- Force majeure consequent on coronavirus (COVID-19) pandemic and notification injunctions (Fibula Air Travel v Just-US Air)
- What are the practical implications of this case?
- What was the background?
- What did the court decide?
- Case details
Dispute Resolution analysis: On an interim application the court determined that an injunction requiring Just-US Air to notify Fibula Air Travel (Fibula), in advance, of any intention to deal with a security deposit, held by Just-US Air under a wet aircraft lease with Fibula, was akin to a freezing injunction and would be granted only if there was solid evidence of a real risk of dissipation. Fibula relied upon Just US-Air’s refusal to return the deposit or give an undertaking to provide such notification, which it asserted was improper conduct, and asked the court to infer from those facts that there was a real risk of dissipation. To assess the strength of that evidence, the court investigated and weighed (but did not finally determine) the merits of the Just-Us Air’s claim to retain and deal with the asset. In the context of the coronavirus (COVID-19) pandemic, the court interpreted the force majeure clause in the contract strictly and determined that, at the due dates for payment of the first two instalments by Fibula, the contract had not been terminated, and the performance of Fibula’s payment obligations was not prevented by force majeure. Accordingly, Just-US Air had a strong claim to retain the security deposit and its refusal to give an undertaking was not evidence of a risk of dissipation. The application was dismissed. Written by David Fisher, barrister and associate member, at New Square Chambers.
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