On the Record

In an update to our May 2023 blog on the case, the Court of Appeal has held in Decision Inc Holdings Proprietary Ltd & Another v. Stephen Garbett & Another that the High Court erred both in its interpretation of and approach to a material adverse change in prospects warranty in a share purchase agreement.

The court also determined that a notice provision requiring Decision to summarise the nature of a claim and the amount claimed required it to give an amount claimed in respect of each of the alleged breaches.

A fundamental issue that all litigants will be well served to consider when bringing, or defending, any legal proceeding is the question of whether the claim has been brought in time. The inadvertent failure to bring a claim in time has served to fatally undermine several disputes that otherwise may have been successful.

The Limitation Act 1980 sets out the relevant time limits (known as ‘limitation periods’) in which different kinds of legal claims must be brought – and the time from which those limitation periods begin to run. Many aspects of the act are uncontroversial, but there was some lingering uncertainty concerning the interpretation of Section 32, which extends the normally applicable limitation periods in circumstances where facts relevant to the claimant’s cause of action have been deliberately concealed by the defendant.

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.

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.