Disputes 101 – Contract Compact focusing on recent cases

Following the inaugural “Disputes 101” series in 2025, we are running it again for 2026.  There are four webinars and accompanying blog posts on key English law disputes essentials for corporates. This time we have: a contract update, a look at parent company liability in all its forms, a privilege update, and an examination of shareholder litigation. Please register if you haven’t already: A&O Shearman seminar programme 2026 (if you have any difficulties registering, please email seminarregistration@aoshearman.com).

This post is a summary of the first webinar in the 2026 series: a review of recent contract cases. Held on International Bagpipe Day we droned on about whether a contract exists at all, the interpretation of contracts and some doctrines/law that apply to contracts.  All the cases covered have featured previously on this blog.

On the chanter: is there a contract at all?

• Fool’s gold – when you have to pay for pre-contractual services: H&P, an investment bank, provided services allegedly worth USD 18 million to Randgold, who H&P had assumed was a client. However, terms of their engagement were never formalised or even written down. After the transaction, Randgold refused to pay H&P for its services. The court rejected H&P’s claim that there had been an oral contract for services but, unusually, did order Randgold to pay for the value of the services rendered on the basis that it would otherwise be unjustly enriched.  Judgment: H&P Advisory v Barrick Gold.
• No replay: contract scored in the group chat: The English Court of Appeal delivered a useful reminder of the limited formalities required to create a binding contract under English law. DAZN, a global sports streaming platform, entered into discussions with Coupang, a South-Korean broadcaster, to sublicence its broadcasting rights to the FIFA Club World Cup 2025. The parties discussed the deal over WhatsApp, email and phone calls. Key terms were confirmed, and a written agreement was set to follow. However, DAZN later received a better offer. Coupang argued that the final whistle had already blown. The Court of Appeal found that a contract had been formed from the messages exchanged over email and WhatsApp. Specific performance of the agreement was granted to Coupang. Judgment: DAZN v Coupang.
• A seat at the table third parties and exclusive jurisdiction clauses: the High Court looked at when a third party can rely on (and be bound by) an exclusive English jurisdiction clause in Campeau v Gottex.  

On the tenor drone: interpretation

On the bass drone: doctrines and the law

• Red hand doctrine: a new label and a high bar: The red hand, or onerous clause, doctrine—which says that an onerous term will not be given effect unless the other party’s attention has been specifically drawn to it—is not lightly to be invoked, according to the Court of Appeal. Judgment: MS Amlin Marine v King Trader.
• Seaworthy means seaworthy: a reminder about implied terms: Parties frequently argue that express words of an agreement are supplemented by an implied term.  In this case, the High Court gave a useful reminder of how stringent the test for implying a term into a contract is. On the facts, a promise that a yacht was seaworthy meant exactly that, even if the underlying fault started earlier. Judgment: Pleon v Leonis.
• Clause for concern – the penalty rule, default interest and extortion: Default interest in a loan agreement, at a rate of 4% compounded monthly, was not extortionate given the legitimate interests at play and so was not an unenforceable penalty. It remains to be seen whether other judges take the same forensic approach followed by the High Court in this case. In the meantime, those who wish to take a cautious approach should consider all legitimate interests that a potentially penal term (here, a default interest rate provision) seeks to protect and satisfy themselves that the term is not extortionate in relation to any one of those interests. Judgment: Houssein v London Credit.