The Court of Appeal has held that a remarkably broad exclusion clause was not unreasonable within the framework of the Unfair Contract Terms Act 1977. The judgment includes a discussion of various factors which the court will take into account when deciding such cases.
A recent Supreme Court decision is now the leading case on negotiating damages. It has emphasised the compensatory basis of contractual damages and restricted negotiating damages to cases where the obligation breached by the defendant protected an asset with economic value. While the decision offers welcome clarity, it leaves some important questions unanswered.
The Technology and Construction Court was recently asked to determine the enforceability of a limitation of liability clause in an IT services agreement. The case provides a useful reminder to practitioners of the importance of clear contractual drafting to ensure that the agreement accurately reflects the parties' intentions as to their respective obligations and liabilities.
The Supreme Court recently overturned the Court of Appeal in a judgment which considered the proper measure of damages in a situation where the party suffering loss had avoided a greater loss as a result of the breach by the other party. This decision highlights the issues that parties can encounter following repudiatory breach and disputes that arise regarding alleged acts of mitigation. However, the facts were unusual and the court was limited to considering whether the arbitrator had erred in law.
In a case involving the shareholders of Lush Cosmetics, the Court of Appeal dismissed an appeal relating to the correct interpretation of two companies' articles of association in respect of the valuation of shares which were subject to pre-emption rights, applying Lord Neuberger's well-known judgment on contractual interpretation in Arnold v Britton.
The Court of Appeal recently held that where a contract would, on its face, be unenforceable because the parties failed to agree an essential term, the missing term cannot be implied. The dispute arose when an estate agent failed to mention what event would trigger payment of his commission until after a sale that he introduced had been agreed. The fact that the first-instance decision was overruled indicates how subjective the formation of contracts remains.
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.
A recent Court of Appeal judgment addressed a number of issues typically encountered in disputes relating to the sale of goods. The decision is a reminder that where oral statements are made in the hope of encouraging a buyer to enter into a sale and purchase contract, if those statements depart from the written terms of the contract, they may render the written terms ineffective.
The Court of Appeal recently held that a shareholder was estopped by convention from relying on a pre-emption agreement for the sale of shares which had been agreed by members informally through correspondence some eight years previously and had since allegedly been forgotten. The decision confirms that estoppel by convention can be based on forgetfulness as well as mistake.
In British Airways v Spencer the High Court partly allowed an appeal by British Airways (BA) of the decision of a deputy master refusing BA permission to adduce expert evidence in litigation against trustees of its pension fund. The judgment provides useful guidance on the principles to be applied to determining whether expert evidence is admissible under Civil Procedure Rule 35.1.
The Court of Appeal has found that both partners in a firm of property consultants were jointly and severally liable on account of a breach of fiduciary duty by one of them. The judgment provides an interesting analysis of the liability of a partnership where one partner has acted in breach of fiduciary duty in circumstances where other partners are unaware of the breach.
The High Court recently refused to grant an anti-suit injunction restraining Danish insolvency proceedings. The case provides a useful discussion of the circumstances in which the court is likely to grant an anti-suit injunction, in particular where there are jurisdiction issues involving elements of both civil and insolvency proceedings.
The High Court struck out a claim for breach of warranty in Ipsos SA v Dentsu Aegis Network Limited on the basis that the claimants failed to comply with the contractual notification provisions set out in the share purchase agreement. The case highlights the importance of strict compliance with warranty claim notification requirements and dealing with such claims promptly to avoid limitation issues.
The High Court recently awarded a successful claimant some of its costs on an indemnity basis as a result of the way in which the defendant's expert witness had prepared and given his evidence at trial. The case highlights the need, when choosing experts, to give some thought to their manner and approach to preparing and giving evidence, as well to ensure that their evidence is comprehensive and delivered clearly.
The Commercial Court recently dampened the Fiat car group's hopes of receiving a loss-of-profits pay-out from Lotus by dismissing its application for summary judgment on a claim for repudiatory breach of contract. In doing so, the Commercial Court confirmed that when assessing damages, a defendant will be required to fulfil only the minimum contractual obligations and a claimant will not get more than it bargained for.
Three recent High Court decisions illustrate the continued trend towards firm rulings relating to relief from sanctions, following the much-publicised changes in April 2013 and the seminal case of Mitchell v News Group Newspapers Ltd. Relief was denied in all three cases. This firm approach may materially change the course of proceedings where rules and orders are not respected by parties.
In what is believed to be the first decision on the issue, the High Court has decided that a claimant may serve an individual defendant who is a director of a UK company at any address shown as his or her current address in the Companies House register, despite the director claiming to be resident outside the jurisdiction. The court held that this service method operates as a parallel code to the Civil Procedure Rules.
The Court of Appeal recently upheld the High Court's decision in Makdessi v Cavendish Square Holdings BV allowing committal proceedings for contempt of court to be brought against Mr Makdessi for making false statements in his pleadings. This judgment is an important reminder to individuals that they must read statements of case in full before signing the statement of truth.
The High Court recently considered a preliminary issue regarding service of proceedings in a breach of warranty claim. In holding that proceedings had been validly served, the court made a number of interesting comments, particularly in relation to the service provisions in the Civil Procedure Rules and notice generally. The case underlines the importance of clearly specifying how documents are to be served and notice given.
The High Court recently considered the factors relevant to an application for relief under amended Civil Procedure Rule 3.9. The court concluded that doing justice between the parties remained of overriding importance, notwithstanding the purpose of the 2013 Jackson reforms to encourage strict compliance with rules, orders and directions. The decision represents an unexpected departure from the hard-line approach on compliance failures.