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Commercial Disputes

Blog

Beware of the risks when notifying warranty claims

Published on 13 February 2018. By Geraldine Elliott, Partner and Eliot Henderson, Associate

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In Teoco UK Limited v Aircom Jersey 4 Limited, Aircom Global Operations Limited(1) the Court of Appeal upheld the High Court's decision to strike out certain breach of warranty claims on the basis that the buyer had given the seller inadequate notice of those claims. The buyer's attempt to keep its options open by drafting its notices widely proved fatal to its claims, as it failed to identify the specific warranties to which its claims related as required by the share purchase agreement.

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Blog

Documents from which legal advice can be inferred – are they privileged?

Published on 28 December 2017. By Christopher Whitehouse, Senior Associate and Davina Given, Partner

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The High Court considered the extent to which legal advice privilege could attach to documents which were not communications of legal advice between lawyer and client but from which privileged legal advice could be inferred and held that privilege could indeed apply to such documents. The test is whether there is a "definite and reasonable foundation" for such an inference to be made as opposed to material that would merely make the reader speculate what the legal advice was.

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Blog

Service by Email – Lessons from Glencore Agriculture B.V. v Conqueror Holdings Limited [2017] EWHC 2893

Published on 19 December 2017. By Laura Evans, Associate and Jonathan Cary, Partner

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The English High Court has found that service by email of arbitration proceedings was not valid under section 76 of the Arbitration Act 1996 on the basis that the correspondence had been directed to the email address of an employee who did not have the authority to accept service. The judge found that in circumstances where service is by way of an individual email address, validity of service depends on the application of agency principles.

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Blog

Ghosh test overturned: dishonesty according to the standards of ordinary, reasonable and honest people

Published on 14 December 2017. By Sarah Shaul, Associate and Davina Given, Partner

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The Supreme Court has held that the test for dishonesty should be assessed only by reference to whether or not the defendant's conduct is dishonest by the objective standards of ordinary, reasonable and honest people. The Court concluded that there were convincing grounds for holding that the second limb of the longstanding Ghosh test did not correctly represent the law and that directions based upon it ought no longer to be given. The Court further stated that the assessment of dishonesty in criminal and civil proceedings should be made by reference to the same test.

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Publication

Financial litigation roundup winter 2017

Published on 13 December 2017. By Tom Hibbert, Partner and David Smyth, Senior Consultant

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Welcome to the latest edition of our Financial Litigation roundup, where we share our insights into recent judgments and ongoing cases as well as new regulatory developments from the banking and financial world in the UK and Asia.

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Blog

SFAT fines HSBC Private Bank record-breaking HK$400 million and suspends its securities licenses

Published on 24 November 2017. By Jonathan Crompton, Partner

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On Tuesday (21 November 2017), Hong Kong's Securities and Futures Appeals Tribunal fined HSBC Private Bank (Suisse) SA HK$400 million, suspended its license to advise on securities and partially suspended its license to deal in securities, for one year. The previous largest fine was HK$30 million.

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Blog

ADR coming of age for financial disputes in Hong Kong

Published on 20 November 2017. By Jonathan Crompton, Partner

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Alternative dispute resolution is coming of age for financial disputes in Hong Kong, as we see the FDRC's Financial Dispute Resolution Scheme expand from 1 January 2018 and 1 July 2018.

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Video

Gulf between legal advice privilege in the UK and Hong Kong is widening

27 September 2017

Jonathan Cary explains the gulf opening up between England and the other major common law jurisdictions such as Hong Kong in relation to legal advice privilege and the pitfalls to be aware of.

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Blog

High Court sheds light on compulsory jurisdiction of Financial Ombudsman Service

Published on 19 July 2017. By Matthew Evans, Senior Associate

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The High Court has provided some clarification of the scope of the compulsory jurisdiction of the Financial Ombudsman Service (FOS). The decision has left the scope of that jurisdiction open to discussion, and appears to suggest that the courts will take a more mechanical approach to reviewing regulatory decisions.

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Blog

Don't be scared – it's just an exemption clause

Published on 05 July 2017. By Parham Kouchikali, Partner

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The Court of Appeal holds that an exemption clause is wide enough to exclude liability for negligence for a failure to identify asbestos.

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Blog

Defective service and culpable delay: a warning to claimants

Published on 03 July 2017. By Chris Ross, Partner and Andy McGregor, Head of Civil Fraud

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Commercial Court refuses application for alternative service and strikes out claim forms after claimant's delay in pursuing claim.

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Blog

Another bad bargain upheld: Wood v Sureterm Direct Ltd [2017] UKSC 24

Published on 23 June 2017. By Matthew Evans, Senior Associate and Geraldine Elliott, Partner

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The Supreme Court has dismissed an appeal in Wood v Sureterm Direct Ltd. The Court upheld the Court of Appeal's decision on the meaning of an indemnity clause, and agreed with its application of established contractual interpretation doctrine. The decision confirms the established judicial approach to contractual interpretation, namely the focus on the words of a given clause.

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Blog

Full and frank disclosure – how independent is your expert witness?

Published on 14 June 2017. By Tim Brown, Partner

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This Court of Appeal judgment considers the admissibility of expert evidence where the expert failed to disclose details of a professional relationship with a party.

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Blog

Responsibility of a parent company for the acts of its subsidiary

12 June 2017

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The Court provided helpful analysis of the circumstances in which a parent company owes a duty of care with regard to operations carried out by its subsidiary. The case is interesting to examine in the context of the readiness of the English courts to hear claims relating to conduct outside of the jurisdiction brought by foreign claimants.

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Blog

Back to first principles: contractual intention

10 May 2017

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The High Court has denied a claim that €13.5m was due on the basis of an oral contract because there was no evidence of the parties' intention to create legal relations as well as a lack of certainty in relation to certain other fundamental terms which militated against the existence of a binding contract.

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Blog

Lessons learned from Property Alliance Group v RBS

Published on 25 April 2017. By Daniel Hemming, Senior Associate and Davina Given, Partner

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This article assesses the key aspects of the High Court's judgment and considers their implications for similar claims.

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Blog

Guidance on the "cardinal rule" for implying terms

Published on 21 April 2017. By Davina Given, Partner

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In Irish Bank Resolution Corp Ltd (In Special Liquidation) v Camden Market Holdings Corp the Court of Appeal held that a term could not be implied into an agreement because, although it was linguistically consistent, it was substantively inconsistent with the express terms. In doing so, the court shed further light on the application of the "cardinal rule" that an implied term must not contradict any of the express terms of the contract.

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Blog

Cultural Property (Armed Conflicts) Act 2017: what do collectors and dealers need to know?

Published on 19 April 2017. By Davina Given, Partner

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The UK Parliament has recently passed the Cultural Property (Armed Conflicts) Act 2017. Although the provisions of the Act have not yet come into force, how will this impact collectors and dealers?

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Blog

The law of unintended consequences

Published on 12 April 2017. By Victoria Sugden, Senior Associate and Davina Given, Partner

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Why professional indemnity insurers should closely examine losses in professional negligence claims

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Blog

Court of Appeal provides a timely reminder of the principles relating to clear and unambiguous contractual negotiations

Published on 03 April 2017. By Emma Griffiths, Senior Associate and Geraldine Elliott, Partner

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In Global Asset Capital, Inc and another v Aabar Block SARL and others the Court of Appeal found that the High Court had erred in its finding that in assessing whether a contract had been concluded, it need not take account of inconsistent subsequent communications between the parties following the arguable conclusion of a contract during a telephone call that had followed a "subject to contract" offer letter.

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Publication

Fund management litigation

Published on 03 April 2017. By Alan Williams, Partner

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Recourse for LP investors when an investment goes wrong

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Blog

Prior arbitral award – abuse of process?

Published on 30 March 2017. By Davina Given, Partner

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Michael Wilson & Partners Limited v Sinclair and others [2017] EWCA Civ 3 demonstrates the interplay between arbitration and litigation, considering whether legal proceedings commenced by A against C are an abuse of the court's process where arbitration proceedings between A and B have decided the issue in question. The Court of Appeal held that a prior arbitration award can found an argument that subsequent litigation against a third party is an abuse of process, but will rarely do so. On the facts of this case, the claim was not considered to be an abuse of process.

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Blog

Letters of Credit: Fraud conquers all – if it is fraud

Published on 30 March 2017. By Alan Williams, Partner and Andy McGregor, Head of Civil Fraud

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The High Court decision in Petrosaudi Oil Services (Venezuela) Ltd v. Novo Banco S.A. and Others [2016] EWHC 2456 provided a useful reminder that the principle of autonomy, which provides for payments to be made under letters of credit, regardless of disputes under the underlying contract, will not be upheld if the fraud exception applies. In its decision at first instance the High Court had found that the fraud exception had applied. However, the High Court judgment was appealed. This update discusses the Court of Appeal's decision.

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Publication

Financial litigation roundup

Published on 06 March 2017. By Tom Hibbert, Partner

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Welcome to the latest edition of our financial litigation roundup, which considers recent judgments, ongoing cases and legal developments from the banking and financial world in the UK and Asia.

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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, Managing Partner, Asia 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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Blog

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

Published on 22 December 2016. By 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, Senior 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, Senior 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

08 November 2016

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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

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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 Dan 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 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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