Even, as in Mir Steel UK Ltd v Morris,  EWCA Civ
1397, where the clause allocating that risk didn't clearly
spell out how far it was intended to go. Mir Steel bought the
assets of the insolvent Alphasteel, including a hot strip mill,
knowing that the assets were subject to claims by Lictor Anstalt,
which had assembled them. The asset purchase agreement provided in
clause 9.5 that Mir Steel would be responsible for settling
'any claim' to the hot strip mill made by Lictor. Lictor
later sued Mir Steel for conversion, inducing breach of contract
and conspiracy by unlawful means. Mir Steel sought contribution
from Alphasteel but was met with the argument that it was off the
hook given the broad language of clause 9.5. The trial judge
Mir Steel argued on appeal that clause 9.5 should be interpreted
more narrowly, along the principles set out in R v Canada
Steamship Lines Ltd,  AC 192 (PC (Can)), where it was
held that express words were required in order to exclude claims
for negligence. If express words were required with respect to
negligence, Mir Steel contended, they should clearly be required to
exclude the claims for intentional wrongdoing being made by Lictor.
The English Court of Appeal pointed out that Canada
Steamship should not be applied 'mechanistically' and
provides only 'guidelines'. What a court really needs to do
is determine whether it is 'inherently improbable' that the
parties intended to allocate risk in a particular way. On the facts
of Mir Steel, it was clear that the parties to the asset
purchase were aware that title to them was either 'flawed or
possibly flawed' and a claim by Lictor in the offing. The
purchase price presumably reflected that risk. It was therefore
reasonable to conclude that 'any claims' in clause 9.5
meant exactly that, including claims based on Mir Steel's
alleged intentional wrongdoing. The court's job is to interpret
'the particular contract in the context in which it was
made', including its 'commercial purpose'.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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