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Commercial Disputes

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

Published on 20 August 2020. By Parham Kouchikali, Partner and James Taylor, Associate

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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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Blog

LIBOR claim by US agency will continue in London

Published on 10 August 2020. By Jake Hardy, Partner and Rosy Gibson, Associate

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A decision in the London High Court has demonstrated that the fallout from the long-running LIBOR fixing scandal is far from over.

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Hong Kong – Refusal to regrant injunction that lapsed during general adjournment successfully appealed

Published on 10 August 2020. By David Smyth, Senior Consultant

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In a previous update dated 29 April 2020, we noted that a first instance court held that the general adjourned period (GAP), during which the Hong Kong courts were closed save for urgent and essential court business, did not generally extend the duration of an injunction which was granted on an urgent basis before the GAP commenced and listed for a "return date" during the GAP (for further details, see "General adjournment in Hong Kong does not extend duration of ex parte injunction", dated 29 April 2020).

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Hong Kong Courts – COVID-19 Update

Published on 10 August 2020. By Carmel Green, Partner

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The general adjourned period (GAP), during which the courts were closed save for urgent and essential business, ended on 3 May 2020, enabling the courts to resume normal business in Hong Kong. Since then, the number of reported cases of COVID-19 in Hong Kong has approximately tripled following a third wave of infections.

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Blog

Supreme Court reflects on a narrower interpretation of "reflective loss"

Published on 07 August 2020. By Parham Kouchikali, Partner

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The Supreme Court has scaled back the scope of the reflective loss principle which has been expanded over the years. The reflective loss principle essentially prevents a shareholder from bringing a claim against a wrongdoer for the diminution in value of its shares or distributions that results from a loss caused by that wrongdoer to the company itself.

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Courts reach a landing on the test for jurisdiction over co-defendants

Published on 06 August 2020. By Simon Hart, Partner and Emma West, Senior Associate

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The court can only assert jurisdiction over an EU domiciled co-defendant under Article 8(1) of the Recast Brussels Regulation if the claim against the anchor defendant is sustainable.

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Blog

Orders for pre-action disclosure – exceptional in a commercial context?

Published on 22 July 2020. By Davina Given, Partner and Suzan Kurdi, Senior Associate

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Although parties are expected to exchange key documents before starting proceedings in the English court, a recent decision in the Commercial Court highlights the limited nature of those obligations, particularly in a commercial context.

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El Dorado in the Commercial Court: Domestic Law, Foreign Law and Foreign Relations

Published on 17 July 2020. By Benedict Coxon, Associate (Australian Qualified)

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Why is a dispute between Mr Nicolás Maduro and Mr Juan Guaidó as the rival contenders to the Presidency of Venezuela being heard by the English Commercial Court? The answer involves US$1 billion of gold reserves held at the Bank of England and who has the authority to deal with them.

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Blog

It's good to talk

Published on 16 July 2020. By Andy McGregor, Head of Civil Fraud and Adam Forster, Senior Associate

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A successful party has been declined some of its costs on the basis of an unreasonable refusal to engage in mediation. Wales (t/a Selective Investment Services) v CBRE Managed Services Ltd & Aviva.

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Publication

Examining the time bar for causes of action for the tort of negligent misrepresentation

10 July 2020

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Section 24A of Singapore’s Limitation Act (Cap. 163) provides, amongst other things, that the limitation period for any cause of action for damages for negligent misrepresentation accrues upon proof of damage in reliance of the negligent misrepresentation.

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Hong Kong Courts – Further guidance on remote court hearings

Published on 10 July 2020. By Carmel Green, Partner

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A second, more comprehensive guidance note on remote hearings in civil proceedings came into effect on 15 June 2020. The phase 2 guidance note provides for expanded videoconferencing facilities and telephone hearings with respect to the civil business of the first instance courts and the Court of Appeal, and is to be read together with the phase 1 guidance note issued on 2 April 2020.

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Blog

Waiving goodbye to privilege – reliance is key

Published on 02 July 2020. By Daniel Hemming, Partner and Steven Rajavinothan, Associate

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In what circumstances will a party waive privilege over legal advice by referring to it in evidence?

