High Court: Commercial Court judgments, 2015

A contractual audit right does not ordinarily entitle an insurer to remove paper claims files from the claims handler’s premises where the contract requires…

Contractual key performance indicators remain operative according to their terms unless validly amended. A backlog-clearing exercise, collaborative…

Recognition or enforcement of a judgment under the Judgments Regulation may be refused on public-policy grounds only in an exceptional case involving an…

Where funds may belong beneficially to a claimant, a defendant seeking to use them for living or legal expenses must first provide full and frank evidence that…

A contempt penalty punishes defiance of the court’s order and may coerce future compliance. The court must consider whether imprisonment is necessary, the…

Clear written repayment terms govern a deferred payment arrangement where the evidence shows that the parties agreed no flexibility as to due dates. The court…

A court may grant interim disclosure and preservation relief against a person who may possess evidence relevant to arguable wrongdoing, including a person who…

The court may grant interim orders for the preservation, inspection and forensic examination of property relevant to a contemplated claim under CPR 25 or the…

A person’s status as a private person under section 138D of the Financial Services and Markets Act is insufficient by itself. The claimant must also fall…

Committal proceedings may proceed in a respondent’s absence only in exceptional circumstances. The court must consider fairness to the respondent and the…

Under a FOB sale, a buyer’s contractual right to substitute a nominated vessel remains subject to the contract’s nomination and pre-advice requirements unless…

On a Arbitration Act 1996 section 67 application, the court conducts a complete rehearing and decides whether the tribunal’s jurisdictional conclusion was…

A party cannot enforce a contract where it signed as agent for an identified principal different from the claimant. Contractual identity is determined by…

Article 97.2 of the Spanish Act on Insolvency did not extinguish a guarantee given by a third-party guarantor. The provision concerned collateral granted by a…

An agreement resolving a commercial account may be legally binding even if made orally and described as a gentleman’s agreement. Its effect is determined…

Jurisdiction under Article 7 of Brussels I Recast depends on the true legal basis of the claim. Article 7(1) requires a contractual obligation owed by the…

On an appeal on a question of law from an arbitration award, the tribunal must construe the charterparty as written. A reference to “good weather” does not…

A disclaimer stating that trades were not good trades without express consent of a firm’s principals operated as a condition precedent to contract formation.…

Where foreign proceedings breach an agreement to arbitrate in London, an anti-suit injunction will ordinarily be granted unless there are strong reasons not to…

Relief from sanctions following breach of an unless order requiring security for costs is assessed under the three-stage approach in Denton v TH White Ltd, but…

A tribunal’s provisional payment order may be enforced under Arbitration Act 1996, section 42. Section 41(5) is not confined to orders concerning procedural…

Specific disclosure of collateral complaints is not justified merely because they may reveal a pattern of alleged misconduct. In civil proceedings…

A settlement agreement is construed objectively in its commercial context. Where commercially experienced parties agree terms orally, the court may determine…

An anti-suit injunction enforcing an English arbitration agreement is discretionary. The court will ordinarily uphold the contractual forum, but the applicant…

Title to movable property is determined by the law of the place where the property was situated when title was transferred. Under Belgian law, a purchaser’s…

Permission to amend a pleading after expiry of the limitation period may be granted only where the proposed claim arises from the same or substantially the…

An arbitration clause should, where commercially possible, be construed so that it is effective. A clause giving the courts of the United Kingdom exclusive…

Where a defendant fails to serve a defence within the period prescribed by the Civil Procedure Rules 1998, the court may enter judgment in default. The…

Where related proceedings are pending in different Member States, the court must identify the proceedings that are substantively related at the hearing date…

Fraud must be distinctly alleged and supported by pleaded primary facts which make dishonesty more likely than innocence or negligence. Those facts need…

Personal service requires the recipient to acquire knowledge that the document is a legal document requiring attention in connection with proceedings. Where…

On an interlocutory application, a court should avoid deciding disputed facts which properly belong to the trial. The assessment of a good arguable case is…

An arbitration award will not be set aside merely because its reasoning can be analysed as inconsistent with an earlier award. The court must identify whether…

