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Commercial disputes

Blog

Limitation Act 1980 s.32(1): whether a claimant could have discovered fraud with "reasonable diligence" extends to events prior to accrual of the cause of action

Published on 06 January 2022. By Carolin Mester , Associate and Jonathan Cary, Partner

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The High Court found that, when considering the postponement of the limitation period for the purposes of Section 32(1) of the Limitation Act 1980, the question of whether the claimant could have discovered the fraud with "reasonable diligence" extends to the period before the claimant suffered a loss.

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Blog

Is your phone tracking you? Perhaps, but it is a mere witness to your whereabouts according to the Court of Appeal

Published on 06 January 2022. By Rosy Gibson, Associate and Parham Kouchikali, Partner

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In EUI Ltd v UK Vodaphone Ltd(1) a claimant insurance company sought a Norwich Pharmacal order for mobile phone records to prove that an insurance claim had been falsely made.

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Blog

High Court clarifies new witness evidence rules and requirement for list of documents under Practice Direction 57AC

Published on 20 December 2021. By Daniel Hemming, Partner and Sophie Parkinson, Trainee Solicitor

Only list the documents used to refresh the memory of the witness, use the statement of best practice as a checklist and follow the principles of the practice direction: these are some of the main points arising out of the decision in Mansion Place Ltd v Fox Industrial Services Ltd [2021] EWHC 2747 (TCC), the first decision to give substantial guidance on the new witness statement rules under Practice Direction (PD) 57 AC.

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Blog

No best endeavours order where documents are out of party's control

Published on 16 December 2021. By Daniel Hemming, Partner and Kirtan Prasad, Senior Associate

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The High Court considered in Various Airfinance Leasing Companies & Anor v Saudi Arabian Airlines Corporation(1) whether a party could be obliged to seek disclosure from the personal mobile devices of its ex-employees (i) on the basis that documents on the phones were within the party's control; and (ii) alternatively, by using its best endeavours to seek disclosure. The application was dismissed as the court found that the documents were not within the "control" of the party as a matter of Saudi law and that there was no power to compel best endeavours to seek disclosure of documents outside a party's control.

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Blog

Recent judgment on ad hoc admission of overseas counsel tells of wider COVID-19 story

Published on 10 December 2021. By Samuel Hung, Partner and Jennifer Leung, Associate and James Lee, Legal Manager

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Applications for ad hoc admission, pursuant to section 27(4) of the Ordinance, are fact dependent and the relevant legal principles are well-established.

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Blog

Updated P.R.I.M.E. Finance Arbitration Rules launched for 2022

Published on 09 December 2021. By Jonathan Cary, Partner and Jonathan Wood, Head of International Arbitration and Olivia Dhein, Professional Support Lawyer

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P.R.I.M.E Finance, the Hague-based Panel of Recognised International Market Experts in Finance, has launched updated P.R.I.M.E Finance Arbitration Rules (the Rules), which come into force from 1 January 2022.

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Blog

Summary judgment application does not amount to submission to English jurisdiction

Published on 09 December 2021. By Jake Hardy, Partner and Joe Cresswell, Associate

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Does applying for summary judgment application before the determination of a parallel application for a stay, amount to a step in the proceedings that results submission to the jurisdiction?

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Blog

What's up with disclosure? The pilot goes into a new phase from November

Published on 17 November 2021. By Daniel Hemming, Partner and Olivia Dhein, Professional Support Lawyer

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November ushers in a brand new phase for the disclosure pilot with several substantive amendments being made to the rules.

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Blog

English Commercial Court upholds the validity of swap contracts entered into by an Italian local authority

Published on 12 November 2021. By Tim Potts, Senior Associate and Jake Hardy, Partner

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The Commercial Court has found that there was no limitation on the capacity of the Italian local authority Busto di Arsizio to enter into a valid swap contracts with Deutsche Bank.

