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Commercial disputes

Blog

Security for costs – through what lens is the enforcement criteria viewed?

Published on 22 September 2021. By Nina Pulimood, Associate and Simon Hart, Partner

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Political obstacles can trump legal obstacles when court is considering enforcement in security for costs applications Haque v Hussain(i)

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Blog

Exceptional Circumstances: CPR 52.30 and a lesson on drafting grounds of appeal from the Court of Appeal

Published on 22 September 2021. By Rosy Gibson, Associate and Chris Ross, Partner

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The Court of Appeal has given guidance on how to draft grounds of appeal in a rap over the knuckles for lawyers responsible for "over-lengthy and ill-focused" grounds (Municipio de Mariana v (1) BHP Group PLC and (2) BHP Group Ltd(i)).

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Publication

Witnesses overseas and preparations for trial during a pandemic

Published on 17 September 2021. By Samuel Hung, Partner and Jacky Darsono, Partner and Jennifer Leung, Associate

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A couple of recent High Court decisions demonstrate some of the issues that arise when a party applies for one or more of their witnesses to give evidence at trial by video conferencing facilities, or seeks an adjournment of a trial, because a witness is overseas and experiencing difficulties in returning to Hong Kong in time for a trial date given the COVID-19 pandemic. In such circumstances, the courts’ ultimate priority is the administration of justice, which involves (among other things) balancing the parties’ competing interests while exercising their case management powers. A trial date (a “milestone date”) is generally sacrosanct and live evidence in person at trial is the norm.

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Blog

Crypto-assets again confirmed as property by the English Commercial Court

Published on 26 August 2021. By Dan Wyatt, Partner and Christopher Whitehouse, Senior Associate and Rebecca Baker , Trainee Solicitor

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In the Commercial Court's latest crypto-related judgment, Fetch.AI(1), a proprietary injunction and worldwide freezing order were granted against various categories of persons unknown who had misappropriated various crypto-assets from one of the claimant's Binance trading accounts. In doing so, the Court agreed with the key finding in the seminal case AA v Persons Unknown, Re Bitcoin [2019] EWHC 3556 (Comm) – that bitcoin is 'property' – albeit it did so on a different basis.

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Blog

Forum conveniens – English High Court decides that parallel proceedings are not a "trump card" when determining jurisdiction

Published on 12 August 2021. By Alastair Hall, Associate and Dan Wyatt, Partner

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Hot on the heels of another recent decision on forum conveniens, PJSC National Bank Trust v Mints(1) (see our article on this decision), the English High Court has re-affirmed that the risk of irreconcilable decisions from parallel proceedings in other jurisdictions is not a "trump card" in determining the proper forum for a dispute.

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Blog

When will the court step in to correct a contractual mistake?

Published on 05 August 2021. By Sean Cannon, Associate and Daniel Hemming, Partner

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Only if contractual provisions are "nonsensical or absurd" will the Court intervene to correct mistaken drafting. The Court of Appeal recently considered this issue in the context of a dispute between a landlord and tenant in MonSolar IQ Ltd v Woden Park Ltd.(1)

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Blog

The current state of service

Published on 29 July 2021. By Thomas McCall, Associate and Alan Williams, Partner

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Civil war, competing Governments and a dangerous environment. None of these factors ultimately swayed the UK Supreme Court on 25 June, which held that an English court cannot simply dispense with service of the claim form in proceedings against a State, however difficult service may seem.

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Blog

Expert evidence is not an absolute right: High Court issues stark reminder that breaches of rules on expert evidence will not be tolerated

Published on 15 July 2021. By Geraldine Elliott, Global Head of Commercial Disputes and Jodie Gittins, Associate

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The High Court has recently issued a stark reminder that breaches of the rules on expert evidence will not be tolerated.

