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Commercial Disputes

Blog

Demand guarantees not subject to doctrine of strict compliance

Published on 21 February 2017. By Parham Kouchikali, Partner

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High Court holds that the doctrine of strict compliance does not automatically apply to demand guarantees (or performance bonds) in the way that it applies to letters of credit.

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Blog

Lead market regulator's lawsuit includes professional advisers

Published on 09 February 2017. By Antony Sassi, Partner and Samuel Hung, Senior Associate

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In another significant development in the Securities and Futures Commission's (SFC) efforts to combat market misconduct-type activity involving listed shares in Hong Kong, the lead market regulator has commenced civil proceedings under Section 213 of the Securities and Futures Ordinance (Cap 571) in respect of China Forestry Holdings Co Ltd (in official liquidation). What makes the proceedings noteworthy is that besides naming the company and two of its directors as co-defendants, the regulator's civil complaint also names two co-sponsors and the auditor involved with the company's initial public offering (IPO) in 2009.(1)

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Blog

Court of Appeal upholds Financial List decision on application of Rome Convention to derivative instruments

Published on 08 February 2017. By Charlotte Henschen (née Ducker), Senior Associate and Simon Hart, Partner

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The Court of Appeal has upheld a decision from the first trial heard within the new Financial List regarding the application of the Rome Convention to derivative instruments.

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Another meander through Three Rivers (No 5): the scope of legal advice privilege

Published on 22 December 2016. By Maria Petzsch, Registered Foreign Lawyer (England & Wales) and Parham Kouchikali, Partner

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The High Court rejected RBS' claim that interview notes taken by the bank and its external lawyers in the course of two internal investigations were privileged.

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Blog

Filling gaps: Implied terms in contracts

Published on 22 December 2016. By Amelia Payne, Associate and Tim Brown, Partner

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The Court of Appeal has held that where a contract would, on its face, be unenforceable because the parties failed to agree an essential term, the missing term cannot be implied.

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Blog

Football agent scores a victory in loss of a chance case

Published on 21 December 2016. By Christopher Whitehouse, Associate and Tom Hibbert, Partner

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The Court of Appeal upheld the appeal of a licensed football agent who alleged Sports and Entertainment Media Group had induced a professional footballer to breach an agency contract with him, which had deprived him of the fee he would have earned.

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Blog

"It's privileged" – is not enough! High Court orders a full list of each document over which a claim to privilege is asserted

Published on 20 December 2016. By Alexis Armitage, Associate and Davina Given, Partner

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The High Court held that a defendant's claim to privilege in respect of communications between employees and in-house counsel went too far. It ordered the defendant to provide a full list of each document over which the defendant asserted a claim to privilege, together with an explanation of the nature of the privileged claimed.

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Blog

High Court dismisses Libyan Investment Authority's claim against Goldman Sachs

Published on 17 November 2016. By Simon Hart, Partner and Sarah Shaul, Associate

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The High Court dismissed the Libyan Investment Authority's claim against Goldman Sachs based on two causes of action, undue influence and unconscionable bargains, in relation to a series of transactions which the parties entered into (the Disputed Trades) between September 2007 and April 2008, causing the LIA to lose billions.

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Blog

High Court considers validity and timing of contractual notices in close-out procedures

Published on 16 November 2016. By Jake Hardy, Legal Director

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The Commercial Court in London has considered a range of issues arising from the application of the close-out provisions of the standard form GMRA (Global Master Repurchase Agreement), year 2000 version (2000 GMRA).

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Publication

Wealth and Trusts quarterly digest

Published on 15 November 2016. By Adam Craggs, Partner

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Our quarterly digest aims to bring you up to date commentary and analysis on key sector developments. RPC’s tax, wealth and trusts teams are able to provide a wide ranging service to assist you and your clients in responding to market trends and legal developments. We would welcome the opportunity to discuss any concerns you may have and always welcome feedback on the content of our publications.

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Blog

Acceptance or a counter-offer - what relevance are communications after the fact?

