Latest by Geraldine Elliott

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Court orders mediation

Published on 19 September 2019. By Geraldine Elliott, Partner and Matthew Evans, Senior Associate

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The High Court has upheld a tiered dispute resolution clause in accordance with established principles of contractual interpretation. The court ordered a stay of proceedings for mediation, and in support of the mediation also ordered pleadings to be served in advance in order to optimise the prospects of a settlement.

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Notice givers take care – ignore the contract at your peril

Published on 29 August 2019. By Geraldine Elliott, Partner and Tim Potts, Associate

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The Court of Appeal has confirmed in Stobart Group Ltd & Anor v William Stobart & Anor [1] that an objective test will be applied when assessing whether a unilateral contractual notice has been validly given. This decision also provides a cautionary reminder of the consequences of a party's failure to comply strictly with contractual notice provisions. [1] [2019] EWCA Civ 1376

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An innocent party is entitled to damages, even though performance of the contract is impossible

Published on 01 August 2019. By Geraldine Elliott, Partner and Eliot Henderson, Associate

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The Court of Appeal considered the proper interpretation of exceptions or force majeure clauses and provided guidance on the correct application of the compensatory principle of damages in Classic Maritime v Limbungan. Classic Maritime Inc v Limbungan Makmur SDN BHD & Anor [2019] EWCA Civ 1102

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Make the most of a mediation - 10 Top Tips

Published on 25 July 2019. By Geraldine Elliott, Partner and Emma West, Associate

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Preparation for a mediation is key- you get out what you put in. Here are our top 10 tips for making the most out of the mediation process to successfully settle your dispute.

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Novel approach to measuring damages resulting from a breach of warranty

Published on 15 May 2019. By Geraldine Elliott, Partner and Emily Rome, Associate

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The accepted approach of diminution in the value of the target company has been unsuccessfully challenged in Oversea-Chinese Banking Corporation Limited v ING Bank NV ([2019] EWHC 676 (Comm)).

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No exceptions to exclusionary rule: Court of Appeal confirms established principle

Published on 10 May 2019. By Geraldine Elliott, Partner and Matthew Evans, Senior Associate

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While evidence of pre-contractual negotiations can be adduced to demonstrate how a transaction came about or what its commercial aims were, it cannot be relied on to aid the interpretation of the contractual provisions themselves. Merthyr (South Wales) Ltd v Merthyr Tydfil County Borough Council ) [2019] EWCA Civ 526.

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Enforceable oral contracts – Supreme Court looks to conduct and context

Published on 07 March 2019. By Eliot Henderson, Associate and Geraldine Elliott, Partner

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To avoid expensive litigation, contracting parties should ensure that all essential terms are expressly agreed within a legally binding contract. Where some essential terms are missing, but the parties clearly intend to be bound by and act on their agreement, the court will be keen to find an enforceable agreement. Wells v Devan 2019, UKSC 4.

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Is a good arguable case good enough? The Court of Appeal considers the test for establishing jurisdiction

Published on 19 February 2019. By Emma West, Associate and Geraldine Elliott, Partner

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The test for deciding whether a claimant has a good arguable case is relative following the Court of Appeal's decision in Kaefar v AMS Drilling and others.

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High Court warns directors to get match fit for new reporting regulations

Published on 25 September 2018. By Geraldine Elliott, Partner and Matthew Evans, Senior Associate

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It is understandable that directors might be reluctant to seek legal advice – be it due to concern about time or cost or a potential conflict of interest if seeking advice internally. However, as a recent case demonstrates, this is a small price to pay to avoid the time and financial cost of a claim, especially when a company's subsequent precarious financial position shines a light on an officer's behaviour and competence.

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Football club's entire agreement clause performs impressive save against negligent misrepresentation claim

Published on 28 August 2018. By Geraldine Elliott, Partner

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A recent case(1) serves as a lesson that context is key to a watertight entire agreement clause.

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The perils of using disclosed documents for a collateral purpose

Published on 07 March 2018. By Victoria Rogers, Associate and Geraldine Elliott, Partner

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In Grosvenor Chemicals Ltd v UPL Europe Ltd disclosed documents were used by the UPL for a collateral purpose in breach of the Civil Procedure Rules.

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When will pleading "special circumstances" permit collateral use?

Published on 22 February 2018. By Joe Cresswell, Associate and Geraldine Elliott, Partner

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Having taken a strict approach when considering what constituted "collateral use" in Tchenguiz v Grant Thornton UK LLP, the Commercial Court has moved quickly to clarify the test for "special circumstances" in applications for permission to use previously disclosed documents in The Libyan Investment Authority v Société Générale SA and others.

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Beware of the risks when notifying warranty claims

Published on 13 February 2018. By Geraldine Elliott, Partner and Eliot Henderson, Associate

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In Teoco UK Limited v Aircom Jersey 4 Limited, Aircom Global Operations Limited(1) the Court of Appeal upheld the High Court's decision to strike out certain breach of warranty claims on the basis that the buyer had given the seller inadequate notice of those claims. The buyer's attempt to keep its options open by drafting its notices widely proved fatal to its claims, as it failed to identify the specific warranties to which its claims related as required by the share purchase agreement.

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Another bad bargain upheld: Wood v Sureterm Direct Ltd [2017] UKSC 24

Published on 23 June 2017. By Matthew Evans, Senior Associate and Geraldine Elliott, Partner

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The Supreme Court has dismissed an appeal in Wood v Sureterm Direct Ltd. The Court upheld the Court of Appeal's decision on the meaning of an indemnity clause, and agreed with its application of established contractual interpretation doctrine. The decision confirms the established judicial approach to contractual interpretation, namely the focus on the words of a given clause.

