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Commercial disputes

Blog

The October CPR update: three important changes for litigators

Published on 18 August 2022. By Charlotte Henschen (née Ducker), Partner and Ana Margetts, Associate

The traditional autumn update to the CPR this year comes with three developments of particular note for litigators: the permanent incorporation of the disclosure pilot into the CPR, amendments to the rules relating to service out of jurisdiction, and the simplification of certain Practice Directions including PD16 regarding Statements of Case (PD16).

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Blog

"Specifically mentioned": High Court clarifies rules about documents referred to in evidence under the Disclosure Pilot

Published on 03 August 2022. By Connie O'Conor , Associate and Matthew Evans, Of Counsel

In a judgment that has recently become publicly available (Michael Wilson and Partners Ltd v Emmott and others [2022] EWHC 730 (Comm)) the High Court rejected the claimant's request for disclosure of documents referred to in a witness statement which were "bound to exist". In doing so, the court re-emphasised the importance of clarity and specificity in relation to requests for disclosure.

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Blog

You've been airdropped: English court approves service by NFT and finds it arguable that cryptocurrency-exchanges hold misappropriated assets as constructive trustees

Published on 03 August 2022. By Dan Wyatt, Partner and Christopher Whitehouse, Senior Associate and Becky Baker , Trainee Solicitor

In D’Aloia v (1) Persons Unknown (2) Binance Holdings Limited & Others [2022] EWHC 1723 (Ch), the English court approved service of proceedings by NFT and found that it was arguable that cryptocurrency exchanges owed constructive trustee duties to cyber-fraud victims.

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Blog

Back to basics on contract interpretation as Court of Appeal finds that natural meaning of settlement agreement prevails

Published on 01 August 2022. By Suera Hajzeri, Associate and Daniel Hemming, Partner

In Schofield & Anor v Smith & Anor [2022] EWCA Civ 824, the Court of Appeal dismissed the appeals of a group of companies, finding that a settlement agreement entered into between the group companies and their bank released the companies' former administrators and their solicitors from all relevant claims, even though the settlement agreement had been agreed without the involvement of the administrators, and after the administration of the group companies had been concluded.

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Blog

Court of Appeal finds that damages-based agreements are not available to defendants

Published on 27 July 2022. By Simon Hart, Partner and Alastair Hall, Associate

The Court of Appeal has found that damages-based agreements (DBAs) are not available to non-counterclaiming defendants (Candey Ltd v Tonstate Group Ltd & Ors). [2022] EWCA Civ 936. In reaching this conclusion, the court held that agreements between legal representatives and defendant clients, which provide for payment to the legal representative of a percentage of sums that the client has resisted paying to its opponent (and where the client received no financial benefit from its opponent), were unlawful and unenforceable.

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Publication

Financial Services Litigation Hong Kong Chapter

Published on 27 July 2022. By Jonathan Crompton, Partner and Lillian Wong, Associate

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Publication

Banking and financial litigation markets update - Summer 2022

Published on 25 July 2022. By Carolin Ayres, Associate and Lucy Baughan, Associate and Jonathan Cary, Partner and Jessica Davies, Associate and Olivia Dhein, Professional Support Lawyer and Jake Hardy, Partner and Simon Hart, Partner and Charlotte Henschen (née Ducker), Partner and Tom Hibbert, Global Head of Commercial Disputes and Tim Potts, Senior Associate and Chris Ross, Partner and Emily Saffer, Associate and Poppy St John, Associate and Christopher Wheatley , Senior Associate and Alan Williams, Partner

In this overview we look at some of the most important judgments in recent months in the area of banking and financial markets litigation.

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Blog

High Court holds litigation funder liable for costs that pre-dated funding agreement

Published on 22 July 2022. By Chris Ross, Partner and Jodie Egan, Senior Associate

The Commercial Court has held a litigation funder to be jointly and severally liable for the defendants' costs from a date prior to the litigation funding agreement and despite the involvement of other funders in The ECU Group plc v HSBC Bank Plc & ors [2022] EWHC 1616 (Comm).

