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Commercial Disputes Weekly – Issue 3811 August 2020

BITE SIZE KNOW HOW FROM THE ENGLISH COURTS

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Contract
Providing a helpful reminder of the importance of complying carefully with notification provisions in share purchase agreements, the Commercial Court has found that a letter which purported to notify a claim under a tax warranty contained insufficient detail of “the matter giving rise to the claim” as it only referred to a tax investigation, and not the facts, events or circumstances on which the claim was based.
Dodika Limited & Ors v United Luck Group Holdings Limited

"A rule that required a court, in assessing the reliability of a confession, to disregard entirely evidence which discloses a serious possibility that the confession was made as a result of torture would not only be irrational; it would also be inconsistent with the moral principles which underpin the exclusionary rule."Shagang Shipping Company Ltd (in liquidation) v HNA Group Company Ltd

Evidence
In an important decision regarding the admissibility of evidence said to have been obtained by torture, the Supreme Court has held that the assessment of relevance and weight of that evidence is not a binary exercise and so the fact that something has not been proved does not mean it should be treated as not having happened. Instead, where there were reasonable grounds for suspecting a statement had been obtained by torture, that was a matter that could and should be taken into account in assessing the reliability of the statement as evidence of the facts stated.
Shagang Shipping Company Ltd (in liquidation) v HNA Group Company Ltd

Injunctions
Despite a lack of authority on the subject, the Court of Appeal has confirmed that it is possible for the court to enforce a previous order where there is a question as to whether what is being restrained would in fact be a breach of that order. There was therefore jurisdiction to restrain a party subject to an undertaking on terms equivalent to a freezing order from funding separate proceedings where there was an unresolved question as to whether such expenditure would fall within the exception permitting spending in the ordinary and proper course of business.
Koza Limited & Anr v Koza Altin Isletmeleri AS

Maritime
Rejecting arguments for the implication of terms into a contract of carriage that a financing bank or receivers were required to discharge cargo within a reasonable time, or to take all necessary steps to enable discharge and delivery, the Commercial Court has emphasised that the responsibility for discharge normally rests with the owner, and provisions which transfer responsibility for the cost of discharge to a charterer or receiver will not usually have the effect of also transferring the obligation to carry out the task.
Sea Master Shipping Inc v Arab Bank (Switzerland) Limited & Anr

Service
Confirming the utility of service of process clauses, the High Court has found that proceedings were properly served on an agent for service appointed by the claimant where the relevant clause enabled the claimant to appoint in circumstances where the defendant had failed to do so for itself. If the defendant did not like the process agent that had been appointed, it should have complied with its obligation to appoint in the first place.
Banco San Juan Internacional, Inc v Petróleos De Venezuela, SA

FOR MORE INFORMATION

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