Commercial Disputes Weekly – Issue 2273 December 2024

Arbitration – Jurisdiction
In a dispute arising between two banks in relation to currency swaps, the Commercial Court has concluded that it can exercise its rarely used power to determine the jurisdiction of an arbitral tribunal. Normally, the tribunal would rule on its jurisdiction, but in exceptional circumstances, the court is permitted to do so by section 32 of the Arbitration Act 1996 (“AA 1996”), with the permission of the tribunal or all the parties. The court concluded that it would be efficient and cost effective for it to hear the application. If the tribunal decided on its jurisdiction, there was likely to be a challenge to the court under section 67 AA 1996, so referring it straight to the court would lead to substantial cost savings. Further, it was consistent with the parties’ contract which provided that disputes should be dealt with urgently.
Barclays Bank plc v VEB.RF [2024] EWHC 2981 (Comm), 19 November 2024

Jurisdiction
The Commercial Court has concluded that a clause in a litigation funding agreement that gave the option to refer a dispute to an independent King’s Counsel for a final and binding opinion was not an arbitration agreement. The court reached this conclusion on the basis that the contract contained various dispute resolution provisions that included a reference to LCIA arbitration. In addition, the reference to a King’s Counsel did not involve any kind of judicial enquiry but was simply a case of instructing them to provide an opinion. It was therefore a different process from an arbitration.
Bugsby Property LLC and another v Omni Bridgeway (Fund 5) Cayman Invt Ltd and another [2024] EWHC 2986 (Comm), 25 November 2024

Construction – Negligence
A firm of chartered surveyors has been found to have owed a duty of care in both contract and tort to the claimants to advise them properly on their application for planning permission. The firm failed to do this and was liable for the losses that the claimants suffered. The claimants had obtained planning permission to convert outbuildings, but the surveyor had advised that it would be acceptable to demolish the building and rebuild the outbuildings if it looked the same as the original building. The council carried out an inspection when the outbuilding had been demolished and ordered all work to be stopped. An application for amended planning permission was refused and the property remains in that state. The claimants’ losses included wasted costs and a reduction in the value of the property.
Melia and another v Tamlyn and Son Ltd [2024] EWHC 3002 (Ch), 25 November 2024

Relief from Sanctions
The Court of Appeal has set aside an order granting relief from sanctions where the claimant had served her particulars of claim late. The first instance judge had concluded that the underlying claim was particularly strong and that this was a relevant consideration in whether to extend the time for serving the particulars of claim so that the claimant was not in breach. The judge had been wrong to do this because the claimant had not given notice that she was asserting that the underlying claim was so strong that it should be taken into account. As a result, the defendant had insufficient time to consider its response to that position. The order was set aside and an order striking out the claim was reinstated.
FM Conway Ltd v Bangs [2024] EWCA Civ 1461, 28 November 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: