Commercial Disputes Weekly – Issue 7311 May 2021

Arbitration
Emphasising the consensual nature of arbitration, and noting that the court must be careful in deciding that a party who is unwilling to participate in arbitration previously agreed to an ad hoc reference, the Court of Appeal has rejected arguments that an agreement to arbitrate had arisen out of a chain of correspondence between the parties. The Court went on to hold that the most suitable place to try the claim, which involved misrepresentations made in England and parties located in various different jurisdictions, was England and Wales.
Manek v IIFL Wealth (UK) Ltd

Aviation
In a very interesting decision for the aviation industry involving two Boeing 737-MAX 8 leases, the Commercial Court has decided that the grounding of the aircraft as a result of a government ban did not frustrate the purpose of the leases, at least not yet. Of additional interest were the findings that the question of whether a lessor could drawdown a deposit as a result of defaults under affiliated leases will go to full trial and that, while there was an arguable case that the implied condition of satisfactory quality in the Supply of Goods and Services Act 1982 was not excluded under the terms of these leases, any claim under the Act could not be used as a defence to claims for a failure to make payments given the presence of a no-set off clause.
Wilmington Trust SP Services (Dublin) Limited & Ors v Spicejet Limited

Damages-based agreements
The High Court has delivered a notable judgment on the operation of damages-based agreements (DBAs) in which it was held that a defendant’s retention of a pre-existing shareholding did not qualify as “proceeds” of the litigation from which his solicitors were entitled to receive payment. The decision suggests that DBAs cannot be used by defendants who have not brought a counterclaim, and will therefore not recover anything from the claimant.
Tonstate Group Limited & Ors v Wojakovski & Ors

Evidence
In an unusual case involving allegations that attempts had been made to obtain confidential information from a law firm, the Court of Appeal has rejected arguments that a defendant could be cross-examined on evidence given in an affidavit sworn in response to a Norwich Pharmacal order, despite inconsistencies with another individual’s affidavit. Such cross-examination would pre-empt cross-examination of the defendant at trial.
Stokoe Partnership Solicitors v Grayson

Maritime
The Commercial Court has rejected arguments that a charterparty contained an implied term that owners would not revoke charterers’ authority to collect freight payable under bills of lading from sub-charterers, either on the basis of business necessity or obviousness.
Alpha Marine Corp v Minmetals Logistics Zhejiang Co Ltd (M/V “Smart”)

Part 36
The High Court has confirmed that in cases involving split trials where a Part 36 offer has been made, the only possible costs order that can be made following the liability trial is an order reserving costs.
Original Beauty Technology Company Ltd & Ors v G4k Fashion Ltd & Ors

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: