On 29 May 2020, the Chancellor confirmed that, although the UK is ‘past the peak … not everything will look the same as before. It won’t be the case that we can simply put the key in the lock, open the door, and step into the world as it was in January’.[1]
Although Rishi Sunak was unlikely to have changes to the law in mind, two former Presidents of the UK Supreme Court put their name to a concept note (“Concept Note One”), concluding in these terms:[2]
In the current emergency, which is a universal challenge, a debate should happen as a matter of priority on the necessary contribution of the law to safeguard commercial activity, minimise disruption to supply chains, and ameliorate the adverse effects of a “plethora of defaults”, by encouraging a legal environment which is conducive to optimism and a global recovery.
Concept Note One identified three areas for debate.
First, whether agreement or alternative dispute resolution should be further encouraged by the courts. Secondly, whether the case law surrounding the doctrines of force majeure, supervening illegality and frustration have any application to the changed conditions of the current crisis. Thirdly, whether to imply a term of good faith into long-term commercial contracts.
The first concerns the resolution of disputes, in light of the impact of the pandemic on the court system, increasing backlog of cases, and urgent need to avoid the strain on the judiciary, advocates, parties and experts that appear before them. The second and third focus on the substantive law: whether there is any analogous precedent to the current pandemic; and, if not, how the law can adapt through primary and secondary legislation and judge-made law.
A subsequent concept note (“Concept Note Two”) considered all three areas for debate in greater detail, with the intention of moving forward ‘a discussion of the need for the law to deal constructively with the effects of the pandemic, to facilitate global recovery in the interests of the whole community, and to avoid a deluge of disputes impeding that recovery.’[3]
The British Institute of International and Comparative Law also held a webinar to highlight practical applications of the three areas for debate.[4] This included the Pandemic Business Dispute Resolution Service, launched by CEDR and CIArb, providing swift dispute resolution through assisted negotiation, mediation and fast track arbitration.
This paper draws upon both concept notes and the webinar, analyses the three areas for debate and offers considered conclusions. It is not intended to settle or stifle debate, but to flag that there are three legitimate areas of discussion, endorse the idea that the law needs to deal constructively with the effects of COVID-19 on the resolution of international commercial contracts, and avoid a deluge of disputes impending recovery.
Further encouraging alternative dispute resolution
The Cabinet Office has recently published guidance on the avoidance and resolution of disputes:[5]
The Government strongly encourages parties to seek to resolve any emerging contractual issues responsibly, through negotiation, an early neutral evaluation or mediation, before these escalate into formal intractable disputes.
What about the courts that are under a duty to actively manage cases? This includes encouraging parties to use an alternative dispute resolution procedure and facilitating the use thereof – subject to the caveat that the court considers it is appropriate to do so.
There are at least 16 statements made by judges in the Court of Appeal strongly urging greater use of alternative dispute resolution.[6] In one of the more recent precedents, the court warned that: “The regime of sanctions and rewards has been introduced to incentivise parties to behave reasonably, and if they do not, the court’s powers can be expected to be used to their disadvantage.”[7] What else can the court do to encourage alternative dispute resolution?
Access
The Commercial Court Guide does not refer readers to any providers or institutions offering alternative dispute resolution services. It does note, however, that ‘in appropriate cases and with the agreement of all parties the [Commercial] Court will itself provide an [early neutral evaluation].’[8] This may be provided by third parties.
Access to early neutral evaluation by the Commercial Court, however, requires three criteria to be satisfied. First, it must appear likely to a Commercial Court Judge that it will assist resolution of the dispute or particular issues within it. Secondly, the Judge in Charge of the Commercial Court must approve. Thirdly, the parties must agree.
The Chancery Guide provides that:[9]
The court will not make an order directing the parties to undertake a form of ADR. However, if the court considers that one or both parties are unreasonably refusing to attempt ADR, the court may order a stay with a direction for the parties to take reasonable steps to consider ADR.
No providers or institutions offering alternative dispute resolution services are referenced, however, like the Commercial Court, there is access to early neutral evaluation by Judges of the Chancery Division. There are two ‘important features’:[10]
(a) The norm is that the ENE procedure and the documents, submissions or evidence produced in relation to the ENE are to be without prejudice. However the parties can agree that the whole or part of those items are not without prejudice and can be referred to at any subsequent trial or hearing.