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Privileged but admissible? When can without prejudice material be pleaded in statements of case?

Published on 26 June 2020. By Simon Hart, Partner and Rosy Gibson, Associate

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The High Court considered the scope of the existing exceptions to the Without Prejudice Rule in its recent decision of Berkeley Square Holding & others v Lancer Property Asset Management & others(1). This well-known rule protects communications made in a genuine attempt to settle an existing dispute from later deployment in court. The Court allowed passages from papers prepared for a mediation to be admitted into the proceedings under two exceptions to the Without Prejudice Rule.

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Blog

Freezing orders: risk of dissipation? Get real

Published on 18 June 2020. By Jonathan Cary, Partner

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The High Court has issued an important reminder of the need for solid evidence of a real risk that the respondent will take steps to dissipate their assets to frustrate a judgment in applications to continue a worldwide freezing order (WFO). Evidence of dishonesty alone is not enough, and conduct falling short of dishonesty is less likely to suffice. Evidence of untrustworthiness, or even dishonesty, does not amount to sufficiently robust evidence of a real risk of dissipation to continue a worldwide freezing order.

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Hong Kong Courts – Expansion of use of remote hearings

Published on 17 June 2020. By Carmel Green, Partner

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As expected, the judiciary in Hong Kong has announced that it will expand the use of remote hearings for civil cases. The first Guidance Note for Remote Hearings for Civil Business in the High Court (Phase 1) came into effect on 3 April 2020. This was during the general adjourned period (GAP), when the courts were generally closed as a result of COVID-19, save for urgent and essential court business. The GAP came to an end on 3 May 2020.

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Minority shareholder oppression and the proper plaintiff rule – it gets personal

Published on 04 June 2020.

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Section 216 of the Companies Act (Cap. 50) affords protection for minority shareholders where their interests are oppressed by the manner in which the company’s affairs are being conducted or by how the directors’ powers are being exercised.

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Blog

The commission omission? English High Court balances text and context in contractual interpretation

Published on 28 May 2020. By Geraldine Elliott, Partner and Ben Harris, Associate

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English law's flexible, rational, yet stable approach to contractual interpretation has been demonstrated again in Clark Street Associates v Norsk Titanium(1), a decision concerning commission payments.

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Hong Kong Courts – Closing the GAP

Published on 22 May 2020. By Carmel Green, Partner

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The general adjourned period (GAP), during which the courts in Hong Kong were closed save for urgent and essential court business, started on 29 January 2020 with the early onset of COVID-19 in Hong Kong.

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To perform or not to perform? When tendering performance means actual performance

Published on 21 May 2020. By Dan Wyatt, Partner and Kirtan Prasad, Senior Associate

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A consultant was alleged to be in material breach of a consultancy contract for refusing to supply his services. He responded to a notice of material breach by stating that he was willing to perform. However, the Court of Appeal held that this was insufficient to remedy the breach (Bains v Arunvill Capital Limited and others)(1).

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Blog

When will reference to a document in a witness statement waive privilege in that document

Published on 14 May 2020. By Davina Given, Partner and Gill O'Regan, Senior Associate

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Tread carefully when considering whether and how to reference privileged documents; "deployment" of a document may draw back the cloak of privilege but a "mere reference" may not. Context will be key.

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What are good grounds for appeal in insolvency applications?

Published on 06 May 2020. By Simon Hart, Partner and Emily Saffer, Associate

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Applying for permission to advance fresh evidence on appeal is a tricky application, which has had varying degrees of success in the courts. Zheng Yougxiong v Gate Ventures Plc(1) is a useful example of the application of the criteria, albeit in the context of insolvency proceedings.

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Publication

Arbitrable disputes in the context of winding up proceedings

Published on 05 May 2020. By Prakash Nair, Director

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This note discusses two recent decisions of the Court of Appeal of Singapore that dealt with the standard of review to be applied in winding up proceedings where a debtor asserts that there is a dispute which parties agreed to resolve by way of arbitration.

