High Court: Commercial Court judgments, 2014

A respondent who substantially defeats committal proceedings may recover costs notwithstanding the establishment of a technical contempt. The court must…

A challenge under section 68 of the Arbitration Act 1996 concerns serious procedural irregularity and substantial injustice, not the correctness of an arbitral…

Under clause 6(d) of the ISDA Master Agreement, a notice becomes effective when it provides sufficient details of the calculation and the account to which…

Remuneration provisions in a drilling contract do not permit a contractor to recover day-rate payments for periods when the contracted work was not performed…

An investment manager with discretionary control over a client’s assets owes contractual and fiduciary duties, subject to any valid contractual modification. A…

Where contractual documents contain inconsistent arbitration provisions, the court must ascertain the parties’ objective intention by construing the documents…

Where a time charter requires notices before redelivery, damages for short-notice redelivery depend on the proper characterisation of the breach and the lawful…

Where a charterparty indemnity covers losses or expenses arising from a charterer’s failure to discharge cargo at the agreed port, the question is whether the…

Permission for collateral use of documents under CPR Part 31.22 requires the applicant to identify the specific factual propositions sought from the documents…

Where a claimant fails to obtain a judgment more advantageous than a defendant’s Part 36 offer, the ordinary costs consequences should follow unless that would…

Where a contract expressly states that it is regulated under legislation, the parties may incorporate the legislation contractually even though the statutory…

At an interlocutory stage, a claimant seeking relief must satisfy the applicable jurisdictional and interim-remedy thresholds. A good arguable case requires a…

Under a war risks policy, an exclusion for loss arising from infringement of customs regulations does not apply where the infringement is merely the…

Shipbuilding contracts must be interpreted as a coherent whole. Delays caused by the buyer’s alleged breach of inspection obligations were not a separate…

Reserved costs in English court proceedings supporting an arbitration remain matters for the court that reserved them. A mandatory stay under section 9 of the…

For jurisdiction under Article 5(1) of Council Regulation (EC) 44/2001, the claimant must show a good arguable case that the relevant jurisdictional facts…

An English law clause, without an English jurisdiction or arbitration clause, does not ordinarily make England the exclusive or clearly appropriate forum, nor…

An application to extend time for filing an acknowledgement of service may engage an implied sanction where default would prevent a jurisdiction challenge. The…

CPR r 3.1(7) may be used to vary or revoke an interlocutory order where there has been a material change of circumstances or the facts on which the order was…

Costs are governed by the court’s broad discretion under CPR 44.2. The general rule that costs follow the event carries substantial weight, but it does not…

Contempt of court must be proved to the criminal standard. For a breach of a freezing order, the applicant must prove knowledge of the order, conduct amounting…

A long-term exclusive supply agreement may cover products which evolve during the life of the relevant vehicle platform. “Engineering Changes” means changes to…

Service out of the jurisdiction to obtain Chabra relief against a foreign non-party to an arbitration is not permitted under CPR 62.5(1)(c). The gateway is…

In the Commercial Court, an oral case management conference is the general rule. A paper case management conference is appropriate only in rare and exceptional…

Under Arbitration Act 1996, the court may determine an arbitral tribunal’s substantive jurisdiction where the statutory permission and cost-saving requirements…

Service on an overseas company is valid under section 1139(2)(a) of the Companies Act 2006 where documents are left at the registered address of a person…

A liquidator of an insolvent limited partnership may accept assignments of investors’ claims and pursue them for the benefit of the estate where doing so is…

The prima facie market measure of damages may be displaced where the defaulting buyer repeatedly assures the seller that performance will occur and thereby…

Civil contempt requires proof beyond reasonable doubt that the respondent knew of the order, breached it, and knew the facts making the conduct a breach.…

Internal limits on a company’s managing directors generally do not invalidate contracts against third parties. Avoidance for abuse of authority requires…

Deliberate non-compliance with disclosure obligations in a freezing order is a serious civil contempt which will ordinarily justify imprisonment. A substantial…

For the purposes of limitation, a concealed fact is relevant to a claimant’s right of action only if it is essential to plead a complete prima facie cause of…

In an insurance claim, the insured bears the burden of proving on the balance of probabilities that loss was caused by an insured peril. Difficulties of proof…

Where a contractual specification has been breached, the claimant must establish causation on the balance of probabilities. The relevant question may be…