(b) The norm is that the judge’s evaluation after the ENE process will not be binding on the parties. However the parties can agree that it will be binding in certain circumstances (e.g. if not disputed within a period) or temporarily binding subject to a final decision in arbitration, litigation or final agreement.
Access to Chancery Financial Dispute Resolution is also offered, ‘in which the judge facilitates negotiations and may provide the parties with an opinion about the claim or elements of it.’[11] Important features include that it is consensual, non-binding and without prejudice.
In contrast, the Queen’s Bench Guide merely provides that ‘valuable information concerning the availability of ADR may be obtained, among other sources, from the Advice Guide published by the Citizen’s Advice Bureau at www.adviceguide.org.uk.’[12] This may be for the good reason that:[13]
There was a time when advice to, and information for, parties in person, or for their advisers and representatives (legal and otherwise) assisting them, as to whether, when and how, a particular dispute or part thereof might be referred to an alternative process rather than further pursued through court processes, was difficult to come by. Nowadays, the reverse is true. There is a surfeit of such information.
Practice Direction – Pre-action Conduct and Protocols
At least four amendments to the Practice Direction – Pre-action Conduct and Protocols (“the Practice Direction”) can be foreseen that would have the effect of further encouraging alternative dispute resolution.
First, substitution of ‘must’ for ‘should’ in paragraph 8 of the Practice Direction: ‘the parties [must] consider whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceedings.’ This can be considered to be congruent with the objectives of pre-action conduct, including considering a form of alternative dispute resolution to assist with settlement.
Secondly, substitution of ‘must’ for ‘may’ in paragraph 14(c) of the Practice Direction: ‘The court [must] decide that there has been a failure of compliance when a party has unreasonably refused to use a form of ADR, or failed to respond at all to an invitation to do so.’ The latest authority is that: “A blank refusal to engage in any negotiating or mediation process … should be marked by the use of the court’s powers to discourage such conduct.”[14]
Thirdly, substitution of ‘must’ for ‘may’ in paragraph 15 of the Practice Direction:
Where there has been non-compliance with a pre-action protocol or this Practice Direction, the court [must] order that:
(a) the parties are relieved of the obligation to comply or further comply with the pre-action protocol or this Practice Direction; [and / or]
(b) the proceedings are stayed while particular steps are taken to comply with the pre-action protocol or this Practice Direction; [and / or]
(c) sanctions are to be applied.
The first does not impose a stay or a sanction. Insofar as this is the case, it is arguable that litigants are not pressured into waiving their right of access to the courts in favour of alternative dispute resolution (but see below).
Fourthly, substitute ‘must’ for ‘may’ in paragraph 16 of the Practice Direction:
The court will consider the effect of any non-compliance when deciding whether to impose any sanctions which [must] include:
(a) an order that the party at fault pays the costs of the proceedings, or part of the costs of the other party or parties; [and / or]
(b) an order that the party at fault pay those costs on an indemnity basis;
…
As indicated above, if the court relieves the parties of the obligation to comply or further comply with the Practice Direction, then no sanction will be applied in any event. Again, insofar as this is the case, it is arguable that litigants are not pressured into waiving their right of access to the courts (but see below).
Mandatory alternative dispute resolution
Does mandatory alternative dispute resolution impede the right of access to the courts?
The seminal case on alternative dispute resolution and access to the courts offered the following reasoning:[15]
“It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court. … Even if (contrary to our view) the court does have jurisdiction to order unwilling parties to refer their disputes to mediation, we find it difficult to conceive of circumstances in which it would be appropriate to exercise it.”
The conclusion of one leading commentator is that, where an adverse costs order for failure to engage in mandatory alternative dispute resolution is ordered, ‘it must be considered at least highly possible that the [European Court of Human Rights] would find that this conflicts with an individual’s right of access to court.’[16] The same commentator has also identified that, even where alternative dispute resolution is not mandatory:[17]
the pressure brought to bear on individuals (in the form of authoritative encouragement from legal advisors and the courts and in the threat of adverse costs) is sufficient to taint any unequivocal waiver [of the right to a fair and public hearing under Article 6(1) of the European Convention of Human Rights] with constraint.
Accordingly, the most defensible answer is that mandatory – and even authoritative encouragement of – alternative dispute resolution may impede the right of access to the courts.
In any event, the courts in England and Wales could enter into the debate on the advantages and disadvantages of mandatory alternative dispute resolution. As of 2014, the courts declined to do so, but nevertheless ‘appear to [be] pushing parties towards mediation without expressly admitting that they are doing so and with the apparent sole intention of saving money.’[18] This practice is unlikely to change in the current climate – if anything, it is likely to increase.
Developing common law doctrines
Three relevant common law doctrines in the context of the disruption caused by the current pandemic and international commercial contracts are force majeure, supervening illegality and frustration. Concept Note One provides that:[19]
The common law (which is widely used in international commerce) has traditionally taken a strict approach to such issues, and this has generally worked well so far. Within the principle of legal certainty, however, a discussion of the present crisis has to recognise that it does not have an easy analogy in past case law.
Is this correct? Has the law taken a strict approach to such issues? Does the current pandemic have an uneasy analogy to the case law surrounding these doctrines before COVID-19?
Force majeure
One leading practitioner text describes a ‘force majeure’ clause as follows:[20]
a contractual term by which one (or both) of the parties is entitled to cancel the contract or is excused from performance of the contract, in whole or in part, or is entitled to suspend performance or to claim an extension of time for performance, upon the happening of a specified event or events beyond his control.
The burden is on the party who seeks to rely on the clause (“A”) to prove four circumstances.[21]
First, that the events referred to in the clause have occurred (“the events”). Secondly, that A has been, for example, prevented from performing A’s contractual obligations by reason of the events. Thirdly, that A’s failure to perform was due to circumstances beyond A’s control. Fourthly, that there were no reasonable steps that A could have taken to avoid or to mitigate the events or the consequences of the events.
When used in contracts, the words ‘force majeure’ are rarely unqualified. In other words, the events that have been foreseen by the parties are often specified in the contract. Where unqualified, however, contractual performance must be more than merely increasingly onerous, although there is no requirement that the events should be unforeseeable.[22]
Concept Note Two argues that ‘as a general principle under English law, force majeure clauses are construed restrictively (such that any ambiguity will be resolved against the party seeking to rely on the clause).’[23] The authority cited in support of this proposition is Longmore’s LJ – with whom Tomlinson and Underhill LJJ agreed – reasoning that:[24]
“It goes without saying that a force majeure clause must be construed in accordance with its own terms; it also need hardly be emphasised (a) that it is an exceptions clause and any ambiguity must be resolved against the party seeking to rely on it and (b) that the concept of being ‘beyond [a corporate person’s] control’ sets a comparatively high hurdle since corporations usually do have a significant measure of control over their own business, … All that said, it is necessary to look at the individual clauses.”
This appellate authority – and this passage within it – does not appear to have been approved, disapproved or distinguished. The case was cited recently by counsel in the High Court, albeit in support of a different proposition: ‘it would have been absurd if a party could excuse itself from the consequences of a breach by reference to force majeure when the force majeure was caused by the party’s own breach.’[25]
In want of contrary authority, therefore, the most defensible position is to endorse the proposition that force majeure clauses are construed restrictively. Further, the words and phrases covering the events on which precedents do exist are not immediately analogous to a global pandemic:[26]
Act of God, storm tempest or flood, fire, perils and dangers or accidents of the sea, war, warlike operations, civil war, riot, civil commotion, strikes, acts of the Queen’s enemies, and prohibition of export.
The only general statement that can be made is that the effect of a force majeure clause will depend on two factors:[27] the words used by the parties and contractual construction.
Supervening illegality
The second common law doctrine applies where contractual performance becomes illegal after a contract has been formed.
Although supervening illegality ‘is normally treated as an instance of frustration, it seems that the principles are not exactly the same.’[28] The doctrine of frustration may have no application where an express contractual provision covers the apparently frustrating event. Express provision, however, cannot exclude the doctrine of supervening illegality.[29]
There are three principles limiting the scope of frustration by supervening illegality.[30]
First, a party must show that the illegality covered the whole period during which performance was due. Secondly, where the law of the place of performance merely excuses a party from performance in full, the contract remains valid. Thirdly, the law of a party’s place of residence, nationality, or where the act happens to be done, does not operate to render a contract invalid where that law is not either the applicable law or the law of the place of performance.
These limiting principles demonstrate that the law also takes a strict approach to the doctrine of supervening illegality.
The most defensible general statement in light of the case law is that ‘the basis of discharge in cases of supervening illegality is public policy [and] the policy considerations raised by different types of illegality can vary considerably in weight.’[31] One of the weightiest policy considerations, for example, is prohibiting trading with the enemy.[32]
Reasoning by analogy, where the considerations include ‘stay at home, protect the NHS, save lives’,[33] a robust case for discharge could be made where contractual performance undermines these weighty public policy considerations.
On 26 March 2020, the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020/350 (“the Regulations”) came into force. The preamble provides that: ‘These Regulations are made in response to the serious and imminent threat to public health … in England.’
Let us assume that there was a contract to provide catering services for a wedding and reception with 400 guests that was due to take place on 5 June 2020. What legal provisions could be marshalled in support of the argument that the contract was discharged by supervening illegality? Regulations 3, 4 and 7 of the Regulations provide a useful starting point.
Version 3 of Regulation 3 of the Regulations, which was in force from 1 June to 3 July 2020, is in these terms:
The emergency period …
(1) For the purposes of these Regulations, the “emergency period” —
(a) starts when these Regulations come into force, and
(b) ends in relation to a restriction or requirement imposed by these Regulations on the day and at the time specified in a direction published by the Secretary of State terminating the requirement or restriction.
Version 2 of Regulation 4 of the Regulations, which was in force from 1 to 14 June 2020, stipulated as follows:
Requirement to close premises and businesses during the emergency
(1) A person responsible for carrying on a business which is listed in Part 1 of Schedule 2 must —
(a) during the emergency period —
(i) close any premises, or part of the premises, in which food or drink are sold for consumption on those premises, and
(ii) cease selling food or drink for consumption on its premises; or
(b) if the business sells food or drink for consumption off the premises, cease selling food or drink for consumption on its premises during the emergency period.
…
(3) For the purposes of paragraph (1)(a)(ii) and (b), an area adjacent to the premises of the business where seating is made available for customers of the business (whether or not by the business) is to be treated as part of the premises of that business. …
Version 1 of Part 1 of Schedule 2 of the Regulations, which was in force from 26 March to 3 July 2020, stipulated as follows:
-
-
- Restaurants, including restaurants and dining rooms in hotels or members’ clubs. …
- Bars, including bars in hotels or members’ clubs. …
Version 2 of Regulation 7 of the Regulations, which was in force from 1 June to 12 June 2020, stipulated as follows:
Restrictions on gatherings
(1) During the emergency period … no person may participate in a gathering which takes place in a public or private place —
(a) outdoors, and consists of more than six persons, or
(b) indoors, and consists of two or more persons.
…
(2) For the purposes of this regulation —
(a) there is a gathering when two or more people are present together in the same place in order to engage in any form of social interaction with each other, or to undertake any other activity with each other; …
Previously, the law may have taken a strict approach to the doctrine of supervening illegality. Were the above regulations to be pleaded in support of the proposition that the contract to provide catering services for 400 guests at a wedding on 5 June 2020 was discharged by supervening illegality, however, it is difficult to see how a court could disagree.
In this way, then, the doctrine of supervening illegality may have an uneasy analogy to the case law predating COVID-19, but it is capable of being deployed effectively during the current pandemic.
Frustration
Over the last few months, much has been written about the doctrine of frustration. For that reason, it forms a pithy part of this paper. Case law has described the doctrine of frustration in these terms:[34]
“ … frustration occurs whenever the law recognizes that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract. Non haec in foedera veni. It was not this that I promised to do.”
