Showing: 1 - 10 of 27 Articles

A Taxing Question: Just When Does a Duty of Care Arise?

The decision of the Court of Appeal in the closely watched case of David McClean & Ors v. Andrew Thornhill KC[1]helpfully rearticulates the established principles governing when a duty of care may arise and the scope of such a duty. It is widely understood that any professional advice needs to be given with sufficient confidence as to allow the recipient to act upon it, but in addition, that the risks associated with that advice also need to be clearly outlined, so that the recipient is not blind to potentially adverse consequences. How this balance is navigated is difficult and only becomes more so when the recipient of the advice wants to share it with third parties to give them comfort on the issues at hand.

Unlocking Cryptocurrency: Commercial Court Facilitates Recovery From Outside Jurisdiction

The London Circuit Commercial Court has handed down a significant judgment regarding the recovery of crypto-assets held on cryptocurrency exchanges and the practicalities of the enforcement of judgments against ‘persons unknown’ located outside the jurisdiction of England and Wales.

The court’s decision in Law v. Persons Unknown and Huobi Global Limited paves the way for future claimants to recover crypto-assets that have ended up outside of the jurisdiction with greater ease and highlights the English courts’ practical approach to the resolution of crypto-asset disputes.

Warranties: Know Their Limits

In its judgment in Decision Inc Holdings Proprietary Limited v. Garbett and El-Mariesh, the High Court of England and Wales provided guidance on the interpretation of two types of warranties commonly found in sale and purchase agreements (SPAs): warranties as to the accuracy of a company’s records and warranties as to no material adverse change in respect of turnover and/or prospects.

The claimant in the case was ultimately successful. However, buyers should take note that, despite being provided with misleading information about the company’s financial performance, the claimant was not able to make out its claims for breach of warranty as to the accuracy of the company’s records or as to no material adverse change in respect of turnover. The sometimes surprisingly narrow interpretation of the scope of warranties must be appreciated, so that buyers can ensure they actually have the recourse they think they will.

The Million Pound Question: Is My Contract Unfair?

The decision of the High Court of England and Wales in Parker-Grennan v. Camelot UK Lotteries Limited is a helpful case study in how to host a consumer-facing website. It is surprising, given how much care and attention is afforded to the content of terms and conditions, how the presentation of those same terms and conditions to consumers can often be an afterthought. If companies do not get this right, there is a real risk that they may be providing consumers with the ammunition they need to argue that any relevant terms and conditions are unenforceable against them. Accordingly, companies would be well served to revisit their practices to ensure they are not creating unnecessary hurdles for themselves to overcome when seeking to rely on their terms and conditions in any dispute.

Implied terms: Commercial Court defers to arbitral tribunal

In Pan Ocean Co Ltd v Daelim Corporation, the Commercial Court decided that an arbitral tribunal had correctly implied a term requiring inspection of a vessel’s holds without delay into a charterparty. The court decided that although the arbitral award suggested that it was reasonable to imply the term, which is not a sufficient basis to do so, the award was valid if read in a reasonable and commercial manner.

EU Plans To Regulate Third-Party Funding in Litigation and International Arbitration

On 13th September 2022, the EU Parliament voted to approve a resolution proposing a directive (the “Directive”) on the regulation of third-party funding entitled “Responsible private funding of litigation”. If adopted in its current state, the proposal would regulate Third-Party Funders (“TPFs”) funding proceedings in the European Union.

Contractual Dispute Resolution Procedure as a Condition Precedent: Clarity is Key

The case of Kajima Construction Europe (UK) Ltd v Children’s Ark Partnership Ltd[1] serves as a reminder: a contractual Dispute Resolution Provision (“DRP”) can be a condition precedent to commencing proceedings. In a departure from previous case law,[2] the High Court in Kajima found a DRP does not actually have to be expressed as a condition precedent to be enforceable as one.

Take the Time to Take Notice

A failure to comply with provisions governing the notification of claims under share purchase agreements is an issue that comes before the courts with surprising regularity. Given that such failure could result in any subsequent claim being summarily dismissed, it is self-evident that utmost care must be taken when drafting notices of claim – you rarely get a second chance to make a compliant notification.

‘Party To’: the Scope of Section 213 of the Insolvency Act 1986

In Tradition Financial Service Ltd v Bilta (UK) Ltd & Others, the Court of Appeal considered the scope of section 213 of the Insolvency Act 1986 and, specifically, whether those beyond the small group of individuals with controlling or managerial functions of the liquidated company could be ‘party to’ the carrying on of a company’s businesses with intent to defraud creditors.