Category: contracts

No duty to exercise option reasonably or in good faith in engine maintenance agreement (Cathay Pacific Airways Ltd v Lufthansa Technik AG) – 3PB

Posted July 30th, 2020 in airlines, contracts, interpretation, news by sally

‘The High Court found that there was no duty of good faith or duty to act reasonably in respect of an option to withdraw engines from a maintenance agreement. The judgment provides a helpful discussion of the case law concerning the principles of contractual interpretation and implied terms (including on the basis of the Braganza v BP Shipping Ltd and Socimer International Bank v Standard Bank London line of cases and relational contracts). The judgment also serves as a reminder to practitioners that evidence of statements made in precontractual negotiations, including mutual understanding (subject to limited exceptions) are generally inadmissible to assist with the interpretation of a concluded contract. Written by Rebecca Farrell, counsel, at 3 Paper Buildings.’

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3PB, July 2020

Source: www.3pb.co.uk

Dealing with Competing Jurisdiction Clauses: What is your Centre of Gravity? – 3PB

Posted July 30th, 2020 in contracts, interpretation, jurisdiction, news by sally

‘Complex commercial arrangements can generate difficulties for the parties where their obligations are set out in a multitude of related contracts or a single contract containing inconsistent dispute resolution clauses. It is not uncommon for parties to complex commercial contracts to find themselves arguing over the interpretation of inconsistent jurisdiction clauses which are either found in a single contract, or different but related contracts forming part of the same arrangements. Disagreements over the interpretation of jurisdiction clauses can arise in large-scale energy and infrastructure projects, and other types of arrangements where transactions usually take place under a master agreement. This note will explore the most common scenarios in which courts are often asked to interpret inconsistent dispute resolution clauses, with particular focus on the ‘centre of gravity’ approach adopted by courts.’

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3PB, 27th July 2020

Source: www.3pb.co.uk

Enforcing an adjudicator’s decision where no order for payment – Practical Law Construction Blog

Posted July 29th, 2020 in construction industry, contracts, dispute resolution, enforcement, jurisdiction, news by tracey

‘Much has been written on the Supreme Court case of Bresco v Lonsdale and it has most recently been relied on by a party in the adjudication enforcement case of WRW Construction Ltd v Datblygau Davies Developments Ltd. However, as will be discussed in this blog, it was of limited assistance.’

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Practical Law Construction Blog, 28th July 2020

Source: constructionblog.practicallaw.com

Damaged by COVID-19 – What losses will be recoverable? – Hardwicke Chambers

Posted July 10th, 2020 in chambers articles, contracts, coronavirus, damages, news by sally

‘The normal rule for breach of contract is that losses are assessed as at the date of breach (The Golden Victory [2007] 2 AC 353.) However, this has never been an immutable rule, and the law in this area was significantly recast in the case of W Nagel (A Firm) v Pluczenik Diamond Company [2018] EWCA Civ 2640.’

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Hardwicke Chambers, 29th June 2020

Source: hardwicke.co.uk

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

Posted July 8th, 2020 in chambers articles, company law, contracts, coronavirus, insolvency, news, pre-action conduct by sally

‘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

Posted July 1st, 2020 in appeals, chambers articles, company law, contracts, damages, debts, dispute resolution, insolvency, jurisdiction, news, Supreme Court by sally

‘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

Posted June 23rd, 2020 in construction industry, contracts, dispute resolution, insolvency, news, set-off by sally

‘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

Posted June 23rd, 2020 in construction industry, contracts, dispute resolution, insolvency, news, set-off by sally

‘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

Posted June 18th, 2020 in contracts, fiduciary duty, mergers, negligence, news, shareholders, undue influence by sally

‘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

Posted June 18th, 2020 in competition, contracts, coronavirus, judicial review, news, protective equipment, public procurement by sally

‘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

Posted June 16th, 2020 in consultations, contracts, coronavirus, dispute resolution, news, sport, ultra vires by sally

‘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

Posted June 15th, 2020 in chambers articles, codes of practice, contracts, electronic mail, Law Commission, news, telecommunications by sally

‘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

Posted June 8th, 2020 in auditors, contracts, dispute resolution, local government, news, private finance initiative by sally

‘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