Boats on water in docks.

Commercial Disputes

Blog

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

Published on 12 December 2018. By Davina Given, Partner

Gray tint 2

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.

Read more
Blog

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

Abstract building

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.

Read more
Blog

On the sixth day of Christmas, the High Court gave to me…six exclusion clauses

Published on 10 December 2018. By Davina Given, Partner

Green tint 2

Geese, which normally feature in this verse, can pack a nasty bite. In a gaggle of cases this year, exclusion clauses bit claimants hard – but in two cases the claimants successfully fought back.

Read more
Blog

On the fifth day of Christmas, the High Court gave to me…five time bars!

Published on 07 December 2018. By Davina Given, Partner

Green tint 1

A defendant who can rely on a limitation defence strikes gold. However, the extreme impact of a time bar in wiping out a claim, however meritorious, combined with the impenetrability of some parts of the Limitation Act 1980, makes limitation a fertile source of dispute, and so it proved in 2018.

Read more
Blog

Are the US courts eroding collective redress? Why England may be becoming a more attractive place for class actions

Published on 07 December 2018. By Max Rossiter, Trainee Solicitor

The UK may be becoming a more favourable jurisdiction than the US for class actions or collective redress.

Read more
Blog

On the fourth day of Christmas, the High Court gave to me…four contracts

Published on 06 December 2018. By Davina Given, Partner

Abstract building

Questions of contractual interpretation can be hard nuts to crack. We pick out today some nuts that you might find at the bottom of your legal stocking this year.

Read more
Blog

On the third day of Christmas, the High Court gave to me…three corporate crimes

Published on 05 December 2018. By Davina Given, Partner and Sam Tate, Partner

Green tint 3

Beware of employees bearing gifts of frankincense, myrrh and especially gold: 2018 saw the first conviction after a contested prosecution for the corporate offence of failing to prevent bribery, under s7 of the Bribery Act 2010.

Read more
Blog

On the second day of Christmas, the High Court gave to me…two LIBOR reps

Published on 04 December 2018. By Davina Given, Partner

Untinted 3

The long-running and hard-fought saga of Property Alliance Group v Royal Bank of Scotland came to a close with the Court of Appeal's judgement in March 2018, after four and a half years and at least 12 reported decisions. So what will we remember from the litigation?

Read more
Blog

On the first day of Christmas, the High Court gave to me…a privilege in E-N-RC

Published on 03 December 2018. By Davina Given, Partner

Green tint 3

With Advent upon us, and Christmas on the horizon, RPC takes a musical look back at the most important English judgments of 2018. Liability for all failures of rhythm and rhyme is hereby excluded.

Read more
Publication

TerraLex guide to tracing assets around the world 2018

23 November 2018

We are delighted to present the TerraLex 2018 Guide to Tracing Assets Around the World.

Read more
Blog

Letter of contract versus business common sense – latest from Court of Appeal

Published on 20 November 2018. By Jake Hardy, Legal Director

Green tint 2

In the latest of a long line of higher court authorities debating the boundaries between black letter and more purposive approaches to contractual construction, the Court of Appeal has taken another step away from the high-water marks of the business common sense approach to contractual meaning.

Read more
Blog

Five ways the civil courts are fighting back against cybercrime

Published on 06 November 2018. By Jonathan Cary, Partner and Eliot Henderson, Associate

Abstract building

Service by text and data room, worldwide freezing orders against persons unknown, self-identification orders and hearings on paper and in private are ways the court is dealing with cyber-crime. Here are five ways that the courts are addressing the imbalance that exists between victims and criminals who seek to hide behind a veil of anonymity in this digital age.

Read more
Blog

Reflections on the UK Bribery Act seven years on

Published on 23 October 2018. By Davina Given, Partner and Lucy Kerr, Senior Associate

Purple tint

Following the appearance of RPC's Sam Tate at the annual IBA conference earlier this month, where he joined a panel of experts discussing Corruption and Corrupt Contracts, here are our reflections on how the Bribery Act has changed the landscape of bribery offences and corporate criminal liability, first published by the IBA earlier this year and now updated.

