National Private Air Transport Services Company (National Air Services Ltd with CR No. 4030127927) v Kaki
Practice Summary judgment. The Commercial Court, in allowing the defendant's application, granted summary judgment on the claimant's claim, alleging misrepresentation, the breach of a management agreement concerning an aircraft and that the agreement was void for common mistake.
Negligence Contributory negligence. The Queen's Bench Division determined that there would be judgment for the claimant for 100% of the value of the claimant's claim for damages for personal injuries and other losses arising out of a collision with the defendant. The claimant's speed had had no causative effect on the force of the impact and his injuries had been solely caused as a result of the defendant's negligent driving.
Practice Summary judgment. The Commercial Court refused to enter summary judgment for the claimant in its claim seeking sums due under a loan note from the defendant as guarantor, as it could not be said that there was no real prospect of the defence succeeding. However, given that the defence was weak and the defence would not be stifled, it was ordered that the defendant pay US$2m into court would be made, failing which the claimant might enter judgment.
Costs Order for costs. The Queen's Bench Division dismissed a credit hire company's appeal against a non-party costs order made against it in circumstances where the judge had held that the facts showed that the credit hire company, as a third party to the claim, had a significant interest in the case such that it was justified to make an order for costs against the company. The judge had not erred in the exercise of his discretion in making such an order.
European Union Insurance. The Court of Justice of the European Union gave a preliminary ruling in which it decided that on the basis that the Directives at issue, art 47 of the Charter of the Fundamental Rights of the European Union and the Internal Regulations of the Council of Bureaux, adopted by the Agreement of 30 May 2002 between the national insurers' bureaux of the member states of the European Economic Area and other Associate States were not applicable to the dispute in the main proceedings. Consequently, the consequences arising from the case-law of the referring court to the effect that, for the purposes of the subrogated claim, the burden of proof relating to all of the elements establishing the civil liability of the defendants in the main proceedings for the accident which had occurred on 20 July 2006, rested with the Bureau of Motor Insurers of Lithuania.
Insolvency Individual voluntary arrangement. The claimant bank brought a claim against the defendant for possession of two properties in respect of which charges had been granted to the bank, as part security for loans to the defendant's company. The defendant counterclaimed. The district judge allowed the bank's application for summary judgment on part of the counterclaim.However, summary judgment was not granted on the defendant's claim that the effect of an individual voluntary arrangement (IVA), which he had entered into with his creditors, was that the bank's claim against him was time-barred. The Chancery Division, in allowing the bank's appeal, in part, held that there had been no reason for the district judge to exclude, from the summary judgment, the defendant's counterclaim based on the effect of the IVA. The court rejected the defendant's argument on limitation, in circumstances where the IVA had not been terminated by certificate, but by effluxion of time, and held that there would be a complete judgment for the bank on the defendant's counterclaim.
Disclosure and inspection of documents Pre-action disclosure. The Queen's Bench Division granted the applicants orders for pre-action disclosure in respect of potential libel proceedings. It was right to make the orders for disclosure proposed by the respondents and accepted by the applicants because it was common ground that there was jurisdiction to make the order and it was right to do so as a matter of discretion.
Bank Letters of credit. The Commercial Court ruled on a dispute between the claimant bank (Deutsche -the confirming bank), and the defendant bank (CIMB -the issuing bank), concerning Deutsche's claim for reimbursement of sums it had allegedly paid to a company (as beneficiary), under letters of credit issued by CIMB. Deutsche had argued that the issuing bank, under a letter of credit, had to accept, on its face, a statement by the confirming bank that it had paid the beneficiary under letters of credit, and that CIMB had no right to request further information in respect of that payment. The court held that, on the true construction of art7(c) of the Uniform Customs & Practice for Documentary Credits (UCP 600), read with the definition of 'honour' in art2 of UCP 600, an issuing bank's undertaking to reimburse a confirming bank arose where the confirming bank had honoured a complying presentation by making payment under the credit. It further held that, in circumstances where Deutsche had been put to proof that it had honoured presentations by the beneficiary, and where it had made assertions as to payment, CIMB was entitled to ask for further information in the usual way. However, it further ruled that the court should not entertain requests seeking unduly to investigate the confirming bank's payment arrangements, in the hope that something by way of a defence would turn up.
Practice Parties. The Court of Appeal, Civil Division, held that a court could and should exercise its procedural powers to permit an amendment of a claim form to allow a claimant to substitute an unnamed defendant driver, identified by reference to the specific vehicle which he was driving at a specific time and place, and consequently, to enable judgment to be obtained against such a defendant, which an identified insurer was required to satisfy, pursuant to of the Road Traffic Act 1988.
Costs Appeal to Court of Appeal. The Court of Appeal, Civil Division upheld a decision by a costs judge which allowed the recoverability of solicitors' costs in personal injury proceedings from a private retainer despite the case being initially covered by a public funding certificate. Even though there had been no formal discharge, as a matter of substance, services provided under the public funding had come to an end before the solicitors acted on a private retainer.