Judgment Call: 23 April 2012
(1) Enercon GmbH and (2) Wobben Properties GmbH v Enercon (India) Ltd (2012) EWHC 689 (Comm). Commercial Court (QBD (Comm)). Eder J.
Arbitration
23 March 2012
The English court declined to determine whether the seat of an arbitration would be in England for the purposes of service out of the jurisdiction under CPR r.62.5(1)(c)(ii) when that issue had been raised and remained to be determined in proceedings between the parties in India.
Judgment accordingly
For the claimants
Enercon GmbH & Wobben Properties GmbH
Essex Court Chambers’ David Joseph QC; 3 New Square’s Joe Delaney; Cripps Harries Hall partner Peter Ashford
For the defendant Enercon (India)
20 Essex Street’s Philip Edey QC and Malcolm Jarvis; Enyo Law partner Simon Twigden
Banking and finance
(3) Beig Midco Ltd; (4) KP Germany Zweite GmbH (2012) EWCA Civ 419. Court
of Appeal (Civil Division). Longmore LJ; Tomlinson LJ; Patten LJ.
3 April 2012
The Court of Appeal determined various questions of construction in relation to derivatives in the form of interest rate swaps and forward-freight agreements
that were subject to the ISDA 1992 Master Agreement.
Judgment accordingly
For the appellants Lomas & Ors
South Square’s William Trower QC and Daniel Bayfield; Linklaters partner Simon Firth
For respondents (1) JFB Firth
Rixson Inc and (2) FR Acquisitions Corporation (Europe Ltd)
Brick Court Chambers’ Mark Hapgood QC; One Essex Court’s Henry Forbes Smith; Macfarlanes partner Barry Donnelly
For respondent (3) Beig Midco Ltd
South Square’s Robin Dicker QC and Joanna Perkins; Clifford Chance partner Roger Leese
For respondent(4) KP Germany Zweite GmbH
South Square’s Richard Fisher; Freshfields Bruckhaus Deringer partner Andrew Hart
For intervener International Swaps and Deriviatives Association
South Square’s Antony Zacaroli QC and Jeremy Goldring; Allen & Overy partner Mark Florent
Negligence
(1) Pegasus Management Holdings SCA; (2) Ivan Harold Bradbury v (1) Ernst & Young
(a firm); (2) Ernst & Young LLP (2012) EWHC 738 (Ch). Chancery Division (Ch D). Mann J.
23 March 2012
The claimant’s assignment of its cause of action to another company did not have the effect that it could no longer be said n to have suffered any loss.
Appeal dismissed
For the appellants (1) Pegasus Management Holdings SCA;
(2) Ivan Harold Bradbury
One Essex Court’s Rhodri Davies QC and Conall Patton; Edwards Wildman partner
Kevin Perry
For the respondents (1) Ernst & Young (a firm); (2) Ernst & Young LLP
Brick Court Chambers’ Simon Salzedo QC; Clyde & Co
senior associate Simon Schooling
Defamation
Charlotte Church v MGN Ltd (2012) EWHC 693 (QB). Queen’s Bench Division. Tugendhat J.
28 March 2012
The requirement of open justice supported the proposition that applications for a ruling on meaning should be made at a hearing in open court.
Judgment accordingly
For the claimant Church
5RB’s David Sherborne; Lee & Thompsons partner Mike Brookes
For the defendant MGN
5RB’s Mark Warby QC; RPC partner Keith Matthieson
Employment
Bailey v R&R Plant (Peterborough) Ltd (2012)
EWCA Civ 410. Court of Appeal (Civil Division). Ward LJ; Dame
Janet Smith; McFarlane LJ.
2 April 2012
The Employment Equality (Age) Regulations 2006 sch.6 para.2(1)(a) required an employer who was informing an employee that it was time for them to retire to tell them that they had a right to make a request not to retire pursuant to sch.6 para.5. It
was important for an employee to be told that the employer was invoking a statutory procedure and not merely writing to terminate the employment.
Appeal dismissed
For the appellant R&R Plant (Peterborough) Ltd
Farrar’s Building’s Changez Khan; Fraser Dawbarns partner Steve McGregor
For the respondent Bailey
Cloisters’ Jason Galbraith-Marten; Leigh Day & Co barrister Michael Newman
Civil procedure
28 March 2012
The claimants were unlikely to succeed at trial in establishing that they had a reasonable expectation of privacy in respect of the bare fact of their relationship and the imminent birth of their twins when faced with the threat of disclosure to the first claimant’s wife and children.
Judgment accordingly
For the claimants (1) SKA and (2) PLM
Matrix Chambers’ Hugh Tomlinson QC; Mishcon de Reya partner Charlotte Harris
For the defendant (1) CRH and (2) Unknown
CRH appeared in person; Unknown was unrepresented
IP
DKH Retail Ltd v Republic (Retail) Ltd (2012) EWHC 877
(Ch). Chancery Division.
Judge Birss QC. 3 April 2012
The court construed Civil Procedure Rule (CPR) r.30.5(3) and determined that, despite its wording, it did not apply to cases falling within section one of CPR pt 63. The current practice whereby applications to transfer cases to and from the Patents County Court were handled by judges of the court from which the case was to be transferred was therefore correct.
Judgment accordingly
For the claimant DKH Retail
8 New Square’s Michael Tappin QC; Fox Williams partner Simon Bennett
For the defendant Republic (Retail)
11 South Square’s Jacqueline Reid; Kempner & Partners senior solicitor Brian Whitehead
