Commercial disputes
The regulatory regime continues to inform the advisory duty in mis-selling claims
The recent case of David Anderson v Openwork Limited[1] provides an opportunity to reflect on the current approach of the courts ...
Read moreLegal alert – July 2015
Milton Furniture Limited v Brit Insurance
Read moreElectronic disclosure – the perils of ignoring disclosure requirements
In Smailes and another v McNally and another[i] the High Court refused the claimant's application for relief from sanctions, finding the claimant's failure in respect of its disclosure obligations under the relevant provisions of the Civil Procedure Rules (CPR 31) amounted to a significant and serious breach of an "unless order".
Read moreHigh Court finds "without prejudice" communications with a regulator can be withheld in civil proceedings, but decides bank had lost right to do so
In the latest instalment of the LIBOR swaps proceedings in Property Alliance Group Ltd v The Royal Bank of Scotland plc[1], the court has held for the first time that 'without prejudice' communications with a regulator can be withheld in civil proceedings.
Read moreNowhere to hide: Supreme Court considers illegality defence and global application of Insolvency Act 1986 in VAT fraud case
On 22 April 2015 the Supreme Court handed down its judgment in the case of Jetivia SA and another v Bilta (UK) Ltd (in liquidation) and others [2015] UKSC 23, which was heard in October last year.
Read moreHigh Court refuses to grant anti-suit injunction restraining insolvency proceedings in Denmark
In SwissMarine Corporation Ltd v OW Supply & Trading[1], the High Court refused to grant an anti-suit injunction restraining Danish insolvency proceedings.
Read moreSanctioned offers and old-style Calderbank offers
Following the introduction of formal sanctioned payments and sanctioned offers pursuant to the civil justice reforms adopted in April 2009, it has not been entirely clear to what extent pre-trial Calderbank offers (without prejudice save as to costs) still provide costs protection for an offeror.
Read moreHong Kong courts clarify personal data concerns in civil litigation
In a series of cases in Hong Kong in the last year or so, the courts have brought some welcome clarification to the vexed issue of the interaction between disclosure of relevant documents in civil disputes and balancing competing confidentiality and personal data concerns arising out of the contents of such documents.
Read moreInvalidity of buyer's notice sinks warranty claim
In Ipsos SA v Dentos Aegis Network Limited, the Defendants obtained judgment in the High Court against the Claimants in respect of their claim for breach of warranty for failure to comply with contractual notification requirements set out in a share purchase agreement.
Read moreOne-stop adjudication – the rational approach to dispute resolution
The Commercial Court has found[1] that an arbitration clause in a consultancy services agreement was superseded by a dispute resolution clause in a later settlement agreement;...
Read moreTwo jurisdictions for the price of one? The English Court of Appeal provides guidance on conflicting jurisdiction clauses in related contracts
In Trust Risk Group SpA v AmTrust Europe Limited[1] the Court of Appeal has rowed back from the presumption that parties who have agreed differing jurisdiction arrangements for their disputes intended their disputes to be governed by one regime.
Read moreMeaning of information of a precise nature in market abuse clarified by ECJ
Following a recent ECJ decision, the definition of 'inside information' for the purposes of the EU's market abuse regime has been widened.
Read moreFinancial Litigation roundup
Welcome to the latest edition of our Financial Litigation roundup.
Read moreAppeal court considers constructive knowledge in limitation period extension claim
The Court of Appeal* has recently held that an individual investor was too late to bring a claim in negligence and could not take advantage of the provisions of section 14A Limitation Act 1980 as she had constructive knowledge of relevant facts ascertainable during the primary limitation period.
Read moreStill no joy for investors' mis-selling claims
In the latest alleged mis-selling case in Hong Kong, the Court of First Instance maintained a consistent approach with other recent cases, rejecting an investor's claim based on misrepresentation and suggesting that the principle of contractual estoppel is alive and well.(1)
Read moreMarketing to professional investors – the Court of Final Appeal's verdict
In Securities and Futures Commission v Pacific Sun Advisors Ltd, the Hong Kong Court of Final Appeal recently ruled that the advertisement of a collective investment scheme intended to be disposed of only to professional investors ...
Read moreGood Russian Service
Following the decision in Sloutsker v Romanova[1], it should now be more difficult for parties to evade the effective service of English court documents in Russia.
Read moreContractual notice of warranty claim
In The Hut Group Limited v Nobagar-Cookson[2], the High Court considered what was required to comply with a provision in a share purchase agreement requiring notice to be given of a breach of warranty claim.
Read moreHigh Court considers iniquity exception for disclosure of privileged documents
In the case of London Borough of Brent v Kane, the court considered an application for the disclosure of legal advice that was alleged to have been given for an iniquitous purpose such that the benefit of any privilege that might otherwise have attached to the document was lost.
Read moreFriends without benefits – what happens when investments go wrong?
Investors have had something of a hard time suing financial institutions or financial advisers in Hong Kong for alleged claims sounding in breach of contract or negligence.
Read moreLitigation meets regulation
In an ever more regulated world, commercial litigators need to be aware of both the risks and opportunities regulation may bring.
Read moreNon-exclusive jurisdiction clauses in cross-border agreements
Hong Kong courts adopt robust approach to uphold parties' contractual bargain as to their choice of forum
Read moreImportant judgment on liquidators' ability to obtain documents
In an important judgment handed down recently by the Court of First Instance in Hong Kong, ...
Read moreReflex actions: Plaza BV -v- The Law Debenture Trust Corporation
The recent judgment of Mrs Justice Proudman in Plaza BV –v- The Law Debenture Trust Corporation1 illustrates and extends a line of authorities in which the English courts have sought to narrow the scope of the mandatory application of Article 2 of the Brussels Regulation 44/2001.
Read moreScheming for foreign companies
In the recent case of Re LDK Solar Co Ltd,(1) Justice Lam considered the approach that the court should take in deciding whether to invoke its jurisdiction to approve an arrangement or compromise between a foreign company and its creditors or members.
Read moreCivil Appeals - one shot as of right only
The right of appeal to the Court of Final Appeal (CFA) with respect to final judgments of the Court of Appeal amounting to HK$1 million or more has been repealed as of 24 December 2014.
Read moreHigh Court considers jurisdiction over non-EU defendant in proceedings also including domestic defendants
The decision in Jong v HSBC Private Bank (Monaco) SA and others[i]serves as a useful reminder that the Court will be guided by the substance, and not the form, of proceedings when considering questions of jurisdiction.
Read moreNo discretion to extend time to appeal registration of foreign judgments
In Taylor-Carr -v- Howkins & Harrison LLP[1], it was held that the English courts have no power to extend the time for appealing against the registration of a foreign judgment under Council Regulation 44/2001, which permits judgments in one member state to be enforced in another.
Read moreInjunctions: Hearsay evidence and dissipation risk considered
The case of JSC Bank & anor v Sergei Pugachev[1] serves as a useful reminder of the need to take care with the use of hearsay evidence and the standard and evidence required of the dissipation of assets.
Read moreModified Universalism – Privy to Singular Clarification
While most jurisdictions provide liquidators with wide investigative powers to locate and realise assets locally, the exercise of such powers becomes more complicated when the assets are situated overseas.
Read moreMareva Injunctions – Substance and Form
Recent cases in Hong Kong highlight a need to exercise care when applying for a mareva (freezing assets) injunction before trial.
Read moreThe claimants that knew too much: High Court rules on applicability of concealment provisions in Limitation Act 1980 in competition damages claim
The Arcadia Group[1] case arose in the context of ongoing damages claims brought by a number of retailers and other merchants against both Visa and MasterCard for breaches of competition law in relation to the charging of interchange fees in the Visa and MasterCard payment systems.
Read moreThe beginning of the end to mis-selling claims?
Mis-selling of interest rate products to unsophisticated customers has been the subject of intense regulatory scrutiny, with the banks paying out over £1.5bn to around 10,000 customers in the course of the Financial Conduct Authority's Interest Rate Hedging Product Review which began in May 2013.
