The Practical Lawyer

Home
About
CPD
Subscribe
Contact
Commercial

Termination right – duty of good faith?

    If a contract contains an express right to terminate, is that subject to an implied term that it must be exercised in good faith?
Subscribers only...
 

Insolvency – commercial test

Section 123 Insolvency Act 1986 includes both a cash-flow test and a balance sheet test of insolvency. However, in Eurosail [2013] it was made clear that these two tests should not be separated and isolated from each other, and nor should they be applied mechanically.
Subscribers only...
 

Warranties – also representations?

Warranties were given in a sales agreement. Could they also be sued on as misrepresentations (under Misrepresentation Act 1967)?
Subscribers only...
 

Wrongful trading – costs?

The High Court has recently held that liquidators and administrators are not able to recover their own costs and expenses for investigating a wrongful trading claim from the directors of a company (even if there has been a finding of wrongful trading under s214 IA 1986).
Subscribers only...
 

Design fees – delay?

The design fees for UK registered designs are due to be dramatically lowered(!) on 1 October 2016 (eg an application for up to 20 designs has been reduced by c90%). Clients thinking of filing design applications may want to consider whether it is worth postponing.

 

Insurers – late payment

Section 13A Insurance Act 2015 will make it an implied term of every insurance policy that the insurer will pay out within a ‘reasonable’ period of time (which will include a ‘reasonable time’ for the insurer to investigate and assess the claim).

Subscribers only...
 

Airline delay – ‘extraordinary circumstance’

The EU rules on airline compensation for delay have, to all extents and purposes, become strict liability. The lead case is jet2.com [2014] which involved two faulty engine parts in a KLM plane that was due to leave for Quito. The parts failed unexpectedly – but within their normal lifespans – meaning that KLM had to fly in replacement parts causing a 24-hour delay. KLM argued that, for all practical purposes, it was impossible to avoid the technical failure and thus it was outside their ‘actual control’ and ‘an extraordinary circumstance’. But, it was held that while this was an ‘unexpected flight safety shortcoming’ it was not ‘extraordinary’ because it is ‘normal’ for there to be unexpected mechanical failures – and KLM had a duty to maintain the aircraft so it was in ‘actual control’ (even though there was no way it could have foreseen the failures).

Subscribers only...
 

Contract – ‘good faith’

English courts have shied away from implying a general duty of ‘good faith’ into contracts. The court approach is that parties should be free to negotiate their own contractual terms, and that having an implied term of ‘good faith’ might impact on contractual clarity. This is, of course, very much ‘swimming against the tide’ of international judicial opinion (the civil jurisdictions of Holland, Germany, France and Italy will imply ‘good faith’ provisions, as will the common law jurisdictions of Scotland, New York, Canada, Australia and New Zealand).
Subscribers only...
 

Contract or tort – pros and cons

There are different measures for calculating damages, depending on whether the claim is contractual or tortious. Moreover, if a claimant has a claim in both contract and tort, then they can choose whichever produces the better outcome.
Subscribers only...
 

Exclusion clause – ambiguous

The CA recently dealt with an ambiguous exclusion clause. It took the view that the correct approach is to interpret it in the narrowest way, if a linguistic, contextual and purposive analysis does not resolve the issue.
Subscribers only...
 


Page 9 of 41

Most-read articles

Probate fees – increase
Tuesday, 09 April 2019
The much-criticised increase in probate fees comes into effect in April 2019 and apply whether or not a solicitor is involved.  Read more...
SRA – Standards and Regulations introduced November 2019
Tuesday, 09 April 2019
We reported in our February 2019 edition (p32) and March 2019 edition (p33) that the SRA is phasing in its introduction of the new ’Standards and Regulations’ which will replace the 2011... Read more...
LiP – keep informed?
Tuesday, 09 April 2019
We do not usually report on changes which are not yet in force. However, litigators have been warned to expect changes to the processes relating to litigants in person which might come into effect on... Read more...
Interim costs order – when to exercise
Tuesday, 09 April 2019
The Gazette reports on an interesting County Court case where an interim costs order has been granted to solicitors where the full value of the claim will not be quantified until 2022. Read more...
Defective Premises Act – L liable
Tuesday, 09 April 2019
The CA has held that a social L was liable to a T for injury caused due to a faulty drain cover. Read more...
Service charges – recovery of more than 100%?
Tuesday, 09 April 2019
We reported in our February 2019 edition (p24) that the RICS Code of Practice Service Charges in Commercial Property (1st edition) comes into force on 1 April 2019. Read more...
Allotments – protection
Tuesday, 09 April 2019
With the increasing pressure to build new homes, there is a possibility that areas designated for allotments might be under threat of development. Read more...
Children – standard of proof
Tuesday, 09 April 2019
The Court of Appeal refused F’s appeal against the judge’s findings in care proceedings under Part IV CA 1989 that he had sexually abused his daughter (Y). Read more...
NDA – ignoring!
Tuesday, 09 April 2019
Recently, some employees have spoken publicly about sexual harassment in breach of NDA confidentiality obligations.  Read more...
Offences – assault; emergency workers
Tuesday, 09 April 2019
The Assaults on Emergency Workers (Offences) Act 2018 follows the increasing number of assaults on emergency workers in the UK.  Read more...

Resources

IAG International
Join the IBA now!
In House Lawyer
MSI Global Alliance
www.totallylegal.com