High Court: Commercial Court judgments, 2018

Insurance policy provisions should be construed together so far as the language and commercial context permit. A service-of-suit clause may coexist with an…

For limitation purposes, a claimant need not identify every particular of an alleged breach before time begins to run. The relevant question is when the…

Contractual fee provisions must be construed by identifying the objective meaning of the language read in the context of the agreement as a whole. References…

A party alleging fraud must plead the material primary facts from which dishonesty may properly be inferred. A knowingly false case advanced in earlier…

A representation must be interpreted objectively in the context of the conversation as a whole, having regard to the impact it would have on a reasonable…

Experts permitted to give evidence must engage constructively in a properly conducted joint meeting and produce an agreed memorandum identifying areas of…

Security for costs must provide effective protection without exceeding the costs reasonably expected to be recovered. The court should adopt an objective…

A foreign judgment will not be enforced where enforcement would contradict a fundamental public policy of the forum. The Software Directive embodied such a…

An account of profits is not the appropriate remedy for recovering contractual remuneration which an agent earned under its agreement with the principal. That…

A settlement of outstanding charterparty accounts may remain subject to the arbitration clause in the underlying charterparty, even though it creates a new…

A challenge to an arbitration award for serious irregularity under section 68 of the Arbitration Act 1996 requires both an irregularity within the statutory…

Service of a claim form is assessed objectively by reference to what was done and said. A document is not left for a defendant merely because it reaches the…

Under the Civil Procedure Rules 1998, a late acknowledgment of service filed before default judgment is obtained remains an acknowledgment of service unless…

For the purposes of a jurisdictional challenge, a foreign court may refer to the English court the determination of the assets or obligations forming the…

A challenge under section 68 of the Arbitration Act 1996 requires proof of both an irregularity and substantial injustice. An arbitrator breaches the duty of…

A party claiming damages for renunciation cannot recover where it was already unable to perform, unless that inability was caused by the renunciation.…

Contractual interpretation requires an objective and contextual reading of the agreement, with the words used retaining primary importance. Business common…

Fraud and conspiracy claims must plead the primary facts relied on to support dishonesty. The pleaded facts must make an inference of dishonesty more likely…

A party who agrees a moratorium affecting a procedural time limit must notify the court where the rules require notification. Failure to do so may leave the…

Litigation privilege requires the party claiming it to prove that litigation was reasonably contemplated and that the dominant purpose of the relevant…

Applications for disclosure must be determined by the court at the interlocutory stage by reference to the overriding objective and what is necessary to deal…

Contractual interpretation is a unitary exercise directed to the objective meaning of the agreement read as a whole. In a detailed commercial contract, clear…

A power of attorney is strictly construed according to its express or necessarily implied authority and the purpose for which it was granted. A power to act in…

On an application for interim relief, the court must determine whether there is a serious issue to be tried and whether the balance of convenience favours an…

In assessing an alleged oral agreement in commercial litigation, the absence of a contemporaneous document may weigh heavily but does not create an inevitable…

A party defending an application to discharge or vary a receivership order remains, in substance, a defendant where it seeks only to resist enforcement and…

Permission to appeal requires a real, more than fanciful, prospect of success. An appellate court may be freer to reconsider contractual construction, but…

Retrospective permission for collateral use of documents disclosed under compulsion is exceptional. The fact that prospective permission would probably have…

Under Connecticut law, deferred-bonus plan provisions must be construed from their text, read as a whole and applied to the circumstances that arise. Losses…

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

For costs purposes, the party receiving a payment is often, but not invariably, the successful party. The court must determine which party won as a matter of…

A contractual maximum funding value cannot be displaced by informal assurances where the contract requires variations to be agreed in writing and signed by…

In assessing costs after a successful s.68 challenge to an arbitral award, the successful party is identified by the substance of the relief obtained and the…

Anonymity for a witness in civil proceedings requires a two-stage assessment. First, non-disclosure must be necessary to protect the witness, based on a…

Under a contractual exception for government interferences, the seizure of cargo by a State customs authority acting in a sovereign capacity can interrupt…

A fiduciary’s post-resignation exploitation of a business opportunity is actionable where the liability arises from a pre-resignation breach. The opportunity…

