Latest by Davina Given
Spotlight on private wealth - September 2020
Our quarterly update is designed to keep you up to speed with developments in the private wealth world.
Read moreReform of audit industry: it's time to split
Audit has been the subject of intense scrutiny over the past few years in the wake of a series of high-profile business collapses such as Carillion, Patisserie Valerie and Thomas Cook in the UK and, more recently, Wirecard in Germany, and there is no shortage of calls for reform of the audit industry.
Read moreOrders for pre-action disclosure – exceptional in a commercial context?
Although parties are expected to exchange key documents before starting proceedings in the English court, a recent decision in the Commercial Court highlights the limited nature of those obligations, particularly in a commercial context.
Read moreAudit market: From recommendations to reforms
The Brydon Report on audit quality and effectiveness was released on 18 December 2019. The Report sets out recommendations for “urgent reform” in order to increase public confidence and seek to prevent unnecessary corporate failures.
Read moreWhen will reference to a document in a witness statement waive privilege in that document
Tread carefully when considering whether and how to reference privileged documents; "deployment" of a document may draw back the cloak of privilege but a "mere reference" may not. Context will be key.
Read moreSpotlight on private wealth - April 2020
Our quarterly update is designed to keep you up to speed with developments in the private wealth world. In this edition we explore sham trusts, heritage property and removing trustees. We also keep pace with the latest developments in the art sector. If you have any feedback on this update or would like to know more about the issues covered, or anything else, get in touch.
Read moreEquitable compensation for breach of fiduciary duty: a question of loss?
A director who extracted money from a company by way of sham invoices may have a defence to an equitable compensation claim for misappropriation of the company's funds, if the director could have lawfully transferred the funds to the same recipients for no value. The Court of Appeal explored this possibility in Auden McKenzie (Pharma Division) Ltd v Patel
Read moreBreaking news - dominant purpose test extends to legal advice privilege
The Court of Appeal has held that legal advice privilege will apply to communications only if seeking or giving legal advice is their dominant purpose.
Read moreThe art of regulation: anti-money laundering compliance hits the art market
From today, art businesses will be subject to regulation aimed at cleaning up money laundering in the art world.
Read moreA litigator's quiz: Fourth candle of Advent
The UK Supreme Court, and Lady Hale's brooch, hit the headlines this year with a landmark constitutional decision on the prorogation of Parliament. Outside that context, however, the Supreme Court has been busy. In this fourth and final part of our Advent quiz, test your knowledge of the key commercial decisions of 2019 and the decisions to look out for in 2020.
Read moreRisky business: the perils of taking over someone else's contract
The High Court has held that the tort of inducing breach of contract requires more than merely "facilitating" a breach. Flexidig Ltd v A Coupland (Surfacing) Ltd(1) also reminds third parties of the perils of becoming embroiled in others' disputes.
Read moreHigh Court waits for no lawyer
An appeal was recently lost after an application for an oral hearing was made just two days late. Evans v Pinsent Mason LLP [2019] EWHC 2150 (QB) This decision is a timely reminder of the strictness of court deadlines and of the importance of being upfront with the court (and your opponent) which, on this occasion, was unwilling to forgive ambiguity as to whether the deadline had been met.
Read moreClarity, clarity, clarity; more contract drafting lessons from the court
Keep under review options for terminating contracts which are no longer needed or pay the price. We discuss an interesting approach from the High Court to the well-known principles of contractual interpretation in Macquarie Capital v Nordsee. [2019] EWHC 1655 (Comm)
Read moreThe Art of the (Settlement) Deal
According to the English Court of Appeal, giving up a right which the debtor does not even know he has is sufficient consideration for settling a debt. But the vexed question of what amounts to "good" consideration remains uncertain enough for those entering into a contract always to consider whether good consideration has been given. If in doubt, pay a nominal amount.[1]
Read moreServing up the truth, the whole truth and nothing but the truth?
The Court has reminded us that the duty of full and frank disclosure applies to any application made without notice to the other party. Although this is most typically an issue in applications for injunctions, permission to serve a claim out of the jurisdiction was recently set aside on the grounds of the claimant's failure to disclose to the Court a potential limitation defence to the claim.(1)
Read moreDisclosure Pilot Scheme: Cooperation and culture
Partners Parham Kouchikali and Davina Given discuss the Disclosure Pilot Scheme and the change in cooperation and culture needed for the pilot to be successful for all parties involved.
Read moreThe High Court removes its cap for litigation funders
The High Court has declined to cap a litigation funder's liability for adverse costs at the amount of funding provided. It confirmed that the so-called Arkin cap is an approach to be considered, not a rule to be followed (Davey v Money [2019] EWHC 997 (Ch)).
Read moreWhat if third parties helped to hide the golden egg?
