High Court: Commercial Court judgments, 2017

Permission to serve proceedings out of the jurisdiction requires a serious issue to be tried, a good arguable case that a jurisdictional gateway applies, and…

Jurisdiction under the branch-operation gateway requires a sufficient nexus between the dispute and the branch. That requirement was satisfied where the…

A single request for LCIA arbitration cannot validly commence separate arbitrations under separate arbitration agreements where the LCIA Rules and the request…

For the purposes of the Hague-Visby Rules, barratry requires a deliberate wrongful act or omission by a servant, causing prejudice to the owner without the…

Under section 42 of the Arbitration Act 1996, the court supports the arbitral process but retains an independent discretion whether to enforce a tribunal’s…

Under CPR 19.5, a party may be substituted after limitation has expired where proceedings were issued in the wrong name because of a genuine mistake, and the…

A worldwide freezing order may be granted after judgment where there is solid evidence of a real, objectively assessed risk that assets will be unjustifiably…

In a supply contract, the buyer’s obligation was to purchase a percentage of its annual requirements, not a fixed minimum quantity. No term requiring orders at…

Documents prepared for litigation attract litigation privilege where litigation was reasonably in prospect and was the dominant purpose of their preparation. A…

An insurance provision requiring an electrical installation to be inspected and tested every five years is construed by reference to the date of the last…

A freezing injunction requires a good arguable case, solid evidence of a real risk of unjustifiable dissipation, and a remedy that is just and convenient. A…

A contractual commission may be calculated on gross income where tax is withheld at source, if the contractual scheme treats the withheld sum as payment made…

Under UCP 600, the 21-day presentation period applies unless the credit expressly provides a different effect. No particular formula or reference to the…

On a summary judgment application, the court may determine contractual construction and penalty issues where the evidence permits a firm conclusion and the…

A late adjournment application on medical grounds must be assessed in context. The court should consider the nature and consequences of the illness, the issues…

An employment contract must be construed in its contractual and commercial context. Where shareholder arrangements reserve appointment or removal of a chief…

Apparent bias is assessed by asking whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility…

Summary judgment may be granted where the opposing party has no realistic prospect of success and there is no other compelling reason for trial. The claimant…

When deciding whether to appoint receivers over property potentially available for confiscation, the court must balance three matters: preserving the property…

An arranging bank may owe certificate holders a specific duty to take reasonable care that an important enforcement document is properly executed. A broad…

For the purposes of the application, the court proceeded on the footing that a good arguable case had been established. In particular, the court accepted that…

The court has jurisdiction under section 37 and the 1988 Act to appoint enforcement receivers over property which is disputed, provided there is a good…

A defendant cannot use an application to discharge or vary an existing restraint order to obtain a new restraint over additional property held by a third…

Collateral use of documents disclosed in litigation is prohibited unless the applicant establishes special circumstances amounting to a cogent reason for…

For the purposes of seaworthiness, a prudent owner must require a defect to be remedied where it exposes the vessel or its machinery to a real risk of…

A claim for damages under section 2(1) of the Misrepresentation Act 1967 is a claim relating to tort for the purposes of article 7(2) of the Brussels…

Summary judgment may be granted where the defendant has no real prospect of successfully defending the claim and there is no other compelling reason for trial.…

Signed guarantees impose the obligations stated in them unless fraud or misrepresentation is established. A defendant cannot rely on an inconsistent prior oral…

A solicitor who writes in a dispute on a client’s instructions does not ordinarily warrant that the client has authority to represent another person or…

Under the Arbitration Act 1996, an insurer required to advance defence costs while a coverage dispute is pending makes a provisional payment. If the dispute is…

A multilateral interchange fee does not restrict competition under Article 101(1) merely because it increases merchants’ costs or creates a price floor. The…

A remission of an arbitral award revives jurisdiction only to the extent stated in the remission order, construed in its factual and procedural context. It…

For the purposes of Arbitration Act 1996, s.68(2)(d), a tribunal fails to deal with an issue where it dismisses a claim without consciously considering it. The…

Suitability duties require an investment adviser to assess not only whether a client understands a product, but also whether the magnitude of its risks fits…

