High Court: Commercial Court judgments, 2016

A promissory note remains legally valid even if the parties agree that it will be cancelled when secured liabilities are repaid. An agreement to retain the…

A contract remains a CIF contract where its commercial and documentary terms retain the essential CIF characteristics. Payment against a letter of indemnity in…

Where related contracts contain different jurisdiction clauses, the court must construe them carefully and commercially, giving effect to the parties’…

An aggregation clause in an insurance policy must be construed by its language, read with the schedule and the policy as a whole. Where the clause groups…

A settlement agreement may release claims arising from a specified subject area, including allegations of deliberate wrongdoing, where that is the objective…

The power to commit for contempt is a common-law power. Parts 71 and 81 of the Civil Procedure Rules provide procedures for exercising it. A party alleging…

Discharge and delivery are distinct concepts. Delivery occurs when the shipowner surrenders possession and loses the power to prevent the consignee obtaining…

A Norwich Pharmacal applicant must show a good arguable case of wrongdoing. This means a case which is more than barely capable of serious argument, although…

A gratuitous transfer from a parent to a child is presumed to be a gift, but the presumption may be rebutted by evidence of contrary intention. A gift may…

An option agreement referring to an existing distribution agreement may be construed by reference to the parties’ established course of dealing. That course…

The Inter-Club Agreement 1996 provides a broadly mechanical scheme for apportioning cargo claims between owners and charterers. Under clause 8(d), an act means…

Relief from a procedural stay should generally be granted where the applicant has given some explanation for the delay and the delay has caused no material…

A demand guarantee is construed according to the natural meaning of its terms. Strict compliance, developed in the context of documentary credits, does not…

Defective service may be cured under CPR 3.10 where the claimant attempted the required procedural step, the defect caused no prejudice, and refusing relief…

Under the BIMCO Piracy Clause 2009, “additional insurance costs” means the premiums payable for insurance cover actually purchased. In a subcharter, the…

Where a company’s undertaking, including arbitration claims and liabilities, passes to another company by a foreign statutory merger or court-sanctioned…

An anti-suit injunction will ordinarily be granted where foreign proceedings breach an arbitration agreement, subject to the court’s discretion and…

A professional indemnity dishonesty exclusion may apply where the insured knowingly participates in, or condones, a wider course of mortgage fraud, even if she…

A challenge under section 68 of the Arbitration Act 1996 is a long-stop remedy available only for serious irregularity causing substantial injustice. An…

A contractual prohibition on assignment may prevent an assignor from making an equitable assignment of an existing debt. Where a contract expressly provides…

A guarantee is construed according to the instrument as a whole and the objective commercial context. Language requiring payment against the beneficiary’s…

An exclusion of “consequential or special losses” does not invariably refer to losses within the second limb of Hadley v Baxendale. Its meaning depends on the…

Under the Recast Judgments Regulation, a party domiciled in England is ordinarily sued in England unless an exclusive jurisdiction agreement allocates the…

Summary judgment is appropriate where the defendant has no real prospect of successfully defending the claim or issue. A syndicated-loan transfer clause may…

A challenge under section 68 of the Arbitration Act 1996 is a high-threshold, exceptional remedy. An alleged error in applying the substantive law is not an…

A party cannot generally raise an unpleaded contention that foreign law governs a claim, particularly where foreign law must be pleaded as fact. A…

A broker’s expectation of commission is not, without more, an established contractual right capable of protection by the tort of interference with an existing…

On summary judgment and jurisdiction applications, the court may determine a legal or construction issue without a trial where the evidence is sufficient and…

A claim in misfeasance in public office requires an unlawful exercise of public power, the requisite mental element, bad faith, sufficient interest to sue and…

Contractual termination notices under standard-form financial contracts are governed by ordinary principles of construction. A notice must substantially comply…

A contractual requirement that a tow be provided in light ballast condition ordinarily means the minimum ballast necessary for physical safety and…

Under CPR 44.2(2), costs ordinarily follow the overall result. The court may nevertheless make a substantial adjustment where the successful party recovered…

A Part 36 offer is interpreted by the ordinary contractual principles, having regard to its language and context. Settlement of one claim does not ordinarily…

For deciding whether a claimant has beaten a Part 36 offer, the comparison is between the substantive judgment and the offer. Costs are excluded. If Part 36 is…

On an application for security for costs, the court must first determine whether a condition in CPR 25.13(2) is satisfied and then decide, having regard to all…

A foreign judgment for a definite sum may be enforced at common law where it is final and conclusive, subject to fraud, public policy and natural justice…

Under an aggregation clause covering losses arising from one event, the relevant event must be something happening at a particular time, place and in a…

Article IV r.5 of the Hague Rules limits liability by reference to a physical package or shipment unit. The word “unit” does not mean a unit of measurement or…

Sentencing for contempt must reflect both punishment for defiance of the court and, where appropriate, coercion to secure future compliance. Deliberate and…

A detailed commercial contract is construed by identifying what a reasonable person with the relevant background would understand its language to mean. The…

Where there is good reason to believe that litigation is funded by a third party within CPR 25.14(2)(b), the court has ancillary power to order the claimant to…