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Blog

Never too late: English court issues anti-suit injunctions despite foreign proceedings reaching Supreme Court

Published on 30 June 2021. By Andy McGregor, Head of Civil Fraud and George Fahey , Associate

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If, contrary to an agreement to arbitrate, you are sued in the wrong jurisdiction the English courts stand willing to issue an anti-suit injunction – regardless of how quickly the foreign proceedings might have escalated. The recent case of UAU -v- HVB [2021] EWHC 1548 (Comm) serves as a good example of how a party should conduct itself in order successfully to obtain injunctive relief.

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Blog

High Court reminds us of the principles of res judicata and abuse of process

Published on 03 June 2021. By Emily Saffer, Associate and Parham Kouchikali, Partner

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The court has and will act to prevent claims being re-litigated by parties not content with earlier outcomes; Elite Property Holdings Limited v Barclays Bank(1)

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Blog

Exceptions to the without prejudice rule – another retrenchment

Published on 20 May 2021. By Suzan Kurdi, Senior Associate and Simon Hart, Partner

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The Court of Appeal has resisted the temptation to provide clarity on the scope and application of the so-called Muller(1) exception to the without prejudice rule. In Berkeley Square Holdings Limited v Lancer Property Asset Management Limited(2), it indicated that recent first instance decisions had strayed beyond the facts in Muller, a development that might widen the scope of the exception unjustifiably.

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Blog

Hand in your notice - how to bring a successful warranty claim

Published on 13 May 2021. By Emma West, Senior Associate and Simon Hart, Partner

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Buyers wishing to make a claim under contractual warranty provisions must comply with those provisions to the letter; sufficient and timely information is key. In Arani & Others v Cordic Group(1), the buyer had given inadequate notice of its contractual warranty claim and also could not bring a misrepresentation claim based on the warranties.

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Publication

Disputes Yearbook 2021: Civil Fraud

Published on 06 May 2021. By Andy McGregor, Head of Civil Fraud

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As part of the acclaimed Disputes Yearbook, Legal Business interviewed members of our disputes team exploring the litigation landscape and what RPC brings to the table.

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Blog

Forum conveniens – context is key

Published on 06 May 2021. By Dan Wyatt, Partner and Karina Plain, Associate (Australian qualified)

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The English High Court has allowed conspiracy proceedings brought by two Russian banks against several Russian nationals to proceed in England, despite there being "no doubt, and no dispute, that [it] is a Russian case".(1)

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Publication

Disputes Yearbook 2021: Financial disputes

Published on 05 May 2021. By Simon Hart, Partner

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As part of the acclaimed Disputes Yearbook, Legal Business interviewed members of our disputes team exploring the litigation landscape and what RPC brings to the table.

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Publication

Court reviews witness’s reluctance to travel to Hong Kong because of COVID-19

Published on 05 May 2021. By Antony Sassi, Managing Partner, Asia

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In Standard Chartered Bank (Hong Kong) Ltd v Nie, the Court of Appeal refused the defendant (who resides outside Hong Kong) permission to appeal a trial judge’s decision not to allow her to give evidence by videoconferencing facilities (VCF) at trial. Apparently, the defendant had been reluctant to travel to Hong Kong from Beijing (where she resides) to attend the trial because of concerns about the COVID-19 public health pandemic. Both the trial judge and the Court of Appeal appear to have been unimpressed by the defendant’s application. Giving witness evidence by VCF during a trial in civil proceedings is not the norm (even during a pandemic). A party looking to rely on such evidence needs to act promptly to obtain the court’s permission and provide good reasons for doing so supported by credible evidence.

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Blog

When can "deliberate concealment" postpone limitation periods?

Published on 29 April 2021. By Lucy Baughan, Associate and Daniel Hemming, Partner

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The Court of Appeal has explored the meaning of "deliberate concealment" in Canada Square Operations Ltd v Potter(1) and has held that there need not be "active steps of concealment" for the start of a limitation period to be delayed under s.32(1)(b) Limitation Act 1980.

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Blog

Need for reasonable enquiries upon receipt of potentially confidential information

Published on 29 April 2021. By Carolin Mester , Associate and Chris Ross, Partner

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The Court of Appeal recently held that a recipient of information will be bound by a duty of confidentiality if it was reasonable for them to have made enquiries as to the confidential nature of the information and they failed to do so (Travel Counsellors Ltd v Trailfinders Ltd [2021] EWCA Civ 38).

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Blog

Parental Guidance from the Supreme Court: When may a UK domiciled parent company owe a duty of care to individuals affected by the acts of its foreign subsidiary?

Published on 15 April 2021. By Jonathan Cary, Partner

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We discuss a significant Supreme Court decision on parent company liability under English law, Okpabi and others v Royal Dutch Shell Plc and Shell Petroleum Development Company of Nigeria Ltd. This decision on jurisdiction provides helpful guidance on the circumstances in which a UK domiciled parent company may owe a common law duty of care in respect of the actions of a foreign subsidiary company.

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Blog

A Lack of List of Issues for Disclosure is not a bar to specific disclosure under the Disclosure Pilot Scheme

Published on 08 April 2021. By Parham Kouchikali, Partner and Sinead Westaway, Associate

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The court can order specific disclosure under the Disclosure Pilot Scheme, even where there is no agreed or approved List of Issues for Disclosure HMRC v IGE USA Investments Ltd and Ors(1).

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Blog

Does an expert owe a fiduciary duty to its client?

Published on 04 March 2021. By Simon Hart, Partner and Alexandra Shearer, Associate (Australian Qualified)

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For the first time, the Court of Appeal has considered the duties of an expert concurrently engaged on two potentially conflicting disputes. While this case involved an unusual set of circumstances, it provides an interesting review of the duties owed by expert witnesses to their clients and the Court, and highlights important considerations for those engaging expert witnesses and drafting engagement letters Secretariat Consulting Pte Ltd, Secretariat International UK Ltd, Secretariat Advisors LLC v A Company.(1)

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Blog

A new cause of action can only be introduced by amendment if it arises out of substantially the same facts that remain in issue at the time of the amendment

Published on 02 March 2021. By Geraldine Elliott, Global Head of Commercial Disputes

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Pleadings that have previously been struck out cannot be used to introduce a new, limitation-barred claim that arises out of substantially the same set of facts as the struck out claim according to the Court of Appeal in Libyan Investment Authority v King [2020] EWCA Civ 1690.

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Blog

Tech-driven arbitration? What else can we look forward to in arbitration in the UK?

Published on 25 February 2021. By Tatiana Minaeva, Partner and Kirtan Prasad, Senior Associate

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A look at the past year in arbitration in the UK and what the future holds.

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Blog

The jurisdiction eagle has landed…in the Courts of England & Wales

Published on 11 February 2021. By Parham Kouchikali, Partner and Nina Pulimood, Associate

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Does the governing law for passing off claims fall under Article 6 or Article 8 of Rome II? The High Court's explores this in Lyle & Scott Limited v American Eagle Outfitters Inc(1).

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Blog

When is an error a serious irregularity? The English court demonstrates its approach to correcting arbitration awards

Published on 11 February 2021. By Tatiana Minaeva, Partner and Rosy Gibson, Associate

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A tribunal's admission of a simple computational error, and its refusal to correct it, was a serious irregularity that had caused substantial injustice. On the basis of this, the English court remitted an arbitration award to the tribunal for correction so that the tribunal would have the room to carry outs its stated intention to award substantial damages to one of the parties.

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Publication

Hong Kong courts further expand remote hearings for civil cases

Published on 20 January 2021. By Jonathan Crompton, Partner and Rebecca Wong, Senior Associate

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Blog

Beware of trying to address gaps in your evidence during trial: High Court refuses permission to rely on a new witness statement prepared part-way through trial

Published on 07 January 2021. By Alastair Hall, Associate and Dan Wyatt, Partner

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The "inherent unreliability" in evidence prepared during trial, and the high risk that the evidence had been tailored to fit the current state of the claimant's case, caused the High Court to refuse the claimant permission to rely on a witness statement of one its in-house lawyers, prepared during an ongoing trial, and to call that witness to give oral evidence during the trial. (1)

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Blog

The Court of Appeal provides useful reminder of the force of the "subject to contract" label in the context of settlement negotiations

Published on 17 December 2020. By Sean Cannon, Associate and Daniel Hemming, Partner

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A Part 36 offer does not alter the status of "subject to contract" protection in solicitors' correspondence settling a dispute.

