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Commercial Disputes Weekly – Issue 642 March 2021

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BITE SIZE KNOW HOW FROM THE ENGLISH COURTS

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.

"There is considerable force in the suggestion that the Court can, and should, have regard to fairness to witnesses as well."Bilta (UK) Ltd (in liquidation) & Ors v Tradition Financial Services Ltd

Construction
In a decision on the operation of the 2005 Hague Convention on Choice of Court Agreements, the TCC has addressed a novel question concerning the interaction of jurisdiction provisions and the adjudication regime governing construction operations in England and Wales, finding that although a contract for works carried out in London contained an exclusive jurisdiction clause in favour of the French courts, that did not preclude the sub-contractor from bringing proceedings in England to enforce an adjudication award.
Motacus Constructions Limited v Paolo Castelli SPA

Expert determination
Emphasising the limited basis on which an expert’s determination can be challenged, the Commercial Court has confirmed that a “manifest error” is one which is so obvious and obviously capable of affecting the determination as to admit to no difference of opinion, and if an expert is engaged to make a determination on a matter of contractual interpretation, there is no reason why a challenge to that determination should not have to meet such a test.
Flowgroup Plc (in liquidation) v Co-operative Energy Limited

Fraud
The Court of Appeal has outlined the correct approach where an appellant seeks to adduce fresh evidence which it contends shows that the judgment below was obtained by fraud, holding that the new evidence must be capable of showing conscious and deliberate dishonesty of a party to the action (or at least conscious and deliberate dishonesty which was knowingly relied on by a party) which caused the judgment to be obtained in the way it was.
Dale v Banga & Ors

Restraint of trade
Confirming that the doctrine of restraint of trade was not applicable to a bespoke services agreement arising out of a corporate re-structuring, the Court of Appeal has rejected arguments that the “trading society” test applied in Peninsular Securities Ltd v Dunnes Stores (Bangor) Ltd (2020) is the single test of universal application in determining whether or not the doctrine is engaged. If the test were to be elevated in that way, it would have to be so widely interpreted as to lose any meaningful value.
Quantum Actuarial LLP v Quantum Advisory Limited

Trial
The Court of Appeal has allowed an appeal against a decision refusing to adjourn trial where an important witness, who was accused of dishonesty, was unable to attend trial for bona fide medical reasons. The Court emphasised that the key test is whether refusal of an adjournment will lead to an unfair trial, and in this case it would not be fair to have a trial without the witness.
Bilta (UK) Ltd (in liquidation) & Ors v Tradition Financial Services Ltd

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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