Published on 11 November 2016. By Christopher Whitehouse, Associate and Simon Hart, Partner

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In Caroline Gibbs v Lakeside Developments the High Court held that an email purporting to accept a settlement offer but attaching a consent order specifying a different payment date was not an acceptance but a counter-offer.

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Blog

Essar v Norscot: the landmark decision third party funding has been waiting for?

Published on 10 November 2016. By Daniel Hemming, Senior Associate and Geraldine Elliott, Partner

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The Commercial Court rejected an application to set aside an arbitral award entitling the respondent to its costs of third party litigation funding on the ground of serious irregularity. It also held that the Arbitration Act 1996 power to award "legal and other costs" included the costs of litigation funding.

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Blog

Intention to be bound: High Court construes commitment letter against equity participant

Published on 09 November 2016. By Parham Kouchikali, Partner and Matthew Evans, Senior Associate

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The High Court held that the defendant signatory to a commitment letter intended to be legally bound by that document and was consequently in anticipatory repudiatory breach of contract. The decision highlights the need for contracting parties to be clear in documenting both their internal and external decision-making processes.

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Blog

Court of Appeal sheds light on innocent party's right to affirm frustrated contract

Published on 08 November 2016. By Elizabeth Wiggin, Associate and Stuart Shepherd, Partner

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Court of Appeal held that the innocent party could not affirm a contract once its commercial purpose had been frustrated in order to claim on-going damages.

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Blog

Sidestepping Limitation: A Cautionary Tale

Published on 03 October 2016. By Charlotte Henschen (née Ducker), Senior Associate and Davina Given, Partner

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The defendants were able to make a contribution claim from a third party after settling a competition damages claim with the claimant, even though the third party had a limitation defence against the claimant, which could have extinguished both the defendant's and the third party's liability to the claimant.

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Publication

Claimant investors establish advisory duty against bank

Published on 26 September 2016. By Jonathan Cary, Partner

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In the most recent so-called 'mis-selling' case in Hong Kong, three claimant investors succeeded in establishing that a bank owed them a contractual duty to exercise reasonable care and skill with regard to their portfolio of investments held with the bank.

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Blog

Pragmatism in the High Court: Correcting errors in arbitration

Published on 22 September 2016. By Amelia Payne, Associate and Jonathan Wood, Head of International Arbitration

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The High Court has held that the words "any errors of a similar nature" within r27.1 of the London Court of Arbitration Rules 1998 covered clarifying or removing ambiguity within an award by a tribunal.

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Blog

High Court dismisses claimants' application for an independent re-review of defendants' disclosure

Published on 16 August 2016. By Alexis Armitage, Associate and Davina Given, Partner

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In a dispute about the treatment of protestors at copper mines in Peru, the English High Court reinforced the breadth of the test for disclosure and held that it has the power to order a party to appoint a separate law firm to conduct an independent re-review of its disclosure.

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Blog

Technology assisted review in English civil proceedings: the exception or the norm?

Published on 10 August 2016. By Daniel Wyatt, Senior Associate and Simon Hart, Partner

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Hot on the heels of its first endorsement of the use of predictive coding in the widely publicised Pyrrho decision in February 2016, the English court has recently given judgment ordering the use of predictive coding in circumstances where its use was opposed by one party.

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Blog

Court of Appeal considers effectiveness of "in writing" variation clause

Published on 04 August 2016. By Simon Hart, Partner

In this case, the Court of Appeal was asked to consider the correct contractual interpretation of a long-term supply agreement. In its judgment, the Court of Appeal indicated, obiter, that including an 'in-writing only' variation clause in a contract would not prevent subsequent variation of the contract orally or by conduct in certain circumstances.

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Video

Collective redress and class actions regimes – from the US to Asia

03 August 2016

Antony Sassi - Partner, Asia - reviews the recent introduction of class action regimes in Asia and discusses why this changed litigation landscape is important for insurers.

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Blog

The "purpose" means the "dominant purpose"

Published on 02 August 2016. By Ed Holmes, Senior Associate and Tim Brown, Partner

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The Court of Appeal has recently dismissed an appeal in relation to the interpretation of a clause referring to "the purpose" of a transaction.

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Publication

Follow the money

27 July 2016

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How do you get your money back from a potential fraudster who has siphoned the money off into planes, luxury houses abroad and mysterious accounts? The English courts have a broad range of remedies available to help.

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Blog

High Court allows claim against foreign subsidiary and English parent company to be heard in the UK

Published on 13 July 2016. By Chris Ross, Partner and Simon Hart, Partner

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The High Court has rejected applications by an English parent company and its Zambian subsidiary that claims brought against them in London should be dismissed in favour of proceedings taking place in Zambia.

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Blog

"Mis-selling" claim fails on appeal in Hong Kong

Published on 12 July 2016. By Jonathan Cary, Partner

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Hong Kong Court of Appeal confirms challenges in bringing mis-selling claims against banks and financial intermediaries.

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Blog

Pre-judgment interest rate – prime plus 1%

Published on 30 June 2016. By Antony Sassi, Partner

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In May 2016 the Court of Appeal in Hong Kong handed down three consistent decisions confirming that (among other things) prime rate plus 1% should continue to be used as the starting point for awarding pre-judgment interest on damages awarded by the courts in civil disputes.

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Blog

Pension Deed rectified by Summary Judgment without a hearing

Published on 29 June 2016. By Alan Williams, Senior Associate and Geraldine Elliott, Partner

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The High Court has recently granted summary judgment for rectification of a trust deed without a hearing. The judge did this "in such plain circumstances" where the evidence demonstrated that there was "no real prospect of a realistic challenge" to the position that the final version of the deed should have been executed, not an earlier draft.

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Video

Hong Kong - China's window of the business world 

23 June 2016

David Smyth - Senior Partner, Asia - considers Hong Kong's role in a global market.

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Blog

Caveat Emptor: Buyer's inadequate notice precludes £3.5m warranty claim

Published on 16 June 2016. By Matthew Evans, Senior Associate and Geraldine Elliott, Partner

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In Teoco v Aircom (unreported), the High Court has held that a buyer gave inadequate notice of certain breach of warranty claims, thereby preventing it from pursuing those claims (worth c. £3.5m).

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Blog

The new 'notification injunction'

Published on 15 June 2016. By Elizabeth Wiggin, Associate and Jonathan Wood, Head of International Arbitration

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In Holyoake v Candy the High Court considered the court's power to grant a "notification injunction" requiring the Defendants to give written notice before disposing or dealing with their assets. The decision is of interest to applicants seeking an alternative to a freezing injunction where there is concern that a respondent may deal with their assets so as to frustrate the enforcement of any future judgment.

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Blog

Anti-suit injunctions

15 June 2016

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In Sea Powerful II, the Court of Appeal in Hong Kong recently dismissed a plaintiff ship owner's appeal against a judge's refusal to grant an anti-suit injunction to restrain the holder of a bill of lading from continuing with court proceedings in mainland China in breach of a Hong Kong arbitration clause

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Publication

Financial List signposts tough road for contractual construction

26 May 2016

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A recent decision in the High Court (Hayfin v Windermere VII CMBS), one of the first from the Financial List, has demonstrated a strict approach to contractual construction and interpretation in relation to negotiated documentation for financial traded instruments. It also shows the potential of the Financial List to provide helpful and clear guidance on the application of existing case law in the context of financial markets.

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Blog

Notice of termination provisions - not all they're cracked up to be

Published on 29 April 2016. By Ed Holmes, Senior Associate and Tim Brown, Partner

In Vinergy International (PVT) Limited v Richmond Mercantile Limited FZC the High Court held that the respondent had been entitled to accept the appellant's repudiatory breach and terminate their contract without complying with the notice requirements. 

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Blog

Disputes over bank's contractual right to freeze customer's account

Published on 27 April 2016. By Jonathan Cary, Partner

As banks tighten-up their standard terms concerning due diligence on customers and their transactions, it is inevitable that disputes will arise and that some will make their way to court.

