A party could not rely on a contractual term where it was both “onerous” and “buried” within standard terms that were incorporated by reference

19 October, 2021
The High Court has held that, while the claimant’s standard terms were incorporated by reference into a signed contract, a term that required the defendant to pay cancellation fees was not incorporated as it was onerous and the claimant had not done enough to draw the defendant’s attention to it: Blu-Sky Solutions Ltd v Be … Read more

High Court grants summary judgment in claim for rent accrued during periods of Covid closure, rejecting defences based on implied terms and “failure of basis”

12 October, 2021
The High Court has granted summary judgment to the landlord of commercial premises in a claim for arrears of rent and service charges due since the outbreak of the Covid-19 pandemic: London Trocadero (2015) LP v Picturehouse Cinemas Ltd [2021] EWHC 2591 (Ch). This case is another example of the court’s approach to applying legal … Read more

Commercial litigation podcast series – Episode 10: General update

06 October, 2021
In this 10th episode of our series of commercial litigation update podcasts, we give an update on recent developments relating to privilege, the disclosure pilot, representative actions, and two recent Supreme Court decisions on liquidated damages and lawful act economic duress respectively. This episode is hosted by Anna Pertoldi, a partner in our litigation team, … Read more

Court of Appeal confirms claims seeking remediation for damage to land allegedly caused by oil spill cannot proceed as representative action under CPR 19.6

01 October, 2021
The Court of Appeal has dismissed an appeal against a High Court decision striking out the representative element of claims arising from an oil spill for failing to satisfy the “same interest” requirement under CPR 19.6: Jalla & Anr v Shell International Trading & Anr [2021] EWCA Civ 1389. The Court of Appeal rejected the … Read more

High Court finds settlement agreement released unknown fraud claims despite absence of express words covering fraud

27 September, 2021
The High Court has interpreted the contractual release in a settlement agreement as extending to unknown claims based on dishonesty and fraud, despite the terms of the release not expressly referring to such claims. The claimant was therefore precluded from pursuing further claims alleging deliberate wrongdoing following the receipt of what it said was new … Read more

High Court draws adverse inferences from failure to call relevant witness, and finds default interest clause to be an unenforceable penalty

22 September, 2021
The High Court has rejected a claim for misrepresentation, finding that although a fraudulent misrepresentation had been made, it had not induced the claimant to enter into the transaction: Ahuja Investments Ltd v Victorygame Ltd [2021] EWHC 2382 (Ch). The court’s finding as to (lack of) inducement was based in large part on the claimant’s … Read more

Herbert Smith Freehills signs Greener Litigation Pledge

21 September, 2021
Herbert Smith Freehills has become a founding signatory of the Greener Litigation Pledge, an important industry-led initiative aimed at reducing the environmental impact of litigation. The Pledge is a commitment by law firms, barristers’ chambers and other organisations involved in dispute resolution in England and Wales. Signatories agree to take active steps to work toward … Read more