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Commercial Disputes Weekly – Issue 816 July 2021

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The Commercial Disputes Weekly will be taking a short break next week, but will return on 20 July.

"There is … a distinction between a case which concerns a provision which seems merely imprudent and one which appears irrational."MonSolar IQ Ltd v Woden Park Ltd

The Court of Appeal has upheld a decision that a rent review clause contained a drafting error which could be corrected by the court.  While the court will only correct an error where it is clear both that a mistake has been made and what the provision was intended to say, the error in this case, which involved an exponential rise in the annual rent for a solar farm, was about as plain a case of mistake as one could find.
MonSolar IQ Ltd v Woden Park Ltd

Economic torts
In a notable decision on the tort of causing loss by unlawful means, the Supreme Court has confirmed that a necessary element of the tort is that the defendant unlawfully interfered with the freedom of a third party to deal with the claimant.  The “dealing” element was part of the ratio of OBG Ltd v Allan (2007) which aimed to clarify the law and keep the tort within reasonable bounds, and the claimants could not point to any real life examples of it causing difficulties, creating uncertainty or impeding the development of the law.
Secretary of State for Health & Anr v Servier Laboratories Ltd & Ors

Demonstrating the importance of complying with obligations to give full and frank disclosure when seeking without notice injunctions, the Court of Appeal has upheld an order discharging an injunction restraining parties from dealing with a property.  The first instance judge had found that the court had been seriously misled in relation to substantial matters which might well have affected the outcome of the original application in a material way and while the fact that different judges might give different weight to the various factors relevant to an exercise of discretion, that did not mean the discharge decision could be overturned
Valbonne Estates Ltd v Cityvalue Estates Ltd & Anr

Determining a novel point related to the Brussels Recast Regulation, and demonstrating its continuing relevance to jurisdictional issues in English law, the Court of Appeal has rejected arguments that it could stay an English claim brought prior to the Brexit withdrawal period in favour of US proceedings, holding that while there was a power to stay the proceedings under the Regulation if the English court only had jurisdiction by virtue of the defendant’s domicile, it could not order a stay where the English court also had jurisdiction pursuant to a non-exclusive jurisdiction clause.  There was no distinction to be drawn between an exclusive and a non-exclusive jurisdiction clause for these purposes.
Perform Content Services Ltd v Ness Global Services Ltd

The Commercial Court has found that a contractual time bar which required claims to be brought within one year of the date that the basis for the claim became known to the claimant had to be given its ordinary, natural meaning.  It wasn’t necessary for the claimant to have an unwavering conviction in the belief in the truth of the basis for the claim, but there had to be a sufficient measure of confidence in the belief justified by evidence, experience or reasoning.
Arab Lawyers Network Company Limited v Thomson Reuters (Professional) UK Limited

Where claimant owners had arrested a ship that they believed to be owned by defendant charterers in Gibraltar as security for claims for unpaid hire to be brought in England pursuant to a charterparty containing an English exclusive jurisdiction clause, the Commercial Court has refused to stay a subsequent counterclaim brought before it by the defendants for wrongful arrest, holding that the counterclaim was causatively connected with the relationship created by the charter and so fell within the scope of the jurisdiction clause.
Eastern Pacific Chartering Inc v Pola Maritime Ltd

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