High Court: Commercial Court judgments, 2021

A publicity order under regulation 18 of the Trade Secrets (Enforcement, etc) Regulations 2018 requires an assessment of appropriateness and proportionality.…

A defendant wishing to challenge jurisdiction must first file an acknowledgment of service complying with CPR Part 10. Where that requirement is not met, an…

Legal professional privilege is not displaced merely because a client accused of fraud may have lied to the solicitor or advanced a false case. The question is…

A challenge under section 67 of the Arbitration Act 1996 is a rehearing de novo, not a review of the arbitral tribunal’s decision. The tribunal’s conclusions…

Section 66 of the Arbitration Act 1996 gives the court a discretion to permit enforcement of an award as a judgment or to enter judgment in its terms. The…

An arbitral tribunal may decide a case on a basis not expressly pleaded where the issue was sufficiently in play and the parties had a fair opportunity to…

Under paragraph 18 of CPR Practice Direction 51U, the court may order additional specific disclosure, or vary an existing extended-disclosure order, where the…

Permission to withdraw admissions in a pleading is governed by Civil Procedure Rules 1998 CPR 14.1(5) and must be determined by weighing all the circumstances…

A challenge under section 68 of the Arbitration Act 1996 is a longstop remedy reserved for extreme cases. The applicant must show a serious irregularity and…

A claim may be struck out, or summary judgment entered, where its essential factual foundation is invalid and the pleaded case cannot succeed on the documents.…

A court may grant negative declaratory relief where there is a real and present dispute, the parties are affected by the determination, the process is fair…

For summary judgment purposes, a claim relying on section 32 of the Limitation Act 1980 fails where the claimant has no realistic prospect of proving that…

On an application for strike out or summary judgment, the court must distinguish between a claim that has no reasonable grounds or realistic prospect of…

An application to stay proceedings on forum non conveniens grounds may be permitted out of time even after submission to the jurisdiction. Submission is an…

A claimant cannot use fresh proceedings to re-argue matters determined in earlier possession proceedings after the available appeal routes have been exhausted.…

In a reciprocal cryptocurrency exchange, the obligation to return equivalent value before obtaining the cryptocurrency back is inconsistent with a trust. The…

An express anti-set-off clause in a commercial lending agreement may exclude a borrower’s right to set off cross-claims, provided the clause satisfies the…

An unlawful means conspiracy must be pleaded with clear allegations of the combination, the intention to injure and the identified unlawful means. A court may…

A party’s disclosure obligations extend only to documents within its present or former control. Documents held by a third party may be controlled through a…

Italian municipalities have general civil-law capacity. Banca Nazionale Del Lavoro S.p.A v Municipality of Cattolica ( decision 8770/20) nevertheless…

State immunity depends on the character of the impugned conduct, assessed in its full context. Conduct remains official where public office supplied the…

An adjournment should be refused where the applicant has identified the hearing window, urgency requires determination, and no particularised explanation for…

A contractual termination clause must be construed in the context of the agreement as a whole. A party may retain a common-law right to terminate for…

Proceedings commenced without a company’s authority, including proceedings purportedly brought against its directors, are liable to be struck out. Injunctions…

A stay of execution is exceptional where a contract contains a no-set-off clause. The party seeking the stay bears the burden of establishing strong…

Knowingly combining to dissipate a judgment debtor’s assets in breach of a freezing order can constitute unlawful means conspiracy. Liability requires a…

Section 73(1) of the Arbitration Act 1996 bars a later jurisdiction challenge based on a new ground, even where the underlying evidence or arguments develop…

A party’s procedural label does not determine whether it is a claimant or defendant for a particular claim. The court must examine the substance of the…

Costs should ordinarily be determined at the hearing where the court has sufficient visibility of the relevant circumstances. A separate hearing should be…

On a without-notice application to extend a claim form, the applicant must present the application fairly and disclose material matters which may affect the…

An English court may order disclosure even where compliance might breach foreign criminal law. The governing procedure is English law, and foreign law does not…

Where disputed issues concerning a freezing order have been resolved, the ordinary approach is to make a costs order rather than reserve costs. Costs…

A worldwide freezing order may be continued against a third party where there is a good arguable case that the third party holds assets connected with a…

A contribution claim under the Civil Liability (Contribution) Act 1978 may be a “claim in tort” for the purposes of Practice Direction 6B, paragraph 3.1(9)…

Contractual warranty notifications must be construed objectively and in accordance with their wording. Where a notice must state in reasonable detail the…

In committal proceedings for breach of freezing and disclosure orders, the court may proceed in the defendant’s absence only in exceptional circumstances. The…

On summary judgment, a defendant must show a realistic, rather than fanciful, prospect of success. The court may decide the issue where it has the evidence…

Where an oral loan is negotiated by an individual who does not identify a specific corporate borrower, the court determines the contracting party objectively…

Permission to serve a claim form out of the jurisdiction is confined by the terms of the permission order. Where the order specifies an address and does not…

An anti-suit injunction will ordinarily be granted where a claimant establishes a binding and applicable arbitration agreement and the foreign proceedings…

Contracts expressly providing for FOB delivery are construed as sale contracts requiring the seller to deliver, or procure delivery of, the goods at the agreed…

A surety obligation is characterised by construing the agreement as a whole. A provision which is primary and independent may be an indemnity, while a…

A claimant under an agreed-value insurance policy must prove a loss falling within the policy, but need not disprove fraud unless fraud is alleged. A court may…

On a summary judgment application, the court must assess whether the claim has a real, rather than fanciful, prospect of success, taking account of evidence…

Under contractual decommissioning-security arrangements, the “Relevant Year” for a proposed plan is ordinarily the next calendar year after the event…

A freezing injunction requires a good arguable case, a real risk that a future judgment will be defeated by unjustified asset dissipation, and justice in all…

On an application concerning continuation of a freezing order, the court determines the relief actually sought and does not decide an unpleaded challenge to…

The public-policy exception to recognition of a judgment under Article 34(1) of Regulation (EC) No 44/2001 is exceptional and must be construed strictly.…

An indemnity costs order is justified where, viewed in the round, the litigation was out of the norm. The question is whether justice requires removal of…

Where a document has been placed before a judge and specifically referred to in open court, the default position is that access should be permitted under the…

Extended disclosure must be directed to the issues in the proceedings and must remain reasonable and proportionate. The court may require searches of…

Permission to amend a statement of case, particularly at a late stage, requires the applicant to establish the overall justice of the amendment, having regard…

A shipowner’s right to collect freight under an owners’ bill of lading is not ordinarily restricted by an implied term in a time charterparty. The owner’s…

A rehabilitation manager’s authority under Kazakh law is assessed when the transaction is made. A transaction may later be voidable without that consequence…

Fortification of an undertaking in damages is discretionary. The applicant for fortification must show a good arguable case that: loss has been or will be…

On an application for summary judgment, the court must determine whether the opposing case has a realistic prospect of success and whether there is any other…

Fortification of a cross-undertaking supporting freezing relief is discretionary. The applicant must show a good arguable case that there is a sufficient risk…

Summary judgment should be granted on a short, decisive point of law or construction only where the court has the evidence necessary for a proper determination…

Where a covenant requires consent that is not to be unreasonably withheld, the covenantor bears the burden of proving unreasonableness. The question is one of…

On an interim application for an anti-suit injunction, the claimant must establish to a high degree of probability that a valid arbitration agreement governs…

Contractual forecasts which are expressly non-binding purchase commitments may nevertheless be required to reflect the supplier’s genuine and honest estimate…

An application under Arbitration Act 1996, section 32, is unlikely to be appropriate where section 72 protects an alleged party who has taken no part in the…

Dicey Rule 3 is a substantive and mandatory rule of English law. It requires the court to examine the substance of a claim rather than its pleaded form. A…

Non-party disclosure is exceptional. An applicant must show that the documents sought may well support its case or adversely affect another party’s case, that…

In enforcing a final arbitral award, the court may determine whether a post-award condition affecting enforcement has occurred, including whether the debtor…

An unlawful means conspiracy claim requires concerted unlawful action which causes the claimant's loss. Allegations of agreement, impropriety or falsity cannot…

For disclosure under Practice Direction 51U, Model E extended disclosure is exceptional. Serious allegations, high value, or the parties’ ability to bear the…

For a constituent territory of a federal state to claim immunity under section 14(2) of the State Immunity Act 1978, it must show that it acted in the exercise…

For jurisdiction under Article 7(1)(a) of the Recast Brussels Regulation, a claimant must show a good arguable case that the courts of the proposed forum are…

An anti-suit injunction will ordinarily be granted where foreign proceedings breach a binding arbitration agreement, unless the respondent establishes strong…

Under CPR rule 6.15, the court asks whether, in all the circumstances, there is good reason to authorise alternative service. The inquiry is fact-sensitive and…

A contractual obligation to take all reasonable steps to maintain harbour facilities in reasonably good working order may require repair of known and…

The court may order indemnity costs where conduct or circumstances take the case outside the norm and justify that order. Persistent non-compliance with…

Under section 9 of the Arbitration Act 1996, a stay is mandatory where proceedings concern a matter falling within an arbitration agreement. The court must…

Fortification of a cross-undertaking requires the defendant to show a good arguable case that the interim order will cause loss. Proof on the balance of…

A prior refusal to discharge or vary orders generally requires a material change of circumstances before the application can be renewed. Bankruptcy alone may…

Where an arbitral award is challenged in the courts of the seat, an English enforcement stay remains discretionary. The court should assess the challenge under…

A jurisdiction clause must be construed in its contractual and commercial context. A clause requiring parties to submit disputes to the Courts of England and…

Under a share purchase agreement, a contractual retention mechanism operates according to its express notification requirements. A purchaser cannot withhold…

An English court will restrain enforcement of an on-demand bond only in very limited circumstances. The applicant must establish, to an enhanced evidential…

On a summary judgment application, the court may decide a short point of law or construction where the evidence is sufficient and the parties have had a proper…

In an FOB sale contract requiring vessel nomination, time is generally of the essence. The buyer must provide a valid nomination by the contractual deadline. A…

An interim payment application is discretionary even where the statutory or procedural preconditions are met. After a carefully conducted case management…

An anti-suit injunction in support of arbitration is discretionary. Where the court is satisfied, on the interlocutory material, that there is a high degree of…

When permission is required to serve proceedings out of the jurisdiction, the claimant must show that England is clearly or distinctly the proper place for the…

Costs must be assessed in the round, having regard to reasonableness and proportionality. High rates, excessive staffing and unnecessary documentary work may…

Summary judgment may be granted in a fraud claim where the defendant has no real prospect of defending it and no compelling reason requires a trial. The court…

On an application to strike out or obtain summary judgment, the court may decide a short point of law or construction where it has the necessary evidence and…

An application made before the deadline for serving a defence is an in-time case-management application, not an application for relief from sanctions. The…

Under sections 11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995, the law governing a tort is generally the law of the country…

A court hearing a claim for delivery up at a fixed-date hearing may determine the issue summarily where the evidence discloses no realistic defence or…

A contractual hire formula referring to published market rates must be construed objectively, considering its language, commercial context and the need for the…

A term will be implied into a commercial guarantee only where necessary to make the contract work, or so obvious that it goes without saying. Fairness…

Under an off-hire clause, an omission is not confined to failure to perform a contractual obligation. A sub-charterer’s failure to act may qualify where, in…

An assignee who takes contractual rights subject to an arbitration clause may owe an equivalent equitable obligation to respect that clause, including when…

On an application for summary judgment or strike out, a limitation issue under section 14A of the Limitation Act 1980 should be determined summarily only where…

A judgment following a private hearing of an arbitration claim should be published where this can be done without disclosing significant confidential…

For the purpose of joining HMRC and amending pleadings, a claim is arguable if it has a realistic legal basis on the assumed facts. A self-assessment may…

A challenge under section 68 of the Arbitration Act 1996 requires both a serious irregularity and substantial injustice. The statutory threshold is…

Section 67 of the Arbitration Act 1996 permits a challenge to an award concerning an arbitral tribunal’s substantive jurisdiction. It does not confer a general…

A bespoke clause in a marine cargo policy may provide cover beyond physical loss or damage where its language clearly does so. A clause covering the…

A fraudulent misrepresentation claim may succeed on liability yet fail for want of causation and loss. A representation that investors will receive the “same…

A defined list of insured diseases will ordinarily be treated as exhaustive where the policy states that “Infectious Disease means” the listed diseases. The…

A pass-on defence should not be struck out where it has a realistic prospect of success. In claims for compensation for competition-law infringements, pass-on…

Under Russian law, limitation begins when the claimant knows, or should know, of the violation of its right. Before 1 September 2013, knowledge of the proper…

An arbitrator should be removed under section 24(1)(a) of the Arbitration Act 1996 only where the circumstances, assessed objectively at the hearing, would…

An adjournment may be granted where a party seeks a late opportunity to engage with proceedings, but the court may impose conditions to protect the opposing…