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Blog

Commercial Court dismisses ECU claims against HSBC entities due to limitation

Published on 18 July 2022. By Simon Hart, Partner and Jake Hardy, Partner

The Commercial Court has provided a timely reminder of the importance of limitation periods, along with the application of the law of causation in the context of claims that relate to foreign exchange markets.

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Blog

Commercial Court applies "utility" approach to declarations in Italian local authority swaps case (Deutsche Bank v Comune Di Busto Arsizio)

Published on 13 July 2022. By Jake Hardy, Partner and Olivia Dhein, Professional Support Lawyer

Following on from a decision that an Italian local authority did not lack capacity to enter into a mirror swap and interest rate swap concluded with Deutsche Bank AG London (the Bank), the Commercial Court granted some of the declarations the Bank sought, which mostly tracked express contractual representations or terms of the transactions. The court also refused permission to appeal sought by the local authority, a stay of proceedings sought by the Bank and ordered the local authority to pay all costs (Deutsche Bank AG London v Comune Di Busto Arsizio).

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Blog

First judgment obtained in proceedings brought by a cryptocurrency exchange in the English Courts

Published on 13 July 2022. By Christopher Whitehouse, Senior Associate and Jonathan Cary, Partner

In HDR v Shulev and Nexo [2022] EWHC 1685 (Comm), HDR (represented by RPC), which operates the cryptocurrency exchange BitMEX, initiated stakeholder proceedings under CPR Part 86 to resolve a dispute between two rival parties claiming control, and ownership of the contents, of a trading account.

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Blog

Competing subordinated debts – the lessons learnt from Lehmans' insolvency

Published on 08 July 2022. By Suzan Kurdi, Senior Associate and Jake Hardy, Partner

Some 13 years ago, Lehman Brothers' sudden and unexpected insolvency sent ripples across the banking and financial services market, some of which are still felt today. The Court of Appeal's decision in the consolidated cases of Lehman Brothers Holdings Scottish LP 3 v Lehman Brothers Holdings plc (in administration) and others [2021] EWCA Civ 1523 was the latest in a long line of cases seeking to unwind the issues arising from Lehman Brothers' unexpected collapse.

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Blog

Sebastian Holdings litigation – tail-end risks mount for Mr Vik

Published on 06 July 2022. By Suera Hajzeri, Associate and Jake Hardy, Partner

In the latest chapter of the attritional legal battle between Deutsche Bank AG (DBAG) and Sebastian Holdings and its principal Mr Alexander Vik (Mr Vik), DBAG has ground out yet another victory against Mr Vik. This time, the stakes are much higher than substantial sums of money – Mr Vik now faces a potential custodial sentence after having been found by the Commercial Court to have been in contempt of court for deliberately giving false evidence.

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Blog

PD57AC: How compliant is compliant? High Court refuses to strike out passages in fact witness statements

Published on 30 June 2022. By Alexandra Shearer, Senior Associate (Australian Qualified) and Matthew Evans, Of Counsel

Lifestyle Equities CV & Anor v Royal County of Berkshire Polo Club Ltd & Ors(1), departs notably from the recent pattern of authority and guidance on the enforcement of the new witness statement Practice Direction 57AC (PD57AC).

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Blog

High Court decides that reviving proceedings automatically stayed under CPR 15.11 requires relief from sanctions

Published on 29 June 2022. By Daniel Hemming, Partner and Tim Potts, Senior Associate

In a recent judgment, the English Commercial Court in Bank of America Europe DAC v CITTA Metropolitana Di Milano has provided guidance on the "automatic stay" provisions of CPR 15.11 and the circumstances in which parties can revive dormant proceedings subject to such an automatic stay.

