Rosalind Cullis discusses a case which serves as a salutary reminder of the importance of compliance with break conditions ‘If there is a substantial impediment to the landlord’s use of the property, or a substantial part of it, then vacant possession has not been given.’ What amounts to vacant possession has, once again, been considered …
Continue reading "Vacant Possession: Take it away"
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Jeremy Farr and Shawn Kirby discuss the interpretation of a consequential loss clause ‘The correct starting point of interpretation of the clause was with the natural and ordinary meaning of the language chosen by the parties to give effect to their intent.’ In a decision with potentially far-reaching implications for commercial parties generally and the …
Continue reading "Damages: Of little consequence"
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Clare Williams and Jo-Anna Jellings consider a High Court decision which turned on the interpretation of the wording in the order ‘The decision in BG v BA came down to the intentions of the parties at the time the terms of the order were agreed, and the court established that the word “borrowing” was the …
Continue reading "Consent Orders: Weighed with meaning"
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Wills & Trusts Law Reports | March 2016 #157The claimant and third to sixth defendants were beneficiaries under a will. The first and second defendants were the witnesses and executors of the will. The claimant unsuccessfully challenged the will with costs orders being made against the claimant in favour of the first and second defendants and the third to sixth defendants. As regards the third to sixth defendants’ costs the order provided that the costs (if not previously paid) should be payable out of what remained of the claimant’s pecuniary legacy after payment of the first and second defendants’ costs prior to the distribution...
Dov Ohrenstein investigates a recent case of implied terms ‘A term will only be implied (other than if required to be implied by statute) if it satisfies the test of business necessity or it is so obvious that it goes without saying.’ The decision of the Supreme Court in Marks & Spencer plc v BNP …
Continue reading "Contract: Buy one get one free"
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Anna Pertoldi and Maura McIntosh look back at some of the key developments of 2015 from the perspective of the commercial litigator in England and Wales ‘2015 offered a welcome respite from the previous flood of case law considering applications for relief from sanctions for breaches of court rules and orders.’ As we move into …
Continue reading "Update: A litigation overview – 2015"
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Riaz Hussain examines legal and litigation trends for construction in the year ahead ‘Although in most respects the Supreme Court is not saying anything new [in Arnold v Britton], the emphasis of the majority’s view claws back from some of the more purposive approaches taken in recent cases. The impact of this decision on construction …
Continue reading "Construction Trends: Keeping an eye on the ball"
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Darrell Chiheb reviews a case clarifying the position on break clauses, which reasserts the importance of express over implied terms ‘While it may be tempting for a court to construe an instrument by the inclusion of implied terms to make it fairer or more reasonable, the court will use this power in only exceptional circumstances.’ …
Continue reading "Break Clauses: The letter of the law"
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Noel McMichael and Clare Arthurs analyse the impact of Makdessi ‘The Supreme Court looked at two main questions: when is the penalty rule engaged, and what makes a contractual provision penal?’ The Supreme Court has re-examined the rule against penalties in contracts. Its judgment in the joined cases of Cavendish Square Holding BV v El …
Continue reading "Damages: Avoiding a penalty"
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Mark Lawrence and Jonathan Pratt investigate recent Supreme Court guidance on break rights and implied terms ‘All five members of the Supreme Court were clear that… a term can only be implied into a contract where it is necessary to make that contract work. This should, therefore, be the starting point for anyone involved in …
Continue reading "Contract: Something for everyone"
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