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Commercial Disputes

Blog

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

Published on 27 March 2020. By Dan Wyatt, Senior Associate

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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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Blog

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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Blog

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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Blog

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

Published on 18 March 2020. By Alan Williams, Partner and Laura Martin, Senior Associate

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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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Blog

Litigation funder liable for uncapped adverse costs

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

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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Blog

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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Blog

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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Publication

The Supreme Court of Singapore Collaborates with the Supreme Court of the Union of Myanmar on the Enforcement of Money Judgments

18 February 2020

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The Supreme Court of Singapore Collaborates with the Supreme Court of the Union of Myanmar on the Enforcement of Money Judgments – the signing of the Memorandum of Guidance as to Enforcement of Money Judgments (the “MOG”) marks a significant milestone in bilateral relations between the Singapore and Myanmar judiciaries.

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Blog

Lenders face more allegations about their actions on restructuring

Published on 14 February 2020. By Parham Kouchikali, Partner and Joe Cresswell, Associate

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Representatives of a lender on a board will not automatically impose directors' duties on the lender, but they may apply where a director's specific instructions have led directly to a breach of fiduciary duty. The High Court recently explored this issue in an appeal in the case of Standish v Royal Bank of Scotland plc.

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Blog

Bitcoin is 'property' and can therefore be subject of proprietary injunction

Published on 03 February 2020. By Andy McGregor, Head of Civil Fraud and Christopher Whitehouse, Senior Associate

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Following recent case law on the matter, the High Court has found that bitcoin can be 'property' and can therefore be the subject of a proprietary injunction.(1) In reaching its conclusion, the court adopted the detailed analysis of the issue set out in the UK Jurisdictional Task Force's November 2019 Legal Statement on Crypto-Assets and Smart Contracts, thereby providing a far more detailed judicial basis for the finding than found in previous cases. The bitcoins at the heart of this case were part of a ransom payment paid to a hacker who installed malware on a company's IT systems.

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Publication

RPC represents party in key case for establishing the governing law of arbitration agreements.

31 January 2020

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In the recent case of Kabab-Ji S.A.L v Kout Food Group, RPC and Ricky Diwan QC (Essex Court) represented Kout Food Group before the Court of Appeal. In an important judgment, the Court established that on the proper construction of the relevant contract there was an express choice of English law governing the arbitration agreement despite that agreement providing for any arbitration to be seated in Paris.

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Blog

Breaking news - dominant purpose test extends to legal advice privilege

Published on 31 January 2020. By Davina Given, Partner and Joe Cresswell, Associate and Preetkiran Dhoot, Trainee

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The Court of Appeal has held that legal advice privilege will apply to communications only if seeking or giving legal advice is their dominant purpose.

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Blog

Witness evidence reform - evolution not revolution?

Published on 31 January 2020. By Simon Hart, Partner and Emma West, Associate

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The Witness Evidence Working Group's recommendations for witness evidence reform focus on the more consistent enforcement of existing rules with some limited new measures.

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Blog

Full and frank disclosure means more than just putting relevant matters in evidence – a new year warning in UKIP v Braine & Others

Published on 24 January 2020. By Geraldine Elliott, Partner and Christina Moran, Associate

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New year, new reminder of the obligation to make full and frank disclosure in without notice applications, this time in the context of a falling out within the UKIP party. The obligation can only be satisfied by drawing the court's attention to legal or factual matters which could undermine the applicant's own application; it is not enough to simply put relevant matters in evidence before the court (UKIP v Braine & Others). Injunction, confidential, publication and non-disclosure.

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Blog

Freezing orders: when will past conduct show a real risk of dissipation?

Published on 16 January 2020. By Jonathan Cary, Partner and Emily Fischer, Associate (Australian Qualified)

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In Lakatamia Shipping Company Limited v Morimoto, the Court of Appeal overturned a decision to discharge a worldwide freezing order. This case provides helpful guidance as to when a respondent's prior conduct may support a finding that a real risk of dissipation exists. WFO; Dissipation; Su.

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Publication

The art of regulation: anti-money laundering compliance hits the art market

Published on 10 January 2020. By Davina Given, Partner and Sam Tate, Partner

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From today, art businesses will be subject to regulation aimed at cleaning up money laundering in the art world.

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Blog

Guaranteed to fail? Oral funding arrangements may be enforceable

Published on 09 January 2020. By Geraldine Elliott, Partner and James Taylor, Associate

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Funding arrangements should be in writing, or at least impose a primary obligation on the funder to pay. So said the Court of Appeal in exploring whether an oral arrangement to fund a litigant was an unenforceable guarantee or an enforceable agreement to pay in any event (Deepak Abbhi -and- Richard John Slade (t/a Richard Slade and Company)

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Blog

A litigator's quiz: Fourth candle of Advent

Published on 23 December 2019. By Davina Given, Partner

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The UK Supreme Court, and Lady Hale's brooch, hit the headlines this year with a landmark constitutional decision on the prorogation of Parliament. Outside that context, however, the Supreme Court has been busy. In this fourth and final part of our Advent quiz, test your knowledge of the key commercial decisions of 2019 and the decisions to look out for in 2020.