In an exceptional case, the court may grant an interim declaration protecting a bank from criminal liability while granting mandatory interim relief. The…

An alternative claim against a defendant is not properly maintainable on a speculative basis where the claimant’s primary case identifies another defendant as…

For the purposes of Council Regulation (EC) No. 44/2001, proceedings concerning breach of an exclusive jurisdiction agreement do not generally have the same…

A commercial contract will not ordinarily contain an implied term requiring one party to preserve a third party’s trust and confidence, particularly where the…

Interest under section 17 of the Judgments Act 1838 ordinarily runs on unassessed costs from the date of the costs order. Under CPR 40.8(1), however, the court…

On an application to vary a non-proprietary freezing order, a defendant may ordinarily use frozen assets for a reasonable legal defence, but must persuade the…

Disclosure under Civil Procedure Rules 1998, rule 31.14, requires the document sought to be relevant to an issue that is actually pleaded, or to an amendment…

A contractual indemnity for losses incurred in taking reasonable action to avoid an excluded liability may apply before a contingent liability becomes due and…

A contractual standard requiring performance in accordance with a reasonable and prudent operator standard may govern both whether and how contractual…

In construing a detailed commercial agreement, the court identifies what the parties agreed, rather than correcting an imprudent bargain by reference to…

The Smith v M’Guire measure is the prima facie measure of damages for loss of profit on a repudiated voyage charter. It normally confines the calculation of…

A declaration may be granted where there is a real and present dispute and resolving it serves a useful purpose, even though the relevant future event has not…

Security for costs under CPR25.13(2)(c) requires evidence giving reason to believe that a claimant company will be unable to pay an adverse costs order. Mere…

A party seeking to amend its case at trial must provide a cogent explanation for the delay. The court must consider prejudice to the other parties, the…

An aggregation clause must be construed by reference to its language, context and commercial purpose. The court should adopt a neutral construction and should…

Summary judgment may be given on an undisputed loan claim where an effective no-set-off clause prevents a related counterclaim from operating as a defence.…

In yacht insurance, the agreed insured value will generally reflect estimated market value, but a prudent underwriter may accept the purchase price of a…

A contractual debt claim remains a civil and commercial matter even where its factual background includes foreign regulatory measures. The court considers the…

A breach of the requirement in Aldi Stores Ltd v WSP Group plc to refer possible related claims to the court for case management does not automatically…

Where a bond issued by a bank or other financial institution relates to an underlying transaction and contains an undertaking to pay on demand, there is a…

Goods may be converted by creating a lien without the owner’s authority. However, where the owner authorises storage, a lien is authorised if it is a…

In insurance, a fact is material if it would influence the judgment of a prudent insurer when assessing the risk, fixing the premium or deciding whether to…

Relief under section 44(3) of the Arbitration Act 1996 is confined to orders necessary to preserve evidence or assets in an urgent case. The court must also be…

A foreign company’s existence is determined by the law of its place of incorporation, while English law as the lex fori governs procedural capacity in English…

Rectification of an insurance contract requires convincing proof that the parties had a continuing common intention, objectively manifested, which the written…

A receiver by way of equitable execution may be appointed over an asset which is regarded in equity as belonging to the judgment debtor, even where legal title…

A bunker supply contract is not necessarily a contract of sale merely because it uses sale terminology and contains a retention of title clause. The court must…

A negotiable bill of lading ordinarily requires delivery of the goods to the lawful holder, or provision of a delivery order containing the carrier’s…

Under the Rome II Regulation, a restitutionary claim for money paid by mistake is a claim arising out of unjust enrichment where the mistake-based…

Under section 70 of the Arbitration Act 1996, a correction request postpones the 28-day period for challenging an award only where the correction is necessary…

A challenge under section 67 of the Arbitration Act 1996 is a rehearing on jurisdiction, without permission being required. In construing an arbitration…

Where parties agree to value a terminated profit interest by reference to a notional sale, the exercise values the interest being bought out rather than the…

An extension of an arbitral time limit under Arbitration Act 1996, s 12(3)(b), requires conduct by the other party which makes it unjust to enforce the limit.…

