To render a force majeure clause watertight, time should be taken to consider all of the potential risks that may prevent parties from fulfilling their obligations under the contract and spell these out in the clause. Also, where an event has occurred, parties must be able to demonstrate that the force majeure event was the sole cause of any failure to fulfil their contractual obligations. This was recently upheld by the High Court.
In a recent case, the Supreme Court considered the application of Section 21(1)(b) of the Limitation Act 1980 with respect to claims against the directors of a company for an unlawful distribution of the shareholding. The court acknowledged that Section 21 was primarily aimed at express trustees, and that it was found to be applicable to company directors "by what may fairly be described as a process of analogy".
In Sharp v Blank the High Court considered the defendants' application for approval of their revised cost budget on the basis that there had been significant developments in the litigation. The judgment provides helpful clarification of the court's jurisdiction to approve costs that have already been incurred between the date of the original approved budget and the date of the application hearing.
The High Court recently considered the "unfortunate tension" between Civil Procedure Rules (CPR) 6.14 and 7.5 regarding effective service of a claim. The judgment provides a helpful analysis of the purpose of CPR 6.14 in circumstances where there is uncertainty surrounding the validity of service of a claim form.
The High Court recently provided a helpful analysis of the circumstances in which a parent company owes a duty of care with regard to operations carried out by its subsidiary. In this case, establishing whether the parent owed a duty of care was central in determining whether the English courts had jurisdiction. The case is interesting in the context of the readiness of the English courts to hear claims relating to conduct outside the jurisdiction brought by foreign claimants.
The Court of Appeal recently held that a party could not affirm a contract once its purpose had been frustrated in order to claim ongoing damages. The judgment is of interest to practitioners dealing with repudiatory breaches of contract and is particularly pertinent in connection with the limitations imposed on an innocent party's right to affirm a contract when its commercial purpose has become frustrated.
In Holyoake v Candy the High Court considered the court's power to grant a 'notification injunction' requiring the defendants to give written notice before disposing of or dealing with their assets. The decision is of interest to applicants seeking an alternative to a freezing injunction where there is concern that a respondent may deal with its assets so as to frustrate the enforcement of any future judgment.
The recent High Court decision in Worthing v Lloyds Bank plc considered an allegation of negligence in the provision of investment advice. The decision provides welcome clarification of the duties of financial institutions when providing regulated investment advice under the Financial Services and Markets Act 2000.