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Blog

Oral contract does not prevent agent from being paid in circumstances not catered for in contract

Published on 19 December 2019. By Tim Brown, Partner and Rosy Gibson, Associate

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In a recent case, the Court of Appeal held that an oral contract for a specified introduction fee payable to an agent if a property sold at a particular price did not prevent the agent from being remunerated when that property was sold for a lesser sum (despite the contract being silent on the matter). Philip Barton v Timothy Gwyn-Jones [2019] EWCA Civ 1999. However, the sum awarded by the court was significantly lower than the introduction fee specified in the contract.

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Blog

A litigator's quiz: Third candle of Advent

16 December 2019

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The third Sunday of Advent was traditionally a time to lift the gloom of Advent and celebrate Christmas to come – and hence was also known as Gaudete (Rejoice!) Sunday or Rose Sunday. So what has there been to celebrate in the legal profession in 2019?

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Blog

Unfair prejudice saga – Court of Appeal tries to impose some order

Published on 12 December 2019. By Chris Ross, Partner and Daniel Hemming, Senior Associate

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Blog

A litigator's quiz: Second candle of Advent

09 December 2019

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Festive fraud seems a contradiction in terms. But Advent is traditionally a time to reflect on sin, so this week our quiz focuses on the year in crime and civil fraud under English law. Good luck trying to light the second Advent candle!

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Blog

Prevention principle – can parties sue for breach of contract occasioned by their own breach?

Published on 05 December 2019. By Andy McGregor, Head of Civil Fraud and Christopher Whitehouse, Senior Associate

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According to the High Court in TMF Trustee Ltd v Fire Navigation Inc, the prevention principle can excuse a breach of contract when a party has been prevented from performing the relevant obligation by a breach of the other party.

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Blog

A Litigator's Quiz: First Candle of Advent

02 December 2019

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Legal professional privilege burns bright in the hearts of most disputes lawyers. Does it burn bright enough to light the first Advent candle in 2019?

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Blog

In house lawyer prevented from relying on a leaked email and an overhead conversation

Published on 28 November 2019. By Jonathan Cary, Partner and Steven Rajavinothan, Associate

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Mr Curless was a senior legal counsel at Shell International Limited (Shell) from January 1990 until he was made redundant in January 2017. He suffers from Type 2 diabetes and Obstructive Sleep Apnoea. He brought a claim against Shell for disability discrimination, victimisation and unfair dismissal.

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Blog

Contribution to legal costs: natural love and affection or calculated self-interest?

Published on 20 November 2019. By Andy McGregor, Head of Civil Fraud and Suzan Kurdi, Senior Associate

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When will an order for costs be made against a family member who was not a party to the underlying proceedings, but who contributed significantly to funding the losing party's defence? Answer: when the funder has a personal interest in the litigation. Kazakhstan Kagazy Plc (and others) v Maksat Arip (and others)[1]

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Blog

Risky business: the perils of taking over someone else's contract

Published on 07 November 2019. By Davina Given, Partner and Ben Harris, Associate

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The High Court has held that the tort of inducing breach of contract requires more than merely "facilitating" a breach. Flexidig Ltd v A Coupland (Surfacing) Ltd(1) also reminds third parties of the perils of becoming embroiled in others' disputes.

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Blog

Anchor Defendants: Court of Appeal confirms no 'sole object' test applies

Published on 07 November 2019. By Andy McGregor, Head of Civil Fraud and Emily Fischer, Associate (Australian Qualified)

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Recently, the Court of Appeal confirmed that article 6(1) of the Lugano Convention is not subject to a 'sole object' test. Where claimants have a sustainable claim against an 'anchor defendant' that they intend to pursue to judgment, they may rely on article 6(1) to bring a foreign co-defendant within the jurisdiction. This will be the case even if the claimant's sole object in suing the anchor defendant is to sue the foreign co-defendant in the same proceedings.

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Blog

When is opinion evidence admissible?

Published on 31 October 2019. By Parham Kouchikali, Partner and Gill O'Regan, Senior Associate

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To be prima facie admissible in court, opinion evidence must be relevant and prepared by someone who would be qualified to give expert evidence. Only evidence which falls within CPR 35 will be subject to the attendant restrictions on admissibility contained in that rule (Gregory v Moore).

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Blog

World freezing orders: recent dissipations and reasonable delays

Published on 24 October 2019. By Simon Hart, Partner and Christina Moran, Associate

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Delay is not fatal to the continuation of a world freezing order and an applicant need not adduce evidence of recent dissipations (1) PJSC National Bank Trust v Boris Mints [2019] EWHC 2061 (2) Holyoake v Candy [2017] EWCA Civ 92

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Blog

Tortious claims against third party may trigger anti-suit injunction

Published on 10 October 2019. By Chris Ross, Partner and Kirtan Prasad, Associate

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A party's attempt to circumvent a jurisdiction clause by bringing tortious claims against a third party has been thwarted by the High Court. In granting an anti-suit injunction, the court explored the substance of the claims and found them to be "vexatious and oppressive", designed simply to evade the exclusive jurisdiction clause.

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Blog

Subjective expectation versus objective intention; when will a term be implied into a contract?

Published on 30 September 2019. By Alan Williams, Partner and Harriet Evans, Associate

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The High Court has implied a term into a contract for the sale of Peruvian Government Global Depository Notes (GDNs) by Lehman Brothers International (Europe), in order to make the contract workable.

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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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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 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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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 Dan Wyatt, Senior Associate and Matthew Evans, Senior Associate

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How does the Disclosure Pilot encourage the use of technology?

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Novel approach to measuring damages resulting from a breach of warranty

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