Misc

Inducing a subsidiary’s breach of contract: Parental Misguidance

Mohamed Sacranie

Is a parent company liable if it restructures its operations and a now disused subsidiary is prevented from meeting its own contractual obligations? In Kawasaki v Kemball, the Court of Appeal held that the parent neither induced nor intended its subsidiary’s breach and reaffirmed this economic tort’s restricted scope. Kawasaki formed a joint venture and Read More

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Damages-based agreement doesn’t exclude costs on early termination in retainer: DBA A-OK!

Robert Steele

In Zuberi v Lexlaw, the Court of Appeal held that “damages-based agreement” should be construed narrowly, comprising only the particular provisions of a retainer dealing with payments out of recoveries, not the retainer as a whole. It also held that the Damages-Based Agreements Regulations 2013 do not regulate fees payable to lawyers in the event Read More

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Is possession of a contract nine-tenths of the law?

Max Sherrard

In Solaria v Department for Business, the Court of Appeal held that a signed and part-performed commercial contract was, prima facie, a “possession” for the purpose of Article 1, Protocol 1 of the European Convention for the Protection of Human Rights. That a contract is assignable is not the legal test to apply, simply a Read More

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Covid, crises and legally what we may be able to learn

Jason Rix

Back in March, Karen Birch and I seemed to spend much of our waking hours fielding urgent and complex Covid-related legal queries. In the wake of that immediate surge, Karen reflected that, at least from a legal perspective, there seemed to be a number of themes to what happens in crisis, and that we ought Read More

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A waste of energy? Assignment, novation and contribution

Claudia Barry

In Energy Works v MW High Tech Projects the court examined the distinction between assignment and novation, and considered whether “damage” was the “same” for the purposes of the Civil Liability (Contribution) Act 1978. Energy Works, the purchaser, and MW High Tech, the main contractor, signed an EPC contract relating to a “fluidised bed gasification Read More

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No need to waive goodbye to your rights

Rhona Egerton

A party did not waive its right to rely on a “performance relief” provision by temporarily continuing to perform by alternative means: Delta Petroleum v BVI Electricity Corp. BVI Electricity contracted to buy fuel from Delta. The agreement contained a “performance relief” provision, allowing Delta to claim relief from further performance should the refinery from Read More

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You haven’t bought my silence: confidentiality not a condition of settlement.

Abigail Holmes

In Duchy Farm v Steel the High Court upheld a County Court decision that a confidentiality clause in a settlement agreement was not a condition of the agreement, and a breach of confidentiality by Steel therefore did not absolve Duchy Farm of the obligation to pay settlement monies. Duchy Farm and Steel settled an employment Read More

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On notice – SPA tax claim unenforceable as inadequate notice given

Edward McCullagh

A tax indemnity claim under a share purchase agreement was unenforceable because inadequate notice was given (Dodika v United Luck). The buyers gave notice of their claim by solicitors’ letter. However, that notice was inadequate, as it did not provide reasonable detail of the matter giving rise to the claim. The letter (sent shortly before Read More

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“Ipso facto” clauses will no longer bee the obvious route out

Emma Keeling

Yesterday, the Government’s Corporate Insolvency and Governance Bill, described by our restructuring team as the most significant insolvency reforms in the UK for a generation, passed through the House of Commons. For a full analysis see their bulletin here. In this post I will focus on so-called “ipso facto” clauses, ie clauses which allow termination Read More

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The principles for a disclosed principal

Godwin Tan

In Filatona v Navigator, the Court of Appeal held that a disclosed principal was entitled to bring a claim under a contract signed on their behalf between their agent and a third party. While the “terms and surrounding circumstances of the contract” may exclude a principal from the contract, the threshold to meet is exceptionally Read More

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