Commercial disputes
High Court sheds light on compulsory jurisdiction of Financial Ombudsman Service
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.
Read moreDon't be scared – it's just an exemption clause
The Court of Appeal holds that an exemption clause is wide enough to exclude liability for negligence for a failure to identify asbestos.
Read moreDefective service and culpable delay: a warning to claimants
Commercial Court refuses application for alternative service and strikes out claim forms after claimant's delay in pursuing claim.
Read moreAnother bad bargain upheld: Wood v Sureterm Direct Ltd [2017] UKSC 24
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.
Read moreResponsibility of a parent company for the acts of its subsidiary
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.
Read moreBack to first principles: contractual intention
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.
Read moreLessons learned from Property Alliance Group v RBS
This article assesses the key aspects of the High Court's judgment and considers their implications for similar claims.
Read moreGuidance on the "cardinal rule" for implying terms
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.
Read moreCultural Property (Armed Conflicts) Act 2017: what do collectors and dealers need to know?
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?
Read moreThe law of unintended consequences
Why professional indemnity insurers should closely examine losses in professional negligence claims
Read moreCourt of Appeal provides a timely reminder of the principles relating to clear and unambiguous contractual negotiations
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.
Read moreFund management litigation
Recourse for LP investors when an investment goes wrong
Read morePrior arbitral award – abuse of process?
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.
Read moreLetters of Credit: Fraud conquers all – if it is fraud
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.
Read moreFinancial litigation roundup
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.
Read moreDemand guarantees not subject to doctrine of strict compliance
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.
Read moreLead market regulator's lawsuit includes professional advisers
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)
Read moreCourt of Appeal upholds Financial List decision on application of Rome Convention to derivative instruments
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.
Read moreAnother meander through Three Rivers (No 5): the scope of legal advice privilege
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.
Read moreFilling gaps: Implied terms in contracts
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.
Read moreFootball agent scores a victory in loss of a chance case
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.
Read more"It's privileged" – is not enough! High Court orders a full list of each document over which a claim to privilege is asserted
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.
Read moreHigh Court dismisses Libyan Investment Authority's claim against Goldman Sachs
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.
Read moreHigh Court considers validity and timing of contractual notices in close-out procedures
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).
Read moreWealth and Trusts quarterly digest
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.
Read moreAcceptance or a counter-offer - what relevance are communications after the fact?
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.
Read moreEssar v Norscot: the landmark decision third party funding has been waiting for?
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.
Read moreIntention to be bound: High Court construes commitment letter against equity participant
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.
Read moreCourt of Appeal sheds light on innocent party's right to affirm frustrated contract
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.
Read moreSidestepping Limitation: A Cautionary Tale
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.
Read moreClaimant investors establish advisory duty against bank
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.
Read morePragmatism in the High Court: Correcting errors in arbitration
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.
Read moreHigh Court dismisses claimants' application for an independent re-review of defendants' disclosure
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.
Read moreTechnology assisted review in English civil proceedings: the exception or the norm?
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.
Read moreCourt of Appeal considers effectiveness of "in writing" variation clause
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.
Read moreCollective redress and class actions regimes – from the US to Asia
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.
Read moreThe "purpose" means the "dominant purpose"
The Court of Appeal has recently dismissed an appeal in relation to the interpretation of a clause referring to "the purpose" of a transaction.
Read moreFollow the money
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.
Read moreHigh Court allows claim against foreign subsidiary and English parent company to be heard in the UK
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.
Read more"Mis-selling" claim fails on appeal in Hong Kong
Hong Kong Court of Appeal confirms challenges in bringing mis-selling claims against banks and financial intermediaries.
Read morePre-judgment interest rate – prime plus 1%
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.
Read morePension Deed rectified by Summary Judgment without a hearing
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.
Read moreHong Kong - China's window of the business world
David Smyth - Senior Partner, Asia - considers Hong Kong's role in a global market.
Read moreCaveat Emptor: Buyer's inadequate notice precludes £3.5m warranty claim
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).
Read moreThe new 'notification injunction'
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.
Read moreAnti-suit injunctions
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
Read moreSurge in wire transfer fraud leaves victims looking to banks for redress
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Financial List signposts tough road for contractual construction
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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