Commercial disputes
On the third day of Christmas, the High Court gave to me…three corporate crimes
Beware of employees bearing gifts of frankincense, myrrh and especially gold: 2018 saw the first conviction after a contested prosecution for the corporate offence of failing to prevent bribery, under s7 of the Bribery Act 2010.
Read moreOn the second day of Christmas, the High Court gave to me…two LIBOR reps
The long-running and hard-fought saga of Property Alliance Group v Royal Bank of Scotland came to a close with the Court of Appeal's judgement in March 2018, after four and a half years and at least 12 reported decisions. So what will we remember from the litigation?
Read moreOn the first day of Christmas, the High Court gave to me…a privilege in E-N-RC
With Advent upon us, and Christmas on the horizon, RPC takes a musical look back at the most important English judgments of 2018. Liability for all failures of rhythm and rhyme is hereby excluded.
Read moreTerraLex guide to tracing assets around the world 2018
We are delighted to present the TerraLex 2018 Guide to Tracing Assets Around the World.
Read moreLetter of contract versus business common sense – latest from Court of Appeal
In the latest of a long line of higher court authorities debating the boundaries between black letter and more purposive approaches to contractual construction, the Court of Appeal has taken another step away from the high-water marks of the business common sense approach to contractual meaning.
Read moreFive ways the civil courts are fighting back against cybercrime
Service by text and data room, worldwide freezing orders against persons unknown, self-identification orders and hearings on paper and in private are ways the court is dealing with cyber-crime. Here are five ways that the courts are addressing the imbalance that exists between victims and criminals who seek to hide behind a veil of anonymity in this digital age.
Read moreReflections on the UK Bribery Act seven years on
Following the appearance of RPC's Sam Tate at the annual IBA conference earlier this month, where he joined a panel of experts discussing Corruption and Corrupt Contracts, here are our reflections on how the Bribery Act has changed the landscape of bribery offences and corporate criminal liability, first published by the IBA earlier this year and now updated.
Read moreOil or nothing: Court of Appeal considers damages in continuing misrepresentation claim
The Court of Appeal recently held that a director who had made continuing fraudulent misrepresentations was liable for damages calculated at the point of sale and not at the point of entering into the contract. This judgment is a reminder that, in the right case, deceit may be used to pierce the corporate veil. It also highlights the considerations when assessing damages regarding continuing representations, particularly when there is time between the representation being made and the performance of the contract.
Read moreForce Majeure – specificity is vital – Seadrill v Tullow
Force majeure clauses in contracts must be clear on the events that can excuse a party from fulfilling its obligations. Inability to perform under the contract must be wholly caused by that event. So said the High Court in the case of Seadrill Ghana Operations Ltd v Tullow Ghana Ltd.
Read moreHigh Court warns directors to get match fit for new reporting regulations
It is understandable that directors might be reluctant to seek legal advice – be it due to concern about time or cost or a potential conflict of interest if seeking advice internally. However, as a recent case demonstrates, this is a small price to pay to avoid the time and financial cost of a claim, especially when a company's subsequent precarious financial position shines a light on an officer's behaviour and competence.
Read moreSection 1782 order allowed
The Commercial Court recently discharged an injunction restraining the enforcement of a US court order made under Section 1782 of Title 28 of the US Code (Assistance to foreign and international tribunals and to litigants before such tribunals). Section 1782 applications can be a useful weapon in an English litigator's armoury as a means of obtaining evidence under the control of a US-based entity through US-style discovery, including by the use of depositions and documentary evidence.
Read moreNegligent misstatement and undisclosed principals – a gamble not worth taking
The Supreme Court recently ruled that a bank providing a reference relating to its customer owed a tortious duty of care only to the addressee. The decision reflects the wider judicial trend of restricting the circumstances in which duties of care for negligent misstatement are found to exist on the basis of an assumption of responsibility by the party making the statement.
Read moreBreaking news – a victory for privilege
Today the Court of Appeal handed down its eagerly anticipated judgment in the appeal of Andrews J's controversial High Court decision in Serious Fraud Office v Eurasian Natural Resources Corporation.
Read moreISDA agreement wins jurisdiction clause battle in Court of Appeal
The Court of Appeal recently confirmed that an English jurisdiction clause in the underlying International Swaps and Derivatives Association Master Agreement under which certain swaps were made should be applied to disputes relating to the swap transactions, rather than an Italian jurisdiction clause in a competitor agreement governing the parties' generic relationship
Read moreFootball club's entire agreement clause performs impressive save against negligent misrepresentation claim
A recent case(1) serves as a lesson that context is key to a watertight entire agreement clause.
