High Court: Commercial Court judgments, 2019

A challenge under section 67 of the Arbitration Act 1996 is determined by a de novo rehearing of substantive jurisdiction. A BIT defining investment as every…

An anti-suit injunction is a discretionary remedy founded on the court’s personal jurisdiction over the defendant and the contractual obligation said to have…

An English court may restrain foreign proceedings brought in breach of an arbitration agreement where the agreement is governed by English law and the English…

A seller of a yacht may be liable for failing to ensure that the yacht is built to specification and is of satisfactory quality and fit for its disclosed…

Where a commodities contract fixes pricing by reference to a specified pricing period, postponing delivery does not itself move the price. The question is one…

For summary judgment, the court must assess whether the defendant has a real, rather than fanciful, prospect of success. Disputed factual evidence is generally…

On summary judgment, the claimant must show that the defence has no realistic prospect of success and that there is no other compelling reason for trial. The…

Cryptoassets such as Bitcoin are capable of being property. The traditional distinction between choses in possession and choses in action does not prevent that…

For the tort of inducing breach of contract, mere prevention of contractual performance is insufficient. The claimant must show an arguable case that the…

A co-owner who authorises an agent to consign jointly owned property for sale may become contractually bound with the selling intermediary as principal.…

A demurrage time-bar clause must be construed to achieve commercial certainty, rather than by imposing automatic strict compliance. Where a clause requires a…

For service out of the jurisdiction, the claimant must establish the relevant jurisdictional gateway, a serious issue to be tried where required, and that…

A bespoke contractual payment clause must be construed by reference to its language, the agreement as a whole and the admissible factual matrix. The court…

Arbitral proceedings fall within the meaning of judicial proceedings in regulation 14(14) of the Merchant Shipping (Accident Reporting and Investigation)…

In construing a complex commercial agreement, the court must read the relevant documents together, giving primary weight to their language while considering…

The court has a wide discretion to order indemnity costs. Standard-basis costs are the norm, so indemnity costs require conduct or circumstances taking the…

Section 32 of the Arbitration Act 1996 is exceptional, but the court may determine jurisdiction where doing so is likely to save substantial costs, the…

A claimant must give credit for recoveries made while mitigating contractual loss, but the opportunity to mitigate is not itself an asset requiring valuation…

Strike out or summary judgment is discretionary, even where a first-instance court is bound by existing appellate authority. The court may consider the…

A vessel must ordinarily proceed by the usual and reasonable route, assessed by commercial and navigational evidence. The carrier is not required, when…

When deciding whether to relist an application heard in a party’s absence, the court has a broad discretion. Relevant considerations include promptness, the…

Under a contractual anti-technicality clause, references to “the hire”, “the payment due” and “the due date” ordinarily concern the hire instalment falling due…

Under EU Regulation No 1215/2012, lis pendens is assessed by reference to the claims as brought. A possible future defence, set-off or counterclaim cannot…

In claims for overcharging, the claimant must first prove the alleged overpayment or loss before the court addresses the separate causes of action. Software…

A widely worded jurisdiction clause may extend to a separate document where the documents form one closely connected commercial package, no competing…

An interim anti-suit injunction may be granted where the claimant establishes a serious issue to be tried concerning proceedings brought abroad in breach of an…

An admission under CPR Part 14 is not confined to a constituent element of a cause of action, a matter capable of determining judgment, or an assertion in a…

A time-bar clause requiring notification with all available supporting documents is construed according to its wording and commercial purpose. “All” indicates…

An applicant seeking a without-notice worldwide freezing order must give full and accurate disclosure, make proper enquiries and present fairly any defence…

Liability for breach of confidence, inducing breach of contract and unlawful means conspiracy requires proof of the defendant’s relevant knowledge. The issue…

In exercising its discretion on costs, the court may make a co-defendant order where the claimant reasonably sued both defendants and one defendant effectively…

On an application for summary judgment or strike out, a defence need not be likely to succeed. It must be realistic, carrying some degree of conviction and…