When damages require assessment of a hypothetical investment return, the court may adopt a liberal but fair approach where precise calculation is impossible.…

Contempt of court must be proved to the criminal standard. The essential ingredients must be established so that the court is sure, but individual items of…

Where mandatory local law prevents payment of disputed invoices until approval or an arbitral award, the underlying debt is not presently due and payable. A…

Under Civil Procedure Rules Part 38, permission to discontinue is required only where an interim injunction still in force covers the claim or part of the…

English law treats standby letters of credit as having a status equivalent to cash. A bank must honour a conforming demand unless a recognised defence, such as…

An arbitral tribunal’s power to award the costs of an arbitration under the Arbitration Act 1996 may include the reasonable costs of third-party litigation…

Damages under an undertaking given in support of an improperly obtained freezing order are assessed by ordinary contractual principles, including causation…

A contractual waiver is construed by considering the language used in its commercial and factual context. A stated target date for performance is not…

An agency or fiduciary relationship may arise from consent to a state of affairs which in law attracts those consequences, even where the parties do not…

A party does not submit to a foreign court merely by appearing to contest jurisdiction or to seek a stay or dismissal in favour of arbitration. The question is…

A Norwich Pharmacal order is final relief as between the applicant and the information-holder, even if initially made ex parte or subject to a return date. It…

Under section 79 of the Arbitration Act 1996, the court may extend a contractual or institutional time limit relating to arbitral proceedings where available…

Where a claimant obtains a without-notice freezing order but substantially fails to disclose material facts, the court may mark the failure through a…

A first-demand guarantee preserves the beneficiary’s immediate access to payment despite an underlying contractual dispute. Where the guarantee requires the…

A contract for repair and refurbishment is construed as a whole, with technical specifications and price-breakdown documents read together unless they are…

CPR Part 11 provides a single procedural code for challenges to the existence of jurisdiction and challenges to the exercise of jurisdiction. Where both…

A freezing order obtained without notice is subject to a strict duty of full and frank disclosure. Materiality concerns facts which the judge would need or…

Future contractual payments should be discounted for their time value and the recipient’s credit risk. The discount rate should reflect the actual payment…

A contractual warranty is a promise, not a statement of fact, unless the agreement expressly gives it the additional character of a representation. Negotiation…

A party may not use discontinuance of an arbitration challenge to preserve unresolved objections for deployment in enforcement proceedings elsewhere. The…

Under an express indemnity, the extent of the indemnity and the time when the cause of action arises depend on the proper construction of the contract. Where…

State immunity distinguishes recognition or enforcement proceedings from execution against state property. Where a state has agreed to arbitration, proceedings…

A confidentiality and non-circumvention clause must be construed in the context of the agreement as a whole. A non-circumvention obligation linked to…

The substantive right to recover interest on damages is governed by the law applicable to the underlying obligation. The availability and exercise of an…

In construing “commencement of drilling” in a commercial agreement, the court should begin with the natural and ordinary meaning of the words in their…

For constructive total loss purposes, the relevant question is whether the assured received reliable information of the loss and then acted with reasonable…

A commitment letter may create binding contractual obligations even though further transaction documentation remains to be completed. The question is…

Claims concerning contractual rights under swaps remain within the jurisdiction selected by an exclusive jurisdiction clause where they are legally distinct…

A contractual termination right is ordinarily a binary right which may be exercised when its express conditions are satisfied, regardless of the terminating…

A continuing performance warranty in a time charter applies according to its clear terms. It is not qualified merely because underperformance results from…

An anti-suit injunction is an equitable and discretionary remedy. Even where foreign proceedings appear to breach a London arbitration agreement, the court may…

A court may try a civil claim on its merits where an absent defendant has notice of the trial. Contractual scope is determined by the agreement properly…

An anti-suit injunction will ordinarily be granted to protect an arbitration or exclusive jurisdiction agreement, unless good or strong reasons justify…

Where a claimant asserts a binding arbitration agreement, has a substantive claim which it wishes to arbitrate, and can commence the arbitration, it is wrong…

Members of a company’s supervisory body may be liable for losses caused by dishonest or careless conduct contrary to the company’s interests. A person who, in…

Summary judgment is appropriate where the defendant’s proposed defence has no real prospect of success and is plainly fanciful. A defendant is entitled to a…

Under Arbitration Act 1996, a person who did not participate in an arbitration may challenge the tribunal’s constitution and the matters submitted to…

Under section 67 of the Arbitration Act 1996, a jurisdictional challenge is determined by rehearing the jurisdiction question. The court gives the arbitrator’s…

A non-exclusive jurisdiction clause ordinarily permits the named party to invoke the chosen court’s jurisdiction but does not, without clear wording, prevent…

Under CPR 31.22, the court may restrict or prohibit the use of disclosed documents even after they have been referred to at a public hearing. The power is not…

In civil proceedings, a foreign criminal conviction and confession do not determine whether the underlying conduct is proved against a different party. The…

A letter of undertaking issued by a P&I club must be construed as a commercial contract, having regard to its commercial purpose. A clause giving the parties…

