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Commercial Disputes

Blog

Court orders mediation

Published on 19 September 2019. By Geraldine Elliott, Partner and Matthew Evans, Senior Associate

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The High Court has upheld a tiered dispute resolution clause in accordance with established principles of contractual interpretation. The court ordered a stay of proceedings for mediation, and in support of the mediation also ordered pleadings to be served in advance in order to optimise the prospects of a settlement.

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Publication

Arbitration or winding up?

Published on 17 September 2019. By Charles Allen, Partner

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In But Ka Chon v Interactive Brokers LLC [2019] HKCA 873, the Hong Kong Court of Appeal upheld a lower court's decision to reject an application to set aside a statutory demand. The appellant had argued (among other things) that an arbitration clause in his agreement with the respondent required their dispute to be referred to arbitration.

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Blog

High Court waits for no lawyer

Published on 11 September 2019. By Davina Given, Partner and Karina Plain, Associate (Australian qualified)

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An appeal was recently lost after an application for an oral hearing was made just two days late. Evans v Pinsent Mason LLP [2019] EWHC 2150 (QB) This decision is a timely reminder of the strictness of court deadlines and of the importance of being upfront with the court (and your opponent) which, on this occasion, was unwilling to forgive ambiguity as to whether the deadline had been met.

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Blog

Notice givers take care – ignore the contract at your peril

Published on 29 August 2019. By Geraldine Elliott, Partner and Tim Potts, Associate

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The Court of Appeal has confirmed in Stobart Group Ltd & Anor v William Stobart & Anor [1] that an objective test will be applied when assessing whether a unilateral contractual notice has been validly given. This decision also provides a cautionary reminder of the consequences of a party's failure to comply strictly with contractual notice provisions. [1] [2019] EWCA Civ 1376

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Blog

Clarity, clarity, clarity; more contract drafting lessons from the court

Published on 15 August 2019. By Davina Given, Partner and Victoria Rogers, Associate

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Keep under review options for terminating contracts which are no longer needed or pay the price. We discuss an interesting approach from the High Court to the well-known principles of contractual interpretation in Macquarie Capital v Nordsee. [2019] EWHC 1655 (Comm)

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Blog

An innocent party is entitled to damages, even though performance of the contract is impossible

Published on 01 August 2019. By Geraldine Elliott, Partner and Eliot Henderson, Associate

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The Court of Appeal considered the proper interpretation of exceptions or force majeure clauses and provided guidance on the correct application of the compensatory principle of damages in Classic Maritime v Limbungan. Classic Maritime Inc v Limbungan Makmur SDN BHD & Anor [2019] EWCA Civ 1102

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Blog

The Art of the (Settlement) Deal

Published on 26 July 2019. By Laura Evans, Associate and Davina Given, Partner

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According to the English Court of Appeal, giving up a right which the debtor does not even know he has is sufficient consideration for settling a debt. But the vexed question of what amounts to "good" consideration remains uncertain enough for those entering into a contract always to consider whether good consideration has been given. If in doubt, pay a nominal amount.[1]

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Blog

Make the most of a mediation - 10 Top Tips

Published on 25 July 2019. By Geraldine Elliott, Partner and Emma West, Associate

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Preparation for a mediation is key- you get out what you put in. Here are our top 10 tips for making the most out of the mediation process to successfully settle your dispute.

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Blog

Serving up the truth, the whole truth and nothing but the truth?

Published on 05 July 2019. By Davina Given, Partner

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The Court has reminded us that the duty of full and frank disclosure applies to any application made without notice to the other party. Although this is most typically an issue in applications for injunctions, permission to serve a claim out of the jurisdiction was recently set aside on the grounds of the claimant's failure to disclose to the Court a potential limitation defence to the claim.(1)

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Blog

Court of Appeal makes rare order for rectification, with interesting consequences…

Published on 28 June 2019. By Alan Williams, Partner and Rebecca Birkby, Senior Associate

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The Court of Appeal has ordered rectification resulting in one party being in breach of warranty and liable pay damages. In Persimmon Homes Limited v Hillier and Creed [2019] EWCA Civ 800, the dispute centred on whether all plots of land required to create a development site were intended by both parties to be included in a sale, when in fact two plots out of six were not included.

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Blog

What expenditure falls within ‘ordinary and proper course of business’ exception in freezing orders?

