Citation: 129 Con LR 81 (CA), and [2010] EWCA Civ 226
Nature of case: Priory’s general undertaking promising not to issue court proceedings against its surveyor, Capita, in exchange for expert witness services in unrelated litigation was binding on Priory in relation to its present claim against Capita for defects having arisen after the undertaking was given. The court distinguished the decision in Bank of Credit and Commerce International SA (in liq) v Ali, on grounds that here, the rights waived had been in the reasonable contemplation of the parties. The fact that defects had not been discovered at the time of the undertaking did not mean that a crisis of that nature were unforeseen by Priory.