Under Arbitration Act 1996, a tribunal must give the parties a fair opportunity to address a course of action which it proposes to adopt but which neither…

A non-party costs order is discretionary and turns on whether it is just in all the circumstances. A funder who substantially funds litigation for a commercial…

Where proceedings are settled on full and final terms which say nothing about costs, neither party may subsequently apply in those proceedings for costs…

Damages for an insurance broker’s conceded negligence must reflect the loss that would have been recoverable under the original insurance policy. Business…

An international organisation has only the immunity granted by the relevant statutory instrument. The grant and its exceptions must be construed according to…

An agreement that claims shall be subject to English law and the jurisdiction of the English High Court will generally be construed as an exclusive…

Where an indemnity clause lists broad losses followed by a more specific category of regulatory losses, wording concerning claims or complaints may qualify the…

A freezing order may support enforcement of an arbitration award even where the defendant’s assets are outside England. Where the arbitration is seated in…

For jurisdictional purposes, a claimant must show a real issue to be tried against an anchor defendant and, for additional defendants, a good arguable case…

On an application to set aside service out of the jurisdiction, the claimant must establish a serious issue to be tried, a gateway under CPR 6.36, and that…

A civil conspiracy claim based on bribery requires proof of the specific decision allegedly procured, the connection between the bribery and that decision, and…

On an application to serve proceedings out of the jurisdiction, the claimant must show a good arguable case, meaning the better argument, on the relevant…

A court cannot use general case-management powers to circumvent the specific requirements of the Civil Procedure Rules governing summary judgment or interim…

A legal entity’s capacity to enter into financial derivatives depends on whether the transaction serves its objects, assessed objectively and at the time of…

A court may refuse to enforce a cross-undertaking in damages where the defendant’s conduct has an immediate and necessary relation to obtaining, continuing or…

The court may appoint receivers by way of equitable execution over foreign assets where it has personal jurisdiction over the judgment debtor and there is a…

A securitisation issuer may recover loss arising from a negligent valuation where the transaction documents require it to distribute recoveries through the…

A settlement expressed to be in full and final settlement is construed in its commercial context. Where the assured’s claims against insurers allege joint…

A contract incorporating specified standard terms does not ordinarily incorporate revised terms issued from time to time unless clear language provides for…

An insurance broker arranging business interruption cover need not calculate the sum insured or select the maximum indemnity period for a commercial client.…

A contractual advance payment may remain payable even where the claimant is not approved by the project client, unless the contract makes approval a condition…

Summary judgment may be refused where contractual construction depends on unresolved factual issues or evidence that has not been tested. The court may also…

An anti-suit injunction restraining foreign proceedings requires a high degree of probability that the relevant parties are bound by an arbitration agreement.…

Under CPR 23.11, the court may set aside an order made in a party’s absence, but relief is discretionary. A party seeking relief must provide a satisfactory…

Under section 25 of the Civil Jurisdiction and Judgments Act 1982, the English court may grant interim relief in support of foreign proceedings where doing so…

Under an anti-avoidance deeming provision, the relevant return is calculated by reference to the actual proceeds of a deferred payment, including amounts…

On an interim application for an anti-suit injunction, the court may continue existing relief where there is at least a good arguable case that a jurisdiction…

Under section 25 of the Civil Judgments and Jurisdiction Act 1982, an English court may grant protective relief over assets within England despite a worldwide…

Legal professional privilege does not attach to communications made in furtherance of crime, fraud or equivalent iniquity. The touchstone is whether the…

A contractual bonus formula may require the employer to calculate the relevant performance measure using its established internal methodology. The court will…

A solicitor who is instructed to obtain contractual protection must exercise judgment in deciding what protection to seek, having regard to the transaction…

Where litigation raises apparently serious illegality and potentially grave consequences, the court may require affected defendants to have a proper…

A later arbitration agreement may replace an earlier arbitration clause in its entirety. The issue is one of contractual construction, assessed objectively in…

Under the 1992 ISDA Master Agreement, a Market Quotation requires live quotations for a Replacement Transaction, obtained on or as soon as reasonably…

An application under CPR r.31.22(1)(b) requires the court to balance the interests of the party seeking collateral use of disclosed documents against the…

When recognition or enforcement of a New York Convention award is challenged in the courts of the seat, the enforcing court has a broad discretion to adjourn…

Under an ISDA payment provision requiring funds to be paid to a specified bank, payment will ordinarily require the payee to have control of freely…

Special jurisdiction under Regulation EC 44/2001 is exceptional and must be established by applying the autonomous meaning of the relevant jurisdictional…

In construing a commercial contract, the court must begin with the wording of the document, read in the context of the contract as a whole. Grammar…

A challenge under section 67 of the Arbitration Act 1996 is a full judicial determination of jurisdiction. The court is generally entitled to receive evidence…

Permission to review documents disclosed in one set of proceedings for the limited purpose of obtaining legal advice and deciding whether to make a further…

Challenges under sections 67 and 68 of the Arbitration Act 1996 are subject to waiver, fairness and substantial-injustice requirements. A party cannot reserve…

Where a defendant’s breach makes it difficult or impossible to establish the claimant’s loss, the court may draw adverse factual inferences, but the resulting…

Summary judgment is appropriate only where the respondent has no real, rather than fanciful, prospect of success and there is no other compelling reason for a…

An indemnity covering liabilities or claims arising directly or indirectly from services or advice provided before a transfer date ordinarily covers losses…

A foreign arbitral award is not rendered unenforceable in England merely because it has been annulled by the courts of the seat. The English court must…

Without prejudice privilege is governed by English law when admissibility is decided in English proceedings. Foreign law may explain the context or meaning of…

In assessing damages for breach of a commercial agreement, the court must determine on the balance of probabilities what would have happened if the contract…

A contractual success fee may become payable when specified success events occur, without proof that the adviser was an effective cause of those events, where…

Security for costs under section 70(6) of the Arbitration Act 1996 is governed by the overriding objective and the approach under CPR 25.12 and 25.13. The…

A follow-settlements clause requires the reinsured to settle honestly and to take all proper and businesslike steps. It does not require every possible…

A time-limited dispute-resolution clause in an existing commercial contract may create an enforceable condition precedent to arbitration. An obligation to seek…

Failure to pay contractual instalments is not automatically repudiatory. The court must assess whether the breach, viewed in context, clearly evinces an…

A contractual tail provision using the word “consummated” may have a meaning distinct from “completion”. In this case it referred to agreement of all, or the…

A non-party to a contract will generally lack standing to obtain declarations concerning the contractual rights of parties who are not themselves in dispute…

A non-party costs order is discretionary and exceptional, but “exceptional” means outside the ordinary run of litigation conducted by parties for their own…

In a Norwich Pharmacal application, the usual order is that the applicant pays the reasonable costs of the innocent third-party respondent. That approach may…

Section 53(3) of the Sale of Goods Act 1979 provides a prima facie measure for breach of warranty of quality. It does not exclude consequential losses…

A clear and unqualified extension clause in a standard-form commercial contract should be given its ordinary meaning. The existence of a link between…

An application to set aside a default judgment under CPR 13.3 engages the same or similar considerations as an application for relief from sanctions under CPR…

An oral agreement for a success fee is enforceable where the parties have agreed the fee’s essential quantum, even though payment dates or a fixed monetary…

Section 12 of the Late Payment of Commercial Debts (Interest) Act 1998 requires more than an express choice of English law before statutory penal interest…

Where parties negotiate detailed agreements which they intend to be definitive and formally executed, there is a strong presumption that pre-contract…

A clause requiring parties to endeavour to resolve disputes through Swiss arbitration, followed by non-exclusive English court jurisdiction if no resolution is…

Section 70(2) of the Arbitration Act 1996 requires a party who participated in arbitration to use up any available arbitral appeal or review process before…

For service out of the jurisdiction, the claimant must establish three matters: a serious issue to be tried on the merits, a good arguable case within a…

On a summary judgment application to enforce a foreign judgment, the defendant must show a realistic, rather than fanciful, prospect of establishing a…

A contractual indemnity may impose a primary obligation, so the indemnifier cannot rely on the rule in Holme v Brunskill concerning material variations to the…

For service out of the jurisdiction, a claimant must establish a relevant gateway, a serious issue to be tried and that England and Wales is clearly or…

A letter of undertaking promising payment of sums ascertained to be due under a General Average adjustment may require payment of the amount determined by the…

Recognition and enforcement of a New York Convention award under Arbitration Act 1996, section 103, is subject to a pro-enforcement scheme, but enforcement is…

A vessel must be moored and re-berthed with reasonable skill and care. Where inadequate tensioning causes mooring lines to render and the vessel to leave the…

Joint contractual obligations require each appointed manager to participate in providing the services, although tasks may be allocated and delegated between…

Benefits obtained after a breach are not automatically credited against damages merely because the breach provided the occasion for obtaining them. The benefit…

For an arbitration agreement to bind a principal, the purported agent must have actual or apparent authority to conclude the underlying contract, unless a…

For limitation purposes under Limitation Act 1980, the claimant’s knowledge must be assessed by identifying the essence of the negligence complaint. In a…

A challenge under section 67 of the Arbitration Act 1996 concerns the tribunal’s substantive jurisdiction, including whether matters were submitted in…

An irrevocable contractual appointment of an agent for service may remain effective even if the agent’s actual authority has lapsed following entry into…

Under Civil Procedure Rules 1998, Part 71, the court has no power to order a company officer to attend for examination or provide asset information if that…

Applications to set aside jurisdictional orders and a default judgment must be made promptly. Under the post-2013 Civil Procedure Rules, the court adopts a…

In construing a payment waterfall in a syndicated finance agreement, a reference to the “Facility Agent” meant the bank acting in that contractual capacity…

Relief under section 68 of the Arbitration Act 1996 is subject to a deliberately high threshold. A tribunal breaches its duty of fairness where it decides an…

A statutory instrument implementing treaty obligations must first be construed according to its own language. Where its terms are clear, the court must give…

A contractual prohibition on cargoes “injurious to the vessel” ordinarily concerns a propensity to cause physical damage. It may be breached even where damage…

Under section 68(2)(b) of the Arbitration Act 1996, an award may be challenged for excess of power where the tribunal purports to exercise a power it does not…

Apparent bias is assessed fact-sensitively by asking whether a fair-minded and informed observer would conclude that there was a real possibility of bias. A…

Disclosure documents may be used only for the proceedings in which they were disclosed unless an exception under CPR 31.22 applies. Providing disclosed…

Contractual deferred-consideration provisions must be construed by reference to their language, read with the agreement as a whole and tested against…

An oral agreement may be immediately binding even though the parties expect later written terms, where their conduct and the evidence show that they intended…

On an application for security for costs, the court has a broad discretion to order such security as is just, having regard to all the circumstances. The…

Under CPR 31.20, a party who has inspected a privileged document disclosed inadvertently may use it only with the court’s permission. The court exercises an…

Article 5(3) of the Judgments Regulation is a derogation from the defendant’s domicile rule and must be interpreted restrictively. In economic-loss cases…

The timing of a committal application is a matter for case-management discretion. There is no rule requiring civil contempt proceedings to await trial. The…

A broker earns commission only where the agency agreement, properly construed, entitles it to remuneration and the broker was the effective cause of the…

Where a contract requires proceedings to be “issued and served”, and the proceedings must be brought in England, the expression ordinarily refers to issue and…

For interim relief under section 25 of the Civil Jurisdiction and Judgments Act 1982, the applicant must establish that the foreign proceedings are civil, that…

Clear contractual wording may create a contractual estoppel preventing a party from alleging reliance on pre-contract representations, including alleged advice…

Permission to serve a foreign defendant out of the jurisdiction must be assessed by reference to the circumstances when permission was granted. Later events…

A clause paramount referring to the Hague Rules as enacted in the country of shipment may, depending on its wording, refer to the Hague-Visby Rules. Where…

A challenge for serious irregularity under section 68 of the Arbitration Act 1996 concerns due process, not the correctness of an arbitral tribunal’s factual…

Anticipatory breach arises through renunciation or self-induced impossibility, but in either case the anticipated breach must be repudiatory. Self-induced…

For an application challenging jurisdiction, the claimant bears the burden of establishing the jurisdictional basis. Where jurisdiction under the Judgments…

In a deceit claim based on an alleged implied representation, the claimant must identify the representation with clarity and prove that it was intended…

Where a claimant succeeds on its claim and the defendant succeeds on a counterclaim, costs are determined by considering the proceedings as a whole and…

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

Costs following an application for relief from sanctions are governed by the court’s discretion, having regard to the parties’ conduct and the outcome of the…