Published on 28 June 2019. By Simon Hart, Partner and Daniel Hemming, Senior Associate

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The cost of pursuing related arbitration proceedings and fighting extradition proceedings could be costs incurred in the ‘ordinary and proper course of business’ according to the Court of Appeal in Koza Ltd v Koza Altin.(1)

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Blog

Court of Appeal upholds decision on importance of industry standard documents in conflicting jurisdiction clauses

Published on 13 June 2019. By Andy McGregor, Head of Civil Fraud and Steven Rajavinothan, Associate

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The Court of Appeal upheld the decision of the High Court[1], highlighting the risk that the English and Italian Courts may reach different decisions on the underlying factual background of related disputes even where the disputes could be said to fall under different agreements [2]. Therefore, parties need to appreciate that the English Court will put the certainty of industry standard documentation (such as ISDA Master Agreements) first such that it is dangerous to have different jurisdiction and/or governing law clauses in related agreements.

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Blog

Economic duress: when is a threat not an (illegitimate) threat?

Published on 31 May 2019. By Jonathan Cary, Partner and Suzan Kurdi, Senior Associate

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In what circumstances can a threat not to enter into a contract amount to economic duress? Broadly speaking, when pressure is exerted "in bad faith", according to the Court of Appeal in Times Travel (UK) Limited v Pakistan International Airlines Corporation

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Video

Disclosure Pilot Scheme: Technology

Published on 22 May 2019. By Matthew Evans, Senior Associate

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How does the Disclosure Pilot encourage the use of technology?

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Blog

Novel approach to measuring damages resulting from a breach of warranty

Published on 15 May 2019. By Geraldine Elliott, Partner and Emily Rome, Associate

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The accepted approach of diminution in the value of the target company has been unsuccessfully challenged in Oversea-Chinese Banking Corporation Limited v ING Bank NV ([2019] EWHC 676 (Comm)).

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Video

Disclosure Pilot Scheme: A balancing act

13 May 2019

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Disclosure has always involved a balancing act between all parties involved, to progress cases in an efficient and cost effective manner, but the Disclosure Pilot Scheme seeks to change where that balance lies. Partners Parham Kouchikali and Davina Given discuss in more detail.

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Blog

Ang(er) over jurisdiction challenge: High Court seeks to clarify whether speculative investment by a private individual is a business or consumer activity

Published on 10 May 2019. By Simon Hart, Partner and Harriet Evans, Associate

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Failed jurisdiction challenge against a private individual making speculative currency transactions on the basis that she could be considered a consumer under the Recast Brussels Regulation (Romana Ang v Reliantco Investments Limited [2019] EWHC 879 (Comm))

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Blog

No exceptions to exclusionary rule: Court of Appeal confirms established principle

Published on 10 May 2019. By Geraldine Elliott, Partner and Matthew Evans, Senior Associate

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While evidence of pre-contractual negotiations can be adduced to demonstrate how a transaction came about or what its commercial aims were, it cannot be relied on to aid the interpretation of the contractual provisions themselves. Merthyr (South Wales) Ltd v Merthyr Tydfil County Borough Council ) [2019] EWCA Civ 526.

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Publication

Financial litigation roundup Spring/Summer 2019

08 May 2019

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Welcome to the latest edition of our financial litigation roundup. In this edition, we consider recent judgments and ongoing cases from the banking and financial world in the UK and Hong Kong, as well as legal developments across those jurisdictions.

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Video

Disclosure Pilot Scheme: Cooperation and culture

Published on 07 May 2019. By Davina Given, Partner and Parham Kouchikali, Partner

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Partners Parham Kouchikali and Davina Given discuss the Disclosure Pilot Scheme and the change in cooperation and culture needed for the pilot to be successful for all parties involved.

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Blog

The High Court removes its cap for litigation funders

Published on 03 May 2019. By Davina Given, Partner and Chris Ross, Partner and Lambros Kilaniotis, Partner

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The High Court has declined to cap a litigation funder's liability for adverse costs at the amount of funding provided. It confirmed that the so-called Arkin cap is an approach to be considered, not a rule to be followed (Davey v Money [2019] EWHC 997 (Ch)).

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Blog

What if third parties helped to hide the golden egg?

Published on 25 April 2019. By Davina Given, Partner and Emma West, Associate

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What if third parties helped to hide the golden egg?

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Blog

The fraudster is insolvent – can you add more eggs to the basket?