Read more
Blog

Oil or nothing: Court of Appeal considers damages in continuing misrepresentation claim

Published on 16 October 2018. By Harriet Evans, Associate and Davina Given, Partner

Green tint 2

The Court of Appeal recently held that a director who had made continuing fraudulent misrepresentations was liable for damages calculated at the point of sale and not at the point of entering into the contract. This judgment is a reminder that, in the right case, deceit may be used to pierce the corporate veil. It also highlights the considerations when assessing damages regarding continuing representations, particularly when there is time between the representation being made and the performance of the contract.

Read more
Blog

Force Majeure – specificity is vital – Seadrill v Tullow

Published on 26 September 2018. By Parham Kouchikali, Partner

Untinted 3

Force majeure clauses in contracts must be clear on the events that can excuse a party from fulfilling its obligations. Inability to perform under the contract must be wholly caused by that event. So said the High Court in the case of Seadrill Ghana Operations Ltd v Tullow Ghana Ltd.

Read more
Blog

High Court warns directors to get match fit for new reporting regulations

Published on 25 September 2018. By Geraldine Elliott, Partner and Matthew Evans, Senior Associate

Untinted 2

It is understandable that directors might be reluctant to seek legal advice – be it due to concern about time or cost or a potential conflict of interest if seeking advice internally. However, as a recent case demonstrates, this is a small price to pay to avoid the time and financial cost of a claim, especially when a company's subsequent precarious financial position shines a light on an officer's behaviour and competence.

Read more
Blog

Section 1782 order allowed

Published on 18 September 2018. By Jonathan Cary, Partner and Alan Williams, Partner

Untinted 4

The Commercial Court recently discharged an injunction restraining the enforcement of a US court order made under Section 1782 of Title 28 of the US Code (Assistance to foreign and international tribunals and to litigants before such tribunals). Section 1782 applications can be a useful weapon in an English litigator's armoury as a means of obtaining evidence under the control of a US-based entity through US-style discovery, including by the use of depositions and documentary evidence.

Read more
Blog

Negligent misstatement and undisclosed principals – a gamble not worth taking

Published on 11 September 2018. By Parham Kouchikali, Partner and Emma West, Associate

Untinted 4

The Supreme Court recently ruled that a bank providing a reference relating to its customer owed a tortious duty of care only to the addressee. The decision reflects the wider judicial trend of restricting the circumstances in which duties of care for negligent misstatement are found to exist on the basis of an assumption of responsibility by the party making the statement.

Read more
Blog

Breaking news – a victory for privilege

Published on 05 September 2018. By Davina Given, Partner and Jonathan Cary, Partner and Alan Williams, Partner and Lucy Kerr, Senior Associate

Untinted 4

Today the Court of Appeal handed down its eagerly anticipated judgment in the appeal of Andrews J's controversial High Court decision in Serious Fraud Office v Eurasian Natural Resources Corporation.

Read more
Blog

ISDA agreement wins jurisdiction clause battle in Court of Appeal

Published on 04 September 2018. By Parham Kouchikali, Partner and Christopher Whitehouse, Senior Associate

Abstract building

The Court of Appeal recently confirmed that an English jurisdiction clause in the underlying International Swaps and Derivatives Association Master Agreement under which certain swaps were made should be applied to disputes relating to the swap transactions, rather than an Italian jurisdiction clause in a competitor agreement governing the parties' generic relationship

Read more
Blog

Football club's entire agreement clause performs impressive save against negligent misrepresentation claim

Published on 28 August 2018. By Geraldine Elliott, Partner

Gray tint 3

A recent case(1) serves as a lesson that context is key to a watertight entire agreement clause.

Read more
Blog

Non-party access to documents on court file: normal service resumes

Published on 22 August 2018. By Davina Given, Partner and Laura Evans, Associate

Purple tint 3

A master's decision to allow a non-party to proceedings to access a wide range of documents in the proceedings was reviewed by the Court of Appeal in Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group).(1) In its judgment, the court provided helpful guidance on the principles that should be applied when deciding whether to allow such an application.

Read more
Blog

A variation on a theme of settlement

Published on 14 August 2018. By Davina Given, Partner and Parham Kouchikali, Partner

Untinted 4

In this unusual case, the Court was asked to determine a dispute regarding the settlement of a debt alleged to be owed to the Claimant following a sale at Sotheby's of various Persian antiquities. The case will be of interest to practitioners in its examination of the circumstances in which a party is able to discharge its liability under a settlement agreement through the payment of a lesser sum than that originally agreed. The judgment also provides a valuable insight into the antiquities world, and its comments on the close community in which the parties operated are particularly pertinent for those in the art arena who are considering embarking upon litigation.

Read more
Blog

Important issues relating to effect and interpretation of non-assignment clauses

Published on 07 August 2018. By Simon Hart, Partner and Sarah Shaul, Associate

Abstract building

Service by text and data room, worldwide freezing orders against persons unknown, self-identification orders and hearings on paper and in private are ways the court is dealing with cyber-crime. Here are five ways that the courts are addressing the imbalance that exists between victims and criminals who seek to hide behind a veil of anonymity in this digital age.

Read more
Blog

Significant increases to District Court's monetary jurisdiction

Published on 25 July 2018. By Michael Maguiness, Of Counsel

Untinted 2

Significant increases to the jurisdictional limits for civil claims in the District Court have been proposed.

Read more
Publication

Financial litigation roundup - Summer 2018 edition

20 July 2018

Gray tint 4

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.

Read more
Blog

Court of Appeal upholds wide exclusion clause

Published on 17 July 2018. By Tim Brown, Partner and Gill O'Regan, Senior Associate

Green tint 1

In its recent decision in Goodlife Foods Limited v Hall Fire Protection Limited ([2018] EWCA Civ 1371) the Court of Appeal held that a particularly broad exclusion clause in a contract relating to a fire suppression system was reasonable within the framework of the Unfair Contract Terms Act 1977.

Read more
Blog

More dismissal of 'dormant' claims

Published on 12 July 2018. By David Smyth, Senior Consultant

Defendants should welcome the recent judgment in Fiscalink International Ltd v Yiu Yu Sum Alex,(1) in which the court struck out the plaintiffs' claims against a majority of the defendants on the basis that the lack of progress over many years was an abuse of process such that the entire action against those defendants should be dismissed.

Read more
Blog

First Tower Trustees: contractual fiction clauses, unfair contract terms, parliamentary sovereignty and the limits of party autonomy

Published on 06 July 2018. By Jake Hardy, Legal Director

In its recent judgment in First Tower Trustees Ltd and Intertrust Trustees Ltd -v- CDS (Superstores International) Ltd, the Court of Appeal has set down a significant marker that so-called contractual estoppel does not have any special status and is to be treated as just another form of exclusion of liability.

Read more
Blog

Court of Appeal clarifies meaning of 'knowledge' for purposes of Limitation Act

Published on 26 June 2018. By Charlotte Henschen (née Ducker), Senior Associate and Chris Ross, Partner

Abstract building

In Su v Clarksons Platou Futures Ltd ([2018] EWCA Civ 1115) the Court of Appeal upheld a decision granting summary judgment against a claimant on the basis that his claim in negligence was time barred.

Read more
Blog

Guarding professional secrets: A guide to English legal privilege for international lawyers

30 May 2018

Gray tint 1

Most jurisdictions have some form of protection for preserving the confidentiality of communications involving lawyers, whether known as (legal professional) privilege, professional secrecy or something else. How far that protection extends, and how easily it may be broken, varies enormously. In England, the protection, once gained, remains strong, but recent cases have tended to restrict the extent of it, particularly by comparison to other common law jurisdictions (privilege/professional secrecy rules in civil law jurisdictions tend to be narrower than common law jurisdictions in any event). The issue becomes most acute in a pre-litigation (or investigative) phase.

