When bringing a claim, claimants are subject to limitation periods depending on the type of claim brought to the court. Any claim action must be issued within the relevant timeframe and failing to do so would give the defendant a way to raise the defence of limitation. For example, the following limitation periods apply:

A claimant must also take into consideration how to calculate the date on which a claim is brought and the Court of Appeal clearly established in the case St Helens v Barnes [2006] EWCA Civ 1372 that a claim is brought to the court when the court received the claim form and not when the claim form is sent.

Once a claim is brought to the court and the defendant uses the limitation period defence, it is up to the claimant to prove that the time has not expired. This is one of the argument raised in the case involving the Duke of Sussex, Sir Elton John and five other claimants against the publisher Associated Newspapers Ltd.

On 29 March 2023, the BBC reported on the above mentioned claim where the claimants sued the publisher for illegally obtaining their personal information and using it for Daily Mail and Mail on Sunday stories. David Sherborne who represented the claimants argued that they have all been victim of “numerous unlawful acts” which include intercepting telephone conversation; illegally bugging cars and homes and obtaining private information such as bills or medical records. Mr Sherborne pointed out that these unlawful acts happened through a vast period from 1993 to 2011 and beyond until 2018.

On the other side of this case, Associated Newspapers Ltd is seeking for the case to be thrown out as groundless. Among other arguments, the publisher relies on the fact that the claims were based on non-credible evidence as these were depending on a private investigator’s statement who has served a prison sentence. Furthermore, the barristers representing the publisher argued to the High Court that the claimants have now run out of time to bring their claim as it has been now over six years and the claimants should have complained when the articles were published.

It is now up to the claimants to prove that the time has not expired for them to bring their claim. They are arguing that the Mail’s editor swore an oath at the Levenson Inquiry in 2011 according to which no illegal methods of gathering information were used and that this prevented legal actions. Moreover, they are arguing that further evidence came to light which reset the clock for bringing the claim.

The BBC also reported that two other private investigators have made statements to the court supporting the claimant’s case in that they admitted their role in obtaining information illegally and reporting to journalists at the Daily Mail and Mail on Sunday.

The parties were present in court throughout the end of March and beginning of April to present their case in front of Judge J Nicklin and when decided, this case should give further clarity over the issue of limitation periods.

For further advice and assistance please contact our Litigation and Dispute Resolution Team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

The prospect of a new venture and becoming the owner of shares in a business is an exciting time for anyone in business whether new to acquisitions or an old hand at it.

Getting the deal done may sometimes come at a cost and relying upon warranties provided can be necessary when a company does not deliver all that was expected.

There are often clear time frames to bring a breach of warranty claim so getting to know the business quickly is important.

Is there a method of measuring damages for breach of warranty in a share purchase agreement? 

Yes, this is the diminution in the value of the company’s shares. This established method was put to the test in the case of Oversea-Chinese Banking Corporation Limited v ING Bank NV [2019] EWHC 676 (Comm).

In this case, there had been a failure to provide for a $14.5 million exposure in the accounts. Not an insignificant amount of money to miss out! Perhaps surprisingly, the omission had no impact upon the valuation of the company and so reduction in the value of the company’s shares. The question was therefore whether the diminution was just part of the loss that could be claimed and if it were also possible to include an element of damage based upon the loss of chance to negotiate a specific warranty or indemnity during the pre-contract negotiations.

The Judge decided that there was this type of secondary loss had no place in law and that the purchaser had no right to claim for damages associated to an amount that could have been claimed under what would have been an indemnity created post contract for the purposes of the claim. Such an indemnity did not exist and as such no claim was recoverable. Instead the correct approach under well-established case law was that the claimant was entitled to be put in the position it would have been in had there been no breach of warranty, or to recover damages for its “loss of bargain” as a result of the breach. In these specific circumstances, there had been no reduction in the value of shares and therefore no loss of bargain had been sustained. It was not possible for the claimant to recover the $14.5 million loss.

It can be a challenge to establish that there has been a drop in share value as a result of a breach of warranty but this is the basis of the court’s assessment of loss in such cases.

If you entered into a Share Purchase Agreement and believe that there has been a breach of warranty, seeking early advice can prevent extensive costs being incurred that later prove not to be recoverable.

Every case is decided upon its own facts and therefore it is important to secure advice about your own separate circumstances.

For further advice and assistance please contact our Private Client Team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk