‘Breathing space’: the impact of a more consensual approach – 3 Hare Court

‘On 27 April 2020 the British Institute of International and Comparative Law (BIICL) published Breathing Space – a Concept Note on the effect of the pandemic on commercial contracts. The central thesis is that to mitigate the damaging effects of COVID-19 on the global economy, private law should encourage compromise and mediation rather than a zero-sum rush to terminate contracts and then to litigation and arbitration.

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3 Hare Court, 29th June 2020

Source: www.3harecourt.com

Insolvent Companies and Adjudication: Bresco Services Limited v Michael J Lonsdale [2020] UKSC 25 – Hardwicke Chambers

‘Adjudication is a quick and comparatively cheap method of dispute resolution and for those reasons is attractive to insolvent companies seeking to recover debts. However, a respondent was likely to be able to restrain the insolvent company from referring the matter to adjudication on the basis that it would be futile to do so, since any positive decision was unlikely to be enforced as a result of the very fact of the company’s insolvency. Therefore, any award lacked practical utility. Following the decision of the Supreme Court in Bresco v Lonsdale, that is no longer the case.’

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Hardwicke Chambers, 17th June 2020

Source: hardwicke.co.uk

Good Faith – a springboard to “Responsible Contractual Behaviour”? – Tanfield Chambers

Posted June 25th, 2020 in contracts, enforcement, news by sally

‘On 7 May 2020, the Cabinet Office issued guidance urging “responsible and fair performance and enforcement of contracts” during the Coronavirus pandemic. This guidance, which does not have legislative force, has caused some head-scratching amongst lawyers. Judges have traditionally been reluctant to muddy the waters of contract law (often murky enough as it is) with vague and subjective notions such as responsibility and fairness. The usual approach is – in simple terms – to hold the parties to the words they have used, imply only such other words as are necessary to make the contract work, and let the rest take care of itself. So what does the Cabinet Office guidance mean, and how, if at all, can the concept of “Responsible Contractual Behaviour” (“RCB”) be shoehorned into the existing law?’

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Tanfield Chambers, 24th June 2020

Source: www.tanfieldchambers.co.uk

The Supreme Court sanctions the use of adjudication in the insolvency context: Bresco Electrical Services Ltd v Michael J Lonsdale (Electrical) Ltd [2020] UKSC 25 – 3 Hare Court

‘The Supreme Court has given judgment in what is being hailed as a landmark case in the construction and insolvency spheres. The decision has not only eliminated any doubt that there is jurisdiction for an insolvent company to adjudicate against a respondent with a potential cross-claim, but it has also endorsed the use of adjudication as a helpful tool for liquidators.’

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3 Hare Court, 22nd June 2020

Source: www.3harecourt.com

Bresco Electrical Services Ltd (in liquidation) v Michael J Lonsdale (Electrical) Ltd [2020] USC 25, or ‘‘kicking the door wide open’’ – 3PB

‘Lord Justice Coulson’s judgment included the proposition that an insolvent Company could only adjudicate a dispute with a creditor in circumstances of mutual debts in “exceptional circumstances”. Subsequent caselaw has explored the extent of these “exceptional circumstances”.’

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3PB, 18th June 2020

Source: www.3pb.co.uk

De Sena v Notaro [2020] EWHC 1031 (Ch): The family, the demerger and the expert who wasn’t an expert – Hailsham Chambers

‘The case arose out of a corporate demerger which took place in relation to a family owned company, S Notaro Holdings (“Holdings”), on 28 April 2011. The First Claimant (C1), and the First Defendant (D1) were siblings. Prior to the demerger, they were both shareholders in and directors of Holdings. Neither were majority shareholders. D1 held 43.75% of the shares in Holdings, and C1 held 31.25%. In the demerger, C1 gave up her shares in Holdings in exchange for some assets of Holdings or its subsidiaries being transferred to the Second Claimant (C2), a company formed for that purpose, owned and controlled by C1.’

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Hailsham Chambers, June 2020

Source: www.hailshamchambers.com

Government facing legal challenge over urgent award of £108m PPE contract – Local Government Lawyer

‘The Good Law Project will today [15 June] launch judicial review proceedings over the Government’s award of an £108m contract to a pest control company for the supply of PPE.’

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Local Government Lawyer, 15th June 2020

Source: www.localgovernmentlawyer.co.uk

South Shields Football Club 1888 Limited v The Football Association Limited – Blackstone Chambers

‘A legal challenge to The FA’s decision to end the 2019/20 football season in Steps 3-7 of the English football National League System without promotion or relegation on account of the COVID-19 pandemic has been dismissed. The arbitral panel, chaired by Lord Dyson with Charles Flint QC and Andrew Green QC, rejected the challenge brought by South Shields FC, a club sitting in an automatic promotion position at the point of cessation of the season.’

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Blackstone Chambers, 11th June 2020

Source: www.blackstonechambers.com

Ezair v. Conn [2020] EWCA (Civ) 687 – Falcon Chambers

Posted June 16th, 2020 in constructive trusts, contracts, news, sale of land by sally

‘In Ezair v. Conn [2020] EWCA (Civ) 687, the Court of Appeal has struck a blow in favour of established doctrine, in a case involving uncompleted contracts for the sale and sub-sale of land.’

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Falcon Chambers, 4th June 2020

Source: www.falcon-chambers.com

Termination of a Code Agreement by Operators – Falcon Chambers

‘In this article we intend to examine the continuation of a Code agreement falling within the terms of the Electronic Communications Code (“the Code”) and the ability of an operator to terminate it permanently, such that the agreement may be treated as at an ended at the specified break date without any ongoing continuation of the operator’s contractual liability. We shall also consider the issue of renewal following termination.’

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Falcon Chambers, June 2020

Source: www.falcon-chambers.com

Frustrated by COVID-19? Tell that to your contract – No. 5 Chambers

Posted June 11th, 2020 in chambers articles, contracts, coronavirus, news by sally

‘The law of frustration has reared its head at some memorable moments in British history: King Edward VII’s cancelled coronation; the First World War; the Second World War; and Brexit. Will the COVID-19 pandemic join this list?’

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No. 5 Chambers, 3rd June 2020

Source: www.no5.com

Limitation: When Does Time Start to Run? – Hailsham Chambers

Posted June 11th, 2020 in contracts, disabled persons, insurance, limitations, news, restitution by sally

‘The key phrase in most but not all of the sections of the Limitation Act 1980 is the accrual of the “cause of action”. Time runs from the accrual of the cause of action.’

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Hailsham Chambers, June 2020

Source: www.hailshamchambers.com

Gregor Fisken Limited v Mr Bernard Carl – Monckton Chambers

Posted June 11th, 2020 in agency, contracts, news, sale of goods by sally

‘The widely reported case of Gregor Fisken Limited v Mr Bernard Carl [2020] EWHC 1385 (Comm) involved one of the world’s rarest and most expensive cars, a $44m Ferrari 250 GTO Series 1 coupé, and its lost (and found) original gearbox. After a week-long trial in the High Court, it was held that the defendant seller was acting in breach of contract in failing to deliver the GTO’s original gearbox to the claimant buyer. The Court made an order for specific performance, requiring the seller to secure the delivery of the original gearbox to the buyer.’

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Monckton Chambers, June 2020

Source: www.monckton.com

Spending watchdog warns public bodies on challenge of managing end of PFI contracts as disputes loom – Local Government Lawyer

‘More than a third of public bodies expect to have formal disputes as PFI contracts come to an end, the National Audit Office has found.’

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Local Government Lawyer, 5th June 2020

Source: www.localgovernmentlawyer.co.uk

To complete or not to complete? Notices to Complete and Specific Performance – Falcon Chambers

Posted June 5th, 2020 in chambers articles, contracts, enforcement, news, sale of land by sally

‘Once the parties to a contract for the sale and purchase of land (or for the grant and acceptance of a lease) become contractually bound, then, other things being equal, neither of them should be able to back out – at least, not without some default of the other party to exploit. Of course, some such contracts are conditional, and the parties do not necessarily become unconditionally bound until some later date, if at all. But when the parties do become unconditionally bound, one or the other of them may ask the question: how can I force the reluctant party to complete? Or, looking at the problem from the other end: when do I have to complete? Can I be forced to complete?’

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Falcon Chambers, May 2020

Source: www.falcon-chambers.com

Sale and Development Agreements: Obligations to Use Endeavours – Falcon Chambers

Posted June 5th, 2020 in chambers articles, contracts, coronavirus, news, sale of land by sally

‘At the time of writing, the UK remains subject to stringent and extensive measures which have been enacted by Parliament in response to the Covid19 pandemic. Although there has been some relaxation since the “lockdown” was first introduced in mid-March 2020, large parts of the economy remain on hold. This has had and will continue, for some time, to have an effect on the ability and desire of parties to contracts for the sale and/or development of land to perform their obligations. It will also affect the extent to which transactions of this sort continue to be entered into and the terms of sale and development agreements may well need to adapt to the changing landscape.’

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Falcon Chambers, May 2020

Source: www.falcon-chambers.com

Top judges call for ADR “acceleration” in face of Covid-19 – Litigation Futures

Posted June 5th, 2020 in contracts, coronavirus, dispute resolution, judges, news by sally

A group of senior former judges and legal academics has called for an acceleration in the take-up of alternative dispute resolution (ADR) in the face of commercial contract disputes arising from Covid-19.

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Litigation Futures, 4th June 2020

Source: www.litigationfutures.com

UPDATE: Halliburton v Vedanta: Performance Bonds and COVID-19 – Atkin Chambers

Posted June 4th, 2020 in contracts, coronavirus, damages, India, injunctions, news by sally

‘Shourav Lahiri revisits the case of Halliburton v Vedanta where a differently constituted bench of the Delhi High Court has just reversed its previous decision and discharged its injunction against the call on performance bonds. This update also examines some related issues that could arise as a consequence of COVID-19.’

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Atkin Chambers, 2nd June 2020

Source: www.atkinchambers.com

Covid-19 and its effect on contractual obligations – Devereux Chambers

Posted June 2nd, 2020 in chambers articles, contracts, coronavirus, news by sally

‘The simple effect of the Covid-19 lockdown announced on 23 March 2020 was that life, and business, changed for everyone. People and organisations could no longer do things they had planned or intended to do, and in many instances, difficult decisions had to be made, and some were made hastily, without thinking through the ramifications. As time goes on, many will be faced with the question of whether steps they took, or didn’t take, mean that they are in breach of a contractual obligation; on the other side of the coin, others will be wondering whether they have a remedy for not having received goods or services they expected to on time, or at all.’

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Devereux Chambers, 15th May 2020

Source: www.devereuxchambers.co.uk

Watership Down author’s estate wins back all rights to classic novel – The Guardian

Posted June 2nd, 2020 in contracts, copyright, damages, film industry, media, news by sally

‘In a case at London’s high court, Richard Adams’ estate won a longstanding claim against Martin Rosen, director of the 1978 animation.’

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The Guardian, 1st June 2020

Source: www.theguardian.com