A claimant may appropriate settlement recoveries between concurrent claims where the separate claim is not obviously unsustainable. The court may accept a…

Declaratory relief must serve a legitimate interest in resolving a real legal controversy. A claimant need not be party to the contract concerned, provided it…

A standard worldwide freezing order does not ordinarily freeze assets legally and beneficially owned by a company merely because the respondent controls it as…

A judgment obtained by fraud may be set aside through a distinct route from an appeal, but the jurisdiction must be exercised cautiously to preserve finality.…

Summary judgment is appropriate where the defendant has no real prospect of successfully defending the claim and no other reason justifies a trial or further…

An authorised principal’s responsibility under Financial Services and Markets Act 2000 section 39 depends on the business for which responsibility was accepted…

An arbitral tribunal may determine issues beyond the parties’ competing cases, but fairness requires notice and a proper opportunity to address any materially…

On summary judgment, the court must decide whether the respondent has a realistic, rather than fanciful, prospect of success. The application should not become…

A binding commercial contract depends on objectively communicated intention and agreement on the terms which the parties regarded, or the law regarded, as…

Where a contract gives a party a right to match third-party offers, that right may arise repeatedly during the period for which the matching mechanism…

Under the CMR Convention, a carrier is prima facie liable for physical deterioration occurring between taking over goods and delivery. The carrier bears the…

Rule 25(2) of Dicey provides a default rule: where foreign law is not proved, the court applies English law. A claimant need not plead the existence of that…

A broadly worded exclusive jurisdiction clause covering disputes arising out of or in connection with an agreement ordinarily extends to substantive claims…

Relief from the costs-budgeting sanction must be determined under the three-stage approach in Denton v TH White Ltd: assess the breach’s seriousness and…

Where the evidence establishes a clear case for security for costs, the court should require reasonable security, while determining the amount and timing…

When an appeal concerns a narrow issue that may not resolve all issues in a pending claim, the court may continue case management rather than stay the claim.…

A guarantee containing both a surety obligation and a principal-debtor obligation may still require a demand before liability to pay arises. The question is…

A modern deed complying with section 1 of the Law of Property (Miscellaneous Provisions) Act 1989 is a specialty for section 8 of the Limitation Act 1980, even…

Committal proceedings are proceedings concerned with the enforcement of judgments for the purposes of Article 24(5) of Brussels I Recast. That jurisdiction is…

In deciding whether to grant interim mandatory relief, the court must assess whether granting or refusing the relief carries the greater risk of injustice. The…

In construing a commercial indemnity, words such as “fall due” must be read in context. They may include employment liabilities which have arisen, although the…

A sanctions clause in a marine insurance policy relieved insurers from paying only where payment would be legally prohibited under a named sanctions regime. A…

Enforcement of a New York Convention award may be refused under section 103 of the Arbitration Act 1996 only where the statutory ground is properly engaged and…

Claims for dishonest assistance, deceit and unlawful means conspiracy require proof of the relevant dishonest conduct, causation or reliance, and participation…

A post-judgment freezing order may be granted where the claimant has a good arguable case, there is solid evidence of a real and objective risk that the…

A documentary credit transmitted in the SWIFT MT700 format will ordinarily indicate that the sender is the issuing bank. That indication may be displaced only…

Where the evidence establishes a real risk that a future costs order will go unsatisfied, security for costs may be ordered even though the claimant remains a…

An insurance broker must take reasonable care to identify the cover a client needs, arrange suitable insurance, explain the cover obtained, and advise on the…

A court should not stay proceedings in favour of foreign insolvency proceedings merely because overlapping allegations may be considered abroad. Personal…

Summary judgment is appropriate where the defendant has no realistic prospect of success and there is no other compelling reason for trial. The court must…

Costs relating to consequential hearings should be allocated by reference to the issues addressed and the parties’ relative success on those costs issues.…

On an application for further security for costs, the court may take account of a reasonable, non-speculative possibility that costs will be assessed on the…

Whether an amendment introduces a new claim depends on the substance of the proposed case and the essential ingredients of liability under the law governing…

An interim anti-suit injunction may restrain a non-party to an arbitration agreement where the foreign claim, in substance, asserts rights under the contract…