Read moreNon-party access to documents on court file: normal service resumes
A master's decision to allow a non-party to proceedings to access a wide range of documents in the proceedings was reviewed by the Court of Appeal in Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group).(1) In its judgment, the court provided helpful guidance on the principles that should be applied when deciding whether to allow such an application.
Read moreA variation on a theme of settlement
In this unusual case, the Court was asked to determine a dispute regarding the settlement of a debt alleged to be owed to the Claimant following a sale at Sotheby's of various Persian antiquities. The case will be of interest to practitioners in its examination of the circumstances in which a party is able to discharge its liability under a settlement agreement through the payment of a lesser sum than that originally agreed. The judgment also provides a valuable insight into the antiquities world, and its comments on the close community in which the parties operated are particularly pertinent for those in the art arena who are considering embarking upon litigation.
Read moreImportant issues relating to effect and interpretation of non-assignment clauses
Service by text and data room, worldwide freezing orders against persons unknown, self-identification orders and hearings on paper and in private are ways the court is dealing with cyber-crime. Here are five ways that the courts are addressing the imbalance that exists between victims and criminals who seek to hide behind a veil of anonymity in this digital age.
Read moreSignificant increases to District Court's monetary jurisdiction
Significant increases to the jurisdictional limits for civil claims in the District Court have been proposed.
Read moreFinancial litigation roundup - Summer 2018 edition
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 Hong Kong, as well as legal developments across those jurisdictions.
Read moreCourt of Appeal upholds wide exclusion clause
In its recent decision in Goodlife Foods Limited v Hall Fire Protection Limited ([2018] EWCA Civ 1371) the Court of Appeal held that a particularly broad exclusion clause in a contract relating to a fire suppression system was reasonable within the framework of the Unfair Contract Terms Act 1977.
Read moreMore dismissal of 'dormant' claims
Defendants should welcome the recent judgment in Fiscalink International Ltd v Yiu Yu Sum Alex,(1) in which the court struck out the plaintiffs' claims against a majority of the defendants on the basis that the lack of progress over many years was an abuse of process such that the entire action against those defendants should be dismissed.
Read moreFirst Tower Trustees: contractual fiction clauses, unfair contract terms, parliamentary sovereignty and the limits of party autonomy
In its recent judgment in First Tower Trustees Ltd and Intertrust Trustees Ltd -v- CDS (Superstores International) Ltd, the Court of Appeal has set down a significant marker that so-called contractual estoppel does not have any special status and is to be treated as just another form of exclusion of liability.
Read moreCourt of Appeal clarifies meaning of 'knowledge' for purposes of Limitation Act
In Su v Clarksons Platou Futures Ltd ([2018] EWCA Civ 1115) the Court of Appeal upheld a decision granting summary judgment against a claimant on the basis that his claim in negligence was time barred.
Read moreGuarding professional secrets: A guide to English legal privilege for international lawyers
Most jurisdictions have some form of protection for preserving the confidentiality of communications involving lawyers, whether known as (legal professional) privilege, professional secrecy or something else. How far that protection extends, and how easily it may be broken, varies enormously. In England, the protection, once gained, remains strong, but recent cases have tended to restrict the extent of it, particularly by comparison to other common law jurisdictions (privilege/professional secrecy rules in civil law jurisdictions tend to be narrower than common law jurisdictions in any event). The issue becomes most acute in a pre-litigation (or investigative) phase.
Read moreSupreme Court curtails negotiating damages
The Supreme Court decision in Morris-Garner v One Step Support Ltd(1) is now the leading case on Wrotham Park(2) or – as the court preferred to call them – negotiating damages.
Read moreUnlawful distribution of shareholding: application of Limitation Act clarified
In Burden Holdings UK Limited v Fielding the Supreme Court considered the application of Section 21(1)(b) of the Limitation Act 1980 with respect to claims against the directors of a company for an unlawful distribution of the shareholding.
Read moreRegulation of cryptocurrency pre-ICO funding under English Law
Launching a cryptocurrency typically involves an initial fundraising process followed by a public sale process, by way of initial coin offering or token sale ("ICO").
Read moreThat's not fair (market value)
Court of Appeal rules on application of GMRA close-out provisions in a distressed market. Icelandic bank LBI ehf (LBI) appealed against the High Court decision in its case against Raiffeisen Bank International AG (RZB) regarding the interpretation of the term "fair market value" in the close-out provisions of a repo agreement. The Court of Appeal rejected LBI's arguments that "fair market value" should preclude the use of prices, quotations and other pricing evidence obtained in a distressed or illiquid market and dismissed the appeal.
Read moreGame theory and the art of litigation settlement (Part 3)
This article is the third in a series targeted at litigators that consider the issue of settlement in litigation through a game theoretical lens.