Read more
Blog

Supreme Court curtails negotiating damages

Published on 29 May 2018. By Tim Brown, Partner and Emma West, Associate

Purple tint 1

The Supreme Court decision in Morris-Garner v One Step Support Ltd(1) is now the leading case on Wrotham Park(2) or – as the court preferred to call them – negotiating damages.

Read more
Blog

Unlawful distribution of shareholding: application of Limitation Act clarified

Published on 22 May 2018. By Chris Ross, Partner

Gray tint 1

In Burden Holdings UK Limited v Fielding the Supreme Court considered the application of Section 21(1)(b) of the Limitation Act 1980 with respect to claims against the directors of a company for an unlawful distribution of the shareholding.

Read more
Blog

Regulation of cryptocurrency pre-ICO funding under English Law

Published on 15 May 2018.

Green tint 2

Launching a cryptocurrency typically involves an initial fundraising process followed by a public sale process, by way of initial coin offering or token sale ("ICO").

Read more
Blog

That's not fair (market value)

Published on 03 May 2018. By Christopher Whitehouse, Senior Associate and Simon Hart, Partner

Green tint 1

Court of Appeal rules on application of GMRA close-out provisions in a distressed market. Icelandic bank LBI ehf (LBI) appealed against the High Court decision in its case against Raiffeisen Bank International AG (RZB) regarding the interpretation of the term "fair market value" in the close-out provisions of a repo agreement. The Court of Appeal rejected LBI's arguments that "fair market value" should preclude the use of prices, quotations and other pricing evidence obtained in a distressed or illiquid market and dismissed the appeal.

Read more
Blog

Game theory and the art of litigation settlement (Part 3)

Published on 01 May 2018. By Christopher Whitehouse, Senior Associate and Simon Hart, Partner

Untinted 3

This article is the third in a series targeted at litigators that consider the issue of settlement in litigation through a game theoretical lens.

Read more
Blog

Game theory and the art of litigation settlement (Part 2)

Published on 25 April 2018. By Christopher Whitehouse, Senior Associate and Simon Hart, Partner

Gray tint 4

This article is the second in a series targeted at litigators that consider the issue of settlement in litigation through a game theoretical lens.

Read more
Blog

Game theory and the art of litigation settlement

Published on 06 April 2018. By Christopher Whitehouse, Senior Associate and Simon Hart, Partner

Gray tint 4

This article is the first in a series targeted at litigators that consider the issue of settlement in litigation through a mathematical lens.

Read more
Blog

Property Alliance Group Limited v The Royal Bank of Scotland plc – a pyrrhic victory?

Published on 04 April 2018. By Parham Kouchikali, Partner and Joe Cresswell, Associate

Gray tint 4

The Court of Appeal handed down its much anticipated judgment on the misselling and LIBOR manipulation test case in March. Whilst the appeal was dismissed in full, the Court of Appeal's decision clarified a number of aspects of the law in this area and, in particular, the circumstances in which an implied representation in respect of LIBOR would arise.

Read more
Blog

SFC requires ICO to be withdrawn from Hong Kong public

Published on 20 March 2018. By Jonathan Crompton, Partner

Untinted 4

On 19 March 2018 the Securities and Futures Commission (SFC) announced that it had halted an initial coin offering (ICO) to the Hong Kong public by Black Cell Technology Limited (Black Cell).

Read more
Blog

The High Court confirms the availability of Bankers Trust orders to trustee Claimants seeking to recover misappropriated assets

Published on 16 March 2018. By Jonathan Cary, Partner

Gray tint 1

The decision of the High Court in Miles Smith Broking Limited –v– Barclays Bank PLC has confirmed for the first time the availability of the commonly encountered Bankers Trust order to trustee Claimants of stolen/misappropriated property, highlighting the flexibility of the Court's equitable jurisdiction when presented with new situations. The decision also serves as a neat illustration of the Court's willingness to grant Norwich Pharmacal relief to facilitate the recovery of unlawfully dissipated assets and the types of complimentary interim remedies available to Claimants for that purpose.

