Legal News

Maypole Dock Ltd v Catalyst Housing Ltd [2021] EWHC 1742 ( TCC) What are the practical implications of this case? This was a relatively unusual application, namely to curtail the continuation of an expert determination. While there are several reported decisions where injunctions were pursued to halt adjudications, and both parties relied on those authorities, the court had no difficulty distinguishing them, finding that different considerations arose here. In this instance, one party sought to uphold what it asserted was a contractual entitlement to an expert’s determination, whereas the other wished to engage the court’s jurisdiction. The suitability of an injunction in such circumstances is highly fact specific, yet ultimately falls to be decided in line with the established American Cyanamid principles... What was the background? The dispute originates from Catalyst Housing Ltd’s 2014 purchase of land and buildings in Southall from Maypole Dock Ltd. On...

EMFC Loan Syndications LLP v The Resort Group plc [2021] EWCA Civ 844 What are the practical implications of this case? This decision is significant for transactional lawyers and litigators: To ensure a contract reflects the parties’ intentions, state everything expressly. If a term is to be a condition or warranty, make that explicit; otherwise it is innominate. Interpret and draft by reading the agreement as a whole and checking whether clauses fit, or conflict with, the proposed construction. A construction that seems unfair or unreasonable may still stand: the test is not fairness but what, objectively, the parties are taken to have agreed. Any effective cause term is subject to special wording or indicators in the contract and will depend on the particular facts and terms of each agreement, by reference to ordinary principles of construction and implication. ......

R (on the application of Good Law Project Ltd) v Minister for the Cabinet Office [2021] EWHC 1569 ( TCC) What are the practical implications of this case? The judgment is notable in confirming that reliance on PCR 2015, SI 2015/102, reg 32(2)(c) was lawful on the facts, yet did not absolve the defendant from running the procurement in a way that evidenced a fair, even-handed selection exercise. The court stressed the need to adduce proof that objective criteria underpinned the choice of contractor. Personal links between the decision-maker and the successful supplier did not, as a matter of principle, mandate recusal or preclude an objective evaluation of the award’s merits. Instead, the perceived bias stemmed from the defendant’s failure, on the evidence, to demonstrate that such an objective appraisal actually occurred. The decision will also be read for the judge’s...

‘ CV- Online Latvia’ SIA v ‘ Melons’ SIA Case C-762/19 What are the practical implications of this case? Across the EU, when a website or online database provides a search tool that automatically draws into its results information sourced from third-party databases, this will typically infringe database right. There can, however, be circumstances where the practice is lawful if it can be shown that using data from those third-party databases does not prejudice the maker’s investment—for instance, where the data is deployed in a wholly unrelated market that the maker neither foresaw nor competes in. Nonetheless, in most situations it will be necessary to obtain permission from the maker of any third-party databases employed to produce an aggregated search result. What was the background? A jobs website ( Melons) offered a search engine that queried several websites hosting job...

The facts Uber BV, a Netherlands-based entity, owns the technology that powers the Uber app. Uber London Ltd, its UK subsidiary, holds a licence to operate private hire vehicles in London. The claimants, Yaseen Aslam and James Farrar, were licensed London private hire drivers and sourced trips through the Uber app. At the tribunal hearing, it was estimated that about 40,000 Uber drivers were active across the UK, with roughly 30,000 working in the London area. Drivers have no written contract with Uber London Ltd; instead, they enter a written agreement with Uber BV to access the app, and passengers likewise accept Uber’s terms in order to use it. In long-running proceedings, the employment tribunal, the EAT, the Court of Appeal and the Supreme Court grappled with two identical issues. First, were drivers obtaining bookings via the app “workers” of Uber for the...

Brown- Forman Beverages Europe Ltd v Bacardi UK Ltd [2021] EWHC 1259 ( Comm) (19 May 2021) What are the practical implications of this case? The rule from Holme v Brunskill (1877) 3 QBD 495 provides that any material change to the contractual terms between the creditor and the principal debtor releases a guarantor. If a variation has been made, the creditor must demonstrate that the change can only operate to the surety’s advantage, or that by its very character it can never in any situation increase the surety’s exposure. Parties may exclude this rule by agreement, and prudent creditors routinely do so. It has been labelled a snare for the careless creditor. This judgment confirms two significant practical propositions concerning the rule and points to a specific hazard. First, the court reiterates that the rule is confined to guarantees and does not extend to...

Kang and another v Pattar [2021] EWHC 1101 ( TCC) What are the practical implications of this case? The outcome was fact-specific, resting largely on the judge’s consistent preference for the defendant’s testimony and the ensuing conclusions about what had been agreed. Even so, the decision offers clear warnings for parties who arrange and run building contracts by word of mouth and only later commit their arrangements to paper: These observations are directed at parties who agree and perform their building contracts orally, and only afterwards put those contracts into writing. where instructions are routinely delivered to a contractor orally and clash with later written terms or design drawings, the contractor is not automatically in breach for following spoken directions rather than subsequent contract documents. If the later documents are meant to oblige the contractor to remove and remake existing work that conflicts with them, the...

