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Thursday 15 December 2016

MH Dispute Resolution

Is “Brexit” a frustration?

In many contracts, one or other party may rely on the benefits of membership of the European Union (EU) in order to make the contract profitable or even viable.  For instance a contract may oblige parties to comply with EU Laws, or have a territorial aspect which refers to “the EU”, or it may benefit from EU subsidies or tariffs.

 

Friday 20 November 2015

MH Dispute Resolution

Take Notice

The recently reported decision of the High Court in IPSOS S.A. v Dentsu Aegis Network Limited (formerly Aegis Group plc) [2015] EWHC 1171 (Comm) highlights the importance of ensuring that any provisions in a share sale and purchase agreement regarding giving notice of claims are followed precisely.

Under the terms of a sale and purchase agreement completed on 12 October 2011 (“the SPA”), Ipsos S.A. (“Ipsos”) purchased shares in various companies forming part of the same world-wide group from Dentsu Aegis Network Limited (“Aegis”).

Beyond the Limit?

Where two businesses contract with each other on the standard terms of business of one of them, any exclusions or limitations of liability contained in those standard terms must be “reasonable” in order to be effective, pursuant to the Unfair Contract Terms Act 1977 (“UCTA”).

Exclusions/limitations commonly found in standard term business-to-business contracts include terms which exclude liability for any “indirect or consequential loss” and/or which limit liability to the contract price.

Tuesday 9 June 2015

MH Dispute Resolution

Are you being served? (Again)

The recent decision of the High Court in Dunbar Assets v BCP Premier Ltd [2015] EWHC 10 (Ch) once again highlights the need to ensure that proceedings are served in accordance with the Civil Procedure Rules (“CPR”).

The Claimant was a banking institution providing lending to organisations and individuals looking for investment for developments. The Defendant was a construction management company which provided advice on proposed lending opportunities.

Friday 24 October 2014

MH Dispute Resolution

You only get what you paid for

The recent case of Comau UK Limited v Lotus Lightweight Structures Limited [2014] EWHC 2122 (Comm) is an interesting decision from the Commercial Court in which the Court found against Comau UK Limited (“C“) which was seeking summary judgment of its claim for an award for loss of profit from a repudiatory breach of contract by Lotus Lightweight Structures Limited (“L“). The Court instead found that L had a real prospect of successfully defending the claim. The Court held that while C was entitled to seek damages for amounts due under a contract, where that contract permitted L to perform its obligations in different ways, the least onerous way would be applied and C would not therefore be able to get a better deal than it had bargained for.

Let’s get friendly

The recent case of Emirates Trading Agency LLC v Prime Mineral Exports Private Limited [2014] EWHC 2104 (Comm) demonstrates the approach of the Court to dispute resolution clauses which require the parties to enter into good faith discussions to resolve their disputes.

Emirates Trading Agency LLC (“E”) had agreed to purchase iron ore from Prime Mineral Exports Private Limited (“P”) under the terms of a Long Term Contract dated 20 October 2007 (“LTC”). In the event, E failed to lift all of the iron ore expected to be taken up and P sought liquidated damages from E pursuant to the terms of the LTC. The next year E failed to lift any iron ore and, on 1 December 2009, P served notice of termination of the LTC and claimed $45,472,800 in respect of liquidated damages. P stated that if the claim was not paid within 14 days they reserved the right to refer the claim to arbitration in accordance with clause 11.2 of the LTC.

 

Tuesday 22 April 2014

MH Dispute Resolution

What do Andrew Mitchell MP and Linford Christie have in common?

The obvious answer, of course, is that both have fallen foul of the tougher stance taken by the Courts following the Jackson procedural reforms. The relatively recent case of Andrew Mitchell MP -v- News Group Newspapers Ltd [2013] EWCA Civ 1537, which has come to be known by the moniker ‘Mitchell’, has had an enormous impact on the way in which litigation is now pursued in the English Courts.

The appellant, Andrew Mitchell MP (“M”) (the claimant in separate defamation proceedings) appealed to the Court of Appeal against the decision of the High Court that a sanction be imposed for his failure to file his costs budget on time.

As part of the Jackson reforms, which came into effect in April 2013, parties in litigation are now required to file costs budgets with the court at an early stage in which that party’s estimated costs to trial are set out in a detailed spreadsheet with (hopefully) reasoned analysis. The Court may then approve or reject the costs budgets of the parties bearing in mind the need to conduct litigation efficiently and at proportionate cost. If a party is successful at trial in the litigation then, generally speaking, it may recover only the sums projected in its costs budget. The practical effect of this process is that increasingly the costs of litigation are front-loaded for a party and parties are discouraged from expending large sums on litigation.

 

Uniform Rapid Suspension system finds in favour of IBM

The Uniform Rapid Suspension system (“URS”) is a rights protection mechanism which forms part of the ‘New gTLDs (generic Top Level Domains) Program’ of the Internet Corporation for Assigned Names and Numbers (“ICANN”) and is designed to provide rapid relief for trademark holders in the most clear-cut cases of infringement. It is intended to offer cheaper, faster responses than the existing Uniform Domain Name Dispute Resolution Policy.

Through the URS Procedure, ICANN aims to offer a lower-cost, faster path to relief for rights holders experiencing clear-cut cases of infringement caused by domain name registrations. A URS complaint must in the first instance be submitted directly to an approved URS provider.

The URS decision provided through the National Arbitration Forum (which is an approved URS provider) in favour of IBM (which was the Complainant) is the first ever decision under the URS. IBM filed a URS complaint on 5 February 2014 and the URS decision was completed on 12 February 2014.

 

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