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Blog

High Court provides a reminder against "over-lawyering" of witness statements

Published on 30 April 2020. By Parham Kouchikali, Partner and Harriet Evans, Associate

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In a reminder not to "over-lawyer" witness statements, a High Court judge has ordered that statements be revised to remove inappropriate content(1).

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Blog

General adjournment in Hong Kong does not extend duration of ex parte injunction

Published on 29 April 2020. By Carmel Green, Partner and Antony Sassi, Managing Partner, Asia

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In Hong Kong, the courts have generally been closed, save for urgent and essential court business as a result of COVID-19.

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COVID-19 – Hong Kong Courts set for phased reopening from May

Published on 23 April 2020. By Jonathan Crompton, Partner and Sakshi Buttoo, Legal Manager

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On 22 April 2020, the Hong Kong Judiciary announced that the general adjourned period ("GAP") for court proceedings, which started on 29 January 2020, will end on 3 May 2020. Stressing that the health and safety of court users, the Judiciary's staff and Judges and Judicial Officers ("JJOs") remains paramount, the Judiciary will move to a phased reintroduction of general business.

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Publication

A Review in Confidence: Modernising the Law of Breach of Confidence in Singapore

Published on 17 April 2020.

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The elements for a claim for breach of confidence were trite, having been established more than 50 years ago in the English case of Coco v. AN Clark (Engineers) Ltd (1) and affirmed in numerous Singapore decisions (2) .

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Hong Kong Courts – In with the old and the new technology

Published on 15 April 2020. By Antony Sassi, Managing Partner, Asia and Jonathan Crompton, Partner and David Smyth, Senior Consultant

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In Re Cyberworks Audio Video Technology Ltd,(1) the High Court of Hong Kong decided that it can, as part of its case management powers and of its own volition, order that a directions hearing take place by means of a telephone conference without the physical presence in court of the parties or their legal representatives.

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Publication

Hong Kong courts begin use of video conferencing

Published on 15 April 2020. By Antony Sassi, Managing Partner, Asia and Carmel Green, Partner

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Given the extended general adjourned period (GAP), during which the courts in Hong Kong have been closed except for urgent and essential court business, the judiciary has adopted an incremental approach to the use of technology for remote hearings.

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Publication

Litigation in the time of Coronavirus (Hong Kong - Update)

Published on 15 April 2020. By Antony Sassi, Managing Partner, Asia and Jonathan Crompton, Partner and David Smyth, Senior Consultant

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The "General Adjourned Period" (GAP) during which the courts in Hong Kong have been closed, save for urgent and essential court business, has been extended to 13 April 2020.

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Hong Kong Court of Appeal hears appeal using video conferencing

Published on 15 April 2020. By Charles Allen, Partner and Carmel Green, Partner

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On 2 April 2020 the Chief Judge of the High Court issued a Guidance Note setting out the practice for remote hearings in the Court of First Instance of the High Court (but not the District Court) using the court's existing video conferencing facilities (VCF). Hard on its heels, on 6 April 2020 the Court of Appeal conducted a hearing by VCF in CSFK v. HWH [2020] HKCA 207.

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Blog

COVID-19: Trials - the show must go on

Published on 09 April 2020. By Alexandra Anderson, Partner

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Judges are taking to heart the HMCTS's guidance focused on encouraging judges to maximise the use of video and telephone hearings using current technology. So, while the theatres in the UK remain closed, the theatres of justice continue with their activities.

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COVID-19 – Hong Kong Courts handling urgent and essential matters

Published on 09 April 2020. By Charles Allen, Partner and Sakshi Buttoo, Legal Manager

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On 8 April 2020, the Hong Kong Judiciary announced that the general adjourned period ("GAP") for court proceedings will continue until at least 3 May 2020. During the GAP, court registries and offices are, for the most part, closed. However, the GAP does not apply to "urgent and essential court hearings and/or matters".

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Parental controls: when does standing consent put subsidiaries' documents within its parent's control?

Published on 08 April 2020. By Tim Brown, Partner and Karina Plain, Associate (Australian qualified)

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A parent company does not exercise control over the documents of, or held by, its subsidiaries merely by virtue of its shareholdings in those subsidiaries.(1).