On a summary judgment application, a contractual obligation which has already accrued remains enforceable unless clear contractual language removes or suspends…

In a misrepresentation claim, reliance requires more than proof that the claimant would have acted differently if told the truth. The representee must have…

The general rule that costs follow the event does not prevent an issue-based costs order. The court may reflect a party’s success on some issues, the conduct…

An expert determination clause making a decision final and binding except for manifest error provides a narrow route to court intervention. Manifest error…

An English court may make an order under Civil Procedure Rules 1998, Part 71, requiring an individual judgment debtor who is a party to English proceedings but…

An anti-suit injunction will ordinarily be granted to enforce an exclusive English arbitration agreement unless strong or good reasons justify refusal.…

An application to set aside default judgment engages the principles governing relief from sanctions, together with the requirements of CPR r.13.3. The…

A contract may combine guarantee and indemnity obligations. Its character depends on the words used and their true construction. Where an instrument makes the…

An arbitration agreement requires objective consensus as to the arbitration clause itself. The separability principle in s 7 of the Arbitration Act 1996 does…

A challenge under section 67 of the Arbitration Act 1996 concerns substantive jurisdiction, not the admissibility of a claim. A contractual condition requiring…

A claimant may remain a statutory victim of a transaction defrauding creditors even after the debtor has subsequently and unilaterally reversed the…

Permission to amend pleadings is discretionary and must be determined by applying the overriding objective. A very late amendment carries a heavy burden…

A completion guarantee must be construed by its contractual language and commercial context. Where completion requires commercially acceptable quality and…

The power under Civil Procedure Rules 1998, CPR 3.1.7, to vary or revoke an order is broad but subject to principled constraints. It will normally be exercised…

A committal order will not be set aside or discharged where the alleged defects in service or notice are unsupported by the evidence, and the contemnor knew of…

A worldwide post-judgment freezing order may be granted to facilitate enforcement where the claimant has a judgment, the defendant has assets, there is a real…

An applicant seeking a worldwide freezing order must establish a good arguable case, an objectively assessed real risk that a future judgment will go…

Summary judgment may be given on a solicitor’s claim for fees where the client has no realistic defence. A bill complying with section 69 of the Solicitors Act…

In a post-judgment application to vary a worldwide freezing order, the defendant bears the burden of persuading the court that no other assets are available to…

Where a party has established a high degree of probability that foreign proceedings breach a binding exclusive jurisdiction agreement, the court will…

In a negligence claim concerning the loss of property intended to pass under a tax mitigation scheme, damages were assessed at the date when the claimant would…

An arbitration agreement does not ordinarily have retroactive effect. Wide wording, including disputes arising “in connection with” a contract, is insufficient…

Declaratory relief is discretionary. The court must identify a real and present dispute, ensure that all affected parties are before it or properly…

The discretion to order indemnity costs is wide, but the circumstances must take the case outside the norm. This includes conduct unreasonable to a high…

Disclosure should be ordered where the issue is a key issue arising on the pleadings, resolution requires contemporaneous documents, and undisclosed documents…

A debarring order for unpaid costs is available, but it is not automatic. The court must exercise case-management discretion with care, particularly where the…

For summary judgment, the court asks whether the opposing case has a realistic, rather than fanciful, prospect of success and whether any other compelling…

A supplier’s contractual and tortious duties depend on the purchaser’s particular purpose, as communicated when the contract is made. Where biomass boilers are…

For service at a company’s place of business, the company may be held to the address publicly recorded at Companies House until the change is published. A…

An order for further Extended Disclosure under the Disclosure Pilot requires proof that the variation is necessary for the just disposal of the proceedings and…

The principle of open justice is fundamental, but a hearing or part of a hearing may be conducted in private where a statutory or procedural exception applies…

Damages for an immediate loss and a later loss of investment opportunity may be awarded cumulatively, provided the calculation avoids double recovery. Where…

A bank’s Quincecare duty is ancillary to its primary duty to act on a valid customer mandate. It requires the bank to refrain from executing an instruction…

The construction of a contractual success-fee provision is objective. The court must consider the language used, the relevant factual matrix and commercial…

A company may pursue a resigning director for breaches of fiduciary duty without first undertaking a general investigation or account of sums that may be due…

On an application applying the CPR Pt 24 approach, summary judgment is appropriate where the defendant has no real prospect of successfully defending the claim…

An undertaking given in support of an anti-suit injunction should be construed in light of its purpose. Where it was given to ensure that a claim pursued in…