General average guarantees issued by cargo insurers are ordinarily construed with the average bonds they secure and against the established shipping practice…

A contractual no set-off clause ordinarily prevents reliance on a set-off or cross-claim, but it does not prevent the debtor from contesting whether the…

Negative contractual covenants will ordinarily be enforced by injunction, although the remedy remains discretionary. The covenantor bears the burden of showing…

When deciding whether material should be withheld from the public in commercial proceedings, the question is whether there is good reason why the public should…

Specific disclosure in a procurement challenge may be ordered where the request is tied to pleaded issues, witness evidence and expert material, even if the…

An implied obligation of good faith may be breached by dishonesty or conduct lacking fidelity to the parties’ bargain. The question is whether reasonable and…

In construing a commercial insurance or reinsurance contract in unforeseen circumstances, the court must identify the objective meaning of the parties’…

A freezing order permission to spend a reasonable sum on legal advice and representation ordinarily concerns the payment of money, rather than the mere…

A contractual condition requiring financial statements to be accepted by lenders “without default or penalty” concerns sanctions or contractual mechanisms…

Under Arbitration Act 1996, s 103(2)(f), an award is suspended where the courts at the seat temporarily prevent its enforcement pending determination of a…

Urgency alone does not justify determining an application ex parte where the matter can fairly be heard inter partes on short notice. The court will not grant…

On an application to strike out contempt allegations, the court must consider whether the order and alleged breaches are clear, supported by prima facie…

Where an excess policy states that its jurisdiction is “As per Lead Underlying Policy”, that wording may incorporate an arbitration agreement in the underlying…

Where an injunction must be served urgently and personal service is impracticable, alternative service may be authorised if there is a good reason in all the…

Section 51 of the Senior Courts Act 1981 gives the court a broad discretion to make costs orders against non-parties where justice requires. The discretion is…

A co-assured mortgagee may recover under a marine policy despite the owner’s wilful misconduct, but must independently establish that the loss was caused by an…

A seller under a contract for the sale of commodities bears the contractual risk that warehouse receipts supplied as required documentation are forged where…

A challenge under section 68(2)(a) of the Arbitration Act 1996 succeeds only where a tribunal has breached its duty of fairness and thereby caused substantial…

Contractual construction requires the court to ascertain the objective meaning of the language used, read in the context of the agreement as a whole and tested…

Permission to amend should be granted where the proposed claim has a real, not fanciful, prospect of success. The court must assess the pleading sufficiently…

For interim freezing relief, a claimant must establish both a good arguable case and a real risk, supported by solid evidence, that a future judgment will be…

Where a payment falls within the statutory scheme imposed by the Protection of Trading Interests Act, a creditor cannot appropriate it to avoid the statutory…

An anti-suit injunction rests on the broad statutory test of whether relief is just and convenient. The recognised categories of case guide the analysis but do…

The principle of open justice is a fundamental starting point. A court may derogate from it only where specific countervailing rights or interests justify…

Failure to comply with the notice procedure in section 549 of the Companies Act 2014 prevents enforcement of a guarantee in the English courts where the…

Security under section 70 of the Arbitration Act 1996 requires evidence that the challenge prejudices enforcement or diminishes the applicant’s ability to…

A contractual budget warranty requiring a budget to be prepared on a prudent and reasonable basis is not an absolute guarantee of the eventual construction…

An informal conversation may create a contract, but the court must objectively assess whether the parties intended legal relations and agreed sufficiently…

A company is not liable for another’s tort merely because it is an intermediate holding company in the ownership structure through which the alleged tortfeasor…

The rule against reflective loss is a substantive rule governing the recoverability of loss, rather than a procedural rule. Under the Rome II Regulation, it…

English law does not ordinarily excuse contractual performance because of foreign law unless the foreign law is the law of the contract or the place of…

Permission to amend a defence or introduce a counterclaim should be granted where the proposed case has a real, rather than fanciful, prospect of success. The…

