Elvanite Full Circle v AMEC Earth
Meaning of limitation clause requiring "filing" of a claim
The parties entered into a contract which contained a provision that "all claims by the client shall be deemed relinquished unless filed within one (1) year after substantial completion of the services". The parties to a contract may vary the ordinary six year limitation period - for example, in Inframatrix Investments v Dean Construction (see Weekly Update 31/11), the parties agreed that no action or proceedings were to be brought after the expiry of one year. However, in this case, the clause required all claims to be "filed" within one year. Coulson J noted (obiter, since he had already decided that the claim would fail) that in the High Court proceedings are commenced when a claim is issued in accordance with CPR r7.2. Accordingly, the word "filed" was not apt to describe the commencement of proceedings: "in particular, the "filing of claims" is not a process recognised by English court procedure".
However, the judge accepted an argument that the clause could properly be read as a reference to the sending of a properly particularised Letter of Claim, as required under the Professional Negligence or the TCC Pre-Action Protocols. The clause was intended to provide some form of certainty and so the claimant should have provided at least a clear summary of the fact on which each claim is based, as well as the basis on which each claim is made (ie the contractual term or statutory provision being relied on). It meant something more than simply the intimation that, at some point in the future, a (wholly unparticularised) claim might be made. The use of the word "filed" also denoted a degree of formality, suggesting the actual making of a claim rather than a generalised notice of such a claim.
The contract also excluded consequential or incidental damages. Coulson J said that whether or not a claim for lost profit fell within this exclusion depended on the nature of the contractual obligations. Here, the defendant had been obliged to act with reasonable care and skill in completing a planning application on behalf of the claimant. Any loss of profit would therefore be an indirect loss because it required an intention to sell the site on to a third party - it was very different from, say, the sale of profit-making equipment which fails.
MacDermid Offshore v Niche Products
Whether English court should grant stay if proceedings commenced first in non-EU court
http://www.bailii.org/ew/cases/EWHC/Ch/2013/1493.html
A US company commenced proceedings against an English company in Texas. A month later, the English company commenced proceedings against the US company in England and the US company sought a stay of those proceedings on the basis of forum non conveniens. The US company sought to argue that, since proceedings were already afoot in the US, a three stage test should be applied by the court: (a) should the foreign proceedings be taken into account?; if yes (b) is the foreign court "a natural and appropriate forum" (ie a suitable forum) to hear the dispute?; and, if yes, (c) would it cause injustice to deprive the English claimant of some personal or juridical advantage? The US company sought to rely on the case of MV Olympic Galaxy [2006] in running this argument.
Warren J rejected that argument. Relying on prior caselaw (eg The Abidin Daver [1984] and Spiliada Maritime v Cansulex [1987]), he concluded that the existence of earlier foreign proceedings is just one factor to be taken into account by the English court. Where the foreign proceedings are only at the initiating stage, they are likely to be irrelevant. However, "They may move to such an advanced stage – to take an extreme example with preparation for trial almost complete – as to become not only a relevant factor but a factor of decisive importance, so that the foreign court becomes the inevitable choice as the appropriate forum for the resolution of the dispute. To put it another way, the stage which the foreign proceedings have reached may make it clear that the foreign court has become the 'clearly more appropriate forum'."
Berney v Saul
Court of Appeal decides when damage arose in a solicitors' negligence case
http://www.bailii.org/ew/cases/EWCA/Civ/2013/640.html
The claimant was injured in road traffic accident and commenced proceedings against the other driver in 2002. The other driver's insurers admitted liability. However, the claimant's solicitors failed to file the particulars of claim in time and the other side's solicitors agreed not to take any procedural defence up until 25 January 2005. After that date, counsel advised the claimant that she had only a 20% chance of succeeding in an application to extend time for filing of the particulars. She eventually settled her claim (on 1 November 2005). She sought to sue her solicitors for negligence and the issue in this case was whether the claim was time-barred. The Court of Appeal has now held that it was not.
Gloster LJ highlighted that the issue of when damage is first sustained in a case such as this one is highly fact-sensitive. What needs to be determined is "when is the claimant worse off financially by reason of a breach of the duty of care than he would otherwise have been" (as per Lord Hoffmann in Forster v Outred [1982]). Gloster LJ said that, on the facts, there had been no real risk that the claimant would have failed to get an extension of time to file the particulars (despite counsel's opinion), applying the factors set out in the (then) CPR r3.9 and hence she first suffered loss on 1 November 2005. However Moses LJ (with whom Rimer LJ agreed) did not share that view. He held that from 25 January 2005 a real risk had arisen that time would not have been extended or her claim would have been restricted and hence she first suffered loss on that date. However, this difference in opinion did not matter, since on both views the claim was not time-barred.
Shoreline Housing v Mears
Scope of an entire agreement clause
http://www.bailii.org/ew/cases/EWCA/Civ/2013/639.html
The contract between the parties in this case contained an entire agreement clause which read: "This contract is the entire agreement between the parties". In Axa Sun Life Services v Campbell Martin [2011] it was held that an exclusion for liability for misrepresentation has to be expressly stated in an entire agreement clause (and a reference to "representations" will not suffice). In this case, the Court of Appeal held that the entire agreement clause did not bar a claim for estoppel either. It distinguished this case from Springwell Navigation v JP Morgan [2010], where there was an extensive express exclusion clause (which led the Court of Appeal to conclude that the parties had agreed that, at the time they entered into the contract, a representation-free state of affairs existed).
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