Even where a contract is capable of being performed, frustration may occur “when conditions arise which are fundamentally different from those contemplated by the parties.”[35] Once this criterion is satisfied, a contract is discharged “forthwith, without more and automatically”.[36] It is irrelevant that the parties may have continued to behave as if the contract was still in force after the frustrating event.[37]
Crucially for the discussion arising from the concept notes and the webinar, the leading practitioners text reasons that there is no possibility of the court varying the contract, adapting it to the changed circumstances, or suspending performance.[38] Indeed, in that text it was persuasively argued that suspension ‘is generally viewed with hostility by the courts’ in large part because of the uncertainty as to the period.[39]
Further or alternatively to a claim for unjust enrichment (money had and received), a claim may be brought under the Law Reform (Frustrated Contracts) Act 1943 (“the Frustrated Contracts Act”). Section 1 of the Frustrated Contracts Act provides as follows:
Adjustment of rights and liabilities of parties to frustrated contracts
(1) Where a contract governed by English law has become impossible of performance or been otherwise frustrated, and the parties thereto have for that reason been discharged from the further performance of the contract, the following provisions of this section shall, … have effect in relation thereto.
(2) All sums paid or payable to any party in pursuance of the contract before the time when the parties were so discharged … shall, in the case of sums so paid, be recoverable from him as money received by him for the use of the party by whom the sums were paid, and, in the case of sums so payable, cease to be so payable: …
We have not found any reported judgment in England and Wales applying the doctrine of frustration to a pandemic. For example, in relation to the Spanish influenza around 1918. Insofar as this is the case, the most defensible position is that the doctrine of frustration does have an uneasy analogy to the case law predating COVID-19.
Implied term of good faith
The conclusion of Concept Note Two provides that:[40]
In some cases, applying settled principle, common law courts may be open to finding that a term implied by necessary implication into a commercial contract obliges a party to allow a short “breathing space” until it becomes possible to resume performance – whether this is so will depend on the facts.
Rejection
In the lead up to this conclusion, it was identified that: ‘English law and other similar common law systems do not recognise a general organising principle of good faith in contractual performance.’[41] The authority cited in support is a passage by the then Vice-President of the Court of Appeal, Civil Division (with which Tomlinson LJ and Keehan J agreed):[42]
“The recognition of a general duty of good faith would be a significant step in the development of our law of contract with potentially far-reaching consequences and I do not think it is necessary or desirable to resort to it in order to decide the outcome of the present case. It is interesting to note that in the case to which [Leggatt J] referred as providing support for his view, … this court had recently reiterated that English law does not recognise any general duty of good faith in matters of contract. … There is in my view a real danger that if a general principle of good faith were established it would be invoked as often to undermine as to support the terms in which the parties have reached agreement.”
Revival?
The trial judge, Leggatt J (as he then was) noted that: “There is increasing recognition in the common law world of the need for good faith in contractual dealings.”[43] That trial judge is now a Supreme Court Justice. His speech – after the Court of Appeal decided, obiter, that the common law does not recognise any general duty of good faith in matters of contract – was clear: “I see the concept of good faith as significant”.[44]
Leggatt’s JSC professional background before the Bench was in commercial law. With this background, then, it is likely that his view on whether or not to imply a term of good faith in contractual dealings will carry significant weight. Whether or not a case arising out of the pandemic reaches the Supreme Court, in which such a term obliging a party to allow a short “breathing space” until it becomes possible to resume performance, however, is tantalising.
Merits
Concept Note Two rightly acknowledges that: ‘In times of uncertainty, the law must provide a solid, practical and predictable foundation for the resolution of disputes and the confidence necessary for an eventual recovery.’[45] As identified by Moore-Bick in the Court of Appeal, then, the question is whether or not an implied term of good faith “would be invoked as often to undermine as to support the terms in which the parties have reached agreement.”
