A selection of recent significant decisions of the Circuit Commercial Courts:
Procedure: Disclosure: Disclosure Pilot
The Defendants applied to revise the parameters of an order for extended disclosure order which had already been made and upon which further directions had been given. HHJ Worster gave guidance about the operation of the Pilot and warned that there would be sanctions and serious adverse costs orders for non-compliance. During the disclosure exercise, collaboration and co-operation between parties was essential. In the event that agreement could not be reached, it was not for a party to proceed unilaterally, nor should parties stop talking or engage in “point-scoring correspondence”. In the absence of agreement, parties should engage the machinery provided by the Pilot and apply for a Disclosure Guidance Hearing. If a party was taking an unreasonable view, that would rebound on them.
Short term credit agreements: FCA Rules: Breach of Statutory Duty: Unfair Relationship
The case concerned high cost short term credit agreements for unsecured personal loans with the Claimants in 12 sample cases. A claim was made for breach of statutory duty under the Financial Conduct Authority (FCA) Rules, particularly that there was failure to take account of patterns of repeat borrowing when conducting a creditworthiness assessment. One Claimant sought an order under s140B Consumer Credit Act 1974 that the agreement created an unfair relationship.
HHJ Worster held that the Defendant had breached the requirements of the relevant FCA rules. To succeed on the claim for breach of statutory duty, a Claimant had to show that, on the balance of probabilities, damage had been caused by the Defendant’s breach of duty with the usual requirements of causation applying. The court had to assess the chance that the other (complying) lenders with different information would have acted in a manner that avoided the harm done to the claimants and assess whether the chance lost was real and substantial as opposed to negligible. The onus was on the lender to prove fairness and s140B Consumer Credit Act 1974 applied. The fact that the decision-making process did not comply with FCA requirements was of considerable significance. Relief should approximate to the overall position that would have applied had the matters giving rise to the perceived unfairness not taken place
Banking: duty of care: strike out
In this case, the court declined to extend the boundaries of the Barclays Bank Plc v Quincecare Ltd duty of care to include a duty for a bank to protect a customer from the consequences of authorised push payment (APP) fraud such fraud where payment instructions were genuinely given by the customer. In 2018, the Claimant was a victim of an APP fraud which led to her losing £700,000 of her life savings. Believing that she was assisting a high-level fraud investigation, she gave the bank instructions to make two international payments from her account into what she believed were “safe accounts”. No such accounts existed and these payments had in fact been laundered away. P sought to hold the bank accountable on the basis that it had failed to comply with a purported duty to protect her from the consequences of making the transfers. HHJ Russen QC considered the nature and extent of the Quincecare duty. He disagreed that this situation was analogous to one a where a bank was on put on inquiry that that transaction could be vulnerable due to the undue influence of a third party. A bank was not to be held liable where the doubt about the genuineness of the instruction was merely speculative. Giving summary judgment in favour of the bank, he found that to do so would be an unprincipled and impermissible extension of the Quincecare duty. The judge also held that expert or other evidence as to banking practices should not encroach on the court’s identification of the relevant legal duty owed by a bank.
Contract: Financial Services: Novation: Restraint of trade: Construction of contract
HHJ Keyser QC found that although there was no documentation showing that a contract with the Defendant had been novated to the Claimant, the contract had been signed as part of a corporate restructuring which had created the Defendant, so it was clear that novation had taken place. Inequality of bargaining power did not of itself prove a restraint or make it unreasonable, but it was a relevant factor. The contract did not contain provisions in restraint of trade; alternatively, if it did, the restraint was reasonable. The contract was not void for uncertainty. The agreement was clear from the parties’ conduct. The parties had worked for several years under the introducer’s agreement without uncertainty. The client list had been accidentally omitted from the final agreement but had clearly been agreed. It was possible to give ascertainable content to the client list, by simple construction or by estoppel by convention.
Insurance: Contract: Construction: Business Interruption: Covid-19: Summary judgment
The Claimant golf course and hotel, sought to be indemnified under its business Interruption insurance policy for losses caused by the current Covid-19 pandemic. The insurer disputed that Covid-19 was an “Infectious Disease” within the meaning of the policy, which contained a definition “infectious Disease means:” followed by a list. It also disputed that the term ”Plague” within that list was apt to cover Covid-19. Cockerill J held that on the true construction of the policy the list was a closed one and that on the true construction of the policy “Plague” referred to the disease caused by Yersinia pestis rather than any epidemic with a high death rate. There was therefore ne real prospect of success. There was no other compelling reason for the matter to proceed to trial and the court granted summary judgment to the insurer.
NOTE: These summaries are provided to assist in understanding the Court’s decisions. They do not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments of the Circuit Commercial Courts are public documents and are available at: www.bailii.org/ew/cases/EWHC/Comm