Litigation Notes

Commercial Court finds no implied term necessary to give business efficacy where agreement allocated risk between the parties

Court of Appeal recognises "onerous clause doctrine" where terms are incorporated by reference

However, the decision suggests that a high threshold will be applied, particularly in a commercial context

Court of Appeal overturns High Court’s interpretation of deferred consideration clause

Court of Appeal confirms party cannot waive contractual right to terminate unless it is actually aware of the right

Court of Appeal finds loss of bargain damages were available on termination for non-repudiatory breach of contract under express contractual provision

Supreme Court finds there is no principle in English law that a condition precedent to payment of a debt will be deemed fulfilled if fulfilment was prevented by a party's own breach

Court of Appeal decision acts as reminder that acceptance of repudiatory breach must be communicated to end contract

Court of Appeal confirms repudiatory breaches were "capable of remedy" for the purposes of a deemed transfer provision in a shareholders' agreement

Litigation developments: England and Wales – Quarterly update

High Court finds claim brought by director under Contracts (Third Party Rights) Act 1999 to enforce an SPA warranty could be served out of the jurisdiction without the court's permission

High Court sets aside default judgments entered against guarantors under a facility agreement on the basis that service of the claim was not valid

The court found that a clause in the facility agreement which allowed the lender to appoint a replacement service of process agent was an unfair contract …

High Court interprets rules allowing service out of the jurisdiction without the court's permission based on a contractual jurisdiction clause