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Interpretation

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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Take care: is your “agreement” only an agreement to agree?

Bethany Gregory

In Morris v Swanton Care, the Court of Appeal held that an earn-out provision in a share purchase agreement contained an unenforceable agreement to agree. When Morris sold shares in a residential care business to Swanton, the parties included an earn-out mechanism in the share purchase agreement to enable him to receive deferred consideration. This Read More

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EUR wrong: when sterling means euros

Kerry Chan

In McDonagh v Bank of Scotland, there was a loan for “Seven Million Five Hundred Pounds [sic] (£7,500,000) to be drawn down in Euros”. The High Court used interpretation rather than rectification to fix the unhappily drafted agreement, since to “remove words from a written contract and then to interpret the contract without those words Read More

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contractual Interpretation: check your Capitals to protect Your capital!

Claudia Barry

In Hopkinson v Towergate, the Court of Appeal deployed correction by way of interpretation to fix drafting errors. Hopkinson and Howard sold a company to Towergate. The company gave financial advice to retail customers. Following FCA reviews, significant compensation was payable to the customers for the period where the sellers owned the company. Towergate claimed Read More

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Is de-Hoffmannisation now complete?

Jason Rix

Last month Edwin Peel came to talk to us about developments in contract law. A chunk of the presentation was about interpretation and what he coined its “de-Hoffmannisation”.* We now know, following Wood v Capita, that: “The court’s task is to ascertain the objective meaning of the language which the parties have chosen to express their agreement. Read More

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Parental guidance: how to guarantee the construction of an indemnity clause

Claudia Barry

In GPP v Solar the court offers guidance on distinguishing a guarantee from an indemnity, and holds that two equitable principles of guarantee law do not apply to indemnities. GPP, as employer, entered into Engineering, Procurement and Construction contracts with a (now insolvent) contractor. Solar, parent of the contractor, was sued by GPP as guarantor Read More

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Pay less notice valid despite only cross-referencing basis of sum

Nathalie Burn

In S&T v Grove Developments the Court of Appeal held that Grove’s “pay less notice” was valid despite it only cross-referencing, rather than attaching, a spreadsheet detailing its sum. The court felt this could not give rise to any misunderstanding in the mind of a reasonable recipient standing in the shoes of S&T. Section 111 (4) of Read More

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