Alternative methods of service and jurisdictional issues (Goshawk Aviation Ltd v Terra Aviation Network)

This case provides a useful summary of the guiding principles in respect of an application for an alternative method of service pursuant to CPR 6.15. It also considers the added complexities in respect of a claim in which service is required to be effected outside of the jurisdiction. It makes clear that there is a distinction when considering alternative service between countries which are party to the 1965 Hague Service Convention or other bilateral treaties, and those which are not. It further provides guidance in respect of the various factors which a court will take into consideration when
weighing up what amounts to a ‘good reason’ to allow for alternative service. In this instance, there was a good reason to permit alternative service. The defendants were fully aware of the claims against them and had a legal team fully up to speed with the litigation as a whole. It was desirable in the interests of justice for all claims to advance together, so
far as possible, and not to be unduly delayed.

This article was first published by Lexis®PSL on 28 April 2021

The construction of an undertaking given in an anti-suit injunction (Quadra Commodities v International Bank of St Petersburg)

This case concerned the construction of an undertaking given by the claimants in the context of an anti-suit injunction. The claims and counterclaims were pursued thereafter in arbitration proceedings in London, and an issue subsequently arose between the parties as to the interpretation of the undertaking previously given. That issue was whether the effect of the proviso to the undertaking was such that the defendants were restricted in the arguments it could present to the arbitral tribunal or, whether the tribunal’s approach to the arguments, was circumscribed by the proviso. In this instance, given the rationale behind the undertaking, even had concessions not been made, the judge would not have construed the undertaking as either fettering the arguments to be heard, or the approach to be taken by the tribunal.

This article was first published by Lexis®PSL on 12 April 2021

Duties of care in respect of design professionals (Multiplex v Bathgate)

This judgment provides a detailed consideration of the authorities relating to an assumption of responsibility, applying the same to those providing design checks or other design services in the construction industry. In this instance, the independent checker was held not to have owed the main contractor any duty of care in respect of the same. It confirms that courts will be slow to impose such tortious duties in a large construction project, where the parties have deliberately entered into a series of complex contractual relationships. It was held to be inconceivable that the design checker would have voluntarily assumed an unlimited responsibility to the main contractor on such a highly complicated project, or to any other party involved in that project other than the one with whom they were in a direct contractual relationship.

My recent article first published on Lexis®PSL on 19 March 2021

The discretion to grant negative declarations(Valley View Health Centre (a firm) v NHS Property Services Ltd)

This case concerns the discretion to grant parties negative declarations prior to trial. The underlying claims were in respect of service charges allegedly owing by the claimants, who comprised a number of GP practices operated as partnerships. An assertion in terms of the dispute was made by the defendant’s solicitors prior to issue, which was later resiled from. While the stance taken by the defendant had, to an extent, changed over time, what was key was the position as at the date of issue of the application for judgment on admissions and declaratory relief. At that point in time, the judge considered that there was no remaining dispute about the incorporation of the defendant’s policy into the tenancies or retrospective variation of the tenancies. There was also no utility in granting the declarations, and good reason why it should not be granted. Accordingly, the applications were dismissed.

This article was first published by Lexis®PSL on 15 December 2020

Court of Appeal—asymmetric clauses are exclusive jurisdiction clauses for the purposes of Brussels I (recast) (Etihad Airways PJSC v Flöther)

This appeal raises for the first time in the English courts an important issue of principle concerning the scope and effect of Article 31(2) of Regulation (EU) 1215/2012, Brussels I (recast). The issue was whether Article 31(2) on its true interpretation as a matter of EU law, applies to an agreement conferring exclusive jurisdiction on the courts of an EU Member State, in circumstances where the exclusive choice of court agreement applies to proceedings initiated by one party but not (or not necessarily) to proceedings initiated by the other party. The Court of Appeal held that, such an asymmetric clause is an exclusive jurisdiction clause for the purposes of the regulation. While not deciding the point, the court also commented that the Hague Convention on Choice of Court Agreements (2005 Hague Convention) should probably be interpreted as not applying to asymmetric clauses.