The court may dispense with personal service of a contempt order or committal application where the respondent has actual notice and dispensing with service is…

In a share sale dispute, a contractual limitation clause covering any and all Claims was construed according to its broad wording. It limited the buyer’s…

The court may award interest on a damages claim expressed in a foreign currency at a rate it considers appropriate. A relevant market benchmark may be adopted…

Permission to amend a statement of case is discretionary and requires a balance between injustice to the applicant and prejudice to the opposing party, other…

A contempt application may proceed in the respondent’s absence where the respondent had notice, sufficient time to attend and participate, no adequate…

On an application to strike out a defence for non-compliance with a court order, the court should apply the three-stage approach in Mitchell v News Group…

An exclusive jurisdiction clause is ordinarily enforced by an anti-suit injunction unless strong reasons justify departure from the parties’ bargain. Whether…

On an application for committal under CPR 71.8, the court must establish that the judgment debtor was served with the order, intentionally failed to attend…

A contractual provision requiring one party, at the other’s request and expense, to obtain an expert determination from an identified third party does not…

A tribunal’s unchallenged determination of the juridical seat of an arbitration may bind the parties when the arbitration agreement authorised the tribunal to…

An assignee’s entitlement to enforce a bond depends on compliance with the bond’s contractual assignment requirements. A general acknowledgment or waiver will…

Under CPR 13.3, a regularly entered default judgment may be set aside or varied where the defendant has a real prospect of successfully defending the claim or…

For service out of the jurisdiction, the claimant must establish a plausible evidential basis for the relevant jurisdictional gateway, show that England is…

Applications for amendments or additional disclosure must be determined under the overriding objective. A late amendment which jeopardises a fixed trial date…

A worldwide freezing order requires solid evidence of an objectively real risk that a future judgment will be defeated by unjustified dissipation of assets.…

An applicant for without notice relief must make reasonable enquiries into known potential defences and present material facts fairly. Claimed forgetfulness…

An on-demand obligation in a parent company guarantee must be construed from the words chosen by the parties once it is accepted that the instrument creates…

EU sanctions provisions must be construed by considering their language, context and purpose, with proportionality informing interpretation where fundamental…

Under Article 3(1) of the Rome Convention, a choice of governing law need not be express. It is sufficient if the contract and the circumstances objectively…

Summary judgment requires a realistic, rather than fanciful, prospect of success. The court must avoid a mini-trial and should ordinarily refuse summary…

A contractual matching right may extend beyond ordinary retail sales where the agreed definition covers distribution, marketing, promotion, offering for sale…

A contractual warranty as to title expressed to apply “at Delivery” concerns the contractual delivery event, not the earlier scheduled delivery date. Where the…

A person commits deceit by knowingly, recklessly or without honest belief making a materially false representation intending it to be acted upon, where it…

In deciding whether documents attract litigation privilege, the party asserting privilege bears the burden of proof. It must show that litigation was…

A challenge under section 68 of the Arbitration Act 1996 is concerned with due process, not whether an arbitral tribunal reached the correct factual or legal…

The deeming effect of restoration to the register is broad, but it is not unlimited. It generally reverses automatic consequences of dissolution and validates…

Under the English one voice doctrine, the court must accept the foreign government recognised by the Crown as the government of that state. Its acts cannot be…

An application under section 68 of the Arbitration Act 1996 is concerned with serious irregularity and due process, not an appeal on the correctness of a…

A contractual right to close an account without notice may be exercised where the bank considers that exceptional circumstances exist. Established customer…

The iniquity exception to legal professional privilege applies only where there is a clear allegation of fraud or comparable wrongdoing supported by prima…

A shareholders’ agreement may authorise non-conflicted directors to pursue a company’s claims arising from a shareholder’s breach, including claims against…

A contractual investment manager may owe enforceable obligations to a parent company which is a party to the management agreement, even where the services are…

