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Commercial Disputes

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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Blog

The effectiveness of a US exclusive jurisdiction clause in light of the (Recast) Brussels Regulation

Published on 22 October 2015. By Amelia Payne, Associate and Simon Hart, Partner

The Court of Appeal ruled that a company which provides benefits to employees of associated group companies may be regarded as an employer if it provides those benefits to reward and encourage the employees for the benefit of their employer and the group as a whole.

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Blog

High Court guidance on the admissibility of expert evidence

Published on 05 October 2015. By Tim Brown, Partner

British Airways has succeeded in partly overturning the decision of a Deputy Master who refused BA permission to adduce expert evidence in litigation against the trustees of one of its defined benefit pension schemes.

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Blog

Repudiatory breach implicitly excluded in multi-party LLP agreements

Published on 29 September 2015. By Geraldine Elliott, Partner

In the recent decision of Flanagan v Liontrust Investment Partners LLP and others[1] the High Court held that the doctrine of repudiatory breach is excluded in multi-party limited liability partnership agreements ...

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Blog

Tracing Mr Maluf's millions

Published on 28 September 2015. By Alan Williams, Senior Associate and Tim Brown, Partner

The recent Privy Council decision in Federal Republic of Brazil and another v Durant International Corporation and another upholding a Jersey Court of Appeal judgment provides guidance on the approach the English Courts may now take to backwards tracing.

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Publication

Commercial disputes and regulatory – Hong Kong

23 September 2015

Faceless fraud – scams in an online world

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Blog

Final appeal serves up sushi

Published on 17 September 2015. By Rebecca Wong, Senior Associate

In the past decade or so sushi has become increasingly popular – both in Hong Kong and globally.

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Blog

Otkritie and the "Aldi requirement"

Published on 07 September 2015. By Jake Hardy, Legal Director

The judgment in Otkritie –v- Threadneedle examined the interplay between the "Aldi requirement" ...

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Blog

Court of Appeal rules on limitation and concealment in competition damages claim

Published on 04 September 2015. By Chris Ross, Partner and Andy McGregor, Partner

In the recent decision of Arcadia Group Brands Ltd & Ors v Visa Inc & Ors[1] ...

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Blog

Court confirms its wide discretionary power to extend time in consent orders

Published on 18 August 2015. By Geraldine Elliott, Partner

In Safin (Fursecroft) Limited v The Estate of Dr Said Ahmed Said Badrig (Deceased)[1], the Court of Appeal considered the principles that apply to an application for extension of time for compliance with obligations set out in a consent order.

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Blog

The risk of a pyrrhic victory for claimants relying on damages clauses for the calculation of compensation in the absence of actual loss

Published on 11 August 2015. By Charlotte Henschen (née Ducker), Senior Associate

The Supreme Court has handed down a unanimous decision which confirms that clauses which provide a contractual mechanism for the calculation of damages remain subject to standard rules of construction.

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Blog

The better part of discretion is – an implied term?

Published on 07 August 2015. By Christopher Whitehouse, Associate and Davina Given, Partner

In Portsmouth City Council v Ensign Highways Ltd [2015] EWHC 1969 (TCC), the High Court implied a term imposing limits on a party's contractual discretion, ...

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Blog

Hong Kong: legal advice privilege – important development for corporates

Published on 07 August 2015.

In an important judgment, the Hong Kong Court of Appeal has recently decided that legal advice privilege (often referred to as “solicitor-client” or “attorney-client” privilege) can extend to confidential internal communications ...

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Publication

Hong Kong: legal advice privilege – important development for corporates

06 August 2015

In an important judgment, the Hong Kong Court of Appeal has recently decided that legal advice privilege (often referred to as “solicitor-client” or “attorney-client” privilege) can extend to confidential internal communications between employees of a client organisation, provided those communications were created for the sole or dominant purpose of obtaining legal advice.

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Blog

Limiting liability in standard terms: cause for concern?

Published on 03 August 2015. By Laura Martin, Senior Associate and Davina Given, Partner

Practitioners may wish to reconsider their approach to drafting standard terms after the High Court found that various limitation of liability clauses in standard term business-to-business contracts were unreasonable under the Unfair Contract Terms Act 1977 (UCTA)[1].

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Blog

No way out: a recent Supreme Court decision re-states the principles of contractual interpretation and provides a salutary reminder that the English Courts are wary of re-writing "bad bargains"

Published on 31 July 2015. By Alan Williams, Senior Associate and Simon Hart, Partner

The Supreme Court's decision in Arnold v Britton provides a salutary reminder of the reluctance of the English Courts to re-write "bad bargains" even if they have catastrophic unforeseen commercial outcomes for one of the contracting parties.

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Blog

Court of Appeal rules on liability of partner unaware of fiduciary breach of another partner

Published on 27 July 2015. By Laura Martin, Senior Associate and Tim Brown, Partner

Court of Appeal reverses decision of lower Court to find that a partner who had been unaware of the wrongful conduct of the second partner in a business was nonetheless jointly and severally liable for the defaulting partner's liability to a third party for breach of fiduciary duty.

