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Commercial Disputes Weekly – Issue 13113 September 2022

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BITE SIZE KNOW HOW FROM THE ENGLISH COURTS

"The documents in the file are clearly central to the issues…The Claimant cannot fairly conduct this claim without knowing the contents of the file."Ellis v John Hodge Solicitors

Disclosure – Solicitor’s lien
The Commercial Court has decided that a solicitor’s firm that was being sued for negligence could not withhold disclosure of its file because it was exercising a lien over the file for unpaid fees. In the first decision on this issue, the court recognised that it did have a discretion to decline to order inspection of documents that were subject to a lien. However, the negligence claim related to advice given by the solicitors on settlement and so the contents of its file were highly relevant. The solicitors’ counterclaim for the fees also put the file directly in issue and the case could not be tried properly without disclosure of it. In addition, the court refused to require the claimant’s solicitors to undertake not to disclose the file to the claimant.
Ellis v John Hodge Solicitors (a firm) [2022] EWHC 2284 (Comm), 5 September 2022

Landlord and Tenant
The First Tier Tribunal (Property Chamber) has held that a tenant was entitled to make a claim for a rent repayment order against Ms Cabo even though it was not Ms Cabo’s name as landlord on the tenancy agreement. The freehold of the property was owned by Ms Cabo but the letting agreement with the tenant, Ms Dezotti, showed the immediate landlord to whom the rent was paid was a company (Top Holdings Ltd) that was owned by Ms Cabo’s husband. The evidence showed that Top Holdings let the property in its own name but as agent for Ms Cabo and therefore the relationship of landlord and tenant was created between Ms Cabo and Ms Dezotti. Top Holdings had no proprietary interest.
Cabo v Dezotti [2022] UKUT 240 (LC), 2 September 2022

Maritime – Speed and Consumption
In a speed and consumption claim, an arbitral tribunal has concluded that a charterparty clause which permitted the involvement of a weather routing company and required the Master to comply with reporting procedures for the weather bureau (clause 88) was to be interpreted in line with and not in competition with the regime in the standard speed and consumption clause (clause 29). Clause 29 set out the contractual benchmark conditions for assessment of speed and consumption. Clause 88 simply permitted the involvement of the weather routing company to monitor performance. The tribunal also held that the reports from the weather bureau used a methodology that was inconsistent with the parties’ agreement in clause 29. It preferred the vessel’s records of current over AIS positioning alone and was unconvinced about the acclaimed accuracy of satellite observations being sufficiently accurate regarding localised wind and sea state to justify casting immediate doubt on ship observations. Charterers’ claim for under performance failed.
London Arbitration 29/22, August 2022 (the decision is not publicly available)

Landlord and Tenant
The approach to deciding how much a landlord should pay by way of a rent repayment order is an issue which has troubled both the First Tier Tribunal (Property Chamber) and the Upper Tribunal (Lands Chamber) for some time and generated a steady stream of appeals in recent months. The Upper Tribunal (Lands Chamber) has confirmed the approach to be taken that is consistent with the authorities. The approach includes taking account of the seriousness of the offence committed by the landlord and considering what proportion of the rent is a fair reflection of the seriousness of the offence. The tribunal set out the assessment of the conduct of the landlord specifically in the context of the offence itself as a separate step because it is a matter that has most frequently been overlooked.
Acheampong v Roman and others [2022] UKUT 239 (LC), 5 September 2022

Should you wish to discuss any of these cases in further detail, please speak with a member of our London dispute resolution team below, or your regular contact at Watson Farley & Williams:

Andrew WardRebecca Williams
Ryland AshCharles Buss
Dev DesaiMarcus Dodds
Andrew HutcheonRobert Fidoe
Mike Phillips
Sarah Ellington
Theresa Mohammed

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