An English court may restrain foreign arbitral proceedings under section 37 of the Senior Courts Act 1981, but the jurisdiction is exercised with great caution…

Past loss statistics of a proposed reinsured will generally be material and must be disclosed as part of a fair presentation. This remains so where the…

On a jurisdiction challenge under Arbitration Act 1996, the court conducts a rehearing of the tribunal’s jurisdiction, rather than a review of its decision.…

An anti-enforcement injunction is directed against the party seeking enforcement, not against the foreign court. It may be granted to uphold an arbitration…

A challenge under section 67 of the Arbitration Act 1996 is a complete rehearing. The court must decide for itself whether the tribunal had jurisdiction and is…

Insolvency choice-of-law rules for credit institutions are distinct from jurisdictional rules under the Lugano Convention. Where an EEA credit institution is…

A court may order payment out of sale proceeds held under an order for sale where the applicant is a judgment creditor of the person entitled to the underlying…

Mandatory Italian financial-services rules applied despite the parties’ choice of English law because all other relevant elements were connected only with…

An arbitration is effectively commenced under contractual arbitration rules when the required written request is made, unless the rules clearly make payment of…

Where related contracts contain more than one arbitration provision, the existence of concurrent provisions does not invalidate or automatically displace…

An excessive delay in publishing an arbitral award may constitute a breach of the tribunal’s general duty to avoid unnecessary delay under the Arbitration Act…

A stay of enforcement under CPR 83.7(4) requires special circumstances making enforcement unjust or inexpedient. A cross-claim may satisfy that requirement…

An unless order requiring standard disclosure is not breached merely because the disclosure appears incomplete. Where a party serves a document which is prima…

Where an insurance policy requires notice after an event likely to give rise to a claim, the event must carry at least a 50 per cent chance that a claim will…

Responsibility for loading, stowage and discharge ordinarily rests with the carrier. A contract of carriage may transfer that responsibility to charterers or…

A security assignment does not become an absolute legal assignment merely because the deed uses that language. Its legal effect depends on the document read as…

On an application to amend, the court applies the same threshold as on summary judgment: a proposed plea should be refused only where it has no real prospect…

A non-exclusive English jurisdiction clause combined with a forum non conveniens waiver does not remove the court’s power to stay proceedings. A stay requires…

A partner capital subscription loan made to an individual partner remains the partner’s personal liability where the contractual documents identify that…

A party cannot rescind a settlement agreement for misrepresentation unless the alleged representation is proved. A valid tender may be established, or further…

An anti-suit injunction should be granted cautiously. A foreign insolvency proceeding will not ordinarily fall within a contractual jurisdiction clause merely…

Delivery of goods held by a warehouseman generally requires the warehouseman to attorn to the buyer. Endorsed warehouse receipts do not themselves transfer…

Where a claimant beats its Part 36 offer, indemnity costs and enhanced interest are the presumed consequences unless such orders would be unjust. The relevant…

Exclusive jurisdiction for company-law disputes does not extend to every contractual claim concerning a company’s strategy, governance or internal management.…

A final and binding partial arbitration award creates an issue estoppel. A party that fails to challenge a jurisdiction award within the statutory time limit…

An action to set aside a final judgment for fraud is exceptional. The claimant must generally produce genuinely fresh evidence which could not have been…

On an application for default judgment, the court must be satisfied that the claimant is entitled to the judgment sought, but need not conduct a full merits…

Entitlement to judgment in default of acknowledgment of service is assessed at the date when the application is made. A defendant cannot defeat that…

An arbitral tribunal must give each party a reasonable opportunity to present its case before determining jurisdiction. A final award must be construed…

Under a voyage charterparty, a contractual right to revise a nominated loading port does not necessarily preserve cancellation rights tied to the original…

A contractual time limit for calculating an amount does not remove an accrued entitlement unless the contract clearly makes timeous calculation a condition of…

Contract damages are assessed by reference to causation and on the assumption that the claimant responded reasonably to the breach. Where the claimant takes a…

Where unlawful interference with a Convention right has been established, damages under section 8 of the Human Rights Act 1998 are not confined to loss of the…

Contractual notification clauses in share sale agreements turn on their wording and commercial context. A notice must be construed as a reasonable recipient…