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Publication

Hong Kong courts clarify personal data concerns in civil litigation

22 July 2015

In a series of cases in Hong Kong in the last year or so, the courts have brought some welcome clarification to the vexed issue of the interaction between disclosure of relevant documents in civil disputes and balancing competing confidentiality and personal data concerns arising out of the contents of such documents.

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Blog

New financial super court to further enhance London's profile as a financial dispute hub

Published on 16 July 2015. By Parham Kouchikali, Partner

After a period of consultation, the Lord Chief Justice announced at his Mansion House speech on 8 July 2015 that a new specialist list dealing with high-value, ...

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Blog

The regulatory regime continues to inform the advisory duty in mis-selling claims

Published on 15 July 2015. By Davina Given, Partner

The recent case of David Anderson v Openwork Limited[1] provides an opportunity to reflect on the current approach of the courts ...

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Publication

Legal alert – July 2015

13 July 2015

Milton Furniture Limited v Brit Insurance

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Blog

Electronic disclosure – the perils of ignoring disclosure requirements

Published on 09 July 2015. By Geraldine Elliott, Partner

In Smailes and another v McNally and another[i] the High Court refused the claimant's application for relief from sanctions, finding the claimant's failure in respect of its disclosure obligations under the relevant provisions of the Civil Procedure Rules (CPR 31) amounted to a significant and serious breach of an "unless order".

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Blog

High Court finds "without prejudice" communications with a regulator can be withheld in civil proceedings, but decides bank had lost right to do so

Published on 07 July 2015. By Davina Given, Partner

In the latest instalment of the LIBOR swaps proceedings in Property Alliance Group Ltd v The Royal Bank of Scotland plc[1], the court has held for the first time that 'without prejudice' communications with a regulator can be withheld in civil proceedings.

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Blog

Nowhere to hide: Supreme Court considers illegality defence and global application of Insolvency Act 1986 in VAT fraud case

Published on 06 July 2015. By Amy Gallimore, Legal Director

On 22 April 2015 the Supreme Court handed down its judgment in the case of Jetivia SA and another v Bilta (UK) Ltd (in liquidation) and others [2015] UKSC 23, which was heard in October last year.

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Blog

High Court refuses to grant anti-suit injunction restraining insolvency proceedings in Denmark

Published on 03 July 2015. By Alexis Armitage, Associate and Tim Brown, Partner

In SwissMarine Corporation Ltd v OW Supply & Trading[1], the High Court refused to grant an anti-suit injunction restraining Danish insolvency proceedings.

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Blog

Sanctioned offers and old-style Calderbank offers

Published on 25 June 2015. By Antony Sassi, Partner

Following the introduction of formal sanctioned payments and sanctioned offers pursuant to the civil justice reforms adopted in April 2009, it has not been entirely clear to what extent pre-trial Calderbank offers (without prejudice save as to costs) still provide costs protection for an offeror.

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Blog

Hong Kong courts clarify personal data concerns in civil litigation

Published on 23 June 2015.

In a series of cases in Hong Kong in the last year or so, the courts have brought some welcome clarification to the vexed issue of the interaction between disclosure of relevant documents in civil disputes and balancing competing confidentiality and personal data concerns arising out of the contents of such documents.

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Blog

Invalidity of buyer's notice sinks warranty claim

Published on 15 June 2015. By Tim Brown, Partner

In Ipsos SA v Dentos Aegis Network Limited, the Defendants obtained judgment in the High Court against the Claimants in respect of their claim for breach of warranty for failure to comply with contractual notification requirements set out in a share purchase agreement.

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Blog

One-stop adjudication – the rational approach to dispute resolution

Published on 10 June 2015. By Simon Hart, Partner

The Commercial Court has found[1] that an arbitration clause in a consultancy services agreement was superseded by a dispute resolution clause in a later settlement agreement;...

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Blog

Two jurisdictions for the price of one? The English Court of Appeal provides guidance on conflicting jurisdiction clauses in related contracts

Published on 03 June 2015. By Ed Holmes, Senior Associate and Davina Given, Partner

In Trust Risk Group SpA v AmTrust Europe Limited[1] the Court of Appeal has rowed back from the presumption that parties who have agreed differing jurisdiction arrangements for their disputes intended their disputes to be governed by one regime.

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Blog

Meaning of information of a precise nature in market abuse clarified by ECJ

27 May 2015

Following a recent ECJ decision, the definition of 'inside information' for the purposes of the EU's market abuse regime has been widened.

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Publication

Financial Litigation roundup

26 May 2015

Welcome to the latest edition of our Financial Litigation roundup.

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Blog

Appeal court considers constructive knowledge in limitation period extension claim

Published on 21 May 2015. By Geraldine Elliott, Partner

The Court of Appeal* has recently held that an individual investor was too late to bring a claim in negligence and could not take advantage of the provisions of section 14A Limitation Act 1980 as she had constructive knowledge of relevant facts ascertainable during the primary limitation period.

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Blog

Still no joy for investors' mis-selling claims

Published on 18 May 2015. By Jonathan Cary, Partner

In the latest alleged mis-selling case in Hong Kong, the Court of First Instance maintained a consistent approach with other recent cases, rejecting an investor's claim based on misrepresentation and suggesting that the principle of contractual estoppel is alive and well.(1)

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