The Court of Appeal recently held that a seller paying a fee to an acquisition agent without the buyer's knowledge does not render the contract for sale void or voidable. This judgment sets the bar high for parties to prove that a sufficient relationship of trust and confidence exists in order to engage the law on bribery and secret commissions. Notably, an agency relationship will not necessarily be enough to evidence the requisite degree of fiduciary duty.
The test for inducement in cases of fraudulent misrepresentation is whether 'but for' the misrepresentation, the claimant 'might' have acted differently. The lower hurdle was clarified by the High Court in Nederlandse Industrie Van Eiprodukten v Rembrandt Enterprises and represents a departure from previous authorities, in which the test had been said to be whether but for the misrepresentation the claimant would have entered into the contract anyway.
The Court of Appeal recently provided helpful clarification on what constitutes 'knowledge' for the purposes of Section 14A of the Limitation Act 1980. The judgment reiterates that it is not when the claimant first knew they might have a claim for damages against the defendant that is relevant; rather, it is when they knew enough to make it reasonable to investigate further and, if necessary, obtain professional advice.
In a recent case, the Court of Appeal upheld a decision that the appellant bank had breached the Quincecare duty of care which it owed to its corporate customer by making payments without proper enquiry, in circumstances in which a reasonable banker would have been on notice that the customer's director was perpetrating a fraud.
The Court of Appeal recently upheld a decision to allow summary judgment for sums due under a facility agreement, rejecting the defendants' arguments that the facility agreement – based on the Loan Market Association model form – constituted the lenders' standard terms for the purposes of the Unfair Contract Terms Act 1977. Had the act applied, the terms of the facility agreement would have been subject to a reasonableness test.
The Supreme Court recently overturned the decisions of the Upper Tribunal and the Court of Appeal in respect of what it means to be 'identified' in a Financial Conduct Authority enforcement notice. It held that a person is 'identified' if he or she is referred to in such a notice by name or by a synonym. This confirms a narrower interpretation as to whether a person is identified for the purposes of Section 393(1) of the Financial Services and Markets Act 2000.
The Court of Appeal recently unanimously upheld a Commercial Court decision from the first trial heard within the new Financial List. The decision provides further clarification on the application of the Rome Convention to derivative instruments, including in relation to the inconsistent approach between the decision in this case and the earlier decision in Dexia, and signals a strong start for the Financial List.
Under English law, a defendant may recover some of its liability to the claimant from a third party which is also responsible for the loss to the claimant. In a recent case the defendants were able to do so after settling a competition damages claim with the claimant, even though the third party had a limitation defence against the claimant, which could have extinguished both the defendant's and the third party's liability to the claimant.
A recent High Court decision, one of the first from the Financial List, has demonstrated a strict approach to contractual construction and interpretation in relation to negotiated documentation for financial traded instruments. It also shows the potential of the Financial List to provide helpful and clear guidance on the application of existing case law in the context of financial markets.
The High Court recently granted a worldwide freezing order in favour of certain Cayman mutual funds companies involved in litigation funding against their de facto sole shareholder and director. The court held that the application was not defeated by either a delay of over a year between discovery of the events and application for the relief, or the insolvency of the applicant companies and resulting weakness of their cross-undertakings in damages.
The Supreme Court has handed down a unanimous decision which confirms that clauses which provide a contractual mechanism for the calculation of damages remain subject to standard rules of construction. In the absence of any express stipulation, such clauses will not operate to the exclusion of common law compensatory principles.