An oral promise to fund another person’s legal fees is a primary funding obligation where the promisor undertakes to provide the money in any event, rather…

Disclosure of information which may breach foreign law is governed by English procedural law. A foreign confidentiality obligation does not automatically…

A contractual right of first refusal must be construed by applying ordinary principles of commercial contract interpretation. A special presumption requiring…

An exceptions or force majeure clause which excuses liability for breach ordinarily requires the party relying on it to establish factual causation. The party…

The compensatory principle does not prevent recovery of wasted expenditure together with loss of profits where the profit figure is calculated net of the…

For CPR Part 6.7 to require service on a nominated solicitor, the claimant must have received written notice of the nomination. The rule does not automatically…

An English court may restrain use of a foreign evidence-gathering procedure where, in the particular circumstances, its use would be unconscionable…

An applicant for without notice freezing or proprietary relief must make proper inquiries and present the evidence and competing arguments fairly. Disclosure…

In determining costs after a trial of preliminary issues, the court must identify the successful party by reference to substance and reality, while retaining a…

A contractual service commencement date may be effective where it falls within an alternative date mechanism expressly agreed in the service documents. The…

A jurisdiction clause may be exclusive even though it does not use the word “exclusive”. The question is whether, on its true construction, the clause obliges…

A claim in deceit requires proof of a false representation, dishonesty or recklessness, intention that it be acted upon, actual reliance and resulting loss. A…

Money procured by theft or fraud is impressed with a constructive trust and may be traced into mixed bank accounts, subject to the lowest intermediate balance…

Under section 9 of the Arbitration Act 1996, the court must identify each issue capable of constituting a dispute which may fall within the arbitration…

A standard-form ISDA Credit Support Annex does not, without clear wording, impose an obligation on the party providing cash collateral to pay or account for…

A third party debt order requires the third party to be within the jurisdiction and the attached debt to be situated in England and Wales, unless the law of a…

Under Carriage of Goods by Sea Act 1992, a lawful holder who acquires rights of suit under a bill of lading becomes party to an arbitration agreement contained…

A fraudulent representation that a stated figure is a genuine estimate of additional contractual costs is actionable where the representee is entitled to take…

The court may dispense with formal service of an arbitration claim on a foreign state where doing so is consistent with State Immunity Act section 12. The…

Where a party seeks to avoid a settlement by alleging that the underlying transaction was illegal under foreign law, it bears the burden of proving the…

A state relying on immunity must be afforded that immunity unless the court is satisfied that a statutory exception applies. Its participation in an investment…

Privilege must be established by reference to the document’s objective purpose. Litigation privilege requires litigation to have been reasonably contemplated…

Under s. 41(3) of the Arbitration Act 1996, a claim may be dismissed for inordinate and inexcusable delay even where it was particularised within the statutory…

A challenge under section 68 of the Arbitration Act 1996 requires both a serious irregularity and substantial injustice. Section 68 addresses exceptional…

A director who secretly receives commissions generated from transactions undertaken for the company breaches the strict no-conflict, no-profit and loyalty…

A lender is not generally required to delay enforcement of security in the speculative hope that market conditions will improve. Delay may itself amount to…

For limitation purposes, a restitutionary claim accrues when the defendant has been enriched, at the claimant’s expense, and the enrichment is unjust. Receipt…

A force majeure clause excuses non-performance only to the extent that the specified event caused the failure to perform. Where force majeure and a…

An applicant seeking fortification of a cross-undertaking in damages must show three matters. The court must be able to make an informed and realistic estimate…

For an interim injunction, the court must first decide whether there is a serious issue to be tried, without conducting a preliminary trial. It must then…

Where related contracts contain jurisdiction clauses in favour of different countries, the clauses should be construed broadly and purposively, but in a way…

A state that has contractually submitted disputes to the English courts and waived immunity cannot rely on sovereign immunity. A loan or financing transaction…

In a professionally drafted commercial agreement, the meaning of “payable” depends on the language, contractual context, factual matrix and commercial…

In assessing costs, the court identifies the successful party by considering the litigation as a whole and the significance of the relief obtained. Failure on…