Read moreDefend and submit: Challenging the jurisdiction of the Court
A defendant who wishes to challenge the civil jurisdiction of a Hong Kong court should not file and serve a defence pending the outcome of the challenge.
Read moreOccupy Central: Civil disobedience and civil remedies
The "Occupy Central" movement in Hong Kong has involved large numbers of protesters occupying major roads in Hong Kong, particularly in the areas of Admiralty (on Hong Kong Island) and Mong Kok (on the Kowloon Peninsula).
Read moreThe Commercial Court assesses the power and limitations of "Chabra" jurisdiction
The Commercial Court has recently considered[1] that it did not have jurisdiction to grant a freezing order to assist in the enforcement of an arbitration award against subsidiaries of the first defendant, which were incorporated outside the jurisdiction and had no assets or other presence in England.
Read moreEntitlement to inheritance claim not within the "wills and succession" exclusion under Article 1(2) of the "Brussels I" Regulation on jurisdiction and enforcement
The High Court has recently dismissed a tortious claim[1] for conspiracy to deprive the claimant of inheriting her late father's shares on the basis that it had no real prospect of success.
Read moreDefendant which unreasonably refused to mediate escapes costs sanctions
When considering costs and exercising its discretion under CPR 44.2, the court has regard to all the circumstances including the conduct of the parties before as well as during the proceedings.
Read moreInjunctions - when will the court order fortification of a cross-undertaking in damages?
The Court of Appeal endorsed for the first time the accepted criteria that must be satisfied before the court can order an application for fortification of a cross-undertaking in damages in EVP v Malabu Oil.[1]
Read moreDefendant which unreasonably refused to mediate escapes costs sanctions
When considering costs and exercising its discretion under CPR 44.2, the court has regard to all the circumstances including the conduct of the parties before as well as during the proceedings.
Read moreNo anti-suit injunction for parties not subject to an arbitration agreement
The importance of drafting arbitration agreements carefully and precisely has been highlighted by the Commercial Court when it rejected an application for an anti-suit injunction restraining New York court proceedings in favour of arbitration[1].
Read moreBribes and Undisclosed Commissions to Agents: Supreme Clarity.
In late July, the Supreme Court of England and Wales handed down a succinct judgment on a topic which, while narrow, is of considerable importance in its sphere.
Read moreFTT prevents HMRC from having two bites of the cherry!
In Lady Henrietta Pearson v HMRC [2014] UKFTT 890 (TC), the First-tier Tribunal (Tax Chamber) ('FTT') concluded that HMRC had "ignored" its previous decision by seeking to reduce the amount of a VAT refund which it had ordered HMRC make to Lady Henrietta Pearson ('the taxpayer').
Read moreThe importance of commercial considerations in contractual construction
The principles governing contractual interpretation under English law are reasonably well-established.
Read moreLeveling the playing field - SFC conclusions on professional investor regime and client agreements
Despite the ongoing political noise coming out of Hong Kong, commercial life and the operation of the financial markets continue unabated.
Read moreCrime and privilege
Under English law, legal professional privilege permits a civil litigant or a defendant in criminal proceedings to withhold from the other side documents subject to the privilege.
Read moreTurning the clock back
A recent Court of Appeal decision[1] in a pensions' dispute provides a reminder of circumstances in which the English courts will allow a statement of case to be amended to bring a new claim which would otherwise be time barred.
Read morePermission refused to use disclosed documents in foreign proceedings
At the end of June the SFO announced that it had settled claims brought by Vincent Tchenguiz arising from the manner in which his alleged involvement in the collapse of the Icelandic bank Kaupthing hf. was investigated by the SFO.
Read moreTrust and wealth disputes update
Our latest trust and wealth disputes update is available by clicking here. Topics include:
Read moreManage your damages expectations! Says the Commercial Court
The Commercial Court recently dampened the Fiat car group's hopes of receiving a loss of profits pay out from Lotus by dismissing its application for summary judgment on a claim for repudiatory breach of contract[1].
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