The leading practitioners text, Chitty on Contracts does not sit on the fence: ‘With respect, the implication of such an implied term applicable generally (or even widely) to commercial contracts would undermine to an unjustified extent English law’s general position rejecting a general legal requirement of good faith.’[46]
Nevertheless, the High Court recently handed down judgment on the following issue:[47]
“Was the contractual relationship between the Post Office and Subpostmasters a relational contract such that the Post Office was subject to duties of good faith, fair dealing, transparency, co-operation, and trust and confidence (in this regard, the Claimants rely on the judgment of Leggatt J … ”
Yes, held Fraser J. There is no appeal pending, however, acceptance of relational contracts does not mean an implied duty of good faith in all commercial relationships:[48]
“However, in this respect I must disagree with the learned editors of Chitty … on the subject of relational contracts, and a duty of good faith. … I do not consider that, on the authorities I have identified, English law rejects a legal requirement of good faith. What the cases make clear is that such a duty will not be routinely applied to all commercial contracts.”
Fraser’s J reasoning was recently applied in a case where, although good faith was not mentioned in the contract, it was common ground that there was an obligation of good faith.[49] In this case, Teare J identified that the ultimate question was “whether reasonable and honest people would regard the challenged conduct as commercially unacceptable”.[50]
If a court were to find an implied term of good faith in a contract affected by the current pandemic, how would the courts answer the ultimate question? The factual matrix of the dispute would likely dictate. The debate as to whether or not it should – and the merits of an implied term of good faith – has not yet been diffused by the courts or the commentators.
Conclusions
COVID-19 is a crisis like no other. For this reason, it deserves a response like no other.[51]
Concept Note One cautioned that ‘arguably an outcome which leaves one party a winner, and the other a loser, will not take full account of the market/social contextualisation of the crisis.’[52] Concept Note Two recognises that ‘the principle of legal certainty is fundamental.’[53] The concept of “breathing space” therefore encourages a carefully considered, legitimate and just balance to be drawn between contextualising the crisis and commercial certainty.
The courts encourage exploration of alternative dispute resolution through reminding, staying proceedings and orders for costs. Courts also provide access to early neutral evaluation where appropriate. This accords with the court’s duties: to further the overriding objective by saving expense and allotting an appropriate share of the court’s resources to the case; and to actively case manage by encouraging the use of alternative dispute resolution.
Nevertheless, the right of access to the courts is likely to be compromised where parties are forced to agree to alternative dispute resolution. For example, through sanctions in the form of adverse cost orders. For this reason, there is a legitimate limit to how far the courts can (further) encourage alternative dispute resolution.
Commercial awareness is key. The majority of businesses will likely want to facilitate resolution of their disputes, swiftly, cost-efficiently, and before positions become entrenched. Preservation of relationships, the maintenance of certainty and easy access to dispute resolution experts, institutions and processes are also likely to be key interests for business.
Going forward, there will be a premium on lawyers who carefully consider how to draft contracts so as to mitigate any (perceived) shortcomings in the common law doctrines of force majeure, supervening illegality and frustration. These doctrines are fascinating to lawyers, but, for business, they mean time, cost and energy is diverted from their main effort to survive, return to profit and weather adverse changes in the business environment.
Presently, English and Welsh courts do not recognise a general duty of good faith in commercial contracts. In certain instances, however, including relational contracts, there is authority for an implied term of good faith, fair dealing, transparency, co-operation, trust and confidence. Were this to evolve towards generally – or even widely – applicable implied terms of good faith to commercial contracts, this would mark a significant step in the development of our law of contract with potentially far-reaching consequences.
Dominic Bright
Lamb Chambers
Pranav Bhanot
Meaby & Co Solicitors LLP
18 August 2020
[1] HM Treasury, ‘Chancellor’s statement on coronavirus (COVID-19): 29 May 2020’ (29 May 2020).
[2] ‘Breathing space – a Concept Note on the effect of the pandemic on commercial contracts’ (British Institute of International and Comparative Law, 7 April 2020) 2.
[3] ‘Breathing space – Concept Note 2 on the effect of the 2020 pandemic on commercial contracts’ (British Institute of International and Comparative Law, May 2020) [3].
[4] ‘Collaborative Resolution of Disputes and COVID-19’ (26 June 2020) (“COVID-19 Webinar”).
[5] ‘Guidance on responsible contractual behaviour in the performance and enforcement of contracts impacted by the Covid-19 emergency’ (7 May 2020) (Updated 30 June 2020) [13] (with emphasis added).