Permission to serve proceedings out of the jurisdiction requires: a serious issue to be tried; a good arguable case within a jurisdictional gateway; and a…

An indemnity costs order does not require exceptional circumstances. The question is whether conduct or circumstances take the case outside the norm of…

Contractual fee provisions for financing an identified commercial project should be construed objectively, by reference to the agreement as a whole, its…

An order for security for costs requires a condition in CPR 25.13(2) to be met and the order to be just in all the circumstances. For a company claimant…

An order for cross-examination in aid of a worldwide freezing order is exceptional, but the court has a broad discretion to make it whenever it is just and…

A party may be barred from raising at a later stage of the same action a claim or defence which, if it wished to pursue it, ought fairly to have been raised at…

A claimant conducting a trial in the defendants’ absence must present the case fairly, including points which may assist the defendants. The court must examine…

A contractual dispute-resolution procedure may make compliance with an earlier contractual obligation a condition precedent to referring a dispute to an…

A public-interest defence to breach of confidence requires a focused disclosure supported by a credible allegation from an apparently reliable source. The…

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

A defendant who files an acknowledgment of service but does not make a qualifying jurisdiction application within the period specified by CPR Part 11 is…

On a challenge under section 67 of the Arbitration Act 1996, the court rehears the jurisdiction issue afresh. Contractual terms may be incorporated through…

A contractual no-set-off clause may exclude both legal and equitable set-off where its wording and purpose support that construction. A lender’s alleged…

An interlocutory receivership order may finally determine, between the parties, the factual basis establishing jurisdiction to appoint receivers. A party…

A commercial adviser who provides services without a contract does not ordinarily acquire a restitutionary right to payment merely because the recipient…

A claimant seeking permission without notice to serve proceedings outside the jurisdiction must disclose any limitation defence which may materially affect…

A costs budget may be revised under Practice Direction 3E paragraph 7.6 only where a material change in the litigation has occurred since the last budget and…

Where a contractual matching mechanism provides for a further agreement on the same terms as the existing agreement, only variations required to give effect to…

Where a claimant resides outside the jurisdiction in a non-Convention state, the court may order security for costs if there is a real risk of substantial…

For CPR 86 purposes, an expected competing claim may be sufficient even though the prospective claimant must first take a legal step, such as rescission. A…

A long and inexcusable delay does not automatically amount to an abuse of process justifying strike out. Strike out for delay requires either a serious risk to…

A bankruptcy set-off under Insolvency Act 1986, s 323 is mandatory where pre-bankruptcy mutual dealings give rise to a contingent claim which later matures…

A conditional fee agreement may make the client liable for solicitors’ costs only where its proper construction requires both success in the claim and an inter…

Alternative service in a Hague Convention case is exceptional and requires special circumstances. The court must consider all relevant circumstances, rather…

For the purposes of the Arbitration Act 1996, whether a tribunal’s decision is an award depends on substance, not its label. A ruling refusing permission to…

Summary judgment is appropriate where the issue is clear, the defendant has no real prospect of success, and no other reason justifies leaving it for trial. A…

Where a public authority unlawfully exacts a fee, restitution is assessed by reference to the legal framework that actually governed the parties. The court may…

A challenge under section 67 of the Arbitration Act 1996 may concern the proper constitution of the tribunal where one contractual party had ceased to exist…

An arbitration challenge under section 68 of the Arbitration Act 1996 may succeed where a tribunal decides a core credibility issue without giving the relevant…

In a warranty claim arising from a share sale, damages are not denied merely because the precise loss is difficult to quantify. Where substantial loss is…

In construing a long-term commercial agreement, the court must undertake a unitary and iterative exercise. It must balance the language, contractual context…

On an appeal under section 69 of the Arbitration Act 1996, a purchaser’s reservation of rights does not, by itself, establish a restitutionary entitlement to…

A contractual payment clause requiring payment within a specified period may also require a charterer wishing to withhold payment because an invoice is…

