Latest Articles

MUR Shipping U-Turn: non-contractual performance would have overcome a force majeure event

Earlier this year, the High Court of England and Wales held in MUR Shipping BV v RTI Ltd that an obligation to undertake ‘reasonable endeavours’ to overcome a force majeure event did not require the claimant to accept non-contractual performance. Last week, in a majority decision , the Court of Appeal allowed the defendant’s appeal, finding that the force majeure event could (and should) have been overcome by acceptance of the non-contractual performance proposed by the defendant and, accordingly, the claimant was not entitled to suspend its obligations under the terms of the force majeure clause.

Obtaining Disclosure from Third Parties Outside the Jurisdiction Now Easier

Two recent developments have made it easier for those litigating in England and Wales to obtain information and documents from third parties outside the jurisdiction: the first is a new jurisdictional gateway for applications for information from third parties outside the jurisdiction; the second is the Court of Appeal’s decision in Gorbachev v Guriev, in which a third-party disclosure order was made against parties outside the jurisdiction in respect of documents within the jurisdiction.

Injunctions against “persons unknown” – uncertainty ahead

Injunctions against “persons unknown” have increased in popularity in recent years; however, the recent judgment in MBR Acres Ltd and others v McGivern [2022] EWHC 2072 has cast doubt on the how widely these injunctions can take effect in future. Following this judgment parties will have to carefully consider whether it will be possible to prove an unknown person is bound by the injunction and it can be enforced against them.

The ‘Rule in West Mercia’: When Do Directors Owe a Duty to Their Company’s Creditors?

Since 1988, West Mercia Safetywear v Dodd has been the leading authority for when directors of financially stressed companies are subject to the so-called ‘creditor duty’, namely the duty to consider the interests of the company’s creditors. Now, in BTI 2014 LLC v Sequana SA & Others, the Supreme Court has considered the ‘rule in West Mercia’ for the first time and clarified the existence, content, and engagement of that duty.

Court of Appeal Lifts Stay to Allow English Court to Determine the Validity of Arbitration Clause

The Court of Appeal of England and Wales has set aside a stay in order to allow the English court to determine the validity of an arbitration clause contained in a contract between an English consumer and a foreign company. The stay had been imposed by the Commercial Court under section 9 of the Arbitration Act 1996 in favour of arbitral proceedings in New York. The Court of Appeal considered that the case had significant implications for consumers in general and it was therefore important that the issues were considered and ruled upon in public in an English court rather than privately in a US arbitration.

New EU Class Actions Mechanisms to be Implemented by Christmas

New laws allowing groups of EU consumers to launch class actions against traders are to be implemented by 25 December 2022 and will apply from June next year. The EU’s Representative Actions Directive (EU) 2020/1828 represents a major overhaul of the European class actions landscape, introducing mechanisms for group litigation in every one of the EU’s 27 Member States, alongside a new cross-border mechanism for class actions.

In-house E-Disclosure Teams Should Not Be Vilified

Cabo Concepts Ltd v MGA Entertainments (UK) Ltd & Another has caused much agitation among litigators and e-disclosure professionals. On the face of it, the case appears to be a warning against conducting e-disclosure in-house. However, properly administered, the use of in-house technology and teams can be highly effective and efficient. Here are our key pointers for companies with in-house capabilities to ensure the smooth running of the disclosure process.