A recent Court of Appeal decision confirms established principles about the significance of the whole course of dealings when establishing whether a contract has been formed and the effect of denoting such dealings as 'subject to contract'. It also serves as a timely reminder of how to progress contractual negotiations so as to avoid uncertainty and potential disputes later on.
The High Court recently considered whether a lender owes a duty, in contract or in tort, to a borrower to advise it of onerous terms within a loan agreement. Significantly, the court observed that there is no general duty in tort for banks to advise customers, and that a bank will be found to have this advisory duty only in exceptional circumstances.
In Caliendo v Mishcon de Reya the High Court recently found that there was no implied retainer between Mishcon de Reya and the claimant shareholders of a company for which Mishcon was acting in relation to a sale of shares. However, taking into account the context of the relationship between the parties, Mishcon had assumed responsibility to the claimants and owed them a limited duty of care.
A recent Supreme Court decision has clarified the scope of the standard form Commercial Court freezing order, holding that the right to draw down moneys under a loan agreement can be an 'asset' where the extended form freezing order is granted. This is the first time that the Supreme Court has given guidance on post-2002 standard form Commercial Court freezing orders and its interpretation turned on the strict construction of the wording of the order.
The Commercial Court has found that an arbitration clause in a consultancy services agreement was superseded by a dispute resolution clause in a later settlement agreement, and that the dispute resolution clause should apply to disputes arising from both agreements. The court applied the presumption for 'one-stop adjudication' – the presumption that rational businesspeople will wish to resolve all disputes in one forum.