Where a claimant has made relevant recoveries before judgment, the ordinary course is to give credit in the judgment rather than defer it to execution. The…

Under CPR 3.10, a procedural step may be treated as valid despite defective compliance with a rule or practice direction where the attempted step falls within…

A court may have power under an express liberty to apply, or under CPR 3.1(7), to vary an order with continuing consequences. The existence of that power does…

When enforcement of a New York Convention award has been adjourned under section 103(5) of the Arbitration Act 1996, a later application to reconsider…

A party cannot manufacture a costs-budgeting default by advancing an artificial interpretation of correspondence which clearly agreed a filing date. Where the…

A contractual cancellation right arises when the contract says it arises and may generally be exercised together with a common-law right to terminate for…

Applications for summary judgment or strike-out should not determine novel and developing questions of statutory interpretation where the pleaded facts…

Summary judgment should be granted on a short point of law or construction where the court has the evidence necessary to decide it. The court should not…

An earlier failure to prove beneficial ownership in committal proceedings did not prevent determination of the issue in later civil proceedings. Different…

A party’s failure to pay its share of an arbitration advance may breach the arbitration agreement, but it is not necessarily repudiatory. The question is…

A third party debt order can attach only an existing debt due or accruing due when the application is made. An accruing debt is represented by a present…

A 20-day delay in serving particulars of claim was not trivial, particularly where the claimant had shown indifference to the procedural deadline and had not…

A stay imposed for failure to provide security for costs is a sanction under CPR 3.8 and 3.9, but not every sanction attracts the same approach. A temporary…

For jurisdiction under Article 23 of Regulation (EU) 44/2001, the claimant must show a good arguable case that the parties consented to the jurisdiction clause…

On an application for security for costs, the court should not investigate the merits in detail unless success or failure can be shown with a high degree of…

Contractual terms are incorporated by construing the incorporating words in the host contract before examining the terms said to be incorporated. A reference…

Relief from sanctions will usually be granted where the relevant non-compliance is trivial and the application is prompt, even if the defaulting party has…

Summary judgment is appropriate where a defence has no realistic prospect of success and no compelling reason requires a trial. The court must assess the…

A contractual jurisdiction clause does not prevent the court from managing parallel proceedings in another jurisdiction, but a stay or election order should be…

There is one civil standard of proof: the balance of probabilities. Serious allegations do not require a heightened standard or automatically more cogent…

An injunction restraining payment under a demand guarantee requires a seriously arguable case of clear fraud known to the bank, or fraud as the only realistic…

Relitigating issues decided in earlier proceedings may amount to abuse of process even where the later claimant was not a party to those proceedings and cannot…

Where a costs assessment has become substantially contested and complex, a detailed assessment may be preferable to summary assessment, particularly where a…

Relief from sanctions under CPR 3.9 generally requires either trivial non-compliance or a good reason for the default. Other circumstances remain relevant, but…

A procedural time limit may bar a challenge to jurisdiction under Articles 27 or 28 of the Judgments Regulation, but the court may extend time retrospectively…

A contractual escape clause referring to unforeseen circumstances must be given its ordinary meaning in the context of the agreement as a whole. “Unforeseen”…

A follow settlements clause is construed from its wording and commercial purpose. Where the following insurer agrees to follow the lead insurers “in claims”…

Where a former client seeks to restrain solicitors from acting for an adverse client, it must show confidential information in the solicitor’s possession and…

At the stage of deciding whether to order an inquiry under a cross-undertaking in damages, the applicant need show only some credible evidence of loss which…

An in-transit loss clause comparing cargo volumes after loading and before discharge ordinarily addresses losses incidental to the carriage of oil products…

Service of proceedings is a formal act engaging the court’s jurisdiction, not merely a means of bringing proceedings to a defendant’s attention. Where the…

An arbitration clause covering disputes arising out of or in connection with a contract ordinarily extends to disputes concerning termination and contractual…

A contract may be concluded by email where the parties objectively intend to be bound, even though detailed terms or formal documentation remain for later…

Commission under an affinity agreement is payable only on revenue earned in respect of the services. This requires a causal connection between the agreed…

Under section 44(3) of the Arbitration Act 1996, the court should exercise particular caution where an interim injunction would substantially determine an…

Under section 44(3) of the Arbitration Act 1996, the court’s urgent injunctive jurisdiction is limited to orders necessary to preserve evidence or assets.…