dcsimg

Remedies

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

No Comments

Damages under SPA capable of being more than purchase price

George Wilders

In 116 Cardamon v MacAlister, the court ordered the full purchase price be paid by way of damages for breach of accounting warranties in a share purchase agreement, having found that the value of a company “as warranted” was greater than the purchase price. Cardamon, an investment company, purchased all the shares in Motorplus, an Read More

No Comments

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

No Comments

Breach of warranty: claim for hypothetical indemnity? Don’t bank on it.

Flo Wang

In Oversea-China Banking Corporation v ING, the court held that damages based on a hypothetical indemnity were not recoverable for breach of warranty of quality on a share sale. OCBC entered into a sale and purchase agreement with ING to purchase shares in ING Asia. Subsequently, ING Asia paid USD 14.5m to Lehman Brothers to Read More

No Comments

Terminations 2: Summary Judgment Day

Georgina Thomson

In Vannin Capital v RBOS Shareholders Action Group the court held, by way of summary judgment, that Vannin’s termination notice extended to both the litigation funding agreements in place with the shareholders and not just one as Vannin contended. Litigation funder Vannin Capital  had entered two funding agreements with the RBOS shareholders: one for GBP 1.5m and Read More

No Comments

Oil be the judge of that: continuing misrepresentation leads to increased damages

Taly Dvorkis

In Inter Export v Lasytsya, the Court of Appeal held that the correct measure of damages for fraudulently misrepresenting the ability to pay the contract price is to put the aggrieved party in the position it would have been in had the deceit not occurred. Lasytsya was the company director of Nerida which had entered Read More

No Comments

Pour encourager les autres – when can your damages exceed your loss?

Richard Farnhill

In Morris-Garner v One Step, the Supreme Court has, for the first time, considered so-called Wrotham Park damages. Damages are there to compensate loss. Normally. In some cases, however, the courts go further and reverse, in whole or in part, the defendant’s gain flowing from its breach, regardless of whether the claimant suffered any loss. Read More

No Comments

Wrongful diversion of business and the availability of springboard injunctions

Jin Ooi

In breach of express confidentiality obligations in their employment contracts, the defendants in Aquinas v Miller wrongfully diverted business from Aquinas, their former employer, to their newly set up competing business. Was Aquinas entitled to a springboard injunction? The typical purpose of springboard relief is to deprive a defendant of any head start of having, Read More

No Comments

Making a clean break – are your termination clauses sufficiently slick?

Jason Rix

It is worth giving careful thought when drafting termination provisions in commercial contracts to help avoid tricky disputes about when, and in what circumstances, agreements can be brought to an end early. In Monde Petroleum v Westernzagros the Court of Appeal considered when an exploration and production agreement (EPSA) became “fully operational and enforceable” for the Read More

No Comments

Devil’s in the detail: is your notice of breach good enough?

Jason Rix

In Teoco  v Aircom, the Court of Appeal found that letters sent by the purchaser, Teoco, to the sellers, Aircom, under a share purchase agreement did not constitute valid notice of intention to bring a claim for breach of warranty and accordingly the claim had been correctly struck out. The relevant provision specified that the Read More

No Comments