DR analysis: the Court of Appeal has allowed an appeal so as to grant an interim injunction to restrain the respondent from terminating/suspending their contract pending an arbitration award. This was so even though the parties had contractually agreed to a cap on the damages which could be recoverable if the contract was breached. The purpose of the injunction was to enable the applicant to restrict the losses that might be incurred. This is an important decision given the general proposition that where damages would be an adequate remedy and the defendant was in a position to pay those damages an interim injunction would not normally be granted (American Cyanamid).

The Court of Appeal has stayed English proceedings brought in relation to a dispute arising out of a settlement agreement in favour of ‘the same causes of action’ which were being litigated in Greece; this overturned the decision of the Commercial Court. The Court of Appeal held that the earlier English proceedings which had resulted in the settlement agreement were over except for the purposes of suing on the settlement agreement. A claim under the settlement agreement was a different cause of action from the original cause of action; a claim under a contract of marine insurance.

The Court of Appeal was asked to consider the preliminary issue of whether a property insurer was entitled to recover from a motor insurer where the damage to its premises was a result of a deliberate act by a motor insurer's driver. The court held that the claimant was not entitled to recover from the motor insurers. Properly construed as a matter of domestic law, s 151 of the Road Traffic Act 1988 was not satisfied in the instant case.

The Court of Appeal has qualified the service provisions in CPR 6.5(3)(b) such that an officer of a foreign company can only be served in England and Wales if the company itself carries out business in the jurisdiction. The fact that an officer of the company is domiciled in the jurisdiction will be insufficient; the courts will look to the company's business. This follows a long line of authorities in which previous equivalent service provisions have been so qualified. The Court of Appeal's judgment also considered whether the foreign company in question carried on business in the jurisdiction and whether a mandatory injunction should be granted against a foreign company. In this regard the Court of Appeal gave particular consideration to the enforcement of such relief.

The MoD argued that the claims under Article 2 of the European Convention on Human Rights (ECHR), the right to life, should be struck out on the basis that the legislation has no application to soldiers serving abroad. The MoD also argued that the negligence claims should be struck out because they concerned political decisions as to the availability of resources with which to buy equipment and decisions made in the heat of battle, such as to attract ‘combat immunity’. The principle of combat immunity prevents claims of negligence being made if those claims challenge decisions made on the field of battle.

DR analysis: the Court of Appeal has held that it is not possible to exercise a common law possessory lien over intangible property such as an electronic database. Possessory lien is a self-help remedy for someone who has been entrusted with property for a purpose and is owed sums in relation to it (a bailee). The lien can only be exercised over physical property that is in the actual possession of the bailee, and this does not extend to electronic material (unless held on a physical disk). The fact that the concept of possessory lien was established in the eighteenth century compared with the technology of today was no reason to alter this fundamental principle.

The Court of Appeal has held that the Commercial Court was entitled to determine whether it had been misled when granting an order for relief from sanctions. In doing so it could make that determination if on a review of the evidence available it was clear that the court had been seriously misled and there was no other evidence that would be forthcoming on that issue. If it determined that it had been seriously misled then it could revoke the order giving relief from sanctions. If it was not clear that the court had been seriously misled or there was other evidence which may cast a different light, the court should direct either a trial of the issue or that resolution of the issue should await trial of the action.

Dispute Resolution analysis: The Court of Appeal refused to set aside a default judgment. While it found that there was, in limited respects, a realistic prospect of establishing non-compliance with Italian law it was not sufficient to justify setting aside the default judgment. The focus of the Court of Appeal was on the extent and character of the delay in seeking to set aside the default judgment, which it considered provided good grounds to refuse to set it aside; even if the defence had a real prospect of success. It also considered that the principles set out in Denton to be applied by the court when determining whether to grant relief from sanctions applied to applications to set aside a default judgment. This substantial judgment highlights the difficulties in dealing with international disputes in which the defendant is domiciled overseas and provides an insight into the balancing act that the courts have to undertake when considering whether to set aside a default judgment.

The Court of Appeal, in allowing an appeal, has held that a solicitor had suspended work under a retainer rather than terminating it. This case highlights how the courts will construe clauses in solicitors’ Terms of Business and also correspondence when deciding whether there has been a suspension or termination of services by a solicitor and whether notice was required. At first instance, the solicitor was found to have terminated the contract through repudiatory breach, which as it had been accepted by the client, meant the client did not have to pay the costs incurred during the period of the retainer. The Court of Appeal finding means that the client will now had to pay his solicitors costs for the work they undertook as part of the retainer.

Dispute Resolution analysis: the Court of Appeal has upheld the lower court’s decision to dismiss the litigant in person’s application for a further extension of time in which to serve expert evidence and, in consequence, dismissed his claim for damages pursuant to a cross-undertaking for damages. In doing so, the Court of Appeal agreed that, although this was not technically a relief from sanctions application under Rule 3.9, ‘in practice it amounted to the same thing’ as, without compliance with the order, no expert evidence could be adduced ‘in consequence of which his claim would be bound to fail’. As such, the court treated and determined the application considering the decisions in Mitchell, Durrant and Denton following the approach in Altomart and Hysaj. This judgment is of special interest to practitioners whose opponents are litigants in person, and particularly where they may have mental health concerns and/or financial problems.

DR analysis: The Court of Appeal have confirmed that Competition Act 1998, s 47A, which enables follow-on damages claims to be brought on the back of a finding of an infringement of competition law, is not limited to causes of action for breach of statutory duty. Section 47A does permit the bringing of a conspiracy claim, provided that all the ingredients of the cause of action of conspiracy can be established by the infringement findings. This recognition of the scope of section 47A is, however, tempered by the knowledge that, at least with regard to conspiracy claims, Commission findings on infringement do not concern themselves with matters of subjective intent and therefore it is unlikely (though not impossible) that relevant infringement findings may not establish the requisite intent to injure needed to bring a conspiracy claim.

Dispute Resolution analysis: the Court of Appeal has held applications for a retrospective extension of time in which to file a notice of appeal are analogous to relief from sanctions applications. As such, the principles set out in Mitchell and Denton apply. The analogy applies due to 12 years' of authorities which have established there is an implied sanction in failing to comply with the time-limits set out in Rule 52.4(2), namely the loss of ability to seek to pursue an appeal. This judgment is particularly useful to practitioners in clarifying any misunderstandings on the meaning or effect of Rule 52.4 and/or Rule 52.6. It also addresses particular considerations, including public law versus private law, public bodies, litigants in person, funding problems, merits of the substantive appeal, etc in the context of late notices of appeal and case management compliance.