Published on 24 April 2019. By Davina Given, Partner and Emma West, Associate

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The fraudster is insolvent – can you add more eggs to the basket?

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Blog

What to do if the golden egg hatches (or you need to trace into the fraudster's other assets)

Published on 24 April 2019. By Davina Given, Partner and Emma West, Associate

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What to do if the golden egg hatches (or you need to trace into the fraudster's other assets)

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Blog

How can I find the golden egg? Part 2: ask the Easter bunny (or third parties)

Published on 23 April 2019. By Davina Given, Partner and Emma West, Associate

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How can I find the golden egg? Part 2: ask the Easter bunny (or third parties)

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Blog

Egg supplier ends up with egg on its face

Published on 18 April 2019. By Davina Given, Partner

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Egg supplier ends up with egg on its face

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Blog

Should fraud unravel all? The Supreme Court thinks so

Published on 18 April 2019. By Andy McGregor, Head of Civil Fraud and Karina Plain, Associate (Australian qualified)

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Should fraud unravel all? The Supreme Court thinks so

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Blog

How can I find the golden egg? Part 1: ask the fraudster and accept no eggs-cuses

Published on 17 April 2019. By Davina Given, Partner and Emma West, Associate

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How do I find the golden egg? Part 1: ask the fraudster and accept no eggs-cuses

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Blog

How do you stop the treasure map leading to the golden egg being destroyed?

Published on 17 April 2019. By Davina Given, Partner and Emma West, Associate

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How do you stop the treasure map leading to the golden egg being destroyed?

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Blog

How do you stop the golden egg rolling away?

Published on 15 April 2019. By Davina Given, Partner and Emma West, Associate

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How do you stop the golden egg rolling away?

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Blog

The greatest Easter egg hunt: asset recovery in the English courts

Published on 15 April 2019. By Davina Given, Partner and Emma West, Associate

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The greatest Easter egg hunt: asset recovery in the English courts

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Blog

English Court trumps the FBI

Published on 05 April 2019. By Davina Given, Partner and Joe Cresswell, Associate

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In HP's high profile claim against Mike Lynch in relation to its acquisition of Autonomy, the English High Court has held that the implied undertaking against collateral use of documents received in the course of litigation prevented disclosure of those documents to the FBI.

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Blog

Game theory and the art of litigation strategy - Article 4

Published on 02 April 2019. By Christopher Whitehouse, Senior Associate and Simon Hart, Partner

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Escaping the Hobbesian Trap – the impact of aggression in litigation settlement strategy

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Blog

What are the circumstances in which acting in breach of EU sanctions will kill a claim?

Published on 21 March 2019. By Andy McGregor, Head of Civil Fraud and Christopher Whitehouse, Senior Associate

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An Iranian oil company was defrauded in a failed attempt to circumvent EU sanctions - does its claim survive the Patel v Mirza illegality test?

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Blog

"Agency" is not always enough to engage the law of bribery and secret commissions

Published on 13 March 2019. By Charlotte Henschen (née Ducker), Senior Associate and Jonathan Cary, Partner

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The Court of Appeal has held that the payment by a seller of a fee to an acquisition agent without the buyer's knowledge does not render the contract for sale void or voidable. The decision turned on whether there was sufficient trust and confidence in the relationship between the buyer and the acquisition agent. Prince Arthur Ikpechukwu Eze v Conway and another [2019] EWCA Civ 88

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Blog

Enforceable oral contracts – Supreme Court looks to conduct and context

Published on 07 March 2019. By Eliot Henderson, Associate and Geraldine Elliott, Partner

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To avoid expensive litigation, contracting parties should ensure that all essential terms are expressly agreed within a legally binding contract. Where some essential terms are missing, but the parties clearly intend to be bound by and act on their agreement, the court will be keen to find an enforceable agreement. Wells v Devan 2019, UKSC 4.

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Blog

Is a good arguable case good enough? The Court of Appeal considers the test for establishing jurisdiction

Published on 19 February 2019. By Emma West, Associate and Geraldine Elliott, Partner

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The test for deciding whether a claimant has a good arguable case is relative following the Court of Appeal's decision in Kaefar v AMS Drilling and others.

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Blog

Time waits for know-ledge: but what does that mean for limitation?

Published on 12 February 2019. By Davina Given, Partner and Laura Evans, Associate

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Keep limitation under review, Section 14A does not extend the limitation period until each and every breach is identified and a claimant cannot postpone the date of 'knowledge' under Section 14A of the Limitation Act by choosing which breach of duty it relies on.

