High Court finds alleged frustration of contract due to COVID-19 pandemic is not sufficiently arguable to grant injunction restraining demand under letter of credit

The High Court has dismissed an application for an injunction to prevent an airline group from making demands under bank-confirmed standby letters of credit (SBLCs), securing aircraft leases granted to the claimant (a budget passenger airline), on the basis that it was not sufficiently arguable that the leases were frustrated due to the effects of … Read more

Lord Chief Justice’s Report 2020: courts in strong position despite pandemic

The Lord Chief Justice’s Report 2020 was laid before Parliament yesterday. It notes, unsurprisingly, that the last seven months have been dominated by the courts’ response to the Covid-19 pandemic – a response which has been remarkably successful in civil commercial cases, with a widespread move to video and telephone hearings to allow the administration … Read more

Force majeure considerations in the “second wave” of Covid-19

When we originally published this article in April we used the term “potential” in respect of a second wave of Covid-19. Back then many countries were contemplating an easing of Covid-19 lockdown restrictions following a downturn in cases, and a second wave was discussed as a possibility. In the six months since, we have seen … Read more

Update on FCA’s COVID-19 business interruption insurance test case

A “consequentials hearing” in the FCA’s COVID-19 test case (The Financial Conduct Authority v Arch and others [2020] EWHC 2448 (Comm)) took place on Friday 2 October 2020. The purpose of the hearing was to: determine the declarations to give effect to the findings of the Court as set out in its judgment dated 15 … Read more

When events intervene: Force majeure, frustration and material adverse change

When events take a dramatic turn, parties may be left unable to perform their contractual obligations, or may find that their counterparty is unable or unwilling to perform. In such circumstances, a party may be able to rely on contractual provisions, such as a force majeure or material adverse change (MAC) clause, to suspend its … Read more

Judgment handed down in FCA’s COVID-19 business interruption insurance test case

The High Court has today handed down judgment in the COVID-19 Business Interruption insurance test case of The Financial Conduct Authority v Arch and Others. Herbert Smith Freehills represented the FCA (who was advancing the claim for policyholders) in the case, which considered 21 lead sample wordings from eight insurers. Following expedited proceedings, the judgment … Read more

Article published – Wasted breath? Insolvency reforms in response to Covid-19

The Corporate Insolvency and Governance Act 2020 introduces sweeping insolvency reforms in response to the business impacts of Covid-19, designed “to give companies breathing space and keep trading while they explore options for rescue”. Our UK Restructuring, Turnaround and Insolvency team have published an article in International Corporate Rescue which considers the key elements of … Read more