Where two defendants are jointly and severally liable to purchase shares, each has the right to complete the purchase as against the claimant. The claimant…

A later agreement supersedes an earlier agreement where the two are necessarily inconsistent and preserving part of the earlier bargain would lack commercial…

Where parties choose England as the seat of an arbitration, the court’s supervisory jurisdiction and any later arbitration agreements may create concurrent…

A contractual obligation to pay in cash requires a commercially recognised transfer giving the seller an unconditional and immediate right to use the funds.…

An insured’s recovery is limited to its actual loss, assessed by the value of the property to it at the time of the insured event. The reinstatement cost may…

A solicitor’s negligence claim concerning a lost legal claim requires the court to separate matters dependent on the claimant’s own conduct from matters…

Where cargo is stated in the contract of carriage to be carried on deck and is so carried, it falls outside the Hague or Hague-Visby Rules. The carrier’s…

An exclusive jurisdiction clause under Article 25 of the Recast Regulation requires consent to be clearly and precisely demonstrated. The clause being in…

A party alleging misrepresentation must establish reliance. Reliance requires awareness of the representation when it was made, including where the…

For jurisdictional challenges, the claimant must establish a good arguable case. The test is applied flexibly and may require the court to assess which party…

Under Section 4 of the Brussels (Recast), the question is whether a private individual contracted for purposes outside any business, trade or profession.…

In a time charter, a charterer must bring itself within the clear words of an exception to the obligation to pay hire. Any genuine ambiguity is resolved in…

Negotiations expressly conducted on a subject to contract basis do not ordinarily create a binding contract before formal documentation is completed. The…

The court may use its case-management powers to make a targeted specific-disclosure order where disclosure was inadequate, including where the Disclosure Pilot…

The one voice doctrine requires the English court to determine which body represents the government of a foreign state under English law where the United…

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

Equitable compensation for dishonest assistance may reflect the full loss caused by the assisted breach. A contractual entitlement to fees does not prevent…

On an application for summary judgment, the claimant must show that the defence has no realistic, rather than fanciful, prospect of success. The court should…

For jurisdictional gateways, the governing standard remains a good arguable case. It requires a plausible evidential basis, a reliable view where possible and…

Damages for breach of a warranty as to the quality of shares are generally assessed by comparing the value of the shares as warranted with their true value.…

A worldwide freezing order may support enforcement of a foreign arbitral award where the award has been recognised as an English judgment. The court’s…

On an application for interim relief to support arbitration, the court should apply the American Cyanamid principles where the dispute can realistically be…

Summary judgment may be granted where a defence has no real prospect of success and there is no other compelling reason for trial. The court must avoid a…

Contractual matching rights must be construed by reference to the language of the agreement read as a whole and its commercial context. Where an agreement…

A challenge under Arbitration Act 1996, section 68, addresses procedural unfairness and substantial injustice, not errors of law or fact. A tribunal need…

In construing a commercial contract, the court must give words their ordinary meaning in the context of the agreement as a whole. A replaced agreement may be…

A non-party seeking documents from court records must establish a legitimate interest and obtain permission where required. The court balances that interest…

A settlement scheduled to a Tomlin Order remains a simple contract for limitation purposes. The six-year period applies to an application to enforce a…

A person who undertakes to act for another in circumstances involving entrusted authority, discretion and vulnerability may owe fiduciary duties even outside…

A dispute seeking to invalidate a contract falls within a broad arbitration clause covering disputes of any kind arising in connection with that contract, even…

A person who promises to fund another person’s legal costs is not thereby the party chargeable with the solicitor’s bills for the purposes of sections 69 and…

A contractual default-interest clause is not a penalty merely because it exceeds ordinary interest or is not a pre-estimate of loss. The question is whether it…

An implied representation requires clear words or conduct, assessed objectively in context. Silence or a representee’s uncommunicated assumption will not…

In commercial claims, compensatory interest is assessed broadly by reference to the borrowing rate reasonably applicable to persons with the claimant’s general…

