Commercial Disputes Weekly Issue 287 9 June 2026

LANDLORD AND TENANT

Receivers of a property that had been subject to a charge as security for a loan were appointed following breach of the loan. They served notice on the tenant of the property, Mr Barr, to enable them to sell the property with vacant possession and so get the best price possible. They gave notice to Mr Barr citing various grounds under the Housing Act 1988 (“HA”). The court held that sufficient notice had not been given to the tenant at the start of the tenancy that possession of the property may be recovered under ground 2 of Schedule 2 of the HA – namely by a mortgagee exercising a power of sale conferred by the mortgage. The purpose of the notice is to flag the different risk associated with ground 2 in comparison with the other fault-based grounds. The court held that insufficient notice had been given to the tenant that they would be required to give up possession in those circumstances. However, the court was unable to conclude on summary determination whether it was just and equitable to dispense with notice and gave further directions.

Hubbard v Barr [2026] EWCC 34, 3 June 2026

JURISDICTION

The High Court has rejected a challenge to orders granting permission to serve a claim form out of the jurisdiction on defendants in the USA. The dispute related to alleged breach of a nominee deed between two partners and HKA by the partners allegedly persuading HKA staff to join a competitor, Accuracy. The nominee deed contained an exclusive English court jurisdiction clause. The two partners applied to the English court for a declaration of non-liability. HKA sought to join Accuracy to the proceedings and serve out of the jurisdiction in the USA. In dismissing the application to strike out permission to serve out of the jurisdiction, the court confirmed that there had been no breach of the disclosure duty in relation to related US proceedings, however there had been a failure to bring an interim decision of the Delaware court to the English court’s attention. This failure was penalised in costs, not in discharge of the order. Numerous factors pointed towards the English court being the more appropriate forum to determine the breach of the nominee deed, not least the fact that the Delaware court agreed that England was the proper forum. That was the agreed forum and there were no strong reasons to deviate from that agreement.

Courier and another v HKA Global LLC and others [2026] EWHC 1318 (KB), 3 June 2026

JURISDICTION

The claimants brought proceedings in the English court against the defendant alleging infringement of copyright. They had also previously brought proceedings in Georgia and now sought to argue that certain questions (for example, as to ownership and infringement) could not be relitigated in the English courts. The issue before the Chancery Court was therefore whether the question of issue estoppel (whether the previous judgment precludes those issues being argued again) was determined by English law as the law of the forum or by the foreign law applicable to the substantive claims. The court held that it was the latter – foreign law governed this question, as a result of the application of Rome II as assimilated into English law. Issue estoppel was not a question of evidence or procedure. The application of foreign law in this way also did not infringe fundamental rights or principle in such a way as to be incompatible with public policy.

Aviator LLC and others v Spribe Oü and others [2026] EWHC 1216 (Ch), 22 May 2026

BUILDING SAFETY

In granting a remediation contribution order against a company associated with the developer of a building that was now in liquidation, the First-tier Tribunal (“FTT”) has considered various new issues. The Right to Manage company had carried out remedial work on the building with funding from the Secretary of State who now applied for the contribution order. In making the order, the FTT held that it was not necessary to identify a particular defect before assessing whether there was a building safety risk from the relevant works. Further, the FTT rejected an argument that the remediation work should have been carried out for the cheapest cost possible. As long as the work fell within the range of reasonable responses, the choice of which approach to take was left to the party who does or commissions the work. However, the FTT concluded that the legislation did not allow litigation costs to be included in a remediation contribution order.

Secretary of State for Housing, Communities & Local Government v EDR Builders Ltd and another [2026] First-tier Tribunal, 21 May 2026