Latest by Tim Potts
Stick to the process – a further reminder of how useful a process agent clause can be, especially following Brexit
Process agent clauses are commonly included in cross-border finance transactions. They avoid the need for the claimant, typically the lender, to have to serve process outside the jurisdiction, frequently a costly and time-consuming exercise, particularly when the court's permission is needed. Accordingly, lenders will often require a foreign borrower and/or any guarantors to appoint a process agent in the lender's jurisdiction to accept service on their behalf.
Read moreLitigation funder liable for uncapped adverse costs
In ChapelGate Credit Opportunity Master Fund Ltd v James Money, the Court of Appeal ordered a funder to pay the full amount of adverse costs. [2020] EWCA Civ 246. In a significant judgment for commercial litigation funders, the court found that the ‘Arkin cap’ (which can cap a litigation funder's liability for adverse costs to the amount of funding that was provided) is not a binding rule to be applied automatically in every case involving a litigation funder. Instead, the court considered all of the facts of the case and exercised its discretion in determining whether to cap the litigation funder's liability for adverse costs.
Read moreNotice givers take care – ignore the contract at your peril
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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