A freezing order requiring disclosure of assets must be construed strictly, clearly and purposefully. The disclosure obligation extends to details necessary to…

An indemnity may be implied into an employee’s contract where the employee is required by the employer to undertake directorships for client companies and…

An application for pre-action disclosure under CPR 31.16 requires the applicant and respondent to be likely parties to subsequent proceedings, and the…

When managing costs, the court must assess whether proposed budgets fall within reasonable and proportionate bounds. Parties may choose an extensive or premium…

A receivership order concerns the receivers’ authority to act for a party, not the party’s underlying legal capacity or substantive rights. Where disputes…

Summary judgment may be granted in the same hearing as permission to apply under CPR rule 24.4(1), where the defendants have proper notice and the court…

For service-out applications outside the Brussels or Lugano regimes, the court need not apply a “much better argument” test to the jurisdictional gateway.…

Where defendants have been properly served with proceedings and injunctions, but have neither engaged with the claim nor challenged the grounds for existing…

A contract governed by English law is generally valid and enforceable according to English law, even if the transaction or its performance would be unlawful…

Findings of fact in an earlier judgment may be considered in later proceedings where fairness permits. The later court must decide the case for itself, using…

Service of arbitral documents by email is capable of being an effective means under Arbitration Act 1996, section 76. Where the email is sent to an individual…

A group litigation order may be desirable where numerous claims raise significant common issues, even though individual liability, causation, loss and other…

A court may lift the automatic stay under CPR rule 15.11 where the claimant gives an adequate explanation for delay, the claim has real prospects, and the…

For causation in an arbitration appeal, the question is whether the relevant act remains an effective cause. It need not be the sole cause. An intervening…

An interim injunction requires a serious issue to be tried. A contractual stop-notice mechanism cannot be expanded beyond the clear meaning of the defined…

A guarantee may impose a primary obligation equivalent to an on-demand bond rather than a secondary obligation mirroring the principal debtor’s liability. The…

A first-instance judge should generally follow an earlier first-instance decision on the same question unless there is a powerful reason to depart from it. The…

A stay of proceedings is exceptional. The applicant must establish solid grounds, normally including a form of irremediable harm, after which the court…

For the purposes of compulsory motor insurance, the question is whether a reasonable person looking at the vehicle would regard road use as one of its general…

For service out of the jurisdiction under Practice Direction 6B para 3.1(20)(a), an enactment must expressly contemplate proceedings involving a foreign…

An order made to preserve the position pending a later determination does not decide the substantive rights of the parties. A court should not retrospectively…

A receiver’s authority under a receivership order is construed by reference to the order’s purpose and context. A power concerning property used to prosecute…

The court may permit proceedings and injunctions against persons unknown where the defendant description is sufficiently certain to identify those included and…

Where a contractual option to unwind a transaction becomes exercisable because a specified regulatory condition has not been satisfied by a long-stop date, the…

A contractual abort fee may become payable upon unilateral cancellation of a transaction without any breach, where the contract identifies cancellation as an…

For an undisclosed principal to be bound by a contract, the alleged agent must have acted within the scope of the principal’s actual authority and intended…

An insurance exclusion must be construed as part of the policy defining the scope of cover. Rules applicable to exemption clauses, including an automatic…

A committal application may proceed in a defendant’s absence where the defendant has unequivocally waived the right to attend. The burden remains on the…

Under a voyage charterparty, the owner’s obligation to commence the approach voyage may be absolute. The relevant date is identified by construing the…

When deciding whether to postpone judgment because a party cannot participate owing to a foreign anti-suit injunction, the court must balance the affected…

Contractual notification clauses must be construed according to their own wording, read in the contractual and commercial context. Where a clause makes timely…

On a section 67 Arbitration Act 1996 challenge, the court conducts a rehearing of the tribunal’s jurisdiction. Foreign law is a question of fact proved by…

A binding contract depends on what the parties objectively communicated and whether their words and conduct show an intention to create legal relations and…

Permission to appeal a section 68 arbitration challenge should be refused where the proposed appeal has no real prospect of success and no compelling reason…

An exclusive jurisdiction clause may cover contractual disputes forming part of a wider statutory claim, even where the chosen court cannot determine the…

A challenge under section 68 of the Arbitration Act 1996 is confined to serious procedural irregularities within the statutory list that have caused or will…

An exclusive jurisdiction clause may extend beyond claims between its named parties where the contract, read as a whole, expressly contemplates claims against…

A court may, under its inherent jurisdiction, make payment of unpaid interim costs the condition of a party continuing to defend proceedings. The discretion…

An agreement is an arbitration agreement only where the dispute is submitted to a third party for resolution in a manner binding on the parties. A process…

A section 68 challenge cannot be used to reopen an arbitrator’s factual evaluation or substitute the court’s assessment of the evidence. Intervention is…

Fairness in civil proceedings depends on the circumstances of the particular case and must be assessed by considering the process as a whole. A trial may…

An appeal should not be permitted unless it passes the threshold in CPR Part 52.6. Where a defendant seeks a stay under section 9 of the Arbitration Act 1996…

Costs following unsuccessful applications are determined by the court’s discretion, having regard to the nature and continuing relevance of the issues raised.…

Proceedings should be struck out for abuse based on inactivity only where the evidence supports the clear inference that the claimant had no intention of…

Whether an advance payment guarantee is a first-demand instrument depends on construction of the instrument as a whole. Labels such as primary obligor, and…

For the purposes of Arbitration Act 1996, s 103(2)(c), proper notice is notice likely to bring the relevant information to the notified party’s attention. The…

An application for an expedited trial is discretionary. The court should consider whether there is objective urgency, the state of the list, the procedural…

Damages for breach of a continuing commission arrangement should generally be assessed by applying a multiplier to pre-tax profits, leaving the judgment sum to…

Section 44(2)(d) of the Arbitration Act 1996 permits an order for sale where goods have a sufficiently close nexus with the arbitral proceedings. A contractual…

Notice provisions in share purchase agreements must be construed according to their own wording. Where terms are elaborately defined, the court should presume…

A foreign judgment setting aside an arbitral award is not refused recognition merely because it is wrong or manifestly wrong. The applicant must establish…

For jurisdictional purposes, a bank holding an equitable assignment and loss payable interest in an insurance policy is not thereby shown to be party to a…

An oral promise creates contractual liability only where, viewed objectively in its context, it expresses a serious willingness to be bound and satisfies the…

When deciding whether to impose a condition on a stay or permission to appeal, the court must balance the risk of stifling the appeal against the risk that the…

An introducing broker may owe fiduciary duties to clients where they repose trust and confidence in it, even though the broker lacks authority to contract on…

Under Civil Procedure Rules 1998, r 6.15, alternative service requires a good reason arising from the circumstances of the case. Mere delay in ordinary service…

A post-judgment freezing injunction is intended to facilitate enforcement of an established liability. An ordinary-course-of-business, or Angel Bell, exception…

A trustee’s expenses clause in a financial transaction is generally construed commercially and without artificial restriction. Expenses must nevertheless be…

A commercial agent’s status under the Commercial Agents (Council Directive) Regulations 1993 is assessed at the date relevant to the remedy claimed, ordinarily…

On an application for strike-out or summary judgment, the question is whether the claim has a realistic prospect of success. The court must assess the evidence…

Acceptance of a repudiatory breach requires no particular form. Communication or conduct, including an omission, may suffice if it clearly and unequivocally…

A court may permit a non-party to obtain documents filed in proceedings under CPR 5.4C(2) or the common law, guided by open justice. Where documents have been…

A contractual recital will not ordinarily create an operative obligation merely because the agreement makes recitals integral and interpretative. A claim based…

Contempt of court must be proved to the criminal standard. The court must be sure that the respondent knew the terms of the order, acted or failed to act in…

Summary judgment is inappropriate where the evidence gives the defendant a real, though potentially weak, prospect of success. Credibility issues ordinarily…

For a freezing injunction to support a claim under section 423 of the Insolvency Act, the relevant state of mind is that of the transferor. A transfer may have…

Permission to serve a foreign defendant out of the jurisdiction requires a serious issue to be tried, a good arguable case within an applicable jurisdictional…

Permission to appeal should be granted where difficult points of law arise and the statutory test is satisfied. A court considering whether to make security a…

A contract allocating responsibility for regulatory compliance must be construed as a whole. Where the contractor is responsible for delivering compliance…