An alleged oral agreement which conflicts with carefully drafted written transaction documents is unlikely to be established without compelling evidence. The…

Where an arbitration award is remitted, remission is confined to the issue requiring reconsideration. It is not an opportunity to reopen an alternative basis…

On an appeal under section 69 of the Arbitration Act 1996, the court examines whether an error of law has been established, rather than whether the award is…

Contractual wording must be construed as a whole, balancing the language used against the commercial consequences of competing interpretations. Punctuation is…

Where proceedings are brought on a negotiable instrument containing an English non-exclusive jurisdiction clause, a separate arbitration clause in related…

A court managing group litigation may require a defendant to publicise the group litigation order where its communications could discourage affected investors…

When enforcing a foreign arbitration award, the English court may grant ancillary freezing relief even if the relief was not included in the arbitration claim…

Article III rule 6 of the Hague Rules applies to misdelivery claims where the misdelivery occurs during the period of responsibility. A claim cannot evade the…

In an interpleader concerning possession of a chattel, the court determines the parties’ comparative rights to possession, rather than absolute ownership…

Indemnity costs are appropriate where the circumstances take the case out of the norm. That may occur where a party continues litigation after being told that…

In an application for security for costs, the court must exercise its discretion justly by balancing the claimant’s ability to pursue a genuine claim against…

A contingency fee under a software licence is payable only where information supplied by the licensor is used and is the effective, though not necessarily…

A clear contractual time bar is ordinarily given its literal meaning, even where it operates within a chain of back-to-back charterparties and makes it…

An arbitration clause conditional on the absence of reciprocal enforcement procedures between the United Kingdom and another country ordinarily refers to a…

The power under CPR 6.16 to dispense with service of a claim form is exceptional, but may be exercised prospectively where service is realistically impossible…

A contractual incentive fee is determined by the objective meaning of the agreements, read as a whole and in their commercial context. Where an agreement…

The court may order disclosure of the source of legal-expense funding to police a worldwide freezing order. The applicant must show grounds for believing that…

A court will generally grant an anti-suit injunction to restrain foreign proceedings brought in breach of an arbitration agreement unless strong reasons…

A common mistake avoids a contract only in exceptional circumstances. The shared assumption must be fundamental, must have been wrong when the contract was…

An interim anti-arbitration injunction may be granted where continuation of a foreign arbitration is vexatious and oppressive. The court should exercise the…

An arbitrator does not become a bailee of goods merely because an arbitration concerns those goods or because the arbitral rules permit provisional orders…

Section 68 of the Arbitration Act 1996 requires proof of a breach of the tribunal’s duty, a serious irregularity and substantial injustice. The threshold for…

Summary judgment is appropriate where a claimant’s case has no realistic prospect of success and no compelling reason for trial. A mortgagor must make an…

An arbitral award which has not been challenged under section 67 of the Arbitration Act 1996 may establish an issue estoppel concerning the tribunal’s…

A challenge to an arbitral award under section 68 of the Arbitration Act 1996 is confined to serious irregularities within the statutory list. It is not an…

An arbitral tribunal generally acts fairly under section 33 of the Arbitration Act 1996 where it puts its own counterfactual analysis to both parties and gives…

When deciding whether to split a trial, the court assesses the likely effect on overall efficiency and cost by reference to the material available at the time…

Summary assessment of costs requires a broad evaluation of the work reasonably required, the issues contested, the evidence, the claim’s value and the…

Under CPR 38.4(1), the court has a discretion to set aside a notice of discontinuance. The discretion is governed by the overriding objective of dealing with…

Under the Inter-Club Agreement, a “similar amendment” to adding “and responsibility” to an NYPE cargo clause must have the same effect: it must transfer all…

A freezing order does not confer security on the claimant. Its purpose is to prevent dissipation and preserve the possibility of enforcement. Ancillary…

A jurisdictional objection under an arbitration agreement must be raised within the time required by the applicable arbitration rules and section 73 of the…

On an application for a stay on forum non conveniens grounds, the defendant must establish that another available forum is clearly or distinctly more…

Settlement correspondence headed without prejudice save as to costs can still be subject to contract and subject to board approval. Those expressions…

A judgment of a foreign tribunal may be registered under the Foreign Judgments (Reciprocal Enforcement) Act 1933 if it is enforceable by the statutory…

Under a claims-made professional indemnity policy, a notified circumstance must be identified objectively by reference to the insured’s actual knowledge and…

Where an arbitration has its seat in England and Wales, the seat determines the curial law. The mandatory provisions of Part 1 of the Arbitration Act 1996…

A freezing order requires solid evidence of a real and current risk that a judgment will be frustrated by unjustified dealings with assets. Allegations of…

A section 68 challenge to an arbitral award requires both a breach of the tribunal’s section 33 duty and substantial injustice. Procedural fairness is assessed…

An accountant who gives negligent advice about the accounting treatment of a transaction is liable only for loss within the scope of the responsibility…

Under sections 140A and 140B of the Consumer Credit Act 1974, unfairness concerns the debtor-creditor relationship as a whole and requires a fact-sensitive…

A civil bribe is a secret commission paid to an agent without disclosure to the principal. Dishonesty, corrupt motive or proof that the payment influenced the…

On an application for service out against one of several defendants, the existence of continuing English proceedings involving other defendants on the same or…

Challenges to arbitral jurisdiction under the Arbitration Act 1996 are confined to substantive jurisdiction. Broad arbitration clauses covering disputes…

An all risks marine cargo policy ordinarily covers physical loss of or damage to existing goods. It does not cover an economic or paper loss where the insured…

Where a buyer requests that a vessel wait outside the contractual discharge arrangements, and the seller accepts that request by procuring the vessel’s wait…

A compromise agreement replaces disputed claims with defined obligations where it is validly concluded. Whether signature is required depends on construction…

An undertaking accompanying a worldwide freezing order requires permission before the claimant seeks foreign relief which directly or effectively enforces, or…

A contractual valuation described as final and binding does not necessarily prevent a claim for damages where the alleged loss results from the other party’s…

Courts will ordinarily restrain foreign proceedings brought in breach of an exclusive jurisdiction clause unless the resisting party establishes good or strong…

For security for costs against a company, the court must first have reason to believe that the company will be unable to pay an adverse costs order. A mere…

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…

A challenge for serious irregularity under Arbitration Act 1996 section 68 has a deliberately high threshold. A tribunal may develop its own reasoning on a…

Where commercial parties have reached agreement on essential terms, subsequent formal terms may become part of the contract through established dealing…

Summary judgment is appropriate where the claimant establishes that the defendant has no real prospect of successfully defending the claim and that there is no…

Contractual arbitration clauses must initially be construed as part of the agreement as a whole. A priority clause operates only after the relevant provisions…

Fraud may be established in civil proceedings on the balance of probabilities. The seriousness and inherent improbability of the allegation affect the…

An exclusive jurisdiction clause ordinarily requires relevant proceedings to take place only in the chosen courts. It therefore implies an obligation not…

An applicant for freezing relief without notice must present the evidence and arguments fairly and even-handedly. It must disclose adverse matters which the…

A general power to amend an employee incentive plan does not authorise retrospective alteration of awards already granted unless clear words, read in their…

In a voyage charterparty, a warranty that a berth is always accessible ordinarily concerns both entry to and departure from the berth. The court must construe…

A bill of lading holder who receives cargo damaged through the carrier’s breach may recover the full value of the cargo damage, despite a recovery or credit…

A challenge under section 68(2)(d) of the Arbitration Act 1996 requires more than proof that the tribunal did not address a disputed proposition. The alleged…

Where a party succeeds overall but fails on significant issues, the court may make a proportionate costs adjustment instead of imposing a complex issue-based…

Under the Arbitration Act 1996, correcting an award does not automatically restart the 28-day period for a court challenge. Time is postponed only where the…

On a summary judgment application, the court may decide a short point of construction where the relevant contractual wording and evidence are before it. A…

In a jurisdictional challenge under section 67 of the Arbitration Act 1996, the court must determine contractual identity and the existence of an arbitration…

Under the 2002 ISDA Master Agreement, the Determining Party must use objectively commercially reasonable procedures to produce an objectively commercially…

A guarantee being requested because of a possible rental void does not, without more, establish a promise that it will be enforced only if a rental void…

A hearing under section 67 of the Arbitration Act 1996 is a rehearing. Permission to appeal should be granted only where the proposed grounds, considered…

A challenge under section 67 of the Arbitration Act 1996 is a rehearing. The court determines jurisdiction independently and is not bound by the tribunal’s…

Under a standard letter of indemnity for delivery without production of bills of lading, delivery to the named receiver may be effected through a party acting…

For recognition and enforcement at common law of a foreign judgment against a State, the foreign court must have had jurisdiction under English private…

A challenge under section 67 of the Arbitration Act 1996 proceeds by way of a rehearing. The court determines jurisdiction afresh on the evidence before it…

A trial judge should not reopen issues already determined merely because a party later obtains new evidence or develops a new argument. Reconsideration is…

Under Section 5 of the Recast Judgments Regulation, an employer’s claims against an employee fall within matters relating to an individual contract of…

Exemption under Article 101(3) requires proof of real, observable and measurable net efficiencies, supported by robust empirical evidence. Economic theory…

An informal, long-term joint venture may carry an implied duty of good faith where necessary to give effect to reasonable expectations. That duty permits…

Under CPR r.44.2(8), a payment on account of costs must be a reasonable sum, not the irreducible minimum likely to survive detailed assessment. The court…

A non-exclusive English jurisdiction clause creates a strong prima facie case that England is the appropriate forum. A party seeking a stay or dismissal must…

Under a joint operating agreement, participants are liable for their proportionate share of the properly incurred employment costs of staff engaged in…

Disclosure may be made by identifying documents by category, including a class of privileged documents, where the disclosure statement clearly states that the…

On summary judgment, the court must assess whether the opposing case has a realistic prospect of success, while avoiding a mini-trial. Factual disputes…

The court should generally exercise its costs discretion in accordance with a party’s contractual entitlement. An indemnity covering losses, liabilities and…

A challenge to an arbitration award under section 68 of the Arbitration Act 1996 is confined to serious procedural irregularity causing substantial injustice.…

A foreign administrative-law measure which retrospectively requires a contract to be treated as null does not necessarily concern contractual capacity. Where a…

Security for costs under section 70(6) of the Arbitration Act 1996 depends on whether it is just to protect the respondent against the risk that a costs order…

Under Luxembourg law, the principle of fraus omnia corrumpit requires a mandatory rule, an intention to evade that rule, and efficient fraudulent means causing…

A stakeholder claim may proceed under Civil Procedure Rules 1998, Part 86 where the stakeholder faces competing claims to a debt, even though one claim arises…

For service of proceedings against a foreign state under section 12(1) of the State Immunity Act 1978, transmission through the Foreign and Commonwealth Office…

Where a voyage charter treats waiting for charterers’ orders as laytime or demurrage, and its payment clause covers all charterers’ purposes so counted, any…

A professionally drafted contract may allocate to one party the risk that the counterparty has no title or transferable rights in the assets described in the…

A stay in favour of foreign proceedings should be refused where the foreign-law issues are closely intertwined with English-law issues, particularly where…

Where a contractual appeal period runs from notification of a decision, the notification need not include subsequently prepared reasons if the decision-making…

A party seeking release from an undertaking given in lieu of security for costs must first establish a material change of circumstance. The application is then…

In professional indemnity insurance, a notification of circumstances covers only matters of which the insured was actually aware and which might reasonably be…

Residence outside the jurisdiction is a jurisdictional trigger for security for costs, not a basis for automatically ordering security in the full amount. The…

A liquid formed by mixing trade effluent with surface water before discharge into a public sewer falls within the statutory definition of “trade effluent” in…

A party seeking loss of bargain damages for repudiatory breach or renunciation must show that the contract was terminated in exercise of the common-law right…

On an application under CPR 13.3 to set aside default judgment, a defendant must show either a realistic prospect of successfully defending the claim or some…

The third-party iniquity exception to legal professional privilege applies only where the wrongdoer has used an innocent client as a tool or mechanism for the…

Permission to appeal a first-instance decision on challenges to an arbitration award under sections 67 and 68 of the Arbitration Act 1996 should be granted…