The High Court recently implied a term into a contract for the sale of government global depositary notes by Lehman Brothers International (Europe) in order to make the contract workable. The decision is of interest because it considers how the courts should address a situation where the subjective expectation of the parties at the time is clear, but the objective intention apparent from their bargain is more difficult to determine, particularly where the objective interpretation may lead to a contract being incapable of being performed.
The Court of Appeal has ordered rectification resulting in one party being in breach of warranty and liable to pay damages. It is rare for the court to order rectification as it is often difficult to satisfy the test to do so. This case serves as a welcome reminder that the court is willing to order rectification to prevent one party from seeking to take advantage of a situation when a mistake is discovered.
The Commercial Court recently discharged an injunction restraining the enforcement of a US court order made under Section 1782 of Title 28 of the US Code (Assistance to foreign and international tribunals and to litigants before such tribunals). Section 1782 applications can be a useful weapon in an English litigator's armoury as a means of obtaining evidence under the control of a US-based entity through US-style discovery, including by the use of depositions and documentary evidence.
The English courts can make draconian worldwide freezing orders. Such an order will usually contain an undertaking by the applicant to seek permission from the English court before enforcing the order outside England and Wales or seeking an order "of a similar nature". A recent commercial court decision provides welcome guidance on how it will approach the scope of this undertaking.
The High Court recently upheld the contractual right of an online foreign exchange retail trading broker to revoke trades entered into by a customer, on the basis that the customer had breached a contractual duty not to trade abusively. The court held that the broker's right to revoke was not subject to a Braganza duty to exercise it in a way which was not arbitrary, capricious or irrational in a public law sense.
A recent Court of Appeal decision provides a useful reminder of the difficulty in establishing the high threshold of fraud and that the fraud exception to the principle of autonomy is likely to be relevant in only very few circumstances. The decision provides comfort that the courts should not second guess honest representations of law. In the absence of clear evidence that the signatory acted fraudulently, the autonomy principle should be upheld.
The High Court recently granted summary judgment for rectification of a trust deed without a hearing. The court did this "in such plain circumstances" where the evidence demonstrated that there was "no real prospect of a realistic challenge" to the position that the final version of the deed should have been executed, not an earlier draft.
In WW Property Investments Limited v National Westminster Bank plc – one of many interest rate swaps claims that have been made since the global financial crisis – the High Court confirmed, in line with previous decisions, that interest rate hedging agreements are not wagers in law where at least one party entered into the contract for a genuine commercial purpose and not to speculate.
The decision in Medhi Khosravi v British American Tobacco plc provides a useful reminder that it can be a risky strategy to seek extensions of time for service of a claim which has already been issued. Such extensions should not be granted lightly and might be set aside at a later date.
Barnett Waddington Trustees (1980) Ltd v The Royal Bank of Scotland Plc is an important borrower-friendly High Court decision, arising from a bank's attempt to force a borrower to pay costs allegedly arising from the termination of an internal interest rate swap on early redemption of a £9,237,000 facility which had been taken out to finance the acquisition, development and letting of a property.
The Supreme Court's recent decision in Arnold v Britton provides a salutary reminder of the reluctance of the English courts to re-write 'bad bargains', even if they have catastrophic unforeseen commercial outcomes for one of the contracting parties. This is in stark contrast to the more lenient approach taken by some courts in civil law jurisdictions.
Following a recent English High Court decision, it should now be more difficult for parties to evade the effective service of English court documents in Russia. Given the continuing prevalence and importance of proceedings involving Russian litigants before the English High Court, this case provides a useful guide as to what constitutes good service of English proceedings in Russia.
Generally under English law, once a limitation period has expired it is not possible to bring a new claim that is out of time. However, in certain circumstances the courts may grant permission for a statement of case to be amended to introduce a new cause of action which would otherwise be time barred. A recent Court of Appeal decision provides a useful reminder of the threshold that must be met in order to gain such permission.
A recent interim decision in the Serious Fraud Office's (SFO) continuing battle with the Tchenguiz brothers has confirmed the court's position in relation to the use in legal proceedings of privileged documents that were mistakenly disclosed during the course of the proceedings. More broadly, the case illustrates the difficulty for the SFO to pursue its stated objective – investigating fraud, bribery and corruption – with limited resources.
The Court of Appeal recently considered whether a contract contained a general duty of good faith or a duty limited to two specified purposes. The court's decision contrasts with the High Court decision in Yam Seng, although the Court of Appeal did not expressly disapprove it. It now looks as if the scene is set for further litigation exploiting the uncertainty as to implied duties of good faith.
A recent High Court decision underlines the importance for lawyers of taking care when settling disputes. The court considered whether a binding settlement agreement had been made where the parties to a dispute concerning a commission payment had exchanged solicitors' letters agreeing to settle the dispute, but had been subsequently unable to agree the terms of formal settlement documentation to record their agreement.
Part 36 of the Civil Procedure Rules provides a statutory procedure for settlement that is a self-contained code. Parties to litigation are free to make settlement offers outside the terms of Part 36, but a recent decision by the Court of Appeal provides a salutary reminder that a party which fails to make an offer in accordance with the strict terms of Part 36 cannot expect to secure the costs benefits which Part 36 confers.