Continuation of freezing relief requires a good arguable case, a risk of dissipation and relief framed no more widely than necessary. In a conspiracy claim…

An English court may permit a fraud challenge to a New York Convention award where the evidence was unavailable at the arbitration and there is a sufficiently…

Under the pre-2015 insurance law, a renewal is a new contract and the insured must disclose material circumstances relevant to the renewed risk. Materiality…

The reflective loss principle does not necessarily prevent a shareholder with its own contractual cause of action from seeking an order requiring payment or…

A contractual requirement for board consent before exercising a share option did not give the company an unconditional veto. Construed in the context of the…

Under article 7(c) of UCP 600, an issuing bank’s obligation to reimburse a nominated or confirming bank arises when that bank has in fact honoured a complying…

On an application based on forum non conveniens, the defendant must show that the foreign forum is clearly or distinctly more appropriate. The court assesses…

In contempt proceedings concerning an injunction, the court must construe the order according to its terms. The phrase “in respect of” is broad, and its…

A contractual escalation clause applies according to its specified trigger. Where a charterparty distinguishes between an orders regime and the ordinary…

Under section 70(7) of the Arbitration Act 1996, security for an award may be ordered pending a section 67 challenge where the challenge is flimsy or lacks…

A written commercial agreement must be construed objectively, giving primary weight to its natural language, read with the contract as a whole, its purpose and…

A worldwide freezing order requires both a good arguable case and a real risk of dissipation established against the particular respondent. Evidence of family…

An order for additional security for costs requires a material change of circumstances. The fact that a possible future event was envisaged when the original…

Where related agreements contain exclusive jurisdiction clauses, the clauses should generally be construed as mutually exclusive, although this may produce…

A pending application to the European Court of Human Rights does not ordinarily justify staying enforcement of a domestic judgment. The domestic judgment…

On a jurisdiction challenge, a court will ordinarily decide a legal question going to the existence of jurisdiction. It may defer final determination of an…

A party named as a co-insured under a liability policy is not thereby covered for every liability connected with its business. Cover depends on the wording of…

A governing-law and exclusive-j jurisdiction clause in a client agreement may extend to tort claims arising from the contractual business relationship, even…

In a challenge to enforcement of a New York Convention award, security may be ordered under section 103(5) of the Arbitration Act 1996 only in the context of…

Pre-judgment interest is discretionary. The usual Commercial Court rate of 1% above base rate is a presumption, not an inflexible rule. It may be displaced…

An unless order imposing an automatic strike-out sanction will ordinarily stand where the default occurred in circumstances already considered when the order…

A contractual warranty concerning awareness of facts likely to cause a material adverse impact may be construed by comparing reasonable expectations based on…

Alternative service under Civil Procedure Rules 1998, rule 6.15, requires a good reason assessed in all the circumstances. Knowledge of the claim form alone is…

Contractual declarations should reflect the proper construction of the agreement. Where wording is ambiguous, the court may adopt the commercially reasonable…

Under CPR 25.7(1)(c), an interim payment may be ordered where the claimant proves, on the balance of probabilities, that a trial would result in judgment for a…

The rules of a professional or trade association may fall within the doctrine of restraint of trade. However, rules regulating members’ activities to advance…

A recognised sovereign state has unlimited capacity under English law to borrow. Restrictions in its domestic law may concern the authority of the officials…

A contract of carriage remains “covered by a bill of lading” for the Hague-Visby Rules where, when concluded, it required a bill of lading on demand, even…

A quia timet injunction requires a serious issue to be tried that the defendant presents a real risk of committing the threatened breach. An incentive or…

A challenge under section 68 of the Arbitration Act 1996 is a high-threshold, long-stop remedy concerned with serious procedural irregularity and substantial…

A secured creditor may enforce contractual security only when the contractual conditions for enforcement have occurred. Contractual payment provisions must be…

Under the 2000 GMRA and GMSLA, a fax is effectively served when received in legible form by an employee responsible for receiving faxes. The employee need not…

A foreign judgment entered by confession may be recognised and enforced in England even though the foreign procedure required no lis or action, where the…

