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)

https://www.lexisnexis.com/uk/lexispsl/bankingandfinance/docfromresult/D-WA-A-WV-WV-MsSWYWC-UUA-UZEYAAUUW-U-U-U-U-U-U-AZAWZAUDVD-AZAUAEACVD-BAWAWYBVY-U-U/1/412012?lni=61P0-MGY3-GXFD-83T8-00000-00

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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Non-parties seeking access to trial documents and the proper application of the ‘open justice’ test (Dring v Cape Intermediate Holdings)

CA – Dring (for and on behalf of Asbestos Victims Support Groups Forum UK) v Cape Intermediate Holdings Ltd [2020] EWHC 1873 (QB)

This case concerned the application of the principles restated by the Supreme Court in respect of non-party access to trial documents either pursuant to the CPR 5.4C(2) or the High Court’s inherent jurisdiction. It is clear that parties do have the prima facie right to access documents which have been referred to at the trial if the provision of such documents is in furtherance of ‘open justice’, however, the previously stated ‘legitimate interest’ test is no longer applicable. This case deals with the first application of the restated test, and the balancing act outlined by Lady Hale in the Supreme Court  ultimately led to the application being refused.

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First published by Lexis®PSL on 20/07/2020

The interplay between an unsuccessful application to adjourn a trial (CPR 3.1) and a subsequent application to set aside a judgment due to non-attendance (CPR 39.3(3)) (Fatima v Family Channel Ltd and another)

CA – Fatima v Family Channel Ltd and another [2020] EWCA Civ 824

This appeal raised an important point of principle, namely, the interplay between an unsuccessful application to adjourn a trial under CPR 3.1(2)(b) and a subsequent application to set aside a judgment entered against a non-attending party under CPR 39.3(3). The Court of Appeal made it clear that there is no principle of consistency or judicial comity which requires a judge dealing with an application pursuant to CPR 39.3(3) to follow the trial judge’s decision, even where nothing has subsequently changed in respect of the facts. In particular, an application to adjourn a trial and an application under CPR 39.3 are discrete applications involving different tests. An application pursuant to CPR 39.3(3) justifies a less draconian approach; the approach to the question of whether or not there is a good reason for non-attendance is different (and more generous to the applicant) under CPR 39.3(3) than it is in an application to adjourn.

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First Published by Lexis®PSL on 02/07/2020

The enforcement and recognition of foreign judgments through the English courts (Public Stock Co v Starr Syndicate)

CA – Public Joint Stock Co (“Rosgosstrakh”) v Starr Syndicate Ltd and other companies [2020] EWHC 1557 (Comm)

In this case, the High Court considered the recognition and enforcement of a foreign judgment in the English courts. In particular, consideration was given as to the correct test to be applied when determining whether parties can be said to have agreed to submit to the law of a foreign jurisdiction, and the effect this will have on enforcement. The principles as per the Privy Council decision in Vizcaya Partners Ltd v Picard were also considered, as was the defence of bias.

This article was first published by Lexis®PSL on 19/06/2020