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Parties to commercial contracts commonly seek to set some parameters around what will happen in the event of a breach. They may for example agree a fixed sum that is payable on breach, or set a maximum sum for any damages, or exclude liability (or particular categories of liability) altogether. Such clauses may not always have the effect the … Read more
The High Court has found that a claimant could not pursue an indemnity claim under an SPA because it had not notified the defendants of its claim “as soon as possible”, as it was required to do under the contract: Towergate Financial Limited v Hopkinson [2020] EWHC 984 (Comm). The notification provision considered by the … Read more
The economic disruption caused by the Covid-19 pandemic inevitably exposes businesses to heightened legal risk. In particular, counterparties may seek to delay, avoid performance and/or terminate agreements. This may be either because Covid-19 has legitimately prevented them from performing their contractual obligations, or because they are seeking to use the pandemic as an excuse to … Read more
A recent High Court decision is a good example of the court’s willingness to deal with questions of contractual interpretation on a summary basis in an appropriate case, without the need for a full trial. However, it also highlights the difficulties that will be faced in successfully striking out a defence based on the common … Read more
The High Court has held that a “without prejudice save as to costs”, or Calderbank, offer to settle detailed assessment proceedings, which did not include a time limit for acceptance, could be accepted after the detailed assessment hearing had commenced: MEF v St George’s Healthcare NHS Trust [2020] EWHC 1300 (QB). Where an offer to … Read more
As a result of the COVID-19 pandemic, many commercial parties have been reviewing their contractual arrangements to consider whether there are grounds for excusing non-performance or suspending or terminating their contracts. Against that background we have developed a new interactive tool which is designed to assist clients and contacts of the firm in evaluating the … Read more
In this latest episode of our Navigating COVID-19 podcast series, Sarah Pollock, Emma Schaafsma and Julie Farley consider the force majeure implications of a potential second wave of COVID-19 infections and the resulting re-imposition or tightening of lockdown measures. Many contracting parties have already been affected by force majeure events arising out of the pandemic and the associated restrictions. … Read more
The High Court has held that the London riots of 2011 did not give rise to a force majeure defence to claims for failing to secure a warehouse from break-ins and arson attacks. Nor did the claims fall within an exclusion clause relating to indirect or consequential losses: 2 Entertain Video Ltd v Sony DADC … Read more
The Commercial Court recently dismissed a claim to recover the cost of repairs to two offshore transmission cables linking the Gwynt Y Môr offshore wind farm in North Wales with the National Grid, which the claimant had sought to recover under an indemnity for “Pre-Completion Damage” in a business sale agreement: Gwynt Y Môr OFTO … Read more
