The High Court recently confirmed on appeal from a master's decision that although an entire agreement clause concerning the sale of Nottingham Forest Football Club purported to extinguish all previous representations, it did not in fact exclude liability for misrepresentation. That there were contractual indemnities covering effectively the same subject matter did not, without clear language, mean that liability had been excluded.
A recent case serves as a lesson that context is key to a watertight entire agreement clause. The purchasers of Nottingham Forest Football Club brought a negligent misrepresentation claim against the club's sellers. The sellers denied the claim and argued that the share purchase agreement provided a contractual procedure for dealing with any misrepresentations of the club's liabilities, and that the relevant entire agreement clause should therefore be read in that context.
In The ECU Group plc v HSBC Bank plc the High Court held that HSBC, the proposed defendant, had to provide pre-action disclosure of Bloomberg messages, emails, trading data and compliance documents. The decision is a useful example of the categories of documents that the court may be prepared to order against a bank in respect of pre-action disclosure. However, the scope of disclosure was kept narrow, a factor which no doubt played in ECU's favour.
The Court of Appeal recently held that an exemption clause providing that "liability for any claim in relation to asbestos is excluded" was drafted sufficiently widely to exclude liability for negligence where the party relying on it had allegedly failed to identify asbestos at an early stage. It also reiterated that the contra preferentem rule now has a very limited role in the interpretation of commercial contracts negotiated between parties of equal bargaining power.
In a recent case the Court of Appeal held that a term could not be implied into an agreement because, although it was linguistically consistent, it was substantively inconsistent with the express terms. In doing so, the court shed further light on the application of the "cardinal rule" that an implied term must not contradict any of the express terms of the contract.
In a dispute between brewers Starbev and Interbrew Central European Holdings (ICEH), the Court of Appeal dismissed Starbev's appeal in relation to the interpretation of a clause referring to 'the purpose' of a transaction. Starbev argued that the clause should be interpreted as referring to the sole purpose of the transaction, whereas ICEH argued that it referred merely to a purpose of the transaction.
The High Court recently considered whether a party to a contract had been entitled to accept the other party's repudiatory breach and terminate the contract without giving the other party an opportunity to remedy the breach, as required under the termination provision. The court held that the notice clause did not apply to repudiatory breaches; even if it did, the breach could not be remedied and thus fell outside the scope of the termination provision.
In Global Maritime Investments Cyprus Limited v OW Supply & Trading A/S (under konkurs) the High Court held that a jurisdiction clause prevented the defendant from pursuing issues in the Danish courts, even though jurisdiction was not stated to be exclusive. Either it was an exclusive jurisdiction clause or it became exclusive in respect of issues raised first in England.
In Trust Risk Group SpA v AmTrust Europe Limited the Court of Appeal rowed back from the presumption that parties that have agreed differing jurisdiction arrangements for their disputes intended their disputes to be governed by one regime. The case is a reminder for those drafting agreements of the importance of consistency in related contracts and of the pitfalls that may be hidden in the boilerplate.