An extension of time is inappropriate where compliance is futile, particularly where the applicant deliberately created the inability to comply. Relief from…

On an application for summary judgment, a defendant must show a real prospect of successfully defending the claim. Mere speculation that further scrutiny might…

A defendant may claim contribution from a co-defendant after the claimant has settled with that co-defendant, but only if the defendant advances and proves an…

In separate arbitrations, the desirability of consistent decisions does not override party choice, privacy and confidentiality. Where one arbitration involves…

For service out of the jurisdiction, the claimant must show that England is clearly the most appropriate forum for trial in the interests of all parties and…

A charterparty prohibition against undertaking a voyage exposing a vessel to capture or seizure may operate as a continuing obligation. A risk arising after…

A professional adviser’s duty is defined by the agreed scope of the retainer. A duty to review forecasts and provide sensitivities does not generally require…

A settlement release may compromise unknown claims, including claims alleging misconduct or deliberate wrongdoing, where the contractual language, read…

An extension of time to challenge or appeal an arbitration award is exceptional. The statutory 28-day period reflects the policy of speedy finality. The court…

A court order providing that it will cease upon alternative security being agreed remains effective unless actual agreement is obtained or the court varies it.…

A trip time charter remains a time charter. The charterer generally controls the vessel’s employment during the charter period, subject to the agreed trading…

A general release is construed as an ordinary contractual term. Its apparently broad language may be limited by the surrounding context, but clear words can…

Whether a contract has been formed depends on what the parties communicated by words or conduct and whether, viewed objectively, they intended to create legal…

Where the Foreign and Commonwealth Office gives the court a formal communication about the Government’s position on recognition, that communication is the…

On an application to set aside a regular default judgment, the defendant must show a real, rather than fanciful, prospect of successfully defending the claim…

A contractual notice-and-remedy procedure does not ordinarily govern the separate common-law right to accept a repudiatory breach as terminating a contract.…

Commercial contracts are construed by considering their language, the factual matrix reasonably available to the parties, the agreement as a whole and its…

Where disclosure creates a risk to life or limb, the court may restrict ordinary access to disclosed material. The applicant must establish a real and…

Without prejudice privilege protects communications forming part of genuine negotiations to resolve an existing dispute. The court determines objectively…

A contractual document is not corrected by construction merely because another interpretation better reflects the parties’ commercial purpose. Where the…

A company’s undertaking to the court is enforceable as an order. Committal requires proof to the criminal standard that the respondent knew the order’s terms…

Where an arbitration is seated in England and Wales, Arbitration Act 1996, s 7 ordinarily makes the arbitration agreement separable from the underlying…

Public-sector companies had capacity to enter complex interest-rate swaps where the transactions were capable of assisting their commercial purposes, including…

An agreement conferring jurisdiction under Article 23 of the Lugano Convention must be clearly and precisely demonstrated. The party asserting it must have the…

Defined contractual terms are construed by reference to their wording, the contract as a whole, the relevant background and commercial consequences. A…

The common-law test for apparent bias is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real…

A public-law relationship governed the parties’ dealings concerning both the Horizon oil terminal and the Doraleh Container Terminal. A person who merely…

A contractual guarantee and notice provision in a shipbuilding contract applied to any and all claims made after delivery where the clause, read as a whole…

Norwich Pharmacal relief requires an arguable wrongdoing, involvement by the respondent beyond that of a mere witness, and disclosure that is necessary and…

Contractual headings may assist construction where they describe the provision’s subject matter. A clause stating that headings are to be ignored does not…

Deprivation of a contractual right to receive money may constitute substantial loss even where the innocent party had intended to direct payment to another…

For section 3 of the Unfair Contract Terms Act 1977 to apply, the relevant terms must be the contracting party’s written standard terms of business. Use of a…

On an application for summary judgment or strike out, the court must assess whether the claim has a realistic prospect of success without conducting a…

For the purposes of Arbitration Act 1996, apparent bias is assessed by asking whether the fair-minded and informed observer, having considered the facts and…

A breach of a court order cannot, by itself, ground an award of damages in contempt proceedings. The contempt jurisdiction protects the administration of…

Inconsistent assertions in separate proceedings against different parties do not, without an identified legal principle, prevent a party advancing its pleaded…

An insurance broker must assess the information available in the context of the insured’s business and policy wording. Where there is a real possibility…

State immunity is lost where a state has agreed in writing to submit a dispute to arbitration. Under a bilateral investment treaty, that agreement may arise…

For limitation purposes, arbitral proceedings are commenced in respect of a matter when the notice objectively communicates that matter in its contractual…

Standard-form loan-market documentation must be construed to give effect to the parties’ language, viewed in its commercial context, while promoting certainty…

A retroactive-date exclusion in a claims-made professional indemnity policy requires a causal connection between the pre-date act, error or omission and the…

A contractual drill-or-drop mechanism must be construed in its commercial and contractual context. Where the mechanism concerns the exercise of rights under an…

In construing commercial contracts, the court must identify what a reasonable person with the relevant background knowledge would have understood the parties…

Costs following preliminary issues may be reserved where a Part 36 offer may affect the eventual order. The court may nevertheless make immediate provisos…