BUYER BEWARE: CONTRACTUAL CLAIM NOTIFICATION REQUIREMENTS

This decision is a stark reminder of the dangers of not meeting contractual notification requirements when bringing a claim based in contract, irrespective of its amount. It concerns a strike out/summary judgment application brought by the defendant, Nex Group Ltd (Nex), to dismiss breach of warranty claims under a share purchase agreement (SPA) brought by the claimant, TP ICAP Ltd (TP ICAP), prior to trial. Whilst this application was unsuccessful, the claim continues.

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FOREIGN EMPLOYERS (AS WITH UK EMPLOYERS) CAN BE ORDERED TO OBTAIN RELEVANT DOCUMENTS HELD BY EMPLOYEES (EVEN ON PERSONAL DEVICES), UNLESS SHOWN OTHERWISE UNDER FOREIGN LAW

Where English law applies to a dispute, an employer (by default) has 'control' (i.e. the right to possess, inspect and take copies) of electronic documents held by employees (past or present) relating to the employer's business. Where such documents are held by employees on their personal email accounts or devices, the employer still has 'control' of the relevant documents, unless the employment contract says otherwise (and the employer may have obligations to review/ disclose such documents in any litigation).

The Commercial Court has determined that this degree of control will also be presumed to apply to foreign entities who are involved in English litigation (such that the Court can order them to use best endeavours to obtain the relevant documents), unless the party can show that the 'control' rule is not the same in the applicable foreign law.

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SMOOTH SAILING AS NON-CONTRACTUAL PROPOSAL DEFEATS FORCE MAJEURE

A recent appeal to an arbitration award in a shipping case shows that something other than strict contractual performance may still be accepted to mitigate a Force Majeure event.

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KEY POINTS FOR POLICYHOLDERS - FURTHER RULING IN COVID BUSINESS INTERRUPTION LOSS CLAIMS

Three new judgments provide further clarity on the aggregation of business interruption (BI) loss claims against insurers arising from the Covid-19 pandemic:

In decisions which have been welcomed by insurers, Butcher J has permitted the aggregation of BI losses arising from the Covid-19 pandemic to a small number of 'occurrences' (being (i) the decision to implement; and (ii) the subsequent announcement of pandemic lockdown measures). This significantly limits the overall payout to claimants. The court also applied a narrow measure of causation, which again restricted the claimants' recovery. The decisions are subject to appeal (permission for which has been granted).

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CHASING FRAUD: Bankers Trust information order made using a new jurisdictional gateway following fraud worth millions

An interim decision of the Commercial Court shows a flexible approach to novel issues raised by crypto asset fraud and permits service out of the jurisdiction using a new gateway in CPR PD 6B, 3.1(25).

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THE BRIEFEST CASE - QUICK UPDATES FOR THOSE DEALING WITH BUSINESS DISPUTES 

The Briefest Case holds several quick updates, highlighting recent useful decisions for those dealing with disputes.

Service by email - Inconsistent decisions

How do you validly serve a claim form by email? CPR PD 6A sets out what you must do, but two recent decisions take very different approaches, leaving significant uncertainty about what's valid under the Civil Procedure Rules. The first decision held that an agreement for service by email will only be valid under PD 6A.4.1 if it specifies a single email address, but the second holds that service could still be valid where multiple email addresses are provided.

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What does an agreement to accept service of 'any proceedings' mean?

A solicitor's confirmation to accept service of "any" proceedings was not limited to a particular type of proceedings. 

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The use of improperly obtained evidence

It is not uncommon for a party to legal proceedings to attempt to adduce evidence that has arguably been improperly obtained. Where that happens, the court has to decide whether a fair trial is still possible. In this case the claimant (C) had complained that the defendant, Fortytwo House SARL's (D) former solicitors (BCLP), had disclosed confidential information to D's current solicitors (Gowling). C requested a stay of the proceedings to investigate the extent and severity of the breach, suggesting that the court would be obliged to refuse D's amendments to its defence if D's conduct meant that it was no longer possible to have a fair trial. BCLP had denied the disclosure of confidential information and C accepted that "low level inadvertent leakage" of information did not render a fair trial impossible. Consequently, the court refused to stay the proceedings.

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Fixed recoverable costs extension delayed...again

The anticipated extension to the Fixed Recoverable Costs (FRC) regime has been pushed back for a second time. It is now expected in October 2023. Lord Bellamy KC announced the news in his address to the Civil Justice Council's National Forum on 18 November 2022. The delays are said to result from the complex set of reforms required and the need to give the legal sector more time to adjust to the new regime. 

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