Commercial Disputes Weekly – Issue 21717 September 2024

Commodities – Jurisdiction
In the context of an application for an interim anti-suit injunction, the Commercial Court found that the defendant was bound by the jurisdiction agreement in an oil sale contract that was put in place allegedly as a fraud on the defendant by its agent, CO. CO had been authorised to use the defendant’s letter of credit facility. The claimant had paid for the oil but the defendant was not paid by CO. The defendant commenced proceedings in Nigeria against the claimant on the basis that they were liable for the unpaid sums. The court found that the defendant was bound by the exclusive jurisdiction agreement in favour of the English courts that had been made on the defendant’s behalf by CO. An anti-suit injunction was granted and the defendant’s application to challenge jurisdiction was dismissed.
Augusta Energy SA v Top Oil and Gas Development Co Ltd [2024] EWHC 2285 (Comm), 6 September 2024

Insurance – Covid 19
The Court of Appeal has upheld the lower court decision in relation to the applicable test of causation of claims that had been agreed by the parties to business interruption insurance. The relevant businesses needed to show that the premises had been closed on government order or advice in response to at least one case of Covid-19 that had occurred on the premises. The parties cannot have intended a ‘but for’ test to apply as this would mean that the claimant would have to prove that restrictions would not have been applied but for the occurrence of the disease at its premises. In practice, the restrictions would be applied where there was a serious outbreak in an area and a growing number of cases. The authority did not have to know of the specific outbreak at the claimant’s premises.
London International Exhibition Centre PLC v Allianz Insurance PLC [2024] EWCA Civ 1026, 6 September 2024

Landlord and Tenant – Covid 19
A business tenant challenged the re-entry into its premises by the landlord on the basis that the moratorium that had been put in place during the Covid-19 pandemic was still running. The tenant had resumed paying rent in July 2021 but made an arbitration referral in relation to the rent during the closure period. The arbitrator found in the landlord’s favour, who then re-entered the premises on the same day the tenant paid the outstanding rent. The court held that in the interests of clarity, the moratorium continued until the date for appeal of the arbitration award had expired. It was irrelevant whether the appeal was genuine and viable. The landlord had re-entered the premises too early.
Leicester Square (2015) Ltd v Empire Cinema 2 Ltd [2024] EWHC 2294 (Ch), 10 September 2024

Dispute Resolution Mechanism
The Chancery Court held that an expert determination clause was not terminated when the rest of the contract was purportedly terminated. It was separable from the rest of the contract and therefore needed to be complied with even after the purported termination. As a matter of interpretation of the contract, the parties intended the expert determination provision to be a one stop shop for disputes under the contract. In those circumstances and by analogy with arbitration clauses, there was a presumption that the clause was separable from the contract and subsisted where the contract had been terminated. The matter was stayed to allow the parties to comply with the expert determination provisions.
Dandara South East Ltd v Medway Preservation Ltd [2024] EWHC 2318 (Ch), 10 September 2024

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: