Commercial Litigation Round-Up ' August 2023

• Published date: 01 September 2023
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Corporate and Company Law, Directors and Officers, Class Actions, Trials & Appeals & Compensation, Privilege
• Law Firm: Norton Rose Fulbright
• Author: Antony Corsi, Ruth Cowley, Claire Irwin, Andrew Judkins and Charlotte Hornby

We have collated a brief round-up of important recent cases, procedural developments and hot topics for businesses to help busy in-house counsel keep up to date, particularly those who are involved in managing disputes. If you would like further information on a topic, you can access more detailed briefings using the links.

1. Contract law

The Courts have been busy considering various issues relating to contractual interpretation. Our pick of the top 3 cases are:

Sara & Hossein v Blacks [2023] UKSC 2

This decision of the Supreme Court may suggest an interesting development in contractual interpretation. The majority agreed with the Court of Appeal's view that the 'natural and ordinary meaning' of a clause corresponded to one party's interpretation. They went on to consider and evaluate different possible constructions and favoured an interpretation that had not occurred to the parties or to the lower courts. It will be interesting to see if this approach has an impact in future cases. A shift in approach to assessing the words in context may be welcomed by litigators seeking to argue for a commercial interpretation of a contract, but may be of concern to contract drafters if drafting becomes more prescriptive to prevent such outcomes. (See further here.)

Barton v Morris [2023] UKSC 3

The Supreme Court gave guidance on the boundary between a contractual based claim and a claim for unjust enrichment. The case concerned a unilateral contract which provided for payment of a commission if a property was sold for a specified sum or more, but was silent as to what happened if the sale value was lower. The property was sold for less than the specified sum. The majority refused to imply a payment term into the contract and held there was no claim in unjust enrichment: by stipulating the circumstances that must occur to impose an obligation to pay, the parties had excluded an obligation to pay in the absence of those circumstances. Unjust enrichment will only apply outside the scope of 'the subject matter of the contract' or 'the circumstances' described by the contract. Drafters should consider making the full position clear in their contracts to avoid this type of dispute which went all the way to the Supreme Court. (See further here.)

Quantum v Quantum [2023] EWCA Civ 12

In this dispute dealing with the construction of a long-term services agreement, the Court of Appeal has clarified that there are no special principles of contractual interpretation that apply...