Welcome to the Commercial Dispute Resolution Update for April 2010.
If you require the full text of any of the cases referred to or further information about any of the items referred to, or if you have been forwarded this update by a colleague and would like to receive it direct, please contact Sian Edmunds.
All links are correct at the date of publication. The following topics are covered:
Banking
Jayesh Shah & another v HSBC Private Bank (UK) Ltd (2010)
A customer brought an action against his bank for damages claiming that he had suffered loss as a result of its failure to carry out his instructions whilst requests for consent under the Proceeds of Crime Act 2002 were pending. On appeal from the bank's successful application for summary judgment, the court held that there was no reason why the bank should not to be put to proof, at trial, of its suspicion that the sums involved were criminal property. It was not enough for the bank to obtain an order for summary judgment simply by adducing a witness statement by its solicitor attesting to its suspicion of money laundering.
Contract
Priory Caring Services Ltd v Capita Property Services Ltd (2010)
An undertaking by a company not to issue court proceedings against a surveyor in return for the surveyor providing expert witness services in unrelated arbitration proceedings was binding. The company was prevented from bringing a claim against the surveyor in negligence for defects that emerged after the undertaking was given. The undertaking had been given in the clear knowledge that potential claims might subsequently arise. The company had made a commercial decision to give the undertaking knowing that there may have been negligence on the part of the surveyor but it had been keen to buy the surveyor's assistance in its arbitration against its insurers.
Shell Egypt West Manzala GMBH & another v Dana Gas Egypt Ltd (2010)
On appeal against an arbitration award, the court held that a letter giving contractual notice of termination of a contract on 30 days' notice could not constitute an acceptance of the other party's repudiatory breach of contract. If the wording of the termination letter was such that it was taken as an unequivocal communication of an intention to terminate the contract it could not also be effective as an acceptance of the other party's repudiatory breach of contract.
Yuanda (UK) Co Ltd v WW Gear Construction Lts (2010)
Guidance is given on what constitutes standard terms of business in relation to the Unfair Contract Terms Act 1977.
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Disclosure
Gavin Goodale & others v The Ministry of Justice & others (2009)
Guidance is given on best practices for the handling of electronic disclosure from Senior Master Whitaker, a senior judge who is actively involved in the ongoing review of electronic disclosure under the Civil Procedure Rules. The Judge stated that adopting a proportionate approach to electronic disclosure is key and ordered that searches in the initial stages be limited to key individuals.
The draft 'Electronically Stored Information' questionnaire was appended to the judgment. Whilst this is still to be finalised and is unlikely to become part of a practice direction until the next Civil Procedure Rules update in October 2010, the fact that the questionnaire is attached makes it a publicly available document and suggests that parties should be adopting a similar approach in the mean time.
Freedom of information
Onesearch Direct Holdings Ltd v York City Council (2010)
The local authority was not obliged to allow open access to all of its unrefined property information and the authority's policy document which stated that the public was not allowed access to the information was not unlawful.
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Misrepresentation
Sean Lindsay v Jared O'Loughnane (2010)
The managing director of a company was held to be personally liable for fraudulent misrepresentations which he had made and which had induced the claimant to enter into transactions which caused substantial loss.
Negligence
Pegasus Management Holdings SCA & another v Ernst & Young (2010)
Where the claimant had not received what he ought to have received as a result of the defendant's advice, there was relevant damage for the purpose of establishing negligence. It was not necessary to show that the claimant was immediately put in a position in which he was financially worse off than he would have been had the defendant not been negligent.
Procurement
Uniplex (UK) Ltd v NHS Business Services Authority (2010)
The ECJ ruled that the Public Contracts Regulations 2006 contain an inaccurate translation of the relevant EC law into UK law. Regulation 32 (4)(b), which states that challenges to a procurement process must be brought "promptly and in any event within three months from the date when grounds for bringing the proceedings first arose", is inaccurate. The ECJ held that it would be wrong to allow a limitation period to start before sufficient knowledge of the infringement was obtained by the complainant.
SITA UK Ltd v Greater Manchester Waste Disposal Authority (2010)
A service provider could have grounds for bringing proceedings under the Public Service Contracts Regulations 1993 when it had knowledge of the facts which clearly indicated that an infringement of the regulations had taken place. Limitation would run from this point. The decision in the Uniplex case (above) was followed. It was not necessary to have knowledge of the existence of some form of potential loss or damage.
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The Bribery Act received Royal Assent on 8 April and will come into force later this year.
The Act completely replaces the previous laws on bribery and corruption and widens the definition of bribery. It also introduces a new corporate offence of bribery, which makes an organisation liable for bribery by an employee if it is found to have failed to put in place adequate anti-corruption procedures.
The maximum penalty for bribery has been increased from 7 to 10 years' imprisonment with an unlimited fine.
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Banking
The In-House Lawyer February 2010, p.8-10
Discusses the Walker Review of corporate governance in banks and other financial institutions.
Contract
The In-House Lawyer April 2010, p.25-26
Discusses the need for clear and precise incorporation of jurisdiction clauses.
Costs
Judicial Review 2010, p.92-97
Discusses security for costs.
New Law Journal 2&9 April 2010, p.491-493
Discusses costs arguments following two recent decisions.
Disclosure
New Law Journal 19 March 2010, p.425-426
Explains why businesses need to take control of their electronically stored information.
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Health
Solicitors Journal 6 April 2010, p.15-16
Discusses cost cutting in NHS legal spend and new approaches in the healthcare legal market.
Insurance
The In-House Lawyer April 2010, p.53-56
Considers post-loss insurance obligations.
Practice and procedure
Judicial Review 2010, p.1-8
Discusses practice and procedure in the new Supreme Court.
Privilege
Solicitors Journal 16 March 2010, p.13-14
Considers where three recent cases have left the 'without prejudice' principle.
Professional negligence
New Law Journal 16 April 2010, p.533-534
Discusses immunity of witnesses from proceedings.
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Public interest
Judicial Review 2010, p.18-26
Discusses public interest interventions in the Supreme Court.
Settlement
The In-House Lawyer April 2010, p.59-61
Considers the operation of settlement offers under CPR Part 36.
A new public law practice direction has been introduced with effect from 6 April 2010. Whilst it primarily applies to care and supervision proceedings, the PD states that, in so far as practicable, it is to be applied to all other public law proceedings.
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