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Blog

Late service of evidence requires relief from sanctions

Published on 16 December 2020. By Christina Gleeson, Senior Associate and Daniel Hemming, Partner

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An application to admit witness evidence outside the directions timetable should be treated like an application for relief from sanctions under CPR 3.9 according to the High Court in Wolf Rock (Cornwall) Ltd v Langhelle

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Publication

Hong Kong courts – Latest guidance on COVID-19 measures

Published on 10 December 2020. By Antony Sassi, Managing Partner, Asia and David Smyth, Senior Consultant

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Blog

Largest 'white elephant' in history of group actions

Published on 03 December 2020. By Simon Hart, Partner

BHP successfully applies to strike out 200,000 claims as an abuse of process. Had the judge not struck the claims out, he would have stayed proceedings on jurisdictional grounds under Article 34 and the doctrine of forum non conveniens. (1)

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Blog

Can an appeal court order repayment after it has reversed the relevant order?

Published on 30 November 2020. By Fred Kuchlin, Associate and Parham Kouchikali, Partner

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An appellate court has an inherent power to restore money paid or property transferred under an order which it has reversed. And not all contractual provisions are susceptible to being waived by election. These are the two key takeaways from the Privy Council's judgment in Delta Petroleum (Caribbean) Ltd v British Virgin Islands Electricity Corporation [2020] UKPC 23.

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Blog

More is more when giving a notice of claim under an SPA

Published on 19 November 2020. By Emma Griffiths, Senior Associate and Geraldine Elliott, Global Head of Commercial Disputes

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A buyer's notice of claim pursuant to the terms of a sale and purchase agreement in a USD1 billion transaction failed adequately to comply with the notice requirements set out in the tax covenant of the SPA. As a result, a sum of USD50 million held in escrow for claims was paid out unconditionally to the sellers under the SPA. Dodika Ltd v United Good Luck Holdings Ltd [2020] EWHC 2101 (Comm).

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Blog

When is an Application to Court an Abuse of Process?

Published on 12 November 2020. By Lucy Baughan, Associate and Dan Wyatt, Partner

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While hearing the appeal of an application to discharge an interim order, the Court of Appeal clarified its approach to deciding when conduct is permissible and when it may amount to an abuse of process.

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Publication

Hong Kong courts keeping calm and carrying on

Published on 11 November 2020. By Carmel Green, Partner and Antony Sassi, Managing Partner, Asia

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Blog

To MAE or not to MAE? Commercial Court hands down preliminary issues judgment in first Covid-19 Material Adverse Effect case

Published on 05 November 2020. By Jodie Gittins, Associate and Jake Hardy, Partner

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In her recent decision in Travelport Limited and others v Wex Inc,(1) the Head of the Commercial Court provided topical guidance on the construction and application of Material Adverse Effect clauses in the context of the Covid-19 pandemic.

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Blog

LIBOR: Litigation risks in the endgame?

Published on 04 November 2020. By Simon Hart, Partner and Daniel Hemming, Partner

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In 2021 we will bid farewell to LIBOR and welcome in SONIA. The two systems work in different ways, with LIBOR looking forward and SONIA looking back.

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Blog

Hidden owners, ostensible authority and the Duomatic principle

Published on 26 October 2020. By Gill O'Regan, Senior Associate and Alan Williams, Partner

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The Duomatic principle can apply to ostensible authority as well as actual authority, according to the Privy Council in Ciban Management Corporation v Citco (BVI) Ltd & Anor (British Virgin Islands) [2020] UKPC 21.

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Blog

Hold on to your seats: UK Supreme Court ends the argument about the law governing arbitration agreements

Published on 22 October 2020. By Charles Allen, Partner

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Identifying what law governs a contractual term requiring the parties to arbitrate their disputes, rather than taking them to court, can be profoundly important.

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Blog

The LCIA Rules 2020 – what's new?

Published on 08 October 2020. By Fred Kuchlin, Associate and Tatiana Minaeva, Partner

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Changes in relation to complex multi-party cases and the use of technology form the backbone of the latest version of the London Court of International Arbitration (LCIA)'s arbitration rules (the LCIA Rules 2020).

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Blog

Overseas In-house lawyer's advice covered by legal advice privilege

Published on 08 October 2020. By Emily Saffer, Associate and Dan Wyatt, Partner

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There is no additional requirement for in-house foreign lawyers to be "appropriately qualified" or recognised or regulated as a "professional lawyer" for legal advice privilege to extend to communications between them and company employees.

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Blog

The Quincecare duty bowls out HSBC

Published on 01 October 2020. By Davina Given, Partner and Harriet Evans, Associate

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The High Court has held that banks may be liable for breaches of the Quincecare duty even where the customer's net assets have not been reduced by the breach; Stanford International Bank Ltd v HSBC Bank Plc(1)

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Blog

CFH Clearing Limited v Merrill Lynch International [2020] EWCA Civ 1064

Published on 24 September 2020. By Matthew Evans, Senior Associate and Simon Hart, Partner

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The Court of Appeal has held that "Market Practice" is too wide a term to be implied into an ISDA Master Agreement covering currency trading transactions, in dismissing a claim arising from the "de-pegging" of the Swiss Franc from the Euro.

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Blog

Security for costs not ordered despite looming economic downturn caused by COVID-19

Published on 17 September 2020. By Karina Plain, Associate (Australian qualified) and Chris Ross, Partner

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Evidence of the adverse impact of the COVID-19 pandemic on the Claimant's financial position was not enough to show an inability to pay adverse costs in a recent application for security for costs in the High Court in International Pipeline Products Limited v IK UK Ltd & Ors. [2020] EWHC 1602

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Blog

Stick to the process – a further reminder of how useful a process agent clause can be, especially following Brexit

Published on 10 September 2020. By Dan Wyatt, Partner and Tim Potts, Senior Associate

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Process agent clauses are commonly included in cross-border finance transactions. They avoid the need for the claimant, typically the lender, to have to serve process outside the jurisdiction, frequently a costly and time-consuming exercise, particularly when the court's permission is needed. Accordingly, lenders will often require a foreign borrower and/or any guarantors to appoint a process agent in the lender's jurisdiction to accept service on their behalf.

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Blog

No interim injunction over bitcoin account where damages would be adequate

Published on 03 September 2020. By Dan Wyatt, Partner and Christopher Whitehouse, Senior Associate

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The court has declined to continue interim injunctions granted in respect of a 'coin depot account' holding bitcoin over which the claimants asserted a proprietary right.

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Blog

HMRC Crackdown on Facilitation of Tax Evasion

Published on 01 September 2020. By Michelle Sloane, Partner

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Increased pressure on HMRC to boost tax revenues due to the economic cost of COVID-19 may bring about a surge in charging decisions for failure to prevent the facilitation of tax evasion (Corporate Criminal Offences (CCO)).

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Blog

Privy Council gives a lesson on the remoteness of damage in contract law within a judgment on damages for breach of separate but related contracts

Published on 27 August 2020. By Chris Ross, Partner and Eliot Henderson, Associate

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Where parties have entered into separate but related contracts, breach of one contract does not necessarily preclude the recovery of damages under another.

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Blog

Disputes, disputed: The court’s approach to competing dispute resolution clauses in successive agreements

Published on 20 August 2020. By Parham Kouchikali, Partner

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How are contradictory dispute resolution clauses resolved, where the agreements are entered into at different times? Intention and purpose is key, as set out in the test in BNP Paribas v Trattamento, where parties intended two agreements to perform separate roles as part of one transaction (even though the second is not contemplated at the time of the first).

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