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Remedies

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

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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

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

Samantha Holland

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

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

Megan Betts

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

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Limiting liability under your contract

Jason Rix

Last month, a group of us (Erwan Poisson, Joost Everaert, Julie Metois, James Freeman and I) gave some training on limiting liability in commercial contracts. So far so unsurprising. The sting in tail was that we were covering the topic under Belgian, French and English law. This served to highlight some legal and cultural differences Read More

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A (conditional) free for all?

Lucy Judge

Budana v Leeds Hospital is about Conditional Fee Agreements and how they may be transferred. Ms Budana’s original solicitors, Baker Rees, represented her in a personal injury claim under a CFA with a 100% success fee, entered into under the pre-Jackson reform regime. Baker Rees purported to assign its book of personal injury claims, and CFAs, Read More

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No chinks in the chain of causation: liability for continuing loss and third party acts

Samantha Holland

Questions of causation are tricky for lawyers and highly fact dependent. This case is an example of how it can be difficult to change a tribunal’s finding on causation: St Shipping v Space Shipping. A charterer hired a vessel and sub-hired it on to a third party that intended, unlawfully, to export crude oil from Read More

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Breaking the chain: when breach is not the cause of loss

Michaela Widdowson-Kidd

By designing a hotel for twice the budget, Fosters breached the contract. But, this was not the reason the developer could not secure funding for the project and therefore Fosters was not liable for the developer’s lost profits: Riva v Foster + Partners. The developer engaged Fosters to design a hotel for £70 million pounds; Read More

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Remedies are not exclusive unless you’re both on the same page

Lucy Judge

Specified remedies for breach of certain provisions in a contract will not be exclusive remedies unless the parties clearly intend to restrict the available remedies: Harcap Ltd v FK Generators. HarCap, a private equity investor, had entered into an agreement with FK Generators to find USD22m bridging finance for a power plant. This contained an exclusivity Read More

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What is repudiation?

Rainer Evers

Whether your counter-party has actually repudiated its contract is a big question. If you wrongly treat a contract as having been repudiated and so stop performing that contract yourself, you may face a claim for breach of contract. In Vitol v Beta Renowable, Vitol had agreed to buy biofuel from Beta, but Beta had then Read More

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