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Blog

Drafting a contract? Beware the well-intentioned but unenforceable agreement to agree

Published on 05 February 2019. By Jonathan Cary, Partner and Rebecca Birkby, Senior Associate

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"Such period as shall reasonably be agreed between (the parties)" is an agreement to agree and therefore unenforceable according to the Court of Appeal in Philip Morris v Swanton Care & Community Limited.

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Blog

Can expert evidence be used to determine dishonesty?

Published on 31 January 2019. By Steven Rajavinothan, Associate and Parham Kouchikali, Partner

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Dishonesty in relation to financial market practices is to be determined against an objective standard; expert evidence as to market practices cannot be adduced to decide the issue.

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Blog

A look back at the Year of the Dog

31 January 2019

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Over the past 12 months, the courts of Hong Kong have made a number of interesting decisions, many of which we have written about, and which are likely to prove instructive for lawyers in 2019 and beyond.

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Blog

Funding for disputes – “one step forward”

Published on 04 January 2019. By David Smyth, Senior Consultant and Michael Maguiness, Of Counsel

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In a significant development in June 2017, the Arbitration and Mediation Legislation (Third Party Funding) (Amendment) Ordinance was enacted. It provides for a legislative regime for third party funding of arbitration and mediation in Hong Kong.

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Blog

An excessive demand is still a demand - Barclays Bank plc v Price

Published on 02 January 2019. By Sarah Shaul, Associate and Andy McGregor, Head of Civil Fraud

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A demand made under a guarantee may be effective even when the amount demanded exceeds an express liability cap.

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Blog

Watch out! Internal settlement negotiations may not always remain "internal"

Published on 19 December 2018. By Davina Given, Partner and Suzan Kurdi, Senior Associate

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WH Holding Limited (1) West Ham United Football Club Limited (2) v E20 Stadium LLP [2018] EWCA Civ 2652 finds that internal settlement negotiations are not protected by litigation privilege.

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On the twelfth day of Christmas, the High Court gave to me…twelve judges judging

Published on 18 December 2018. By Davina Given, Partner

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It attracted nothing like the controversy of the US Senate's confirmation of US Supreme Court Justice Kavanaugh. However, the decision of the two selection commissions to recommend, and of the Lord Chancellor to recommend to the Prime Minister, the appointment of Lady Hale to the Presidency of the UK Supreme Court and of Ladies Black and Arden to the Court marked historic firsts in 2018.

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On the eleventh day of Christmas, the High Court gave to me…eleven groups a-growing

Published on 17 December 2018. By Davina Given, Partner and Chris Ross, Partner and Lambros Kilaniotis, Partner

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Unlike Scrooge, litigation will not wake transformed on Christmas Day into a gentler, kinder activity. But it is undergoing a slower transformation with the growth of various forms of group litigation in England.

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On the tenth day of Christmas, the High Court gave to me…ten claims a-noticed

Published on 14 December 2018. By Davina Given, Partner

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Christmas may come but once a year, but 2018 was book-ended by two cases in the Court of Appeal on claim notices in the context of share sale purchases.

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On the ninth day of Christmas, the High Court gave to me…nine losses mounting

Published on 13 December 2018. By Davina Given, Partner

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It's rare for cases on damages to reach the Supreme Court, and there was just one in 2018: Morris-Garner v One Step (Support) Ltd (possibly particularly appropriate for a verse normally taken up with possibly aged leaping lords).

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On the eighth day of Christmas, the High Court gave to me…eight duties owing

Published on 12 December 2018. By Davina Given, Partner

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To borrow from a distinctly non-Christmassy text: to owe or not to owe a duty? That is often the difficult question. (It could be worse: o-ho-ho-ho-we, yes, it could.) By way of a round-robin letter on the topic, by and large, 2018 was a good year for.

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On the seventh day of Christmas, the High Court gave to me…seven fraudsters fleeing

Published on 11 December 2018. By Davina Given, Partner and Jonathan Cary, Partner

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A Home Office report in July 2018 found that in 2015/16 there were 3.6m incidents of fraud with an immediate cost of £3.04bn and 2m incidents of cybercrime with an immediate cost of £526m. It seems improbable that the number or value of those incidents has declined since then, and certainly fraud of all types has had a busy 12 months in the English courts.

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