The Summer 2017 issue of our Resolve publication includes: Quick summaries for those involved in disputes; (Good) faith will not always move contractual mountains; Pre-action disclosure of an insurance policy refused by the TCC and more...


Quick summaries for those involved in disputes

Our quick summaries in this issue include recent cases on: Access by non-parties to witness statements; Launch of the Business and Property Courts; What will amount to submission to the jurisdiction of the English Court?; Underpayment of Court fee not an abuse of process.

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(Good) faith will not always move contractual mountains

Despite the attempts of numerous litigants over the years the concept of a general duty of good faith is still unlikely to find favour with the English courts in a commercial contract governed by English law where there is no express term imposing one.  The courts have repeatedly rejected efforts by litigants to imply a duty of good faith into commercial contracts.

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"Standard terms of business", unfair contract terms and market-standard documentation

It is well known that the Unfair Contract Terms Act 1977 (UCTA) provides statutory restrictions on the extent to which parties to a private agreement (including business-to-business agreements) can limit or exclude liability for certain types of loss or damage, for breach of contract, negligence and so on.

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Pre-action disclosure of an insurance policy refused by the TCC

The Technology and Construction Court in England has refused pre-action disclosure of the insurance policy of a currently solvent insured, notwithstanding that a successful claim would have resulted in the insolvency of the insured.

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Litigation funding – the latest decisions

As the market for litigation finance continues to boom, courts have been busy with the technical issues it throws up between the parties to disputes. Three recent decisions on security for costs, where claimants are funded by a third party and/or have the benefit of After the Event Insurance (ATE),  include analysis of when security may be ordered against non-party funders, and whether ATE Policies can provide adequate security.

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The Court of Appeal comments on the extent of insurers' 'duty to speak'

The Court of Appeal (CoA) has commented on the circumstances in which a policyholder might expect its insurer to speak in relation to policy terms.

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Access to the court – conditions imposed on party in contempt of court

As will be well known to those familiar with civil fraud litigation, Sergei Pugachev (P) was an oligarch and Russian senator, one time friend to President Putin and owner of the largest private bank in Russia, which went into liquidation. He is being pursued in the English courts by the Russian liquidator of the bank to enforce an earlier Russian judgment against him for having misappropriated about £1billion of the bank's assets. P maintains that his personal assets had been expropriated by the Russian state and that the proceedings in Russia were politically motivated.

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Key contacts

Kate Menin

Kate Menin

Principal Knowledge Lawyer, Dispute Resolution
London

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David Engel

David Engel

Partner, Dispute Resolution
London

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Duncan Henderson

Duncan Henderson

Managing Associate (Barrister), Finance Disputes
London

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Ryan Geldart

Ryan Geldart

Managing Associate, Commercial Disputes
Leeds

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