A claimant who recovers only nominal damages will ordinarily be treated as the unsuccessful party for costs purposes where its real objective was substantial…

An application to commit a person for contempt of a valid order may be an ordinary and necessary incident of that order. Where the court had jurisdiction to…

An arbitration clause referring disputes to foreign arbitration only where the interests of a foreign investor are affected does not extend to a locally…

A contractual condition precedent does not cease to apply merely because compliance has become unnecessary or futile. Its continued operation depends on the…

A freezing order may be granted against an innocent third party holding assets where the Chabra criteria are satisfied. The claimant must show a good arguable…

An anti-suit injunction should protect an English arbitration agreement, but it should not restrain a foreign arrest obtained solely to provide reasonable…

Insurance conditions precedent must be construed fairly in the context of the policy as a whole. They are capable of being conditions precedent where their…

Strike-out applications concerning pleadings should not be divided into rigid categories of irrelevance and abuse of process. The court must assess the…

For limitation purposes, a contractual cause of action accrues when the contract is breached. A negligence cause of action accrues when actionable damage is…

Indemnity costs require conduct or circumstances taking the case out of the norm, usually involving a significant level of unreasonable conduct. Refusal of a…

The collateral-use restrictions governing disclosed documents and witness statements give “use” a wide meaning. Reviewing, reading, copying, showing or…

Damages for misuse of confidential information must respond to the wrong actually proved. Copying and retaining documents, without use that causes loss or…

Detailed contractual provisions generally cannot be supplemented by broad recitals or previous commercial practice where the proposed terms concern the same…

A tax covenant covering liabilities arising from events or income before contractual closing may apply to an assessment issued after closing where the…

Recognition and enforcement of a New York Convention award will generally be refused only where the award gives effect to an unlawful or fraudulent claim or…

In commercial dealings conducted by telephone, a binding contract may be concluded orally where the parties intend a later deal recap to record, rather than…

An agreement may be binding in intention yet void for uncertainty if an essential term is left to future agreement and no objective criterion can determine it.…

On an application for security for costs, the court must first ask whether there is reason to believe that the claimant will be unable to pay the defendant’s…

Under CPR Part 36, the court should hold an offeror to a Part 36 offer made during a trial unless a sufficient change of circumstances makes it unjust to do…

Summary judgment is inappropriate where a substantial restitution claim depends on disputed evidence or a developing question of law, unless the issue can be…

An arbitrator must personally exercise independent judgment, but may use a tribunal secretary for preparatory and administrative work, including analysing…

Where a court has made discretionary relief under Insolvency Act 1986, section 423, it may revisit the order where a material change in the assumptions…

Contempt of court for breach of a worldwide freezing injunction requires proof of breach, knowledge of the order, responsibility for the breach and proper…

Whether an asymmetric jurisdiction clause is exclusive for Brussels 1 Recast is determined autonomously under EU law. A clause restricting one party to…

Disclosure in support of an application under section 24 of the Arbitration Act 1996 is subject to a real prospect of success and strict necessity for the fair…

For apparent bias, the question is whether the fair-minded and informed observer would conclude that there is a real possibility of bias. In London…

In a charterparty requiring notice of readiness to be given within “port limits”, the expression does not necessarily mean the geographical limits shown on an…

A multilateral interchange fee may restrict acquiring competition by setting a floor below which merchant service charges cannot fall. The assessment requires…

Section 44 of the Arbitration Act 1996 does not confer jurisdiction to make orders against persons who are not parties to the arbitration agreement.…

A company’s failure to comply with freezing-order disclosure obligations may constitute contempt where the order was served on the company and breached. A…

For a stay on forum non conveniens grounds, the applicant must show that the alternative forum is clearly or distinctly more appropriate. The existence of…

An ICSID award must be registered where the statutory conditions are satisfied. Registration is distinct from enforcement and does not itself conflict with a…

The court may exercise its powers under section 18 of the Arbitration Act 1996 where there is a good arguable case for arbitral jurisdiction, but only if the…

The general rule is that the unsuccessful party pays the successful party’s costs, but the court has a broad discretion to make a different order where justice…

For a claim form served within the United Kingdom, CPR 6.14 fixes the date of service for the purposes of the Civil Procedure Rules. Compliance with a notice…