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Wikborg Rein | United Kingdom | 18 Aug 2021

Shipbuilding contract dispute: demand or see to it guarantee?

In a recent decision with potentially far-reaching implications for the shipbuilding industry and for guarantees generally, the Court of Appeal issued a judgment addressing what makes a guarantee issued by an entity other than a financial institution a "demand" guarantee rather than a "see to it" guarantee. This judgment serves as reminder of the need to be careful when drafting guarantees......
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RPC | United Kingdom | 17 Aug 2021

Exceptional circumstances: court provides lesson on drafting grounds of appeal

The most important practical implications of a recent Court of Appeal case arose from the guidance given to practitioners regarding drafting the grounds of appeal. The Court of Appeal noted that far too often it is presented with grounds that are "over-lengthy and ill-focused", where the distinct roles of the grounds and skeleton argument are not observed. This was a highly unusual case in......
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RPC | United Kingdom | 3 Aug 2021

When will courts step in to correct contractual mistakes?

The court will intervene to correct a drafting mistake only if the contractual provisions are "nonsensical or absurd". The Court of Appeal recently considered this issue in a dispute between a landlord and a tenant. Contracting parties should ensure that the language of their agreements accurately reflects the intended terms.
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RPC | United Kingdom | 19 Feb 2019

Is a 'good arguable case' good enough? Court of Appeal considers test for establishing jurisdiction

A recent Court of Appeal decision has confirmed that the test for deciding whether a claimant has a good arguable case is relative. Where a court lacks the evidence to decide which party has the better argument, a more flexible approach should be adopted. In circumstances where the evidence is thin, it is not all relative and claimants are required only to demonstrate a plausible evidential......
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RPC | United Kingdom | 20 Nov 2018

Letter of contract versus business common sense – latest from Court of Appeal

In the latest of a long line of higher court authorities debating the boundaries between black letter and more purposive approaches to contractual construction, the Court of Appeal has taken another step away from the high-water marks of the business common sense approach to contractual meaning. The decision confirms that parties are more likely to be able to work contractual machinery......
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RPC | United Kingdom | 27 Feb 2018

Bank liable for breach of Quincecare duty

In a recent case, the Court of Appeal upheld a decision that the appellant bank had breached the Quincecare duty of care which it owed to its corporate customer by making payments without proper enquiry, in circumstances in which a reasonable banker would have been on notice that the customer's director was perpetrating a fraud.
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RPC | United Kingdom | 13 Feb 2018

Beware of the risks when notifying warranty claims

In a recent case, the Court of Appeal upheld the High Court's decision to strike out certain breach of warranty claims on the basis that the buyer had given the seller inadequate notice of those claims. The buyer's attempt to keep its options open by drafting its notices widely proved fatal to its claims, as it failed to identify the specific warranties to which its claims related as required......
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RPC | United Kingdom | 12 Dec 2017

Supreme Court holds that a defendant cannot be liable for a greater loss than was caused by its negligent valuation

The Supreme Court recently clarified that when applying the 'but for' test in the context of a negligent valuation, the basic comparison is between the position that the claimant would have been in if the defendant had fulfilled its duty of care and the claimant's actual position. This means that a defendant cannot be liable for a greater loss than was caused by its negligent valuation.
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RPC | United Kingdom | 28 Nov 2017

Ghosh test overturned: dishonesty according to the standards of ordinary, reasonable and honest people

The Supreme Court recently held that the test for dishonesty should be assessed only by reference to whether the defendant's conduct is dishonest by the objective standards of ordinary, reasonable and honest people. In its ruling, the Supreme Court concluded that there were convincing grounds for holding that the second limb of the well-known Ghosh test did not correctly represent the law and......
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Thorsteinssons LLP | Canada | 17 Nov 2017

Federal Court of Appeal releases decision on application of GAAR rule

The Federal Court of Appeal recently overturned a Tax Court decision which had found that a number of transactions undertaken by the Univar corporate group constituted abusive tax avoidance under the General Anti-avoidance Rule (GAAR). The judgment contains several important points concerning the analysis and application of the GAAR and will undoubtedly be relied on by taxpayers in future.
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