Commercial Disputes Weekly – Issue 15414 March 2023

Disclosure
The Interim Administrators of the late Mr Scherbakov’s estate sought guidance on the scope of their disclosure in claims brought in relation to the estate. The claimants had objected to the Administrators spending estate funds reviewing documents that were produced after the proceedings were commenced. The court rejected the claimants’ assertion that the reference in PD51U 7.3 (now PD57AD 7.6) to contemporaneous documents excluded the disclosure of documents created later that were not contemporaneous with the cause of action. Within the limits of proportionality, the practice direction must intend to achieve disclosure of all documentation that is likely to be relevant and important for the fair resolution of the claim, whether or not made contemporaneously with the cause of action. A number of other sections of the practice direction contradicted the claimants’ submissions. The claimants’ appeal was dismissed.
Morina and others v Scherbakova and others (Re Estate of Vladimir Alekseyevich Scherbakov) [2023] EWHC 440 (Ch), 2 March 2023

Property
Mr Shah carried out work to his home. He did not serve notice under the Party Wall etc. Act 1996 (the “Act”) because he was advised that he did not need to do so. His neighbour allegedly suffered damage as a result of the works to Mr Shah’s property and invoked the dispute resolution procedures in the Act. An award was made in the neighbour’s favour that Mr Shah challenged. The Court of Appeal upheld the earlier decisions that the award was void because a notice under the Act had not been served. The Act does not permit a unilateral triggering of the dispute resolution procedure without a notice. The neighbour had a number of other possible remedies including claims in trespass, nuisance and negligence. But a unilateral invocation of the Act procedures may deprive Mr Shah of access to the courts. Based on a purposive construction, the Act sets out a specific mechanism to resolve disputes between the building owner and the adjoining owner, but that mechanism is limited to disputes “in respect of any matter connected with any work to which this Act relates”. There was no notice, the Act did not apply and so the award was null and void.
Power and another v Shah [2023] EWCA Civ 239, 7 March 2023

Sanctions
Mr Deripaska applied to adjourn the trial on 20-24 March 2023 of committal proceedings brought against him by the claimants. The original trial date was adjourned because Mr Deripaska was unable to pay for legal representation due to sanctions and so a fair trial was not possible. A special licence was eventually granted but a further adjournment was requested because Mr Deripaska’s chosen legal team was not available on the trial date. The adjournment was refused. A party is entitled to have a choice of counsel but there are limits; for example, a party could not choose counsel who is not going to be available for five years. Choice of counsel is an important matter and relevant and sufficient grounds must be given for overriding it, but it should be considered as part of the overall right to the fair trial. Mr Deripaska could have provided his chosen counsel’s availability earlier or sought alternative counsel earlier. Further it is not a case where it is impossible to get competent counsel such that a fair trial would be imperilled.
Navigator Equities Ltd and another v Deripaska [2023] EWHC 457 (Comm), 3 February 2023

Contract Interpretation
The parties entered into a payment deed in relation to a share sale agreement, under which overage became payable in certain circumstances. Any dispute as to valuation could be submitted to expert determination to an expert appointed by the parties jointly. One party became bankrupt but was then discharged from bankruptcy, although his assets remained vested in his trustee in bankruptcy. The parties purported to appoint an expert, but the court held that it was invalid because the trustee in bankruptcy had not agreed to be part of the appointment. The court held that the appointment was invalid because the trustee in bankruptcy held all the assets, including rights under the payment deed to appointment an expert. The trustee had not consented to being party to the appointment.
Bastholm and others v Peveril Securities (Dalton Park Retail) Ltd [2023] EWHC 438 (Ch), 3 March 2023

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: