Patrick Bracher (ZA)

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When does independent consultant to sub-contractor owe a duty of care to the main contractor? (UK)

By Patrick Bracher (ZA) on June 9, 2021 Posted in General

The UK High Court found that an independent consultant to a sub-contractor relating to the design and construction of a slipform rig did not owe a duty of care to the main contractor and could not be sued for damages for negligence. There was no assumption of responsibility to the main contractor which sought damages … Continue reading

Certifying documents as copies of the original without seeing the originals is dishonest

By Patrick Bracher (ZA) on June 4, 2021 Posted in General

The facts in a Financial Services Tribunal debarment matter were that the financial services’ representative had certified certain documents as copies of the original without having seen the original documents. She failed to ensure that she complied with the statutory requirements for certifying copies and the duties made mandatory upon her through her position as … Continue reading

Moratorium on legal proceedings in business rescue

By Patrick Bracher (ZA) on June 3, 2021 Posted in General

Section 133 of the Companies Act, 2008 provides for a moratorium on legal proceedings against a company which is in business rescue. It does not include an action to recover a deposit on a transaction with the company that was never completed because the money does not belong to the company under business rescue and … Continue reading

Prescription against notary for badly drafted antenuptial contract

By Patrick Bracher (ZA) on June 1, 2021 Posted in General

A notary negligently drafted an antenuptial contract in December 1998. The antenuptial contract was declared void from inception in a judgment delivered in October 2016. The court held that prescription began to run from the date in May 2014 when the claimant was told by his attorneys of the problems with the contract. In order … Continue reading

Adopted children cannot be excluded from trust benefits for ‘children’

By Patrick Bracher (ZA) on May 28, 2021 Posted in General

A notarial deed of trust executed in 1953 granted the benefits to legal descendants including a “child or any children” of descendants. A lower court held that because adopted children were not specifically included they could not benefit from the inheritance (which was the law in 1953). The Constitutional Court held that the words in … Continue reading

True brokers may be paid a secret commission (UK)

By Patrick Bracher (ZA) on May 26, 2021 Posted in Insurance

In negotiations between parties who were negotiating charterparty terms for the chartering of two vessels, third parties involved in the negotiations received commission unknown to the party paying the price for the charter of the two vessels. It was held that although the third parties were intermediaries they were not agents in the full legal … Continue reading

No insurance claim for shooting because of assault exception (US)

By Patrick Bracher (ZA) on May 24, 2021 Posted in Insurance

The Illinois District Court rejected a liability claim by a nightclub against the insurer arising from a personal injury suit resulting from a shooting because of an assault exception. The exception excluded any claim “arising out of, related to, or, in any way involving any actual or alleged assault, battery, harmful or offensive contact, or … Continue reading

Touting for clients not an insured professional service (US)

By Patrick Bracher (ZA) on May 24, 2021 Posted in Insurance

After the oil rig blowout off the coast of Louisiana in 2010 which led to a litigation frenzy, practising attorneys paid runners millions of dollars to sign up tens of thousands of potential plaintiffs who were unaware of what their information was required for. The lawyers also filed unauthorised presentment forms on behalf of the … Continue reading

Evidence that may be led to interpret a contract

By Patrick Bracher (ZA) on May 21, 2021 Posted in Interpretation

The dispute arose under a settlement agreement in obliging the defendants to deliver 100 000 cubic metres of “clean sand (top soil excluded)” which was “stockpiled”. It was not clean sand nor properly stockpiled and yielded only two thirds of the amount of clean sand, leading to a large damages claim. The Supreme Court of Appeal … Continue reading

New York state financial regulator warns of cyber risk

By Patrick Bracher (ZA) on May 19, 2021 Posted in Insurance

In April 2021 the New York State Department of Financial Services issued a Report on the SolarWinds Cyber Espionage Attack and Institutions’ Response warning that the next great financial crisis could come from a cyberattack because with each passing day our world gets more interconnected. The report ends with the following passage: “The SolarWinds Attack … Continue reading

A Constitutionally invalid agreement is void from inception and does not confer any rights under the contract

By Patrick Bracher (ZA) on May 14, 2021 Posted in General

A Constitutionally invalid agreement is void from inception and does not confer any rights under the contract The dispute concerned a lease for a hotel in Coffee Bay, Transkei for a period of 20 years that was held to be constitutionally invalid because the lease had been signed contrary to the laws relating to public … Continue reading

Powers of the Financial Services Tribunal

By Donald Dinnie and Patrick Bracher (ZA) on May 13, 2021 Posted in General

Industry role players who have found themselves subject to regulatory action taken by the Prudential Authority (PA) or the Financial Sector Conduct Authority (FSCA) may apply to the Financial Service Tribunal (FST) for reconsideration of that action. Reasons for the decision can be requested within 30 days and the application must be made within 30 … Continue reading

Every word must be given a meaning when interpreting a statute

By Patrick Bracher (ZA) on May 12, 2021 Posted in General

When interpreting a statutory provision, one must proceed from the fundamental premise that meaning must be given to every word (provided the context lends itself to such meaning). The rationale for this principle is that a statute is not taken to use words without meaning. No clause, sentence or word must be construed to be … Continue reading

“Reasonable prior notice” discussed (UK)

By Patrick Bracher (ZA) on May 11, 2021 Posted in General

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

By Patrick Bracher (ZA) on May 7, 2021 Posted in General

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

Employee injured during protest action by trade union denied COIDA claim

By Patrick Bracher (ZA) on May 6, 2021 Posted in General

The Supreme Court of Appeal held that an executive employee who was injured whilst at work when she became caught up with trade union protestors and was assaulted and mistreated by them and evicted in a humiliating and degrading way, was involved in an accident in the course of, but not arising out of, her … Continue reading

Advocate has no direct access to client for fees

By Patrick Bracher (ZA) on May 3, 2021 Posted in General

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

When is information “required” for PAIA access to be granted

By Patrick Bracher (ZA) on April 30, 2021 Posted in General

In a dispute between the parties as to whether the applicant was a partner in a partnership with the respondent, the court gave the applicant access to the annual financial statements of the close corporation that had arisen out of the transactions of the alleged partnership. The court found that an applicant under section 50 … Continue reading

A person cannot be ordered to restore possession of goods not in their possession

By Patrick Bracher (ZA) on April 28, 2021 Posted in General

The court refused to order the return of goods by a spoliation order because the respondent was not in possession of the goods. The claimant gave his motor vehicle to a dealer for a routine maintenance service. When he went to collect the vehicle he discovered that the keys to the vehicle had been handed … Continue reading

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

By Patrick Bracher (ZA) on April 14, 2021 Posted in Insurance

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

By Patrick Bracher (ZA) on March 31, 2021 Posted in General

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)

By Patrick Bracher (ZA) on March 29, 2021 Posted in Insurance

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

Insurer not required to pay for medical marijuana (US)

By Patrick Bracher (ZA) on March 3, 2021 Posted in Insurance

The Massachusetts Appeals Court refused to order an insurance company to pay for the medical marijuana expenses to treat the claimant’s pain stemming from a work-related injury he sustained in 2014. The US situation is curious in that medical marijuana is allowed in some states but is still unlawful under federal law. The Massachusetts law … Continue reading

Payment to broker may not be payment to insurer (US)

By Patrick Bracher (ZA) on February 10, 2021 Posted in Insurance

The Georgia Court of Appeals (US) found that payment of premiums by house owners insurance policyholders to their insurance agent was not payment to the insurer where notice had been given to the policyholders to pay directly to the insurer. In October 2014, the insurer sent a renewal notice to the policyholders requiring them to … Continue reading