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

A thorny issue—the admissibility of covert recordings in civil proceedings (Mustard v Flower)

mustard

CA 1249 – Mustard v Flower & Ors [2019] EWHC 2623 (QB) (11 October 2019)

In Mustard v Flowers, Master Davison considered the thorny issue of the admissibility of covert recordings in civil proceedings. Challenges based on data protection law failed.The judge outlined that the admissibility of such evidence will be determined on a case by case basis, and it could not be determined by general guidance to be applied across the board. A potential solution in personal injury cases was the adoption of a protocol providing for an agreed scheme for the recording of medical examinations. This would negate the desire or need for covert recordings of such examinations. Until such time a protocol is adopted, the key question remains whether or not such evidence is relevant and probative.

This article was first published by Lexis®PSL on 15/10/2019 (click on the above link for the full article).

Legal privilege—once established, it will remain in existence unless and until it is waived (Addlesee v Dentons)

CA 1224 – Addlesee v Dentons Europe LLP [2019] EWCA Civ 1600, [2019] All ER (D) 12 (Oct)

This analysis considers the recent Court of Appeal decision in respect of legal advice privilege, which overrules the Upper Tribunal decision in the case of Garvin Trustees Ltd v the Pensions Regulator. It confirms that legal advice privilege, once established, remains in existence unless and until it is waived. The argument that, where there was no legal person entitled to assert this legal advice privilege, it followed that privilege ceased to exist, was incorrect.

This article was first published by Lexis®PSL on 07/10/2019 (Click on above link for full article).

 

 

Award on effect of company restoration on termination clause upheld on appeal (Bridgehouse (Bradford No.2) v BAE)

CA 1101 – Bridgehouse (Bradford No.2) v BAE Systems plc [2019] EWHC 17668 (Comm)

In the Commercial Court, Mrs Justice Cockerill upheld, on appeal pursuant to section 69 of the Arbitration Act 1996 (AA 1996), a sole arbitrator’s decision that a contract was validly terminated based upon a ‘Default Event’, namely, that Bridgehouse (Bradford No.2) (BB2) was struck off the register of companies. While BB2 was restored to the register shortly after, the arbitrator had correctly decided that BB2 had defaulted the moment it was struck off. It was not appropriate for the effective termination to be reassessed retrospectively by way of the company’s restoration. Such default event clauses clearly operate as a useful risk management tool in respect of termination of contracts in the event of a party falling into a state of administrative disarray, and the case provides certainty in terms of when and how such a clause can be utilised.

This article was first published by LexisNexis on 15/7/2019

Construction Law Update: Deluxe Art & Theme Limited v Beck Interiors Limited [2016] EWHC 238 (TCC)

The recent case of Deluxe Art & Theme Limited v Beck Interiors Limited [2016] EWHC 238 (TCC) has confirmed that an adjudicator does not have jurisdiction to deal with concurrent but separate disputes without the consent of the parties.

The decision is an important one, as it is the first time that the Court has considered a wider interpretation of Paragraph 8 (1) of Part 1 of the Scheme for Construction Contracts (England and Wales) Regulations 1998 (Amendment) (England) Regulations 2011 (‘the Scheme’).

In the case Deluxe referred three separate disputes to adjudication as per the Scheme, the third adjudication being commenced prior to a decision having been reached in the second adjudication. Beck wrote to the adjudicator objecting to the same. The matter came before Coulson J for summary judgment, as Beck did not comply with the second and third decisions. Beck resisted the Application, arguing that Para 8 (1) prohibited an adjudicator determining more than one dispute without the consent of the parties.

Paragraph 8 (1) reads as follows:

‘The adjudicator may, with the consent of all the parties to those disputes, adjudicate at the same time on more than one dispute under the same contract.’

In order to overcome Paragraph 8 (1) Deluxe contended that the second and third disputes were, in actuality, a single dispute. This was despite bringing the matters as separate disputes under separate notices. This argument was unsuccessful, and the Court finding, amongst other matters, that Deluxe clearly considered the disputes were separate, as there would have been no need to commence the third adjudication if it was the same as the second.

Further, Deluxe sought to argue the following:

  1. Paragraph 8(1) is only intended to apply where an adjudicator is dealing with multiple disputes arising out of the same notice of adjudication; and
  2. Paragraph 8(1) would be contrary to section 108(2)(a) if it applies in respect of multiple adjudications because it would restrict the right to adjudicate at any time.

The Court again rejected these arguments, finding as a matter of construction, Paragraph 8 (1) did not create any distinction between single and multiple disputes.

In respect of the second point, the Court held that there was no fettering of the right to adjudicate at any time, as all that the parties have agreed to is that if one party wants to adjudicate more than one dispute at the same time before a particular adjudicator, then that party needs the consent of the other party.

Thus, given the absence of consent, the Court refused to enforce the third adjudication decision.

It is now clear that separate disputes under the same contract cannot now be dealt with by the same adjudicator at the same time unless consent is gained where the Scheme applies. A simple solution is to wait for the decision in the earlier dispute before bringing the second where consent is withheld. Further, you may wish to consider alternative forums for the resolution of the dispute, for example, Part 8 proceedings where there is no complex dispute of facts, or perhaps expert determination which may be dealt with relatively quickly.

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