes such a guarantee…

Claims founded on EU fundamental freedoms may fall outside Regulation 44/2001 where determining them requires enforcement of treaty obligations imposed on…

An insurance policy must be construed as a whole and in its commercial context, giving effect to the reasonable expectations created by its wording. A…

Payments made under an agreement resolving an employee’s contractual remuneration rights may remain employment income where the agreement does not dispose of…

In assessing an insurer’s right to avoid a policy for misrepresentation or non-disclosure, materiality and inducement must be considered against the risk as…

Permission to make a very late amendment is a discretionary question requiring a fair balance between the applicant, the opposing party and other litigants.…

Under a marine time policy, a fortuitous ingress of seawater may constitute a loss by perils of the seas even where the ingress was caused by crew negligence…

A contractual tax indemnity may operate where a buyer is charged with tax, even if the underlying charge is later shown to be invalid. The buyer need not…

Summary judgment is inappropriate where covert concerted conduct is alleged, the evidence is incomplete, and the defendant’s role cannot fairly be assessed…

A contractual choice of law governing a jurisdiction agreement may be changed prospectively by agreement, including by amendment and restatement. An asymmetric…

An innocent party faced with a renunciation is entitled to a reasonable period in which to decide whether to accept it or affirm the contract. During that…

The court has jurisdiction under Senior Courts Act 1981, section 37(1), to order a judgment or arbitration award debtor subject to its jurisdiction to disclose…

Where foreign proceedings are commenced in breach of a broadly worded arbitration agreement, the court will ordinarily grant an anti-suit injunction unless the…

Where the existence, validity or scope of an arbitration agreement is disputed, the court must distinguish the requirements of sections 9(1) and 9(4) of the…

On an application for summary judgment, the court may use common sense and judgment when assessing whether a proposed defence has a real prospect of success. A…

An executive act under the GAFTA Prohibition Clause must be a formal governmental restriction on exports. The clause does not extend to every act by an…

Summary judgment is appropriate where the evidence permits a short point of law or construction to be decided fairly and the respondent has no real prospect of…

A freezing injunction is an adjunct to substantive proceedings, so the claimant should progress the underlying claim with reasonable expedition. Delay does not…

On a summary judgment application, the court must decide whether the defence has a realistic, rather than fanciful, prospect of success. It must consider…

Security for costs under section 70(6) of the Arbitration Act 1996 may be ordered where there is a real risk that an applicant’s assets will not be readily…

The separability of an arbitration agreement means that the unenforceability of an underlying contract does not, by itself, invalidate the arbitration clause.…

On an application for summary judgment, the defendant must show a realistic, rather than fanciful, prospect of success. The court must avoid a mini-trial, but…

A material adverse change clause in a loan agreement is construed according to its terms. Where the clause concerns a borrower’s financial condition, the…

The court may vary a post-judgment receivership order to confer power to sell assets where that course is just and convenient. The former equitable-execution…

A contractual indemnity covering all costs ordinarily entitles the beneficiary to recover costs on the indemnity basis, subject to costs being reasonably…

For the purposes of determining which court was first seised, receipt of a document by the authority responsible for service may occur when the document is…

On an application for summary judgment, the claimant must show that the defence has no real prospect of success. A defendant may resist judgment where an issue…

Compound interest may be recovered at common law as damages only where the claimant pleads and proves actual interest loss. A general claim for interest or…

A tribunal does not apply an insufficiently stringent repudiation test merely because its reasoning uses the expression inconsistent performance. The question…

Under Carriage of Goods By Sea Act 1992, delivery of an indorsed bill of lading is a bilateral act requiring the intention of both parties. A named indorsee…

On an application for summary judgment, the claimant must show that the defendant has no real prospect of successfully defending the claim. Where the court can…

A claims control clause operating as a condition precedent to reinsurance liability is an exemption clause. It must be construed fairly and its wording must be…

Dishonest assistance requires participation in a breach of trust or fiduciary duty and dishonesty. Dishonesty is assessed by a two-stage inquiry: the court…

Under a ship sale agreement, a deposit payable as security for performance ordinarily becomes an unconditional accrued right when its payment falls due.…

Proceedings before a sporting disciplinary appeal panel may constitute arbitration even where the initial disciplinary process is merely internal. The court…

A company officer who knowingly assists a controlling shareholder to misappropriate company funds may be liable for the resulting loss. Non-disclosure of an…

A certificate of indebtedness is not undermined merely because an earlier calculation contained an error. The challenge must show a manifest error that is…

A claim against a court-appointed receiver requires the court’s permission. Permission is discretionary. The applicant must show a genuine claim calling for an…

A contractual condition precedent may suspend a lender’s obligation to advance funds even though the underlying facility agreement is immediately binding.…

Under CPR r 7.6(2), the court must evaluate why a claim form was not served within time. A good reason is not a threshold requirement, but the discretion is…

On a challenge to an arbitration award under the Arbitration Act 1996, the court must determine whether an arbitration agreement existed on the evidence and…

Security for costs requires more than uncertainty about a company’s ability to pay. The applicant must show a real reason to believe that the claimant will be…

Advisers recommending leveraged structured investments must take reasonable steps to ensure that the client understands the nature of the risks, including…

Implied representations cannot be inferred merely because a party contracts by reference to LIBOR and is a LIBOR panel bank. The objective question is what a…

Under English law, liability insurance ordinarily indemnifies against actual legal liability, not merely alleged liability. The insured must prove that…

Contractual default clauses may modify the common-law measure of damages, but clear words are required where a clause is said to confer recovery despite no…

The incorporation of an arbitration clause by a prior course of dealing requires proof that the parties must have intended the clause to form part of the…

Permission to serve proceedings out of the jurisdiction depends on satisfying the applicable gateway, showing reasonable prospects of success, establishing…

On an application for summary judgment, the question is whether the defence or counterclaim has a real, rather than fanciful, prospect of success, and whether…

An anti-suit injunction is available where foreign proceedings breach an agreement to arbitrate, but the court must first establish the alleged breach. The…

Contractual provisions governing accrued payment rights on termination should be construed according to their language and commercial context. Where a contract…

The rule that there is no property in a witness does not create an unqualified right to pre-trial access. A witness may choose whether to assist the opposing…

Under an aggregation clause referring to losses arising out of one event, the court must apply the “unities” analysis. It must assess the facts in the round…

Whether a party may be released from an undertaking depends on the undertaking’s terms and the order’s context. Where an interim injunction application has…

Under article 27 of the Judgments Regulation, proceedings involve the same cause of action only where they concern the same facts and rule of law. Different…

Under section 57(3)(b) of the Arbitration Act 1996, an arbitral tribunal may make an additional award for a claim presented to it but omitted from the award.…

In construing interlocking commercial agreements, the court must ascertain the objective meaning of the language used in its contractual and commercial…

Security for costs need not take the conventional form of a first-class London bank guarantee. The essential question is whether the proposed security provides…

A stay of civil proceedings pending related criminal or extradition proceedings is exceptional. It requires a real risk of serious prejudice that may lead to…

An off-hire proviso covering an event occasioned by an act, omission or default of the charterers or their agents may apply to sub-charterers…

A contractual prohibition clause does not automatically cancel a sale contract merely because an export ban is announced. The party relying on it must…

The principle of open justice applies with full force to interlocutory hearings. Anonymity is exceptional and may be ordered only where the applicant proves by…

A with-profits pension policy must be construed as a whole, in its commercial and statutory context. A guarantee that an amount is sufficient to cover…

Summary judgment is appropriate where a claim has no realistic prospect of success, but the court must avoid conducting a mini-trial. A claim may proceed where…

A quantified judgment for principal is a final judgment debt under section 17 of the Judgments Act 1838, even where interest is assessed by a later judgment.…

On strike-out and summary-judgment applications, a court should not determine complex fact-sensitive issues summarily where there is a real prospect that…