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Interpretation

Effectiveness of no waiver provision upheld

Sykes Mitchell

In Sumitomo Mitsui Banking Corporation v Euler Hermes, an assignment was not effective where a requirement for a confirmation had not been waived in compliance with a “no waiver” provision; but a power of attorney saved the day. As part of a public private partnership scheme for the construction of a waste treatment facility in Read More

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“Ohpen” for business: High Court upholds mediation clause

Godwin Tan

In Ohpen v Invesco, the High Court held that the parties’ contractually agreed alternative dispute resolution procedure operated as a condition precedent to litigation. As a result, court proceedings were stayed to allow mediation to take place. Invesco engaged Ohpen to develop a platform for investments. The contract included a multi-tiered dispute resolution procedure. The Read More

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Take not(ic)e – the correct way to interpret a unilateral notice

Hershil Kotak

In Stobart Group v Stobart and Tinkler, the Court of Appeal clarified the approach to interpreting a unilateral notice given under a contract. Stobart and Tinkler had sold Stobart Rail to Stobart Group under a share purchase agreement which included two related, but distinct, notice provisions about tax: Paragraph 7 required Stobart Group to notify Read More

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Termination based on company being struck off not affected by restoration

Samuel Webb

In Bridgehouse v BAE Systems, a termination notice based on a company being dissolved remained effective despite the company being restored to the register. BAE agreed to procure the sale, by one of its subsidiaries, of two airfields for GBP 93m to Bridgehouse. BAE was able to terminate the agreement if Bridgehouse was struck off Read More

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Innominate or condition? Check the consequences or you’ll wreck termination

Senem Cilingiroglu

In Ark Shipping v Silverburn Shipping, the Court of Appeal had to deal with the law school classic: when is a term a condition, the breach of which entitles the innocent party to terminate, and when an innominate term, where the ability to terminate depends on the gravity of its breach? While the case was Read More

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Pre-contractual negotiations: rarely a gold mine

Tomasz Hara

The Court of Appeal in Merthyr (South Wales) Limited v Merthyr Tydfil County Borough Council provides a concise restatement of the circumstances in which pre-contractual negotiations may (and may not) assist in construing a contract. The case concerned the interpretation of an escrow agreement under which the mining company had to pay funds into an Read More

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Express or implied? High Court rejects “market practice” term

Godwin Tan

In CFH Clearing v Merrill Lynch, the High Court held that there was neither an express nor an implied term requiring Merrill Lynch to act in accordance with market practice and reprice or cancel foreign exchange spot trades that were entered into at a time of market disruption. In 2015, CFH Clearing entered into FX Read More

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Will your liquidated damages survive termination?

Jon Turnbull

In Triple Point v PTT, the Court of Appeal considered to what extent liquidated damages continue to be payable when a project falls into delay and the contract is subsequently terminated or the contractor replaced. This situation is common in construction projects – where liquidated damages clauses are ubiquitous (albeit this case was in relation Read More

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Triumph v Primus: A case study on breach of warranty

Elizabeth Wall

Triumph v Primus included all the usual elements of a warranty dispute: an attempt to avoid the limitations by arguing a claim was not a “warranty claim”; an argument over disclosure; and, a defence around the service and contents of the notice of breach. Ultimately though, it was a warranty about the careful preparation of Read More

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A (small) matter of construction: whether a breach was material

Deekshitha Swarna

In Mears v Costplan, the Court of Appeal looked at the question of material breach. Pickstock contracted with Plymouth to build two blocks of student accommodation. Mears entered into an agreement for lease of the property with Plymouth. The agreement for lease prohibited Plymouth from making any variations to the building that “materially affect the Read More

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