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Publication

Singapore's COVID-19 (Temporary Measures) Act 2020 – Highlights and Commentary on Key Provisions for Temporary Relief for Inability to Perform Contracts

Published on 06 April 2020.

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The COVID-19 pandemic has led to a severe contraction in economic activity on a global scale, as a result of supply chain disruptions, manpower shortages, travel restrictions and a swift decline in demand. Singapore is likewise grappling with the economic symptoms of these ongoing waves of COVID-19 outbreaks, which will continue to dampen global economic growth.

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COVID-19: Virtual hearings - what we've learned

Published on 27 March 2020. By Dan Wyatt, Partner

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Remote court hearings have very quickly become the "new normal". We've taken part in a fair few in recent weeks so wanted to share some practical tips that we hope will help those about to enter the virtual courtroom….

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COVID-19 - The official guidance on remote hearings; early engagement is key to success

Published on 24 March 2020. By Geraldine Elliott, Partner and David Cran, Partner

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COVID-19. The courts are trying to conduct "business as usual" as much as possible in this challenging climate. The latest official guidance, published on Friday, covers remote hearings in all Civil Courts in England & Wales; it relates to all types of hearings – applications, trials and appeals.

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COVID-19: Impact on court hearings and successful virtual mediations

Published on 20 March 2020. By David Cran, Partner and Geraldine Elliott, Partner

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As anticipated, the Courts are now moving to a (mainly) remote working basis.

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Quasi-proprietary claims: use of disputed funds to pay legal costs

Published on 18 March 2020. By Alan Williams, Partner

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In Kea Investments Ltd v Eric John Watson, the High Court considered to what extent a defendant should be permitted to use funds subject to a freezing injunction to fund its legal expenses where the claimant advances a quasi-proprietary claim over those funds

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Litigation funder liable for uncapped adverse costs

Published on 13 March 2020. By Andy McGregor, Head of Civil Fraud and Tim Potts, Senior Associate

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In ChapelGate Credit Opportunity Master Fund Ltd v James Money, the Court of Appeal ordered a funder to pay the full amount of adverse costs. [2020] EWCA Civ 246. In a significant judgment for commercial litigation funders, the court found that the ‘Arkin cap’ (which can cap a litigation funder's liability for adverse costs to the amount of funding that was provided) is not a binding rule to be applied automatically in every case involving a litigation funder. Instead, the court considered all of the facts of the case and exercised its discretion in determining whether to cap the litigation funder's liability for adverse costs.

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Beware: English jurisdiction clauses do not mean choice of English law

Published on 06 March 2020. By Geraldine Elliott, Partner and Fred Kuchlin, Associate

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Where parties have agreed in a contract that the English courts will have jurisdiction in the event of a dispute, it does not automatically follow that English law will be the governing law. A party recently found this out, to its cost, when a different governing law clause meant an expired limitation period. This case demonstrates that those entering into contractual agreements should carefully consider a choice of law clause that specifically designates the laws of a country that suits them. GDE LLC v Anglia Autoflow Limited.

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High Court: Claimants' litigation funder ordered to provide security for costs

Published on 21 February 2020. By Chris Ross, Partner and Gill O'Regan, Senior Associate

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The High Court has handed down a significant judgment giving important guidance on the Court’s approach to issues of costs-sharing and security for costs against litigation funders in large multi-party claims. The judgment will be a key touchpoint in this developing area of law. RPC acts for Ingenious in the proceedings. The judgment citation is [2020] EWHC 235 (Ch).

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Equitable compensation for breach of fiduciary duty: a question of loss?

Published on 20 February 2020. By Davina Given, Partner and Benedict Coxon, Associate (Australian Qualified)

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A director who extracted money from a company by way of sham invoices may have a defence to an equitable compensation claim for misappropriation of the company's funds, if the director could have lawfully transferred the funds to the same recipients for no value. The Court of Appeal explored this possibility in Auden McKenzie (Pharma Division) Ltd v Patel

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