Knowledge Counsel London
"In those circumstances this Court is not concerned with the effect of that departure on the result"
Expert determination
The Technology and Construction Court has concluded that an expert determination was not binding on the parties due to errors by the expert. The expert had determined that there had been a valid variation of contract between the parties but had failed to take account of the fact that there was a no oral modification clause in the contract that would preclude this variation. He also made no reference to the leading case on such clauses. The decision taken was wrong in law, such that the expert was in breach of his mandate to reach a decision containing no manifest errors and no errors of law. The court rejected a suggestion that the decision could be justified on another basis. Once an expert has departed from his instructions in a material respect the court was obliged to conclude that the decision was not binding.
GSY Hospitality Ltd v Gladstone Court Developments Ltd [2025] EWHC 3231 (TCC), 11 December 2025
Real Estate – Contract interpretation
The Chancery Court has considered the consequences of non-compliance with conditions precedent in a property sale and purchase agreement. Henley agreed to sell the property to Weston but completion was conditional on a successful joint application for planning permission within six months, failing which the deposit would be returned. Weston applied for return of the deposit but Henley asserted that it was in breach of its obligations in relation to the planning permission and so it could not benefit from its own breach. The court confirmed that the ‘Breach of Contract Principle’ (namely, that a party may not be permitted to rely upon its own breach of contract in order to take advantage of a contractual right of termination) was a principle of construction or interpretation available to the court. Here the express terms of the contract demonstrated a sufficiently clear intention that was contrary to that principle applying and the test for implying such a term was not satisfied. In addition, such a term would have been inconsistent with other express terms. The court upheld the lower court decision that the deposit should be returned.
Henley Developments 211 Ltd and another v Weston Homes PLC [2025] EWHC 3200 (Ch), 5 December 2025
Arbitration – Commodities
The Commercial Court has dealt with a commodities dispute arising from the closure of the Ukrainian Black Sea and Azov Sea ports in 2022. Olam had agreed to supply Ukrainian corn from a Ukrainian port but failed to do so. Olam claimed force majeure, Holbud requested nomination of a Romanian port, which was also permitted under the contract. No alternative nomination was made and the contract was terminated by Holbud for Olam’s alleged repudiatory breach. The GAFTA board of appeal found against Olam and ordered payment of €4.8m damages. On appeal under section 69 Arbitration Act 1996, Olam was successful. The court concluded that the fact that Olam had wrongfully declared force majeure did not relieve Holbud from having to prove that it was able to perform its obligations under the contract in order to recover substantial damages. Holbud had redeployed the nominated vessel. The court rejected an argument that the board had made a finding of estoppel against Olam. There was no evidence of consideration of the issue or relevant findings of fact as to representations. The court also held that Holbud was not entitled to substitute another vessel.
Olam Global Agri PTE Ltd v Holbud Ltd [2025] EWHC 3187 (Comm), 5 December 2025
Landlord and tenant
The Court of Appeal has upheld a tribunal decision that the council landlord was unable to recover through the service charge, the costs incurred in remedying various structural defects that had existed since the blocks were built and before the leaseholders bought their flats. The court held that it was a question of interpretation of the leases and the fact that the leases were granted pursuant to the legislative right to buy scheme was relevant background information in interpreting the leases. The relevant provisions relating to contributions for costs and expenses necessary for the safety (among other things) of the building envisaged more routine matters, not major structural work from existing defects. So as a matter of interpretation, the costs were not within the scope of the service charge provisions.
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