Latest Articles

Contract/Commercial

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.

Contract/Commercial Technology

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.

Fraud/White Collar

Failing to Prepare is Preparing to Fail

Economic crime has risen to such a level that UK Finance, a trade association for the UK banking and financial services sector, considers financial fraud to be a “national security threat”. Over £750,000,000 was stolen from banking customers by fraudsters in the first half of 2021 alone, which represents almost a 30% increase from the same period in 2020. In response to this fraud epidemic, the UK Government promises that the Economic Crime and Corporate Transparency Bill (the ‘Bill’), which is currently being ushered through parliament, will implement key reforms necessary to support regulators with their fight against fraud.

Class Actions Products Technology

Right to Repair

The European Commission recently published proposals for rules promoting the repair of goods. It is likely that there will be class actions in relation to right to repair. The EC has proposed that the legislation would be added into scope of the new Representative Actions Directive that would enable class action style claims where the new obligations have not been complied with.

Arbitration Contract/Commercial

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.

Arbitration Civil Procedure Class Actions Contract/Commercial

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.