Wood v Commercial First Business Ltd and other companies; Business Mortgage Finance 4 plc v Pengelly [2021] EWCA Civ 471 What are the practical implications of this case? The Court of Appeal has reset the approach to secret commissions and bribes by returning to first principles. This judgment reminds practitioners that rescission of the transaction, recovery of the amount paid as a bribe or secret commission, and/or an award of damages are remedies available at common law as well as in equity. As a result, it is no longer necessary to engage in a fine-grained assessment of the precise nature and scope of the relationship between the parties to determine whether, and to what extent, it was fiduciary. The core enquiry is simply whether the recipient of the bribe or secret commission owed a duty to provide neutral and unbiased advice or...

Balfour Beatty Regional Construction Ltd v Van Elle Ltd [2021] EWHC 794 ( TCC) What are the practical implications of this case? This ruling illustrates the problems that can emerge when a sub-contractor (or indeed a consultant or surveyor) issues its own terms and conditions with an initial quotation for works or services, and the later agreement does not contain an effective entire agreement clause and/or leaves scope to argue that the contractual scope does not cover every aspect of the works actually undertaken on the project. The judge found—by reference to the wording of an LOI entered into after the original quotation, the terms of the sub-contract when concluded, and the parties’ conduct in invoicing—that there was a single contract. Nonetheless, practitioners should ensure inclusion of a clear entire agreement clause that expressly states previous agreements are superseded (see Practice Note: Entire...

Morley (trading as Morley Estates) v Royal Bank of Scotland plc [2021] EWCA Civ 338 What are the practical implications of this case? This decision clarifies the boundaries of a bank’s obligations to its client and demonstrates how those responsibilities shift over the course of their dealings. Where a borrower has taken out a secured lending facility, the bank’s duty to deliver banking services with reasonable skill and care ceases when the contractual loan period ends. After that point, the bank is only bound by the express provisions of the mortgage and the equitable duties inherent in that security relationship (for example, the recognised obligation to exercise reasonable care to realise a proper price for the collateral). It is not correct to read into the mortgage an implied contractual duty of reasonable skill and care. In addition, the Court of Appeal endorsed RBS’s...

Westfields Homes Ltd and another v Keay Homes ( Windrush) Ltd [2020] EWHC 3368 ( Ch) What are the practical implications of this case? The ruling applies settled doctrines within a well‑known commercial setting. Two points merit attention. First, duties to act in good faith and in the spirit of the bargain derive their content from the other express provisions of the contract. As Lady Justice Arden explained in Re Coroin Ltd ( No 2) [2013] EWCA Civ 781, [2013] 2 BCLC 583 (at [50]–[53]), such duties cannot widen a party’s commitments because, absent explicit direction in the agreement, the court lacks any standard by which to police the obligation. The practical effect of a clause of this kind is to demand performance aligned with the parties’ common objectives when they entered the deal; it is ‘no more than a reflection of the...

Rockliffe Hall Ltd v Travelers Insurance Company Ltd [2021] EWHC 412 ( Comm) What are the practical implications of this case? The widely reported Supreme Court “test case” on business interruption insurance examined whether policies responded to the COVID‑19 pandemic under various disease clauses, where indemnity was triggered by the incidence or presence of a notifiable disease within a specified radius of the insured’s premises. The Supreme Court concluded that cover would attach where governmental action—such as a nationwide lockdown—was taken in reaction to cases of COVID‑19 that included at least one instance within the policy’s defined area. Consequently, even a solitary local case of COVID‑19 could be treated as the proximate cause of a policyholder’s pandemic losses. Importantly, though, the wordings analysed in the “test case” were tied to “notifiable” disease, thereby bringing COVID‑19 within scope from 5 March 2020, when it was...

Nirro Holdings SA v Patrick O’ Brien [2021] EWHC 279 ( Ch) What are the practical implications of this case? This decision illustrates how the court approaches construing contracts, and in particular how guarantees are read. The judge reviewed the general authorities on interpretation, examined the precise language of the guarantee signed by the surety, and assessed the situations that would engage an obligation to discharge the company’s liabilities as though the guarantor were the primary debtor. In Kookmin Bank v Rainy Sky SA [2011] UKSC 50 (at para [21]), Lord Clarke explained that construction is a single, integrated exercise: the court considers the words chosen and determines what a reasonable person — equipped with the background knowledge reasonably available to the parties at the time — would have taken them to mean. The court must take account of all relevant context. Where two...

The complete paper is available here. An engaging seminar on the report, hosted with the Bonavero Institute of Human Rights, can also be accessed here. A proposed UK HRDD law The HRDD law could place the following duties on subjected organisations (broadly): to prevent negative human rights and environmental impacts arising from their domestic and overseas operations, including within their supply and value chains to devise and apply appropriate due diligence procedures to avert such impacts to publish a forward-looking plan for future procedures to be adopted, together with an assessment of the effectiveness of past procedures The report also proposes liability......

The objections centre on well-known long-standing concerns over data retention, access for law enforcement, and immigration policy; moreover, lawmakers went further, drawing attention to serious earlier issues with the UK’s use of the Schengen Information System ( SIS) database and to both potentially conflicting commitments under other international agreements. Under EU data protection rules, sending personal data to countries beyond the EEA is strictly lawful only where protection is judged ‘adequate’, where extra safeguards are adopted, or where one of a small set of derogations applies. At present, ongoing data flows between the EU and the UK run under an interim framework embedded in the broader EU– UK Trade and Cooperation Agreement of December 2020, which will lapse by June 2021 at the latest. The Commission must determine whether the UK, which officially departed the 27‑nation EU last year, affords...

Introduction On 31 December 2020, the Withdrawal Agreement’s transition phase (discussed here) concluded. From 1 January 2021, relations between the UK and EU are currently regulated partly by the remaining Withdrawal Agreement (as further discussed in this Twitter thread) and partly by the Trade and Cooperation Agreement ( TCA) formally agreed between the EU and the UK themselves. ( There are also two other agreed treaties, on security information and nuclear cooperation, as well). Basic legal issues The EU and UK have agreed to apply the TCA provisionally and temporarily (a common practice in international law). This arrangement runs until 28 February 2021, though the parties may change that date via the Partnership Council (composed of representatives of both contracting parties). This is intended to give the European Parliament sufficient time to examine the treaty in detail before deciding whether to give its consent. By...

As outlined in the editorial note to the Guide, this seventh edition is a comprehensive overhaul and reflects developments since the previous edition, including: the roll-out of electronic working and filing in the Central Office of the Queen’s Bench Division at the Royal Courts of Justice, through the CE- File digital court file and management system amendments to CPR 53 and CPR PD 53 relating to the Media and Communications List changes arising from Brexit and the close of the transition period under the UK Withdrawal Act revisions to the contempt regime updates to the enforcement regime For more information, see: What are the key changes? The following summarises the principal changes practitioners should note: Electronic filing The revised Guide introduces a brand-new Chapter 3 addressing electronic filing and codifying the compulsory use of CE- File for legally...

Martin and another v Kogan and others [2021] EWHC 24 ( Ch) What are the practical implications of this case? The judgment represents the latest chapter in the parties’ protracted litigation. At the retrial, Mr Justice Meade applied the Court of Appeal’s formulation of joint authorship in Kogan v Martin and others [2019] EWCA Civ 1645. He likewise examined the legal framework for evaluating witness testimony, including the overall approach to the dependability of witnesses’ recollections and the comparative weight to be placed on memory as opposed to contemporaneous records. In that context, he addressed the effect of Gestmin SGPS SA v Credit Suisse ( UK) Ltd [2013] EWHC 3560 ( Comm), [2013] All ER ( D) 191 ( Nov). He further considered how the balance of the remaining evidence should be assessed where a portion of a witness’s account is rejected as untrue. In...

For data protection specialists, the EU– UK TCA brings encouraging developments. Unrestricted data movement between the EEA and the UK will carry on beyond the close of 2020 ( Article FINPROV.10A(2) also confirms flows from Iceland, Lichtenstein and Norway to the UK). That outcome is warmly welcomed. Recent studies indicated that implementing substitute transfer tools might have set UK firms back £1.6bn. Such a sum reflects funds businesses could otherwise have directed to areas like new kit, staff or procedures, yet would instead be siphoned off to compliance spend or higher prices for goods and services due to interruptions to EU– UK data transfers. Data may likewise keep moving freely for law enforcement transfers. That is essential. Maintaining the sharing of data to prevent and detect crime is vital to protecting people on both sides of the Channel. Without this...

What is the WTO government procurement agreement ( GPA)? The WTO GPA is a voluntary, plurilateral pact that obliges its parties to grant one another access to their respective government contracting and public purchasing markets on a reciprocal basis. Through its EU membership, the UK participated in the WTO GPA; the EU constitutes one of the 20 current participants. The UK has now sought independent accession to the GPA in its own right, and a further 22 jurisdictions hold observer status. Signatories are not free to design procurement systems without constraint; foundational principles are embedded within the Agreement and, indeed, many of these shaped the drafting of the current EU procurement rules. What are the key features of the regime? As noted, the GPA is more than a minimal framework. It comprises the Agreement’s main body together with members’ coverage schedules. While the Agreement...