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Commercial Disputes

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, Managing Partner, Asia

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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Blog

Marketing to professional investors – the Court of Final Appeal's verdict

Published on 18 May 2015. By Jonathan Cary, Partner

In Securities and Futures Commission v Pacific Sun Advisors Ltd, the Hong Kong Court of Final Appeal recently ruled that the advertisement of a collective investment scheme intended to be disposed of only to professional investors ...

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Blog

Good Russian Service

Published on 07 May 2015. By Alan Williams, Senior Associate and Andy McGregor, Partner

Following the decision in Sloutsker v Romanova[1], it should now be more difficult for parties to evade the effective service of English court documents in Russia.

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Blog

Contractual notice of warranty claim

Published on 05 May 2015. By Geraldine Elliott, Partner

In The Hut Group Limited v Nobagar-Cookson[2], the High Court considered what was required to comply with a provision in a share purchase agreement requiring notice to be given of a breach of warranty claim.

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Blog

High Court considers iniquity exception for disclosure of privileged documents

Published on 30 April 2015. By Geraldine Elliott, Partner

In the case of London Borough of Brent v Kane, the court considered an application for the disclosure of legal advice that was alleged to have been given for an iniquitous purpose such that the benefit of any privilege that might otherwise have attached to the document was lost.

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Blog

Friends without benefits – what happens when investments go wrong?

Published on 01 April 2015.

Investors have had something of a hard time suing financial institutions or financial advisers in Hong Kong for alleged claims sounding in breach of contract or negligence.

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Blog

Litigation meets regulation

Published on 26 March 2015. By Davina Given, Partner

In an ever more regulated world, commercial litigators need to be aware of both the risks and opportunities regulation may bring.

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Blog

Non-exclusive jurisdiction clauses in cross-border agreements

Published on 25 March 2015. By Jonathan Cary, Partner

Hong Kong courts adopt robust approach to uphold parties' contractual bargain as to their choice of forum

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Blog

Important judgment on liquidators' ability to obtain documents

Published on 11 March 2015. By Samuel Hung, Senior Associate

In an important judgment handed down recently by the Court of First Instance in Hong Kong, ...

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Blog

Reflex actions: Plaza BV -v- The Law Debenture Trust Corporation

Published on 10 March 2015. By Jake Hardy, Legal Director

The recent judgment of Mrs Justice Proudman in Plaza BV –v- The Law Debenture Trust Corporation1 illustrates and extends a line of authorities in which the English courts have sought to narrow the scope of the mandatory application of Article 2 of the Brussels Regulation 44/2001.

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Blog

Scheming for foreign companies

Published on 19 February 2015. By Gary Yin, Partner

In the recent case of Re LDK Solar Co Ltd,(1) Justice Lam considered the approach that the court should take in deciding whether to invoke its jurisdiction to approve an arrangement or compromise between a foreign company and its creditors or members.

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Blog

Civil Appeals - one shot as of right only

10 February 2015

The right of appeal to the Court of Final Appeal (CFA) with respect to final judgments of the Court of Appeal amounting to HK$1 million or more has been repealed as of 24 December 2014.

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Blog

High Court considers jurisdiction over non-EU defendant in proceedings also including domestic defendants

Published on 30 January 2015. By Andy McGregor, Partner

The decision in Jong v HSBC Private Bank (Monaco) SA and others[i]serves as a useful reminder that the Court will be guided by the substance, and not the form, of proceedings when considering questions of jurisdiction.

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Blog

No discretion to extend time to appeal registration of foreign judgments

Published on 29 January 2015. By Daniel Wyatt, Senior Associate

In Taylor-Carr -v- Howkins & Harrison LLP[1], it was held that the English courts have no power to extend the time for appealing against the registration of a foreign judgment under Council Regulation 44/2001, which permits judgments in one member state to be enforced in another.

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Blog

Injunctions: Hearsay evidence and dissipation risk considered

Published on 27 January 2015. By Geraldine Elliott, Partner

The case of JSC Bank & anor v Sergei Pugachev[1] serves as a useful reminder of the need to take care with the use of hearsay evidence and the standard and evidence required of the dissipation of assets.

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Blog

Modified Universalism – Privy to Singular Clarification

Published on 20 January 2015. By Rebecca Wong, Senior Associate

While most jurisdictions provide liquidators with wide investigative powers to locate and realise assets locally, the exercise of such powers becomes more complicated when the assets are situated overseas.