Read moreGame theory and the art of litigation settlement (Part 2)
This article is the second in a series targeted at litigators that consider the issue of settlement in litigation through a game theoretical lens.
Read moreGame theory and the art of litigation settlement
This article is the first in a series targeted at litigators that consider the issue of settlement in litigation through a mathematical lens.
Read moreProperty Alliance Group Limited v The Royal Bank of Scotland plc – a pyrrhic victory?
The Court of Appeal handed down its much anticipated judgment on the misselling and LIBOR manipulation test case in March. Whilst the appeal was dismissed in full, the Court of Appeal's decision clarified a number of aspects of the law in this area and, in particular, the circumstances in which an implied representation in respect of LIBOR would arise.
Read moreSFC requires ICO to be withdrawn from Hong Kong public
On 19 March 2018 the Securities and Futures Commission (SFC) announced that it had halted an initial coin offering (ICO) to the Hong Kong public by Black Cell Technology Limited (Black Cell).
Read moreThe High Court confirms the availability of Bankers Trust orders to trustee Claimants seeking to recover misappropriated assets
The decision of the High Court in Miles Smith Broking Limited –v– Barclays Bank PLC has confirmed for the first time the availability of the commonly encountered Bankers Trust order to trustee Claimants of stolen/misappropriated property, highlighting the flexibility of the Court's equitable jurisdiction when presented with new situations. The decision also serves as a neat illustration of the Court's willingness to grant Norwich Pharmacal relief to facilitate the recovery of unlawfully dissipated assets and the types of complimentary interim remedies available to Claimants for that purpose.
Read moreLitigation privilege: whose privilege?
The claimants, companies in the corporate group of the mining company MMG, applied to inspect certain documents created in foreign proceedings over which the defendants, companies belonging to the mining company Glencore, asserted litigation privilege.
Read moreSharp v Blank and others [2017] EWHC 3390 (Ch)
The Court considered the Defendants' application for approval of their revised cost budget on the basis that there had been significant developments in the litigation.
Read moreThe perils of using disclosed documents for a collateral purpose
In Grosvenor Chemicals Ltd v UPL Europe Ltd disclosed documents were used by the UPL for a collateral purpose in breach of the Civil Procedure Rules.
Read moreBank liable for breach of Quincecare duty
The Court of Appeal has upheld a decision that the appellant bank breached the Quincecare duty of care which it owed to its corporate customer by making payments without proper enquiry, in circumstances in which a reasonable banker would have been on notice that the customer's director was perpetrating a fraud.
Read moreEnforcement Reporter - SFC sets out its enforcement priorities for 2018
On 26 February 2018 the SFC released the third edition of its new series of the Enforcement Reporter. The communication outlines the SFC's key enforcement priorities for the coming year and highlights significant recent enforcement actions. The Enforcement Reporter follows the general themes of previous editions and is a useful indication to the market of the SFC's key concerns. In particular, tackling corporate fraud remains top of the agenda, with insider dealing, misconduct by intermediaries and sponsors, and money laundering on the SFC's radar.
Read moreIn the Matter of Agrokor DD: Model Laws and PIK toggle loans
A recent application made by insolvency practitioner of Agrokor, a major Croatian conglomerate, resulted in recognition in England of a stay of civil proceedings against the group. The purpose of the application was to halt any proceedings in relation to Agrokor's securities and debt obligations containing English law and jurisdiction provisions, pending the restructuring in the Croatian insolvency proceedings of the affairs of the group.
Read moreWhen will pleading "special circumstances" permit collateral use?
Having taken a strict approach when considering what constituted "collateral use" in Tchenguiz v Grant Thornton UK LLP, the Commercial Court has moved quickly to clarify the test for "special circumstances" in applications for permission to use previously disclosed documents in The Libyan Investment Authority v Société Générale SA and others.
Read moreCourt of Appeal holds that a facility agreement based on the LMA model form does not constitute lenders' standard terms for UCTA: But never say never…
The Court of Appeal has upheld a decision that a facility agreement based on the LMA model form did not constitute the lenders' standard terms for the purposes of UCTA. Had UCTA applied, the terms of the facility agreement would have been subject to a reasonableness test.
Read moreBeware of the risks when notifying warranty claims
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.
Read moreDocuments from which legal advice can be inferred – are they privileged?
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.
Read moreService by Email – Lessons from Glencore Agriculture B.V. v Conqueror Holdings Limited [2017] EWHC 2893
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.
Read moreGhosh test overturned: dishonesty according to the standards of ordinary, reasonable and honest people
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.
Read moreFinancial litigation roundup winter 2017
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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