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Blog

Opening the gateway: Supreme Court favours wide interpretation for service out of the jurisdiction and clarifies rules of pleading foreign law

Published on 11 November 2021. By Davina Given, Partner and Heather Clark, Associate

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In order to sue a defendant who is outside the jurisdiction of the English courts, a claimant must show that damage was sustained in England.

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Blog

Court of Appeal holds that uncontroverted expert evidence can be rejected

Published on 04 November 2021. By Emily Fischer, Associate (Australian Qualified) and Parham Kouchikali, Partner

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The Court of Appeal has held that there is no rule that an uncontroverted expert report which complies with CPR PD 35 cannot be impugned in submissions and ultimately rejected by the judge.

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Blog

Stating the not-so-obvious: the importance of highlighting onerous standard contract terms and the perils of e-signing (Blu-Sky Solutions Limited v Be Caring Limited)

Published on 28 October 2021. By Simon Hart, Partner and Connie O'Conor , Associate

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The importance of the duty to "fairly and reasonably" draw any particularly onerous clauses in standard conditions to the attention of customers has been highlighted by the High Court in Blu-Sky Solutions Limited v Be Caring Limited, where a party did not review standard terms when e-signing a contract.

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Blog

High Court finds agency relationship and 'control' for purposes of disclosure where third party not authorised to sign contract for principal

Published on 28 October 2021. By Daniel Hemming, Partner and Joe Cresswell, Associate

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In Quartz Assets LLC and another v Kestrel Coal Midco Pty Ltd [2021] EWHC 2675 (Comm), the High Court held that a third party authorised to conduct contractual negotiations on behalf of the Defendant, but not sign the contract, was acting as an agent, and that relevant documents which it had created were therefore in the Defendant's control and ought to be disclosed. The decision emphasises that the courts will consider substance over form when determining whether an agency relationship exists, and constitutes a reminder of the definition of 'control' for the purposes of disclosure.

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Blog

Choose your words wisely: waiving privilege in witness evidence

Published on 27 October 2021. By Suera Hajzeri, Associate and Davina Given, Partner

In a cautionary tale for litigators, the High Court has ordered disclosure of privileged notes of a conversation after a witness referred to the conversation in his witness statement.(1)

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Blog

Access all areas? Privilege, the loss of confidentiality and a missed opportunity

Published on 21 October 2021. By Alexandra Shearer, Associate (Australian Qualified) and Jonathan Cary, Partner

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Privilege is not necessarily lost when an opposing party has had access to that privileged material. The purpose and context of the access will lie at the heart of the court's decision in the event that a claim to privilege is disputed: ConocoPhillips Co v Chrysaor E&P Ltd [2021](1).

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Blog

High Court refuses permission for unissued contempt application where breach of freezing order only technical

Published on 14 October 2021. By Andy McGregor, Head of Civil Fraud and Poppy St John, Associate

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In Pharmagona Limited v Taheri,(1) the High Court refused to seal and issue a contempt application as the breach, if it had occurred, was only technical, and it was therefore inappropriate for the application to succeed.

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Publication

High Court reviews permission for expert reports and delay after general adjourned period

Published on 07 October 2021. By Antony Sassi, Managing Partner, Asia and Rebecca Wong, Senior Associate and Jennifer Leung, Associate

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In Redland Precast Concrete Products (China) Ltd v AES Steel Mould (Hong Kong) Ltd1 the Court of Appeal emphasised that it is unlikely to interfere with the exercise of a first instance court’s case management discretion regarding directions for expert reports, unless an applicant can show that the lower court’s decision is plainly wrong. This presents a party seeking to challenge such directions with a high threshold to overcome in order to obtain permission to appeal. In this case, the applicant (the plaintiff) was unable to meet the threshold – therefore, its application for permission to appeal was refused by the court. Had the plaintiff acted more expeditiously, immediately after the general adjourned period (when the courts were generally closed between January and May 2020 because of the pandemic), things may have turned out differently.

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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 Becky 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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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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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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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, Senior 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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