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Blog

"Train of inquiry" documents: Court makes rare and exceptional order for Model E Disclosure under disclosure pilot

Published on 24 June 2022. By Nadia Asfour , Associate and Chris Ross, Partner

In a recent interim decision in the re-trial of Ras Al Khaimah Investment Authority v Azima [2022] EWHC 1295 (Ch), the Court has made a rare order for Model E Disclosure under PD 51U. The Model was applied to one issue only, which the Judge considered a "core critical issue" in dispute.

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Blog

High Court again highlights importance of the confidentiality embargo on a draft judgment

Published on 23 June 2022. By Harriet Evans, Associate and Charlotte Henschen (née Ducker), Partner

In keeping with the run of High Court decisions on the importance of the confidentiality embargo which attaches draft judgments, the IPEC has held that an embargo was breached when journalists were provided with a press release on confidential terms, prior to the judgment being formally handed down(1). While this was a breach, the judgment clarified that certain disclosures made internally to employees of the Defendants' company were permitted, as they fell within the intended scope of CPR Part 40 and its Practice Direction.

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Blog

The "Legal Minefield" of Witness Statements for Multi-Lingual Witnesses under PD32 and PD57AC

Published on 15 June 2022. By Jessica Davies, Associate and Matthew Evans, Of Counsel

In Bahia v Sidhu(1), the High Court considered the difficulties that arose when a witness provided written statements in English but in practice spoke a mix of two languages (English and Punjabi), and gave evidence through an interpreter. Ultimately, despite expressing reservations about choosing English for the written statements, when seen in the context of cross-examination (both in English and Punjabi) the Court found that the choice of language for the witness statements did not represent a breach of the relevant Civil Procedure Rules (the CPR).

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Blog

APP fraud: Commercial Court considers approach to unjust enrichment and knowing receipt claims

Published on 15 June 2022. By Lucy Baughan, Associate and Jonathan Cary, Partner

The recent Commercial Court decision of Tecnimont Arabia Limited v National Westminster Bank PLC(1) considered the court's approach to a claim for unjust enrichment against a recipient bank in an authorised push payment (APP) fraud context. In particular, the Court examined whether the enrichment can be said to be at the 'expense' of the claimant, what factors amount to enrichment being 'unjust' and when the defence of 'change of position' is available. In relation to knowing receipt, the court considered the question of when property is 'trust property' for the purposes of the cause of action.

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Blog

Injunction granted over stolen NFTs held on constructive trust

Published on 10 June 2022. By Christopher Whitehouse, Senior Associate and Dan Wyatt, Partner and George Fahey , Associate

In a highly anticipated judgment, the Commercial Court in Lavinia Deborah Osbourne v (1) Persons Unknown (2) Ozone Networks Inc held that "there is at least a realistically arguable case" that non-fungible tokens ('NFTs') are to be treated as property in English Law.

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Blog

Marex Strikes Again: Giles v Rhind exception to rule against reflective loss is "dead for all intents and purposes"

Published on 10 June 2022. By Camilla Cook, Associate and Chris Ross, Partner

Despite it being almost two years since the Supreme Court judgment in Marex Financial Ltd v Sevilleja [2020] UKSC 31 considered the principle of reflective loss, the courts continue to grapple with its impacts and effects in relation to existing cases, many of which were stayed pending the appeal.

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Blog

Gleeson Privies: Can non-parties to an arbitration be estopped by it?

Published on 26 May 2022. By Kirtan Prasad, Senior Associate and Tatiana Minaeva, Partner

The recent judgment in PJSC National Bank Trust and others v Boris Mints and others(1) clarifies that arbitral proceedings can give rise to an issue estoppel or abuse of process claim against a non-party who is a "privy" of a party to the arbitration. However, the court observed that this would be exceptional given the contractual and confidential nature of arbitration.

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Blog

Are you a "person discharging managerial responsibility"? High Court clarifies meaning of PDMRs under FSMA

Published on 23 May 2022. By Carolin Ayres, Associate and Jake Hardy, Partner

In a recent interim decision in Allianz Global Investors GmbH and Ors v G4S Ltd (formerly G4S plc) [2022] EWHC 1081 (Ch), Mr Justice Miles clarified the scope of the expression "persons discharging managerial responsibility" ("PDMRs") for the purpose of establishing liability under s.90A and Schedule 10A of Financial Services and Markets Act 2000 ("FSMA").

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Blog

Irrelevant to any issue in the proceedings? High Court orders complete re-review of party's redactions under disclosure pilot scheme

Published on 20 May 2022. By Tim Potts, Senior Associate and Daniel Hemming, Partner

In JSC Commercial Bank Privatbank v Kolomoisky and other the English court determined that, having adopted an unduly narrow approach to relevance, the first defendant should conduct a complete re-review of each of over 6,000 WhatsApp messages in order to determine whether the redactions that had been applied could be maintained, and to provide further information about each redacted message.

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Blog

Is the crypto market at the end of its Tether?

Published on 18 May 2022. By Christopher Whitehouse, Senior Associate

The crashing out of Terra has unleashed fears of unsettled investors, rising disputes and fraud exposure.

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Blog

Privy Council decides that banks owe no Quincecare duty to a beneficial owner of monies in an account

Published on 17 May 2022. By Tom Hibbert, Global Head of Commercial Disputes and Jonathan Cary, Partner and Alan Williams, Partner and Jake Hardy, Partner and Chris Ross, Partner and Olivia Dhein, Professional Support Lawyer

A bank does not owe the beneficial owner of account monies any duty of care in negligence, including any Quincecare duty: this was the conclusion of the Privy Council in the Isle of Man case Royal Bank of Scotland International Ltd v JP SPC4 and another. The appeal concerned a fraud where the account holder had defrauded the beneficial owner of the monies, an investment fund, by paying funds out of the relevant bank accounts in contravention of a legitimate investment scheme.

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Blog

Court of Appeal says no to purely factual appeals

Published on 12 May 2022. By Dan Wyatt, Partner and Sean Cannon, Associate

In the context of a dispute as to whether funding provided from a father to his son to purchase a property constituted a gift or a loan, the Court of Appeal re-articulated the very limited circumstances in which an appeal court may interfere with a trial judge's conclusions on primary facts. The trial judge must be "plainly wrong", in the sense that their conclusion was "rationally insupportable" in order to warrant such interference. The court also considered a list of features of purely factual appeals which are unlikely to succeed in the appeal court.

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Blog

Court of Appeal upholds the CAT's opt-out certification in Le Patourel v BT

Published on 10 May 2022. By Chris Ross, Partner and Lambros Kilaniotis, Partner and Leonia Chesterfield, Senior Associate

Last week, the Court of Appeal delivered its judgment in Le Patourel v BT Group. BT's appeal against the Competition Appeal Tribunal's decision to grant a collective proceedings order (CPO) on an opt-out* basis was unsuccessful. In a claimant-friendly ruling, the Court of Appeal held that the CAT's opt-out determination was correct and that direct account crediting at distribution stage would be permissible.

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Blog

Obvious arithmetical error in damages calculation is sufficient for arbitral award to be set aside for procedural irregularity, finds High Court

Published on 06 May 2022. By Tatiana Minaeva, Partner and Fred Kuchlin, Senior Associate

The High Court has found that an "obvious arithmetical error" in the calculation of damages was a procedural irregularity under s 68 of the Arbitration Act 1996 (the Act) and set aside the relevant part of the award.

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Blog

Court of Appeal strikes out defences that funds' losses resulting from FX manipulation have been passed on to investors following redemption

Published on 06 May 2022. By Simon Hart, Partner and Christopher Wheatley , Senior Associate and Olivia Dhein, Professional Support Lawyer

In Allianz Global Investors GmbH & Ors v Barclays Bank PLC & Ors(1), the Court of Appeal allowed an appeal by the claimant funds (the Funds) and struck out defences by the Defendant banks (the Banks) that losses incurred by the Funds had been avoided or passed on upon redemption by their investors.

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Blog

Hong Kong – General adjournment of court proceedings ends with more guidance for remote hearings

Published on 04 May 2022. By Carmel Green, Partner and Jennifer Leung, Associate

Hong Kong's general adjournment of court proceedings ends with more guidance for remote hearings.

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Blog

Commercial Court confirms limits of full and frank disclosure duty in arbitration enforcement action

Published on 27 April 2022. By Thomas McCall, Associate and Alan Williams, Partner

What happens when a party makes a without notice application? How far should it go to meet its obligation of full and frank disclosure? The Commercial Court gave clear guidance on the limits of this duty when it dismissed the latest claim by the State of Libya that challenged General Dynamic's permission to enforce an arbitral award in General Dynamics United Kingdom Ltd v State of Libya.(1) This was one in a series of cases between the company and the North African country.

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Publication

Disputes Yearbook 2022: Retail and Restructuring

Published on 25 April 2022. By Karen Hendy, Head of Corporate and Finella Fogarty, Head of Restructuring & Insolvency

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

Disputes Yearbook 2022: Banking Litigation

25 April 2022

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

Disputes Yearbook 2022: Civil Fraud

25 April 2022

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

Disputes Yearbook 2022: Technology disputes

Published on 25 April 2022.

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

Court of Appeal holds that Quincecare duty can arise in principle where customer gives instructions in authorised push payment fraud

Published on 21 April 2022. By Jonathan Cary, Partner and Olivia Dhein, Professional Support Lawyer

The Court of Appeal has clarified in Philipp v Barclays Bank UK Plc [2022] EWCA Civ 318 that the Quincecare duty, which requires a bank to refrain from acting on a payment instruction and to make inquiries when it is on notice of a serious possibility of fraud, can arise for a bank even where it is the customer themselves giving instructions to pay money out of their account to a fraudster.

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Blog

Supreme Court rules that solicitor's equitable lien was valid even though no proceedings were issued

Published on 13 April 2022. By Simon Hart, Partner and Heather Clark, Associate

An equitable lien allows solicitors involved in litigation to deduct their fees before paying compensation to their client and if the paying party deliberately bypasses the solicitor, they may be liable to pay any unrecoverable fees. The Supreme Court has re-confirmed that a solicitor benefits from this equitable lien when they are instructed to make a claim even if proceedings have not been issued and it is not anticipated that the claim will be disputed.

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Blog

Privy Council widens law on freezing injunctions in "ground-breaking" exposition of the law

Published on 12 April 2022. By Dan Wyatt, Partner and Joe Cresswell, Associate

In Broad Idea International Ltd v Convoy Collateral Ltd / Convoy Collateral Ltd v Cho Kwai Chee [2021] UKPC 24, the Privy Council handed down a judgment which set new juridical boundaries for the law of freezing injunctions. Rejecting the long-established position in The Siskina, the panel of judges confirmed that a court's injunctive power extends to the grant of freezing orders where (i) there are no relevant domestic proceedings in prospect and (ii) the sole purpose of the order is to aid enforcement in foreign proceedings.

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Blog

Court of Appeal draws distinction between claims for recovery of tax and restitution for tax paid out fraudulently

Published on 07 April 2022. By Alan Williams, Partner and Poppy St John, Associate

In Skatteforvaltningen v Solo Capital Partners,(1) the Court of Appeal investigated in detail the operation of rule 3(1) of Dicey, Morris & Collins on the Conflict of Laws (edition 15) (Dicey rule 3), which provides that English courts do not have jurisdiction over actions for "the enforcement, either directly or indirectly, of a penal, revenue, or other public law of a foreign State". The Court decided that the Danish tax authority's claim did not fall within Dicey rule 3 as it concerned the restitution of monies misappropriated by fraud rather than enforcement of tax.

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Blog

Competing opt-out claims refused certification in CAT's FX decision

Published on 04 April 2022. By Chris Ross, Partner and Lambros Kilaniotis, Partner and Leonia Chesterfield, Senior Associate

Since the first opt-out certification last summer in Merricks, a steady stream of collective claims has been certified by the CAT. There have now been four opt-out certifications with many more applications in the wings. Last week's FX decision is the CAT's first certification refusal following Merricks.

