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Commercial Disputes Weekly – Issue 5712 January 2021

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We appreciate that our clients, partners and friends are currently facing unprecedented challenges as a result of the spread of the COVID-19 virus. Click here for a message from our Managing Partners, and here for all of our latest updates and articles on the subject. If you have any questions or require support, please do not hesitate to speak to your usual contact at WFW.

"The court should, however, be wary of departing too readily from the usual rule that costs on discontinuance should be payable on the standard basis … it would be wrong in principle and a perverse disincentive to claimants' undertaking a proper review of their claims to order costs on the indemnity basis simply because, rather than pursuing a bad case to trial, a claimant takes a proper decision to discontinue."RG Carter Projects Limited v CUA Property Limited

Providing a useful warning to claimants on the potential costs consequences of bringing and then abandoning weak claims, the TCC has found that where a claimant sought to amend its particulars of claim so as to remove a significant misrepresentation claim, costs should be determined on the basis that the claim had been discontinued, rather than by reference to the general rule on amendment.
RG Carter Projects Limited v CUA Property Limited

Emphasising that in determining whether a notice of arbitration is valid, the court should take a broad, flexible and non-technical approach, the Commercial Court has found that while a notice appointing an arbitrator had not been particularly felicitously worded and sought to keep all bases of appointment open, it was nevertheless valid.
Lavender Shipmanagement Inc v Ibrahima Sory Affretement Trading SA & Ors

In the latest decision on the operation of the Disclosure Pilot Scheme, the High Court has provided guidance on the power to vary an order for extended disclosure, holding that “issues for disclosure” are not confined to issues that can be identified from the statements of case, and that provided an extended disclosure order is in place, an additional order for disclosure of documents can be made whether or not a List of Issues for Disclosure is in place.
HMRC v IGE USA Investments Limited (formerly IGE USA Investments) & Ors

Jurisdiction clauses
In a decision which will be of particular interest following the end of the Brexit transition period, the Court of Appeal has commented on the operation of asymmetric jurisdiction clauses, noting their utility and confirming that they constitute exclusive jurisdiction clauses for the purposes of the Brussels Recast Regulation (which will apply to proceedings commenced before the end of 2020), but also highlighting (without determining the point) that the position may well be different under the Hague Convention on Choice of Court Agreements (which will apply to future proceedings between the UK and EU if no other agreement is reached).
Etihad Airways PJSC v Flöther

Stakeholder claims
Confirming that the rules on challenging jurisdiction apply to stakeholder claims, the Court of Appeal has found that where a defendant had failed to issue an application challenging jurisdiction within the relevant time limit, or at all, it was deemed to have accepted the jurisdiction of the court to try the claim.
Stephenson Harwood LLP v Medien Patentverwaltung AG & Anr

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 DesaiRobert Fidoe
Andrew HutcheonSarah Ellington
Mike Phillips
Theresa Mohammed

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