A claim under Article 1064 of the Russian Civil Code by a creditor against company controllers for harm allegedly caused by insolvency cannot be brought before…

An arbitration claim may be an abuse of process where a party deliberately adopts one position in earlier litigation, thereby causing the other party to…

Under liability insurance, loss ordinarily arises when the insured’s liability is established and its amount is ascertained. A voluntary payment into escrow…

A bank instrument securing repayment of advance instalments may be a performance bond despite being called a guarantee and containing a provision deferring…

Security for costs under CPR 25 requires both satisfaction of a prescribed pre-condition and a separate justice assessment. Where inability to pay is relied…

A settlement agreement must be construed as a whole, by asking what a reasonable person would understand the parties to have intended in its language and…

Civil Procedure Rules 1998, r 31.22(2) gives the court a broad power to restrict or prohibit the use of disclosed documents. The applicant need not establish…

A contractual right to terminate for material breach is assessed at the date of the notice. Materiality depends on the agreement and all the circumstances…

A claimant cannot recover losses which it unreasonably incurred or failed to avoid after a defendant’s breach. Where a breach is one of two concurrent and…

For liability under section 2(1) of the Misrepresentation Act 1967, the representee must establish a contract, a representation made by the other contracting…

A party seeking a very late amendment which would cause the loss of a fixed trial date bears a heavy burden. The court applies the overriding objective and…

A custodial sentence is ordinarily appropriate for serious, deliberate and contumacious breaches of freezing and disclosure orders. Sentence depends…

An exclusive jurisdiction clause incorporated into a warehouse receipt may govern claims by a subsequent holder, even where the relationship is analysed as a…

Under the GAFTA prohibition clause, a clause requiring sellers to obtain export licences is read together with, and qualified by, the prohibition clause where…

Parties and solicitors remain under a duty not to mislead the court at an inter partes hearing. Deliberate misleading which materially supports a freezing…

In assessing damages for breach of contract where the loss depends on a hypothetical bargain, the court may adopt the least unsatisfactory methodology…

A contract may be accepted by conduct even where the written instrument requires signature, provided the conduct is clear, unequivocal and communicated in…

A contractual withdrawal clause in a time charter may confer only an option to cancel. It does not necessarily make payment of hire a condition or confer a…

A claim governed by foreign law may be time-barred at the interlocutory stage where the disclosed evidence establishes that the claimant knew, or should have…

A principal may claim in deceit where its commission agent contracts as principal with the representor, but acts as the principal’s agent in receiving and…

Under Arbitration Act 1996, the court should intervene in arbitration matters only with caution. An order restraining enforcement is unnecessary where…

Service out of the jurisdiction under the additional-claims gateway requires the claimant to establish a serious issue to be tried, a good arguable case that…

An application under section 67 of the Arbitration Act 1996 concerns substantive jurisdiction. It is not the proper route for challenging an arbitrator’s…

A court may clarify its own sealed order under its inherent jurisdiction where clarification is needed to prevent the order obstructing related arbitration.…

Under Article III (2) of the Hague Rules, a carrier must employ a sound system for protecting ordinary cargo against reasonably foreseeable risks and must…

In determining when property passes under a CFR contract, the court must identify the parties’ actual intention from all the dealings. Delivery of a bill of…

A confidentiality club is an exceptional departure from unrestricted inspection of disclosure. The party seeking it must establish a real risk of deliberate or…

Contractual market-disruption provisions are construed as a whole, in their commercial context and by reference to the purpose a reasonable informed person…

Under an ISDA Master Agreement, payment netting and close-out netting are distinct from contractual set-off. Section 2(c) addresses contemporaneous payment…

On an application under CPR Rule 13.3, a defendant must show a defence with a realistic, rather than fanciful, prospect of success. The court should avoid…

Whether an investor may sue an issuer under a bearer note is a contractual issue where the claim seeks enforcement of rights under the note. The issue cannot…

Preliminary issues are appropriate where they raise discrete questions of law with a real prospect of substantially reducing the scope, cost and length of an…