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Blog

Hong Kong – General adjournment of court proceedings given severity of “5th Wave” of COVID-19

Published on 04 April 2022. By Carmel Green, Partner and Jennifer Leung, Associate

Given the severity of the “5th Wave” of the pandemic in Hong Kong, on 4 March 2022 the judiciary announced another “general adjournment of proceedings”; this time to run from 7 March to 11 April 2022.

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Blog

Can litigation privilege be claimed for exploratory correspondence with an expert before litigation is in prospect?

Published on 24 March 2022. By Davina Given, Partner and Suzan Kurdi, Senior Associate

In a recent case, the Court decided that correspondence with an expert did not attract legal professional privilege. The expert's work had been intended to provide "ballast" for a claim in suspected mismanagement, but in fact the expert's investigation uncovered a potential alternative claim, which was quite distinct from the claim initially being investigated.

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Blog

Court of Appeal issues "clear message" that those who breach embargoes on draft judgments risk contempt proceedings

Published on 22 March 2022. By Parham Kouchikali, Partner and Fred Kuchlin, Senior Associate

In only the third judgment ever to consider the issue, the Court of Appeal has issued a stark reminder that court users should take care to observe any embargo over a draft judgment or else face the possibility of proceedings for contempt of court.

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Blog

Court of Appeal holds that Quincecare duty can arise where the customer gives instructions in authorised push payment fraud

Published on 15 March 2022. By Jonathan Cary, Partner

The Court of Appeal has allowed an appeal in relation to a bank's Quincecare duty and authorised push payment fraud, finding in favour of the customer who lost the bulk of her life savings.

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Blog

Where's the damage? High Court dismisses jurisdiction challenge in US$495 million claim

Published on 10 March 2022. By Jake Hardy, Partner and Charlotte Henschen (née Ducker), Partner

The High Court has dismissed UBS' challenge to jurisdiction in a ca. US$495 million claim – and in doing so set out useful guidance in terms of how the Court will determine "where the damage has occurred" in cases of economic loss. The judge looked for the most "natural analysis" in determining the manifestation of the loss, and broadly agreed that "the usual answer [in bad investment cases] will be that the loss occurs in, and at the place of, the bank account which was depleted."

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Blog

Relying on the Defence to plead a new, time-barred claim – Court of Appeal provides clarity

Published on 24 February 2022. By Chris Ross, Partner and George Fahey , Associate

The Court of Appeal has provided clarity on a claimant's ability to bring an otherwise time-barred claim in reliance on facts raised in the Defence. In the recent case of Mulalley & Co. Ltd v Martlet Homes Ltd [2022] EWCA Civ 32 the claimant was permitted to introduce a new claim, post-limitation, in response to what was potentially a full defence to the original Particulars of Claim.

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Blog

High Court finds that a cryptocurrency exchange arrangement was not a trust

Published on 16 February 2022. By Dan Wyatt, Partner and Christopher Whitehouse, Senior Associate

The High Court decided that no trust could arise where two parties had agreed to an exchange of cryptocurrencies (in essence a sale and repurchase agreement), as the essential economic reciprocity precluded the existence of any trust.

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Blog

ESG claims in the banking and financial markets Sector: will "greenwashing" claims soon be common in the UK?

Published on 14 February 2022. By Chris Ross, Partner and Nina Pulimood, Associate

Environmental, Social and Governance "ESG" funds are an attractive avenue for investors seeking responsible investment choices.

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Blog

Hide and Seek: Limitation Periods in Competition Law Damages Claims

Published on 07 February 2022. By Lambros Kilaniotis, Partner and Chris Ross, Partner

Gray tint 1

The recent judgment in Gemalto v Infineon and Renesas put back into focus the duty of potential claimants in competition damages claims to reasonably investigate potential claims against cartelists when relevant facts emerge.

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