Patrick Bracher (ZA)

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“Reasonable prior notice” discussed (UK)

A UK admiralty court held that 12 hours’ notice of a change of tariff for berthing charges and other services in a port for a vessel that had been delayed by the Covid-19 pandemic was not reasonable notice.  The regulation required “reasonable prior notice”. The requirement of reasonable prior notice was not complied with because … Continue reading

English law and exclusive jurisdiction clauses

In a claim between reinsurers and a South African banking group, the English High Court, in an application that was not opposed by the South African party, granted an anti-suit injunction preventing the proceedings taking place in South Africa for various reasons including that the English law exclusive jurisdiction clause was binding. English legislation allows … Continue reading

Advocate has no direct access to client for fees

The applicant was a practising advocate who sought to recover fees of nearly R500 000 from the Legal Practitioner’s Fidelity Fund Board of Control where the money due to the advocate had been held in trust by the attorney and misappropriated.  The court found that the money entrusted to the attorney by the clients was held … Continue reading

Covid-19 claim rejected because of virus exception (US)

A Kentucky US district court rejected the business interruption insurance claim of a retail business specialising in sale of outdoor sportswear and equipment for losses suffered as a result of government restrictions following the outbreak of Covid-19. The all-risks policy covered physical loss and damage but excluded damage caused directly or indirectly regardless of any … Continue reading

More debarment guidance from the Tribunal

More debarment guidance from the Tribunal A representative’s dishonesty, negligence or incompetence must be sufficiently serious to impugn the honesty and integrity of the representative as a person before debarment is justified. The ambit of the enquiry determining fit and proper characteristics is that a representative must conduct themselves with honesty and integrity and be … Continue reading

Subrogated claim against fire-causing students rejected because students were insureds (US)

The insurer was denied the right to sue two former college students for $4.5 million the insurer had paid to the school after the students accidentally set fire to the dormitory.  It was held that the students accommodated in dormitories were equivalent to tenants and insured under the school’s fire policy. The two students used a … Continue reading

124 food poisoning claims is one ‘occurrence’ (US)

A Texas district court held that 124 claims for food poisoning from salmonella bacteria suffered by patrons at a restaurant was one ‘occurrence’ within the terms of the restaurant’s insurance policy. An occurrence was defined as ‘an accident including continuous or repeated exposure to the same general harmful conditions’. An occurrence was ‘an accident’ and … Continue reading

Claim for loss of use of building precluded by ‘impaired property’ exclusion (US)

A conveyor company failed in its claim against its insurers for a loss arising from the supply of a defective cookie packaging machine to a biscuit manufacturer because the policy specifically excluded coverage for “impaired property”.  The claim by the biscuit manufacturer against the insured alleged that they were unable to use their new building … Continue reading

Legal professional privilege promotes the rule of law

In a matter regarding unlawful surveillance the Constitutional Court held that the proper functioning of our legal system is reliant on the confidentiality of communications between lawyer and client. That promotes the rule of law. Although originally sourced from the common law, legal professional privilege is now supported by the Constitution. The court reaffirmed a … Continue reading

Protection of journalists’ sources is supported by the Constitution

In the course of a judgment regarding unlawful surveillance, the Constitutional Court found that journalists’ sources of information require special consideration and must be protected against disclosure to the extent possible. Journalists are not expected to reveal the identity of their sources. Freedom of the media is a fundamental requirement for democracy and when journalists … Continue reading

International law does not cover expropriations of property belonging to a country’s own nationals

An interesting case involving international law was heard in the US Supreme Court and lead to the conclusion that the US Foreign Sovereign Immunities Act which reflects international law does not entitle a foreign state to interfere with what is known as a ‘domestic taking’ where the state takes the property of its own nationals. … Continue reading

New York regulator issues a cyber-insurance risk framework

Concerned about pandemic-related extra cyber activity, the rise in ransomware and recent cyber-espionage campaigns, the New York State Department of Financial Services (DFS) issued a cyber-insurance risk framework on 4 February 2021. After describing the risks for insurers and concluding that insurers play a critical role in mitigating and reducing the risks of cyber-crime, the … Continue reading

Meaning of payment for electricity under lease at ‘prevailing commercial rates’ (UK)

Where a tenant was required to pay for electricity and gas ‘at no more than … the … prevailing commercial rates’ the court held that this meant the prevailing commercial rates of the private utility networks of major UK airports including airports receiving international and internal passengers rather than the rates payable to public networks … Continue reading

Merger ends due to failure to operate in the ordinary course, but COVID-19 not MAE (US)

In December 2020 the Delaware court held that the COVID-19 pandemic did not cause a Material Adverse Effect on the target of a merger because the MAE excluded ‘natural disasters and calamities’. Despite this, the buyer was not obliged to close the transaction and was entitled to terminate the sale agreement because the target made … Continue reading
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