A statement of case must concisely plead the material facts needed to formulate the cause of action or defence. It should not include evidence, unnecessary…

When awarding an interim payment on account of costs, the court must assess recoverable costs objectively. The relevant measure is the lowest sum reasonably…

Summary judgment requires a realistic, more-than-arguable prospect of success. The court must avoid a mini-trial, but may analyse evidence where a factual…

Recognition of a foreign judgment setting aside an arbitral award should generally follow English private international law principles. Recognition may be…

Contractual demurrage time-bar clauses are construed to achieve commercial certainty, rather than by rigid technicality. A clause requiring all supporting…

An auditor’s disclaimer may prevent a duty of care arising to a third party where it objectively makes clear that responsibility is not being assumed. The…

Contractual obligations should not be implied merely because a person has practical control over a contracting company. The relevant question is whether the…

Container demurrage payable under a bill of lading is liquidated damages for failure to take delivery, unpack the goods and return the containers within the…

Summary judgment is inappropriate where the defence has a real, rather than fanciful, prospect of success and the dispute requires a fact-sensitive…

On applications to amend pleadings, join parties, serve claims out of the jurisdiction and obtain proprietary injunctions, the court must assess the realistic…

A statutory direct-action right against a liability insurer may remain, in substance, contractual where the insurance contract defines the insured perils…

Permission for collateral use of disclosed documents under CPR 31.22(1)(b) requires the applicant to show special circumstances constituting a cogent reason.…

Summary judgment may be granted where the defendant has no real prospect of successfully defending the claim. A party alleging fundamental breach must identify…

For an acknowledgment of service to be in accordance with Part 10 under CPR r 11(2), it must comply with the time requirements as well as the formal…

An agreement that an arbitration is to be held in a named country ordinarily implies that the country is the arbitral seat and that its law is the curial law.…

Summary judgment is inappropriate where the claim raises substantial factual disputes and the applicable legal issues depend on facts likely to emerge at…

The criterion for a payment on account of costs is a reasonable sum. An irreducible minimum is not the governing test. The court should estimate likely…

For an insurance policy requiring an employee to be ordinarily resident and ordinarily employed in the United Kingdom, the questions are factual and turn on…

On an application for summary judgment, the court must decide whether the claim has a realistic, rather than fanciful, prospect of success. It must avoid a…

Transfer between the Chancery Division and the Commercial Court should be ordered only where the Commercial Court is significantly more suitable for trial. The…

A contractual termination clause referring to cessation of a material part of a business requires identification of a specific part of that business, assessed…

A contractual fee may become payable when accelerated loan repayment falls due, even where the repayment follows a cross-default under a different agreement.…

Under section 24 of the Arbitration Act 1996, the question is whether a fair-minded and informed observer would conclude that there was a real possibility of…

Contractual provisions dealing with the same subject matter are inconsistent only where they contradict one another or are in clear and irreconcilable…

Under a commercial cost-sharing agreement, an inclusive definition of operating expenditure is not converted into an exclusive one by references to particular…

An FOB buyer ordinarily has separate rights to reject documents and goods. A contractual inspection or certification procedure does not exclude the buyer’s…

Section 12 of the State Immunity Act 1978 applies to an arbitration claim form used to commence distinct court proceedings under section 42 of the Arbitration…

On a late summary judgment application, the court must assume that served factual and expert evidence will be established at trial. A claim should be dismissed…

Where a settlement or termination agreement contains a dispute-resolution clause inconsistent with that in an earlier contract, the clauses must be construed…

An applicant seeking ex parte injunctive relief must disclose any intention to use the order to support related relief in another jurisdiction. Materiality…

Contractual interpretation is an objective exercise. The court determines the meaning of the language used in its factual and commercial context, without…

Identification of the parties to a written contract is an objective question of fact. The description of a signatory’s capacity forms part of the factual…

A post-judgment freezing injunction may be granted to preserve assets pending execution, including where execution is temporarily stayed. The court must be…

For a constructive total loss, the court must ask what a prudent uninsured owner would have done, including where and how the vessel would have been repaired.…

General incorporation wording can incorporate contractual choice-of-law and jurisdiction clauses where the document expressly states that disputes are subject…