In an amended bareboat charter, an obligation requiring charterers to keep a vessel’s classification and required certificates in force at all times is an…

For security for costs, residence outside the jurisdiction may satisfy the gateway condition where the claimant is not resident in a specified convention or…

A bank must refrain from executing a customer's payment instruction while it has reasonable grounds, judged by the standard of an ordinary prudent banker, for…

Liability for inducing breach of contract requires knowledge of the contractual restriction, including reckless or blind-eye knowledge, and an intention to…

On an opposed application to amend a statement of case, the court applies the summary-judgment test: whether the proposed claim has a real prospect of success.…

Permission to appeal may be refused where the proposed appeal has no realistic prospect of overcoming factual findings that determine jurisdiction. Where…

The no-set-off rule for freight is confined to claims arising from contracts of carriage and to freight in the narrow sense. It does not ordinarily extend to…

An extension of time to challenge an arbitral award under section 68 of the Arbitration Act 1996 is exceptional. The court must evaluate all relevant…

An adjournment of a substantial commercial trial requires an objective assessment of the overall justice of the case. The court must weigh the prejudice and…

Relief from sanctions requires a structured assessment of the breach, its cause and all the circumstances. A serious and continuing failure to comply with a…

Expert evidence should ordinarily be admitted in the form in which it has been prepared, leaving the trial judge to assess its weight and disregard material…

Directors must exercise independent judgment as members of the board. That duty does not licence an individual director to bypass the board by briefing…

An injunction carrying penal consequences must be construed restrictively, clearly and strictly. Its words receive their natural and ordinary meaning in their…

Questions concerning recognition of a foreign government are governed by English law when they arise before an English court. Under the constitutional one…

A freezing order requires a good arguable case on liability and quantum, a real risk of dissipation, and a conclusion that relief is just and convenient. The…

Under Greek law, a guarantor is released under Article 862 only where the borrower cannot satisfy the lender, the lender is at fault, and that fault caused the…

Permission to amend pleadings should be refused only where the proposed amendment has no real prospect of success. The test requires a realistic, more than…

A person who signs a commercial contract as agent may confer contractual rights on the principal, even where the principal is not named. Clear words are…

For contributory negligence, a claimant’s fault must contribute causally to the particular damage claimed. The court must assess the reduction by reference to…

On an application for relief from sanctions, the court must identify the order allegedly breached and apply the Denton three-stage test to that breach. Where…

On discontinuance, the claimant normally pays the defendant’s costs. Departure from that rule requires a good reason, usually involving an un contributed…

An application to extend the statutory time limit for challenging an arbitral tribunal’s jurisdiction engages the discretionary factors identified in Aoot…

On an application for an interim injunction to restrain misuse of confidential commercial information, the ordinary American Cyanamid approach applies unless…

Where a contract provides that an expert determination is final and binding but also states that any determination still in dispute is subject to further…

Where property may be beneficially owned by a judgment debtor and therefore caught by a freezing order, the court may permit commercial lettings if appropriate…

Costs of a discrete application should ordinarily follow the event and be determined on the evidence and arguments presented on that application. A later…

An unresolved application to discharge a worldwide freezing order does not excuse or delay compliance with existing asset-disclosure obligations. The same…

In proceedings to enforce an arbitration award against a foreign state, the document instituting the proceedings must be served through the Foreign &…

For the purposes of section 5 of the Lugano Convention, whether a relationship is one of employment is determined by substance rather than contractual labels.…

Indemnity costs may be ordered where the conduct and circumstances of a claim take it out of the norm. A claim bordering on hopeless, pursued despite the…

An arbitrator has a continuing duty to disclose circumstances which might reasonably give rise to justifiable doubts about impartiality. A further disclosure…

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 a…

Requests for further information must be confined to matters reasonably necessary and proportionate to enable a party to prepare its case or understand the…

An alleged oral commercial agreement must be proved on the evidence as a whole. In assessing disputed recollections, the court should test witness evidence…