How are contradictory dispute resolution clauses resolved where the agreements are entered into at different times? Intention and purpose are key, as set out in the test in BNP Paribas v Trattamento. In a recent case, the parties intended two agreements to perform separate roles as part of one transaction (even though the second was not contemplated at the time of the first) and the court found that the Trattamento guide is to be followed.
In a reminder not to 'over-lawyer' witness statements, a High Court judge has ordered that statements be revised to remove inappropriate content. The judge held that witness statements should not contain arguments or references to documents with which the witness had no personal dealing. Further, fraud allegations do not give parties an increased latitude concerning what witness statements should (and should not) contain.
Representatives of a lender on a board will not automatically impose directors' duties on the lender, but they may apply where a director's specific instructions have led directly to a breach of fiduciary duty. The High Court recently explored this issue in an appeal in the case of Standish v Royal Bank of Scotland.
In a recent case involving a man killed on a motorway, the High Court set out the difference between evidence which will be subject to Civil Procedure Rule (CPR) 35's restrictions and that which will not. Specifically, where relevant opinion evidence (even hearsay) is prepared by someone qualified to give expert evidence, it will generally be prima facie admissible. However, where evidence is produced by an expert instructed by the parties for the purposes of the proceedings, it will be subject to CPR 35.
The chancellor of the High Court recently clarified to which cases the disclosure pilot scheme applies. He also provided useful guidance on the extent to which the court should exercise its discretion to inspect allegedly privileged documents under the new regime and emphasised the change in behaviour and culture envisaged under the pilot.
A recent Supreme Court decision concerned a mass tort claim and the potential liability of an English parent company for the actions of its foreign subsidiaries. The court found that a duty of care can exist between a parent company and third parties affected by the actions of its subsidiaries, but was reluctant to place limits on the types of case where a parent company might incur a duty of care.
A recent Court of Appeal decision has confirmed that the test for deciding whether a claimant has a good arguable case is relative. Where a court lacks the evidence to decide which party has the better argument, a more flexible approach should be adopted. In circumstances where the evidence is thin, it is not all relative and claimants are required only to demonstrate a plausible evidential basis that the gateway exists.
A recent High Court of Justice case reinforced the courts' desire to remain the guardians of honest behaviour in relation to financial market practices; the objective standards of dishonesty are to be set by the courts rather than the market. Parties must therefore rely on contemporaneous documents when trying to prove claims for dishonest assistance, as the court will not permit them to adduce expert evidence of wider market practice.
The Court of Appeal recently considered whether claims for loan principal and interest were separate claims for the purpose of an application for permission to serve a claim form out of the jurisdiction and whether an obligation to pay interest could be implied into an oral loan agreement. The decision provides a helpful clarification of the nature of claims for interest and the application of the modern test for implication of contractual terms to a claim for an implied term for payment of interest.
To render a force majeure clause watertight, time should be taken to consider all of the potential risks that may prevent parties from fulfilling their obligations under the contract and spell these out in the clause. Also, where an event has occurred, parties must be able to demonstrate that the force majeure event was the sole cause of any failure to fulfil their contractual obligations. This was recently upheld by the High Court.
The Supreme Court recently ruled that a bank providing a reference relating to its customer owed a tortious duty of care only to the addressee. The decision reflects the wider judicial trend of restricting the circumstances in which duties of care for negligent misstatement are found to exist on the basis of an assumption of responsibility by the party making the statement.
The Court of Appeal recently confirmed that an English jurisdiction clause in the underlying International Swaps and Derivatives Association Master Agreement under which certain swaps were made should be applied to disputes relating to the swap transactions, rather than an Italian jurisdiction clause in a competitor agreement governing the parties' generic relationship.
In a recent dispute about the existence of a contract, the High Court found that the parties intended to be bound only when all parties had signed. An open-ended duty to negotiate in good faith was void for uncertainty and the claim was struck out. This case is a useful reminder of several principles, including that an obligation to negotiate in good faith must be tightly drafted and time limited in order to be effective.
The Court of Appeal recently handed down its much-anticipated judgment on the mis-selling and London Inter-bank Offered Rate (Libor) manipulation test case earlier this month. While the appeal was dismissed in full, the Court of Appeal's decision has clarified a number of aspects of the law in this area – in particular, the circumstances in which an implied representation in respect of Libor would arise.
The Court of Appeal recently applied established English conflict of laws rules in holding that a non-bearer holder of issued notes was not entitled to sue under those notes for breach of contract. In doing so, the court has provided commercial certainty to downstream holders of interests in securities, but left open important questions as to third-party redress under these structures.
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.
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.
The High Court recently rejected a claim by RBS that interview notes taken by the bank and its external lawyers in the course of two internal investigations were privileged, finding that neither legal advice privilege nor lawyers' working papers privilege applied. In doing so, it confirmed the narrow approach taken to the definition of a 'client' in Three Rivers (No 5).
The High Court recently held that the defendant signatory to a commitment letter had intended to be legally bound by that document. In so finding, the court held that the defendant was in anticipatory repudiatory breach of contract. While the decision ultimately turned on the words of the commitment letter, it demonstrates that the court will take a pragmatic approach to determining intention to create legal relations.
A recent High Court decision, one of the first from the Financial List, has demonstrated a strict approach to contractual construction and interpretation in relation to negotiated documentation for financial traded instruments. It also shows the potential of the Financial List to provide helpful and clear guidance on the application of existing case law in the context of financial markets.
The Supreme Court has clarified the law on implied terms: in order for a term to be implied, it must be necessary for business efficacy or alternatively be so obvious as to go without saying. In practice, it will be a rare case where one of these conditions is satisfied, but not the other. Although the case related to a property transaction, the decision has wider implications across all commercial contracts.
The Court of Appeal recently reversed a first-instance decision of the High Court by allowing early redemption of certain convertible securities (known as 'enhanced capital notes'). While there was no dispute as to the applicable principles of contractual interpretation, the Court of Appeal's judgment highlights that very different conclusions can be reached when applying those principles to complex transaction wording.
In Thornbridge Limited v Barclays Bank PLC the High Court considered a claim for the mis-sale of an interest rate swap based on several different causes of action, all of which were unsuccessful. The decision includes a detailed analysis of the circumstances in which advisory and other duties will arise in the context of the sale of an interest rate hedging product.
A recent Supreme Court decision has clarified the scope of the standard form Commercial Court freezing order, holding that the right to draw down moneys under a loan agreement can be an 'asset' where the extended form freezing order is granted. This is the first time that the Supreme Court has given guidance on post-2002 standard form Commercial Court freezing orders and its interpretation turned on the strict construction of the wording of the order.
The Commercial Court has declined to stay an English action in favour of prior proceedings in Italy, notwithstanding the fact that the dispute pre-dated the application of the recast EU Brussels Regulation. Applying the 2001 Brussels Regulation, the court refused a stay under Articles 27 and 28. Unusually, the court also granted summary judgment at the same hearing.