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Blog

Mareva Injunctions – Substance and Form

Published on 09 January 2015.

Recent cases in Hong Kong highlight a need to exercise care when applying for a mareva (freezing assets) injunction before trial.

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Blog

The claimants that knew too much: High Court rules on applicability of concealment provisions in Limitation Act 1980 in competition damages claim

Published on 24 December 2014. By Chris Ross, Partner

The Arcadia Group[1] case arose in the context of ongoing damages claims brought by a number of retailers and other merchants against both Visa and MasterCard for breaches of competition law in relation to the charging of interchange fees in the Visa and MasterCard payment systems.

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Blog

The beginning of the end to mis-selling claims?

Published on 22 December 2014. By Davina Given, Partner

Mis-selling of interest rate products to unsophisticated customers has been the subject of intense regulatory scrutiny, with the banks paying out over £1.5bn to around 10,000 customers in the course of the Financial Conduct Authority's Interest Rate Hedging Product Review which began in May 2013.

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Blog

Defend and submit: Challenging the jurisdiction of the Court

Published on 18 December 2014. By Jonathan Cary, Partner

A defendant who wishes to challenge the civil jurisdiction of a Hong Kong court should not file and serve a defence pending the outcome of the challenge.

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Blog

Occupy Central: Civil disobedience and civil remedies

16 December 2014

The "Occupy Central" movement in Hong Kong has involved large numbers of protesters occupying major roads in Hong Kong, particularly in the areas of Admiralty (on Hong Kong Island) and Mong Kok (on the Kowloon Peninsula).

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Blog

The Commercial Court assesses the power and limitations of "Chabra" jurisdiction

Published on 08 December 2014. By Adam Forster, Senior Associate

The Commercial Court has recently considered[1] that it did not have jurisdiction to grant a freezing order to assist in the enforcement of an arbitration award against subsidiaries of the first defendant, which were incorporated outside the jurisdiction and had no assets or other presence in England.

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Blog

Entitlement to inheritance claim not within the "wills and succession" exclusion under Article 1(2) of the "Brussels I" Regulation on jurisdiction and enforcement

03 December 2014

The High Court has recently dismissed a tortious claim[1] for conspiracy to deprive the claimant of inheriting her late father's shares on the basis that it had no real prospect of success.

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Blog

Defendant which unreasonably refused to mediate escapes costs sanctions

Published on 21 November 2014. By Alexis Armitage, Associate

When considering costs and exercising its discretion under CPR 44.2, the court has regard to all the circumstances including the conduct of the parties before as well as during the proceedings.

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Blog

Injunctions - when will the court order fortification of a cross-undertaking in damages?

Published on 18 November 2014. By Geraldine Elliott, Partner

The Court of Appeal endorsed for the first time the accepted criteria that must be satisfied before the court can order an application for fortification of a cross-undertaking in damages in EVP v Malabu Oil.[1]

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Blog

Defendant which unreasonably refused to mediate escapes costs sanctions

18 November 2014

When considering costs and exercising its discretion under CPR 44.2, the court has regard to all the circumstances including the conduct of the parties before as well as during the proceedings.

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Blog

No anti-suit injunction for parties not subject to an arbitration agreement

17 November 2014

The importance of drafting arbitration agreements carefully and precisely has been highlighted by the Commercial Court when it rejected an application for an anti-suit injunction restraining New York court proceedings in favour of arbitration[1].

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Blog

Bribes and Undisclosed Commissions to Agents: Supreme Clarity.

Published on 29 October 2014. By Jake Hardy, Legal Director

In late July, the Supreme Court of England and Wales handed down a succinct judgment on a topic which, while narrow, is of considerable importance in its sphere.

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Blog

FTT prevents HMRC from having two bites of the cherry!

Published on 22 October 2014. By Daniel Wyatt, Senior Associate

In Lady Henrietta Pearson v HMRC [2014] UKFTT 890 (TC), the First-tier Tribunal (Tax Chamber) ('FTT') concluded that HMRC had "ignored" its previous decision by seeking to reduce the amount of a VAT refund which it had ordered HMRC make to Lady Henrietta Pearson ('the taxpayer').

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Blog

The importance of commercial considerations in contractual construction

Published on 13 October 2014. By Chris Ross, Partner

The principles governing contractual interpretation under English law are reasonably well-established.

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