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Blog

Don't gamble on a wager

Published on 13 April 2016. By Alan Williams, Senior Associate and Simon Hart, Partner

In WW Property Investments v Natwest one of many interest rate swaps claims that have been made since the global financial crisis, the High Court confirmed, in line with previous decisions, that interest rate hedging agreements are not wagers in law where at least one party entered into the contract for a genuine commercial purpose and not to speculate.

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Blog

Retainers and assumed responsibility for third parties – draw your parameters at the outset

Published on 31 March 2016. By Davina Given, Partner

In Caliendo v Mishcon de Reya the High Court recently found that there was no implied retainer between Mishcon de Reya (Mishcon) and the Claimant shareholders of a company for which Mishcon was acting in relation to a sale of shares.

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Blog

The Supreme Court "takes stock" of the law on vicarious liability

29 March 2016

In two recent, and complementary, judgments the Supreme Court has considered and clarified the existing law relating to the doctrine of vicarious liability, paving the way for a "modern theory" of vicarious liability.

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Video

Forex litigation – coming soon?

24 March 2016

Banking litigation partner Simon Hart reflects on whether the English courts are likely to see a wave of litigation falling out of Forex manipulation.

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Video

Litigation to drive profit

23 March 2016

Geraldine Elliott – Head of Commercial Litigation – considers how GCs can use litigation to turn the in-house legal team into a profit centre rather than a cost centre.

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Blog

High Court holds tortious claim unsustainable in respect of interest rate hedging product redress scheme

Published on 23 March 2016. By Davina Given, Partner

In the recent case of CGL Group Ltd v (1) Royal Bank of Scotland plc (2) National Westminster Bank plc, the High Court was satisfied that a bank did not owe its customer a tortious duty of care in operating a redress scheme for alleged mis-selling of interest rate hedging products (IRHPs).

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Blog

The Recast Brussels Regulation – considering exclusions

Published on 21 March 2016. By Amelia Payne, Associate and Simon Hart, Partner

The High Court has recently considered jurisdictional issues relating to a claim concerning the claimants' entitlement to certain shares held by the deceased businessman, Sami Shamoon.

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Blog

Agreement to submit to a foreign jurisdiction: Can it be implied or inferred?

Published on 14 March 2016. By Alexis Armitage, Associate and Davina Given, Partner

In Vizcaya Partners Ltd v Picard and another, the Privy Council recently held that an agreement to submit to the jurisdiction of a foreign court can arise through an implied term but there must be actual agreement (or consent).

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Blog

Time lost may never be found again

Published on 01 March 2016. By Alan Williams, Senior Associate and Geraldine Elliott, Partner

The decision in Medhi Khosravi v British American Tobacco plc [2016] EWHC 123 (QB) provides a useful reminder that it can be a risky strategy to seek extensions of time for service of a claim which has already been issued. Such extensions should not be granted lightly, and might be set aside at a later date.

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Blog

A (bright) green light for predictive coding in English litigation

Published on 24 February 2016. By Daniel Wyatt, Senior Associate and Simon Hart, Partner

A recent interlocutory judgment in Pyrrho Investments Limited & Anr -v- MWB Property Limited & Ors [2016] EWHC 256 (Ch) endorses, for the first time, the use of predictive coding when conducting disclosure in English civil proceedings.

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Blog

Court of Appeal considers "agreements to agree"

Published on 23 February 2016. By Tim Brown, Partner

The Court of Appeal has addressed a number of issues typically encountered in disputes relating to the sale of goods in Hughes v Pendragon.

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One man's loss is another man's gain: choice of law rules for unjust enrichment claims

Published on 19 February 2016. By Davina Given, Partner

In a recent case,[1] the English Commercial Court has determined that a claim in restitution based on unjust enrichment was governed by English law pursuant to EU Regulation 864/2007 (Rome II) and not the law of Geneva.

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Blog

Let's call it quits: Cruise ships, capital losses and mitigation

Published on 17 February 2016. By Jake Hardy, Legal Director

In its recent judgment in Fulton Shipping Inc of Panama –v- Globalia Business Travel SAU the Court of Appeal considered a short, but important, point of law in relation to the calculation of damages in English law.

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