Read more
Blog

Litigation privilege: whose privilege?

Published on 15 March 2018. By Davina Given, Partner and Christopher Whitehouse, Senior Associate

Purple tint

The claimants, companies in the corporate group of the mining company MMG, applied to inspect certain documents created in foreign proceedings over which the defendants, companies belonging to the mining company Glencore, asserted litigation privilege.

Read more
Blog

Sharp v Blank and others [2017] EWHC 3390 (Ch)

Published on 07 March 2018. By Andy McGregor, Head of Civil Fraud

Untinted 5

The Court considered the Defendants' application for approval of their revised cost budget on the basis that there had been significant developments in the litigation.

Read more
Blog

The perils of using disclosed documents for a collateral purpose

Published on 07 March 2018. By Victoria Rogers, Associate and Geraldine Elliott, Partner

Abstract building

In Grosvenor Chemicals Ltd v UPL Europe Ltd disclosed documents were used by the UPL for a collateral purpose in breach of the Civil Procedure Rules.

Read more
Blog

Bank liable for breach of Quincecare duty

Published on 01 March 2018. By Andy McGregor, Head of Civil Fraud and Charlotte Henschen (née Ducker), Senior Associate

Purple tint 3

The Court of Appeal has upheld a decision that the appellant bank breached the Quincecare duty of care which it owed to its corporate customer by making payments without proper enquiry, in circumstances in which a reasonable banker would have been on notice that the customer's director was perpetrating a fraud.

Read more
Blog

Enforcement Reporter - SFC sets out its enforcement priorities for 2018

Published on 01 March 2018. By Jonathan Crompton, Partner

Untinted 5

On 26 February 2018 the SFC released the third edition of its new series of the Enforcement Reporter. The communication outlines the SFC's key enforcement priorities for the coming year and highlights significant recent enforcement actions. The Enforcement Reporter follows the general themes of previous editions and is a useful indication to the market of the SFC's key concerns. In particular, tackling corporate fraud remains top of the agenda, with insider dealing, misconduct by intermediaries and sponsors, and money laundering on the SFC's radar.

Read more
Blog

In the Matter of Agrokor DD: Model Laws and PIK toggle loans

Published on 26 February 2018. By Jake Hardy, Legal Director

Untinted 2

A recent application made by insolvency practitioner of Agrokor, a major Croatian conglomerate, resulted in recognition in England of a stay of civil proceedings against the group. The purpose of the application was to halt any proceedings in relation to Agrokor's securities and debt obligations containing English law and jurisdiction provisions, pending the restructuring in the Croatian insolvency proceedings of the affairs of the group.

Read more
Blog

When will pleading "special circumstances" permit collateral use?

Published on 22 February 2018. By Joe Cresswell, Associate and Geraldine Elliott, Partner

Green tint 4

Having taken a strict approach when considering what constituted "collateral use" in Tchenguiz v Grant Thornton UK LLP, the Commercial Court has moved quickly to clarify the test for "special circumstances" in applications for permission to use previously disclosed documents in The Libyan Investment Authority v Société Générale SA and others.

Read more
Blog

Court of Appeal holds that a facility agreement based on the LMA model form does not constitute lenders' standard terms for UCTA: But never say never…

Published on 15 February 2018. By Charlotte Henschen (née Ducker), Senior Associate and Jonathan Cary, Partner

Purple tint 3

The Court of Appeal has upheld a decision that a facility agreement based on the LMA model form did not constitute the lenders' standard terms for the purposes of UCTA. Had UCTA applied, the terms of the facility agreement would have been subject to a reasonableness test.

Read more