In the first case to address the ramifications of the UK Supreme Court’s decision in R (on the application of PACCAR Inc and others) v. Competition Appeal Tribunal and others, the English Commercial Court granted an asset preservation/freezing order in favour of a litigation funder. In Therium Litigation Funding A IC v. Bugsby Property LLC, the court considered that there was a serious issue to be tried, and that the PACCAR decision did not render the whole of the litigation funding agreement unenforceable.
Commercial Court Refuses to Set Aside an Arbitration Award on Consumer Protection Grounds
In Eternity Sky Investments Ltd v. Zhang,[1] the Commercial Court refused an application to set aside an enforcement order in respect of an award made in a Hong Kong-seated arbitration on the grounds that enforcement would be contrary to English public policy – specifically, consumer protections enshrined in the Consumer Rights Act 2015. In reaching its conclusion, the Commercial Court held that the Consumer Rights Act did not apply, as although the applicant was a consumer and lived in the UK, the transaction was much more closely connected with Hong Kong. The Commercial Court also expressed the view (obiter) that inclusion of an arbitration clause in a contract with a consumer does not automatically entail that the clause will be deemed unfair and thus unenforceable.
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Phone War: ‘Charges Unlawfully Avoided’ Claim Held To Be Excluded Loss of Profits Claim
In EE Limited v. Virgin Mobile Telecoms Limited,[1] the High Court found that the claimant’s claim for ‘charges unlawfully avoided’ under a telecommunications supply agreement was in fact a claim for loss of profits, which were excluded by an exclusion clause in the agreement.
UK Supreme Court: Litigation Funding Agreements Are Damages-Based Agreements
On 26 July 2023, the UK Supreme Court handed down a judgment that will cause serious disruption (at least in the short term) to the litigation funding market. In R (on the application of PACCAR Inc and others) v. Competition Appeal Tribunal and others, the Supreme Court held by a majority that litigation funding agreements which entitled the funders to recover a percentage of the damages recovered were damages-based agreements and, as such, were unenforceable, as they did not meet the strict statutory conditions for such agreements.
High Court Endorses Seven Principles for Securing Precautionary Injunctions
Injunctions are typically sought by parties after wrongdoing has already taken place. However, the English courts may grant a ‘quia timet’ – or ‘precautionary’ – injunction to prevent an actionable wrong from being committed.
In University of Brighton v. Persons Unknown Occupying Land, the High Court of England and Wales granted a final injunction preventing protesters from occupying certain areas of the claimant’s executive administration office. This judgment provides a useful restatement of the principles applied by the courts when determining whether to award a precautionary injunction.
High Court Rules Arbitral Awards Don’t Deprive English Court of Jurisdiction in Crypto Consumer Claim
In Chechetkin v. Payward Ltd and Others[1], the High Court of England and Wales ruled that the existence of an arbitration clause in an agreement between the parties should not prevent the court from hearing the UK consumer’s claim for repayment of sums lost through his trading on the defendants’ cryptocurrency exchange.
Limitation of Liability: Court Considers Key Principles of Interpretation
In Drax Energy Solutions Limited v. Wipro Limited, the Technology and Construction Court considered the proper interpretation of a limitation of liability clause. The judgment provides a useful summary of the principles that apply to such an exercise. It is particularly notable that the court gave very little weight in the circumstances to the notion that in the absence of clear words, the court will assume that parties generally do not intend to derogate from the normal rights they would otherwise have.
Should Successful Hedging of Potential Losses Reduce Claimant’s Damages?
In Rhine Shipping DMCC v. Vitol SA,[1] the Commercial Court of England and Wales determined that the claimant’s internal risk management system, by which the risk of loss arising from physical trades was ‘hedged’ against opposite risks arising from other trades, could not be taken into account when assessing damages.
One-Off Oil Spill Held Not to Represent a Continuing Nuisance
In the recent decision of Jalla & Another v Shell International Trading and Shipping Co Ltd & Another, the UK Supreme Court held that a one-off oil spill did not represent a continuing nuisance regardless of the continued presence of the oil on the claimant’s land.