‘Readiness’ required under an FOB contract on GAFTA Form 49 was not equivalent to that required for a shipowner’s Notice of Readiness and a Seller was obliged to load despite concerns that the holds were unclean
S entered into an FOB contract to sell 15,000 tons of feed barley to B. The contract incorporated GAFTA Form 49 and required the vessel to be‘presented at loading port in readiness to load’. Laytime (and in turn demurrage) was to run from tender of a valid Notice of Readiness (NOR).The relevant vessel gave NOR on the last day of the delivery period. S refused to load the cargo as the holds were unclean and argued that a valid NOR could not be given. B disputed this and called upon S to load. S r ...
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Whether an application to a Tribunal by a Detained Patient Lapses if the Patient is Placed on a Community Treatment Order
Under the Mental Health Act 1983, patients had a right to apply to the Mental Health Review Tribunal for an order for their release. Challenges to decisions were by a case stated procedure or, more usually, judicial review. There was an elongated process by which the 1983 Act was amended, which produced the Mental Health Act 2007. In earlier draft Bills, there had been a proposal to introduce a Mental Health Appeal Tribunal. This was dropped by the time the 2007 Act was introduced. However, also ...
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The surveyor’s retainer in respect of a lease extension had not terminated as early as the first instance judge had found. Although it might be said that if a professional person gives clear advice on a particular point to his client as the need to take a particular step by a particular timer, there cannot be any general principle that he is under a duty to keep repeating that advice, as the first instance judge had found that the surveyor was in this case under such a duty to advise as the dead ...
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A dispute arose in respect of an ISDA swap arrangement entered in to between the parties with an exclusive English law and forum jurisdiction clause. The swap agreement had gone against the Defendant. The Defendant had brought proceedings in China against the Morgan Stanley affiliate as well as the Claimant in respect of advice given as to the swap agreements. Issues arose as to whether the exclusive jurisdiction clause in the ISDA Master Agreement (2002 form) required claims against non-parties ...
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One of the defences raised by valuation surveyors was that the acquisition of various hotels by the Claimants, Danish companies included an 8% uplift that amounted to tax evasion under the Danish law and that the entire claim for professional negligence should fail for illegality. As the claim was founded not on any illegal act the prospects of it being a complete defence were very slim. However as to the 8% uplift aspect of the claim the prospects were stronger. Accordingly in response to the C ...
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During the insolvency process the liquidator sold the company’s principal asset. The company and its principal director (also a major shareholder and trustee of a major creditor) brought a claim against the liquidator and the surveyor who had valued the property on the basis that the sale was at an undervalue. The director’s claims against both defendants brought in his capacity as a shareholder were bound to fail because of the rule against reflective loss. The director’s claims against the liq ...
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Insurance Claim Could Not be Disposed of Summarily Where Terms Were “Draconian”
The Court of Appeal upheld the trial judge’s decision that the Appellant insurers were not entitled to summary judgment on the Respondent insured’s claim pursuant to a contract of insurance covering it for theft of stock from its warehouse. The interpretation relied upon by the insurers in respect of warranties in the insurance policy was such that its liability would be automatically discharged and therefore draconian. Furthermore, the warranties contained standard terms which might affect othe ...
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The claimant freelance photographer’s application to commit a newspaper publisher for breach of an undertaking contained in a consent order was refused, and instead a declaration of infringement was granted. The consent order arose out of a dispute over licence fees for the use of photographs, and the publisher had undertaken in general terms not to infringe the photographer’s copyright. The judge found that the publisher’s operation of back-issue websites did constitute an infringement of copyr ...
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Questions were referred to the ECJ concerning the meaning of “acquiesced” in Art 9(1) of Directive 89/04, arising out of the honest concurrent use of identical marks by the two parties in the UK. The parties’ trade marks had the same date of registration, but Anheuser-Busch’s application had been made earlier. One day before the expiry of 5 years from the date of registration, Anheuser-Busch had made an application for a declaration of invalidity of Budejovicky’s mark, based on its “earlier mark ...
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The Court of Appeal found in favour of the appellant patentee, reversing the decision below and holding a patent for an airline seating system valid and infringed by the respondent’s system for a rival airline (BA). The core finding was that the claimed invention was not limited to systems which use ‘flip-over’ seats (contoured as a seat on one side, and flat on the other side for use as a bed). The patent was not invalid for added matter because the parent application did cover systems which di ...
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