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Court of Appeal provides a timely reminder of the principles relating to clear and unambiguous contractual negotiations

Published on 03 April 2017. By Emma Griffiths, Senior Associate and Geraldine Elliott, Partner

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In Global Asset Capital, Inc and another v Aabar Block SARL and others the Court of Appeal found that the High Court had erred in its finding that in assessing whether a contract had been concluded, it need not take account of inconsistent subsequent communications between the parties following the arguable conclusion of a contract during a telephone call that had followed a "subject to contract" offer letter.

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Essar v Norscot: the landmark decision third party funding has been waiting for?

Published on 10 November 2016. By Daniel Hemming, Senior Associate and Geraldine Elliott, Partner

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The Commercial Court rejected an application to set aside an arbitral award entitling the respondent to its costs of third party litigation funding on the ground of serious irregularity. It also held that the Arbitration Act 1996 power to award "legal and other costs" included the costs of litigation funding.

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Pension Deed rectified by Summary Judgment without a hearing

Published on 29 June 2016. By Alan Williams, Partner and Geraldine Elliott, Partner

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The High Court has recently granted summary judgment for rectification of a trust deed without a hearing. The judge did this "in such plain circumstances" where the evidence demonstrated that there was "no real prospect of a realistic challenge" to the position that the final version of the deed should have been executed, not an earlier draft.

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Caveat Emptor: Buyer's inadequate notice precludes £3.5m warranty claim

Published on 16 June 2016. By Matthew Evans, Senior Associate and Geraldine Elliott, Partner

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In Teoco v Aircom (unreported), the High Court has held that a buyer gave inadequate notice of certain breach of warranty claims, thereby preventing it from pursuing those claims (worth c. £3.5m).

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Time lost may never be found again

Published on 01 March 2016. By Alan Williams, Partner and Geraldine Elliott, Partner

The decision in Medhi Khosravi v British American Tobacco plc [2016] EWHC 123 (QB) provides a useful reminder that it can be a risky strategy to seek extensions of time for service of a claim which has already been issued. Such extensions should not be granted lightly, and might be set aside at a later date.

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Delay not a bar to obtaining freezing injunction

Published on 18 December 2015. By Charlotte Henschen (née Ducker), Senior Associate and Geraldine Elliott, Partner

The High Court has granted three insolvent Cayman companies (each in liquidation) a worldwide freezing order in support of proceedings against Mr Terrill, an individual who operated behind the companies' respective corporate directors as their sole director and shareholder.

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Repudiatory breach implicitly excluded in multi-party LLP agreements

Published on 29 September 2015. By Geraldine Elliott, Partner

In the recent decision of Flanagan v Liontrust Investment Partners LLP and others[1] the High Court held that the doctrine of repudiatory breach is excluded in multi-party limited liability partnership agreements ...

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Court confirms its wide discretionary power to extend time in consent orders

Published on 18 August 2015. By Geraldine Elliott, Partner

In Safin (Fursecroft) Limited v The Estate of Dr Said Ahmed Said Badrig (Deceased)[1], the Court of Appeal considered the principles that apply to an application for extension of time for compliance with obligations set out in a consent order.

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Electronic disclosure – the perils of ignoring disclosure requirements

Published on 09 July 2015. By Geraldine Elliott, Partner

In Smailes and another v McNally and another[i] the High Court refused the claimant's application for relief from sanctions, finding the claimant's failure in respect of its disclosure obligations under the relevant provisions of the Civil Procedure Rules (CPR 31) amounted to a significant and serious breach of an "unless order".

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Appeal court considers constructive knowledge in limitation period extension claim

Published on 21 May 2015. By Geraldine Elliott, Partner

The Court of Appeal* has recently held that an individual investor was too late to bring a claim in negligence and could not take advantage of the provisions of section 14A Limitation Act 1980 as she had constructive knowledge of relevant facts ascertainable during the primary limitation period.

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Contractual notice of warranty claim

Published on 05 May 2015. By Geraldine Elliott, Partner

In The Hut Group Limited v Nobagar-Cookson[2], the High Court considered what was required to comply with a provision in a share purchase agreement requiring notice to be given of a breach of warranty claim.

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High Court considers iniquity exception for disclosure of privileged documents

Published on 30 April 2015. By Geraldine Elliott, Partner

In the case of London Borough of Brent v Kane, the court considered an application for the disclosure of legal advice that was alleged to have been given for an iniquitous purpose such that the benefit of any privilege that might otherwise have attached to the document was lost.

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Injunctions: Hearsay evidence and dissipation risk considered

Published on 27 January 2015. By Geraldine Elliott, Partner

The case of JSC Bank & anor v Sergei Pugachev[1] serves as a useful reminder of the need to take care with the use of hearsay evidence and the standard and evidence required of the dissipation of assets.

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Injunctions - when will the court order fortification of a cross-undertaking in damages?

Published on 18 November 2014. By Geraldine Elliott, Partner

The Court of Appeal endorsed for the first time the accepted criteria that must be satisfied before the court can order an application for fortification of a cross-undertaking in damages in EVP v Malabu Oil.[1]

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Late but not too late: new claims and time bars

Published on 29 October 2013. By Geraldine Elliott, Partner

The High Court has recently considered the extent to which pleadings can be amended to introduce new claims out of time in the case of Nolan & others v Tui UK Limited.

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