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Commercial Disputes

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, Managing Partner, Asia

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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 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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Blog

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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Blog

'Disproportionate' disclosure application denied in swaps mis-selling claim

Published on 16 February 2016. By Christopher Whitehouse, Associate and Simon Hart, Partner

In Claverton Holdings Ltd v Barclays Bank plc, the Commercial Court rejected an application by the claimant for specific disclosure against the defendant bank.

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Blog

Supreme Court clarifies law on implied terms: "business efficacy" test remains

Published on 21 January 2016. By Chris Ross, Partner and Parham Kouchikali, Partner

The Supreme Court has clarified the law on implied terms: in order for a term to be implied it must be necessary for business efficacy or alternatively be so obvious as to go without saying. In practice, it will be a rare case where one of those conditions is satisfied but not the other.

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Publication

VTech and Hong Kong’s cyber laws

14 January 2016

VTech is a multi-billion-dollar global supplier of electronic toys and learning products for children, and reportedly the world’s biggest manufacturer of cordless telephones. In short, it is a giant company producing high-tech electronic goods – surely, you might think, capable of fending off a cyber-attack.

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Blog

High Court holds deception undermines "dominant purpose" for claim to litigation privilege

Published on 12 January 2016. By Davina Given, Partner

In Property Alliance Group Ltd v Royal Bank of Scotland Plc the Court held that where a claimant had met the defendant's former employees to seek evidence for the claim, but had misled them as to the purpose of the meetings, the dominant purpose of those meetings could not be said to be the litigation.

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Blog

Court of Appeal permits early redemption of Lloyds Banking Group's Enhanced Capital Notes

Published on 04 January 2016. By Matthew Evans, Senior Associate and Parham Kouchikali, Partner

In BNY Mellon Corporate Trustee Services Ltd v LBG Capital No.1 and No. 2 Plc, the Court of Appeal reversed the first instance decision of the High Court, by allowing early redemption of certain convertible securities (known as Enhanced Capital Notes, or ECNs).

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Blog

High Court rejects interest rate swap misselling claim

Published on 22 December 2015. By Daniel Hemming, Senior Associate and Parham Kouchikali, Partner

In Thornbridge Limited v Barclays Bank PLC the High Court considered a claim for the missale of an interest rate swap based on several different causes of action, all of which were unsuccessful.

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Blog

Delay not a bar to obtaining freezing injunction

Published on 18 December 2015. By Charlotte Henschen (née Ducker), Senior Associate and Geraldine Elliott, Partner

The High Court has granted three insolvent Cayman companies (each in liquidation) a worldwide freezing order in support of proceedings against Mr Terrill, an individual who operated behind the companies' respective corporate directors as their sole director and shareholder.

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Publication

Financial Litigation roundup

17 December 2015

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 Asia, as well as regulatory developments in those jurisdictions

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Publication

Financial Litigation roundup

17 December 2015

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 Asia, as well as regulatory developments in those jurisdictions

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Blog

The Supreme Court restates the rule on penalties

Published on 07 December 2015. By Andy McGregor, Partner

The Supreme Court has recast the test for penalties to bring it into line with modern commercial practices. The new test is less formalistic and leaves the courts with greater discretion to look at the commercial rationale for a clause.

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Blog

High Court clarifies scope of duties owed by directors to shareholders

Published on 03 December 2015. By Maria Petzsch, Registered Foreign Lawyer (England & Wales) and Simon Hart, Partner

The High Court has struck out a number of claims brought by shareholders in what was, in 2008, Lloyds TSB against its directors (Sharp & others v Blank & others).

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Blog

Supreme Court broadens scope of freezing order wording

Published on 30 November 2015. By Emma Griffiths, Senior Associate and Parham Kouchikali, Partner

A recent decision[1] of the Supreme Court has clarified the scope of the standard form Commercial Court freezing order, holding that the right to draw down monies under a loan agreement can be an "asset" where the extended form freezing order is granted.

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Blog

Court of Appeal upholds estoppel by convention for forgetfulness

Published on 20 November 2015. By Alexis Armitage, Associate and Tim Brown, Partner

In Dixon and another v Blindley Health Investments Ltd[1] the Court of Appeal held that a shareholder was estopped by convention from relying on a pre-emption agreement for the sale of shares which had been agreed by members informally through correspondence some 8 years previously and had since allegedly been forgotten.

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Blog

When can a company assert legal advice privilege against its shareholders?

20 November 2015

A High Court judge recently confirmed the general principle that a company cannot assert legal advice privilege against its shareholders, subject to one exception:

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Blog

Court refuses stay in favour of Italian proceedings under 2001 Brussels Regulation

Published on 06 November 2015. By Laura Martin, Senior Associate and Parham Kouchikali, Partner

The Commercial Court has declined to stay an English action[1] in favour of prior proceedings in Italy, notwithstanding the fact that the dispute pre-dated the application of the Recast Regulation.

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Blog

Exclusive (jurisdiction), read all about it!

Published on 05 November 2015. By Ed Holmes, Senior Associate and Davina Given, Partner

In Global Maritime Investments Cyprus Limited v OW Supply & Trading A/S (under konkurs),[1] a jurisdiction clause prevented the defendant from pursuing issues in the Danish courts, even though jurisdiction was not stated to be "exclusive".

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Blog

Breach of SFO disclosure requirements and damages that can follow

Published on 05 November 2015. By Samuel Hung, Senior Associate

In July 2015 the Securities and Futures Commission (SFC) commenced its first set of proceedings in the Market Misconduct Tribunal against a listed company for allegedly failing to disclose price-sensitive inside information to the public as soon as reasonably practicable, contrary to Section 307B(1) of the Securities and Futures Ordinance.

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