Commercial Disputes Weekly – Issue 686 April 2021

Bribery
The Court of Appeal has confirmed that a fiduciary relationship is not a necessary pre-condition to the grant of relief in cases involving bribes or undisclosed commissions. Instead, the relevant question is whether the payee is under a duty to provide information, advice or recommendations on an impartial or disinterested basis.
Wood v Commercial First Business Limited : Business Mortgage Finance 4 Plc v Pengelly

Contract
In a notable decision concerning the interpretation of exclusion clauses, the Technology and Construction Court has rejected arguments that for a contractual term to be effective to exclude liability for a deliberate breach, then the use of express language to that effect is necessary. Exemption clauses are to be construed by reference to the normal principles of contractual construction and while the exclusion of a liability which would otherwise arise would be a departure from the norm and so such an interpretation would be inherently less likely, if the language of a clause is such that it is only properly capable of one meaning, effect must be given to it.
Mott MacDonald Ltd v Trant Engineering Ltd

Disclosure
In a reminder of the importance of ensuring that privileged documents are not disclosed inadvertently, the Commercial Court has allowed defendants to use witness statements which had been disclosed by the claimants in error and provided for inspection, holding that there was nothing which would have put the defendants’ solicitors on notice of any mistake.
Barclay-Watt & Ors v Alpha Panareti Public Limited & Ors

Orders
The Court of Appeal has allowed an appeal from an order extending time for compliance with an unless order, finding that a creditor had not had a firm intention of funding the further conduct of litigation, and so there had been no material change of circumstances justifying the extension of time.
Athena Capital Fund SICAV-FIS SCA v Crownmark Ltd

Privilege
In the context of claims that documents prepared by an in-house lawyer in the context of the phone hacking scandal were protected by privilege, the High Court has emphasised the difference between giving advice in the context of apparently iniquitous activity, which will not, by itself, be capable of removing privilege, and giving advice or doing other acts in order to further iniquity.
Various Claimants v News Group Newspapers Limited

Tort
Rejecting arguments that a barrister owed a duty to instructing solicitors not to cause them financial loss, the Circuit Commercial Court has observed that there was no contractual duty pursuant to the COMBAR/CLLS Model Agreement, Basis A, and that where the parties could have contracted for the relevant duty but did not, there was no reason to impose a duty at common law.
McFarland-Cruickshanks v England Kerr Hands Solicitors Limited t/a England Kerr Hands

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