This article was first published by Lexis®PSL on 04/01/2021

Court of Justice— Interpretation of Articles 24 and 7 of Regulation (EU) 1215/2012, Brussels I (recast) (Ellmes Property Services v SP)

This case confirms that Article 24(1) of Brussels I (recast) must be interpreted as meaning that an action by a co-owner seeking to prevent the use of an apartment by another co-owner for touristic purposes (where there is no such agreement by the co-owner) only falls under that provision if that use is also enforceable against any person who is not a party to the agreement (an erga omnes effect). Article 7(1)(a) of Brussels I (recast) must be interpreted as meaning that, where the use agreed in the coownership agreement is not enforceable erga omnes, such an action would fall within the concept of ‘matters relating to a contract’ within the meaning of that provision. The obligation in question related to the actual use of the property and, accordingly, such an obligation must be performed in the place in which the property was situated.

This article was first published by Lexis®PSL on 16 November 2020

The construction of force majeure clauses (Totsa v New Stream)

The claimant applied for summary judgment on its claim for the repayment of money advanced to the defendant under a contract for the supply of goods. The defendant was unable to deliver the goods in question, asserting that this was as a result of a force majeure event, and that the repayment clause in question did not accordingly apply. For the purposes of the summary judgment application, it was assumed that a force majeure event had occurred, and valid notice given pursuant to the terms of the contract. The court held that, on a proper construction of the terms of the contract, the obligation was for the seller to repay the advance payment if the product was not delivered when due (subject to any extension) for any reason whatsoever. In particular, as a result of the broad and all inclusive language of the repayment clause, the obligation to repay was not affected by any force majeure event, despite there being some cross-referencing between the force majeure clause and the repayment clause. In fact, the court held that the cross-referencing, if not completely surplusage, was demonstrating that it would be open to the parties to agree a different course if they so chose in light of a force majeure event occurring (understandable in light of such a stark and wide-ranging phrase as ‘if for any reason whatsoever…the product has not been delivered…’) but that they had not done so.

First published by Lexis®PSL on 10 November 2020

Parties’ choice of exclusive jurisdiction clauses and stay applications (Lopesan v Apollo)

This case concerned two applications, one for a stay, and one for an expedited hearing of the trial. The stay was sought pursuant to separate proceedings commenced in Spain in respect of a Sale Purchase Agreement (SPA) containing an exclusive jurisdiction clause in favour of the Spanish courts. The proceedings in England were commenced pursuant to an Equity Commitment Letter (ECL) which contained an exclusive jurisdiction clause in favour of the English courts. There were a number of linked issues pursuant to the two claims issued. The application for a stay was dismissed, the judge considering that a practical inability to achieve an outcome where both cases are heard and determined together was a factor which weighed against the granting of a stay. There was no strong countervailing factor in the instant case which justified a departure from this position, and the fact that two well-resourced parties had expressly drafted two related documents but with differing jurisdictional clauses, was material. The application for an expedited trial was also dismissed, the judge considering
that a hearing to determine all issues between the parties before 1 January 2021 would mean that a fair trial would not likely be possible. The merits of the underlying argument purportedly necessitating the need for a speedy trial was relevant, and the discretion to grant an expedited trial was considered as against this background.

This article was first published by Lexis®PSL on 19/10/2020

The restriction of new issues being raised at trial (Re Fundão Dam Disaster)

This case serves as a reminder that proportionality and the overriding objective remain key in respect of case preparation and in terms of the issues that the parties may advance at trial. In particular, parties will not be allowed to raise new issues at the eleventh hour that have not been adequately brought to the attention of the other side, certainly where an opportunity to consider the same would be required by the opposing party, and where this would risk derailing the trial timetable. The power to exclude such issues from consideration is expressly provided for pursuant to CPR 3.1. Further, where a party seeks to appeal a case management decision prior to the handing down of a substantive judgment, it is prudent to consider the making of that application to the judge seised of the case. At the very least, it is important to ensure that the judge in question is made aware of the application and promptly so.

This analysis was first published on Lexis®PSL on 22/09/2020

Revisiting the narrow exceptions to the without prejudice privilege rule (Wired Orthodontics Ltd v HMRC)

CA 2139 – Wired Orthodontics Ltd & Ors v Revenue & Customs [2020] UKFTT 290 (TC)

This case concerned an application for disclosure following an alleged interference with the evidence of an independent expert witness, who was employed in-house by HM Revenue and Customs (HMRC). HMRC objected to the application on the basis that the discussions leading up to the preparation of a joint experts’ report were subject to without prejudice privilege (WPP). The tribunal gave a significant warning in respect of the manner in which HMRC’s instructing solicitor had dealt with matters, but held that the evidence relied upon did not fall within the ‘unambiguous proprietary’ exception to such privilege. These exceptions were to be viewed narrowly given the fundamental importance of WPP to the justice system.

First published by Lexis®PSL on 4 August 2020.

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