[6] White Book (Sweet & Maxwell, April 2020) (“White Book”) [14-3+].
[7] OMV Petrom SA v Glencore International AG [2017] EWCA Civ 195, [2017] 1 WLR 3465 (“OMV Petrom SA”) [39].
[8] (2017) [G2.3].
[9] (February 2016) (Amended February 2020) [18.6].
[10] [18.12].
[11] [18.16].
[12] ‘A guide to the working practices of the Queen’s Bench Division within the Royal Courts of Justice’ (2018) [8.4.3].
[13] White Book [14-26+].
[14] OMV Petrom SA [41] (with emphasis added).
[15] Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, 1 WLR 3002 [9] (with emphasis added).
[16] Shirley Shipman, ‘Compulsory mediation: the elephant in the room’ (2011) 30(2) Civil Justice Quarterly 163, 191.
[17] Shirley Shipman, ‘Waiver: Canute against the tide?’ (2013) 32(4) Civil Justice Quarterly 470, 492.
[18] Gary Meggitt, ‘PGF II SA v OMFS Co and compulsory mediation’ (2014) 33(3) Civil Justice Quarterly 335, 344.
[19] Concept Note One 1 (with emphasis added).
[20] Chitty on Contracts (33rd edn, Sweet & Maxwell, 2019) (“Chitty on Contracts”) [15-152].
[21] Chitty on Contracts [15-155].
[22] Chitty on Contracts [15-163].
[23] Concept Note Two [38].
[24] Great Elephant Corporation v Trafigura Beheer BV [2013] EWCA Civ 905, 2 All ER (Comm) 992 [25].
[25] Globalink Transportation and Logistics Worldwide LLP v DHL Project & Chartering Ltd [2019] EWHC 225 (Comm), [2019] Bus LR 2012 [35].
[26] Chitty on Contracts [15-161].
[27] Guenter Treitel, Frustration and Force Majeure (3rd edn, Sweet & Maxwell, 2014) (“Frustration and Force Majeure”) [12-026].
[28] Halsbury’s Laws of England, Contract (vol 22, 5th edn, LexisNexis, 2019) 360.
[29] Ertel Bieber & Co v Rio Tinto Co Ltd [1918] AC 260, HL, 282.
[30] Chitty on Contracts [23-027].
[31] Frustration and Force Majeure 347.
[32] Fibrosa Spolka Akyyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32, HL.
[33] ‘Coronavirus: stay at home, protect the NHS, save lives’, Department of Health & Social Care (15 April 2020).
[34] Davis Contractors Ltd v Fareham UDC [1956] AC 696, HL, 729.
[35] Tsakiroglou & Co Ltd v Noblee Thorl GmbH [1962] AC 93, HL, 116.
[36] Hirji Mulji v Cheong ye SS Co [1926] AC 497, PC, 505.
[37] Frustration and Force Majeure [15-003].
[38] Frustration and Force Majeure [15-011].
[39] Frustration and Force Majeure [15-035].
[40] [60(5)].
[41] [57].
[42] MSC Mediterranean Shipping Co SA v Cottonex Anstalt [2016] EWCA Civ 789, [2017] 1 All ER (Comm) 483 [45] (with emphasis added).
[43] MSC Mediterranean Shipping Co SA v Cottonex Anstalt [2015] EWHC 283 (Comm), 2 All ER (Comm) 614 [97].
[44] Leggatt J, ‘Contractual duties of good faith’ (Lecture to the Commercial Bar Association, 18 October 2016) [3].
[45] [68].
[46] [1-058].
[47] Bates v Post Office Ltd (No.3: Common Issues) [2019] EWHC 606 (QB).
[48] [710] (with emphasis added). See also TAQA Bratani Ltd v Rockrose UKSC8 LLC [2020] EWHC 58 (Comm), [2020] 7 CL 44 [55].
[49] New Balance Athletics Inc v Liverpool Football Club and Athletic Grounds Ltd [2019] EWHC 2837 (Comm) [43].
[50] [44].
[51] Sir William Blair, COVID-19 Webinar.
[52] 1.
[53] [8].