Dispute Resolution analysis: The Court of Appeal held that the court retains an inherent jurisdiction to order the further examination of an officer of a corporate judgment debtor under CPR 71 where the original examination order was properly served within the jurisdiction but the officer subsequently failed to comply truthfully with it. The court rejected the argument that the CPR 71 process ends once the initial examination concludes, holding instead that the process continues until the information required by the order has been properly provided. The decision clarifies the breadth of the court’s inherent powers to enforce compliance with its own orders and protect the integrity of its processes, particularly in enforcement proceedings involving evasive judgment debtors.

Dispute Resolution analysis: the Court of Appeal has given guidance as to how practitioners should approach their disclosure obligations in cases where a disclosing party might be subject to criminal or regulatory sanction in another jurisdiction if it were to disclose the documents in question. The court held that, in such cases, disclosure may be appropriate notwithstanding the argument that communications between investigators and parties under investigation may be regarded as being confidential. Written by Sarah Prager KC, barrister at Deka Chambers.

Dispute Resolution analysis: The Court of Appeal considered an appeal against the decision at a return date to set aside a worldwide freezing order made without notice, as against a number of defendants. The freezing order was made pursuant to section 25 of the Civil Jurisdiction and Judgments Act 1982 (CJJA 1982) in aid of substantive proceedings in Scotland in which the claimant was advancing allegations of conspiracy against all defendants. The court considered, in particular, the circumstances in which a freezing injunction under CJJA 1982, s 25 would be made, purely, in support of ‘foreign’ proceedings; ‘foreign’ meaning in context: outside the jurisdiction of England and Wales. The Court of Appeal particularly focused on the ‘inexpedient’ limb of the test where the defendants were not resident in the jurisdiction and there were no assets within the jurisdiction. The Court of Appeal also considered the duty of full and frank disclosure and how it applies to appeals, finding the failure to satisfy the duty provided an independent basis on which to refuse to continue a freezing order; appeals on new evidence should be discouraged where the duty has not been complied with. Written by Lauren Godfrey, barrister at Gatehouse Chambers.

Tax analysis: In Hargreaves, the Court of Appeal dismissed the borrower’s appeal, upholding the decisions of the First-tier Tax Tribunal (FTT) and the Upper Tribunal (UT), that the interest on recurring loans was yearly interest (even if the duration of individual loans was less than a year) and the UK tax resident company, which was the recipient of the interest, was not beneficially entitled to the interest so that the UK to UK withholding tax exemption did not apply. Consequently, UK income tax should have been deducted from the interest payments.

A judge who had dismissed the claimant’s application for an injunction based on a claim for rectification was wrong to then, of his own volition, take the step of dismissing the claim in its entirety. The Court of Appeal held that Seymour J had erred in his assessment of the facts by ignoring evidence before him and which the claimant’s counsel has specifically directed him to. That error led to the judge concluding that the claimant’s claim for rectification was fanciful, such that there was no serious question to be tried and therefore dismissing the claimant’s application for injunctive relief. Having concluded that, the judge further compounded his errors by deciding, of his own volition, to strike out the rectification claim on the same basis. The Court of Appeal upheld the claimant’s appeal and remitted the case for reconsideration by another judge.

Dispute Resolution analysis: The Court of Appeal held that Nokia’s offer of an interim ‘adjustable licence’, under which final RAND terms would be determined by ICC arbitration, constituted an offer of a licence on RAND terms capable of acceptance. The court concluded that implementers who refused such an offer could not maintain claims seeking the English court’s determination of RAND terms because they were no longer willing licensees. Although the court upheld the Patents Court’s jurisdiction over the implementers’ RAND claims concerning UK SEPs, it granted a case management stay in favour of arbitration. The decision is significant for SEP litigation because it confirms that a SEP owner may satisfy its RAND obligations through an arbitration-based licensing offer and reinforces the asymmetry between SEP owners and implementers in forum selection.

The Court of Appeal in a postscript to its judgment takes issue with the length of the skeleton arguments provided (116 pages in total). It reiterates that skeletons should be short and concise and emphasises that these are far more likely to be helpful and persuasive to the court. When producing skeleton arguments parties should have regard to the relevant practice directions associated with CPR 52, particularly in relation to the nature and content of skeleton arguments.

Dispute Resolution analysis: The Court of Appeal has ruled that a foreign judgment containing any element of ‘multiple damages’ is unenforceable in its entirety under section 5 of the Protection of Trading Interests Act 1980 (PTIA 1980). In a complex and important decision, the Court of Appeal upheld the first instance decision on this point. The language of the statute is unambiguous. PTIA 1980, s 5(1) provides that ‘any sum payable’ is barred under a qualifying judgment, not just the punitive element. The prohibition on enforcing the entire judgment (including compensatory or ancillary elements such as costs and interest) gives effect to the purpose of the legislation by: (i) discouraging claimants from seeking multiple damages in the first place; and (ii) ensuring the English courts do not indirectly assist in the enforcement of punitive awards. While there was no prior authority directly on this point, the court held its interpretation was ‘overwhelmingly supported’ by the authorities and leading textbooks. Written by Harriet Campbell, senior knowledge lawyer at Penningtons Manches Cooper.

Dispute Resolution analysis: The Court of Appeal refused BHP’s application for permission to appeal against the Technology and Construction Court’s findings that BHP was liable, under Brazilian law, for the collapse of the Fundão Dam in Brazil. The court held that the proposed grounds of appeal amounted largely to impermissible challenges to findings of fact and evaluative conclusions reached after a lengthy trial involving extensive expert evidence on Brazilian law and geotechnical engineering. It rejected BHP’s repeated allegation that the trial judge had ‘failed to engage’ with its case, holding that this was unsupported by the judgment when read fairly and as a whole. The court also refused permission on the limitation grounds, but granted expedition of the appeal on the sole costs-related issue for which permission had already been granted.

Dispute Resolution analysis: The Court of Appeal held that proceedings may continue while a defendant pursues a further jurisdictional challenge, provided the defendant’s position is adequately protected. Although CPR 11(8) justified extending time for Mr Gupta to file a second acknowledgment of service until his proposed Supreme Court challenge was finally resolved, it did not prevent the court from requiring him to serve a defence meanwhile. Subject to Sucden giving undertakings preserving Mr Gupta’s jurisdictional position and indemnifying him for reasonable and proportionate compliance costs if his challenge ultimately succeeded, the proceedings should not remain in stasis. The decision gives practical guidance on balancing procedural progress against preservation of a defendant’s jurisdictional rights.

Dispute Resolution analysis: The Court of Appeal has held that while satisfaction of a consent order can take effect in the same way as judgment satisfaction, so as to bar claims against other tortfeasors for the same damage; on the facts of the present case, the claims covered by the consent order did not extend to all the claims brought against the other tortfeasor who was not a party to the consent order and so those claims should be permitted to continue.

99 year leases of ‘modest’ holiday chalets entered into in the 1970s onwards contained service charge clauses which, starting from a rate of £90 in the first year (or first three years) were then subject to an increase of 10% per annum by way of compound rate of increase. The result being that in the last year of term, on current rates, the service charge would be in excess of £1m. To counter this ‘absurd’ result, the lessees sought to argue that a correct interpretation of the service charge clause was subject to a cap of £90 in the first year and thereafter to a cap rising by the rate of 10% per annum. Despite the Court of Appeal’s initial gut reaction that the lessees’ interpretation ought to be right, it refused to imply such a cap. It was not necessary and to do so would be to rewrite the lessees’ bad bargain which is not the court’s function.