What if third parties helped to hide the golden egg?
Read moreThe fraudster is insolvent – can you add more eggs to the basket?
The fraudster is insolvent – can you add more eggs to the basket?
Read moreWhat to do if the golden egg hatches (or you need to trace into the fraudster's other assets)
What to do if the golden egg hatches (or you need to trace into the fraudster's other assets)
Read moreHow can I find the golden egg? Part 2: ask the Easter bunny (or third parties)
How can I find the golden egg? Part 2: ask the Easter bunny (or third parties)
Read moreHow can I find the golden egg? Part 1: ask the fraudster and accept no eggs-cuses
How do I find the golden egg? Part 1: ask the fraudster and accept no eggs-cuses
Read moreHow do you stop the treasure map leading to the golden egg being destroyed?
How do you stop the treasure map leading to the golden egg being destroyed?
Read moreHow do you stop the golden egg rolling away?
How do you stop the golden egg rolling away?
Read moreThe greatest Easter egg hunt: asset recovery in the English courts
The greatest Easter egg hunt: asset recovery in the English courts
Read moreEnglish Court trumps the FBI
In HP's high profile claim against Mike Lynch in relation to its acquisition of Autonomy, the English High Court has held that the implied undertaking against collateral use of documents received in the course of litigation prevented disclosure of those documents to the FBI.
Read moreTime waits for know-ledge: but what does that mean for limitation?
Keep limitation under review, Section 14A does not extend the limitation period until each and every breach is identified and a claimant cannot postpone the date of 'knowledge' under Section 14A of the Limitation Act by choosing which breach of duty it relies on.
Read moreWatch out! Internal settlement negotiations may not always remain "internal"
WH Holding Limited (1) West Ham United Football Club Limited (2) v E20 Stadium LLP [2018] EWCA Civ 2652 finds that internal settlement negotiations are not protected by litigation privilege.
Read moreOn the twelfth day of Christmas, the High Court gave to me…twelve judges judging
It attracted nothing like the controversy of the US Senate's confirmation of US Supreme Court Justice Kavanaugh. However, the decision of the two selection commissions to recommend, and of the Lord Chancellor to recommend to the Prime Minister, the appointment of Lady Hale to the Presidency of the UK Supreme Court and of Ladies Black and Arden to the Court marked historic firsts in 2018.
Read moreOn the eleventh day of Christmas, the High Court gave to me…eleven groups a-growing
Unlike Scrooge, litigation will not wake transformed on Christmas Day into a gentler, kinder activity. But it is undergoing a slower transformation with the growth of various forms of group litigation in England.
Read moreOn the tenth day of Christmas, the High Court gave to me…ten claims a-noticed
Christmas may come but once a year, but 2018 was book-ended by two cases in the Court of Appeal on claim notices in the context of share sale purchases.
Read moreOn the ninth day of Christmas, the High Court gave to me…nine losses mounting
It's rare for cases on damages to reach the Supreme Court, and there was just one in 2018: Morris-Garner v One Step (Support) Ltd (possibly particularly appropriate for a verse normally taken up with possibly aged leaping lords).
Read moreOn the eighth day of Christmas, the High Court gave to me…eight duties owing
To borrow from a distinctly non-Christmassy text: to owe or not to owe a duty? That is often the difficult question. (It could be worse: o-ho-ho-ho-we, yes, it could.) By way of a round-robin letter on the topic, by and large, 2018 was a good year for.
Read moreOn the seventh day of Christmas, the High Court gave to me…seven fraudsters fleeing
A Home Office report in July 2018 found that in 2015/16 there were 3.6m incidents of fraud with an immediate cost of £3.04bn and 2m incidents of cybercrime with an immediate cost of £526m. It seems improbable that the number or value of those incidents has declined since then, and certainly fraud of all types has had a busy 12 months in the English courts.
Read moreOn the sixth day of Christmas, the High Court gave to me…six exclusion clauses
Geese, which normally feature in this verse, can pack a nasty bite. In a gaggle of cases this year, exclusion clauses bit claimants hard – but in two cases the claimants successfully fought back.
Read moreOn the fifth day of Christmas, the High Court gave to me…five time bars!
A defendant who can rely on a limitation defence strikes gold. However, the extreme impact of a time bar in wiping out a claim, however meritorious, combined with the impenetrability of some parts of the Limitation Act 1980, makes limitation a fertile source of dispute, and so it proved in 2018.
Read moreOn the fourth day of Christmas, the High Court gave to me…four contracts
Questions of contractual interpretation can be hard nuts to crack. We pick out today some nuts that you might find at the bottom of your legal stocking this year.
Read moreOn 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 moreAnti-money laundering legislation meets the art market
The art market is often described as the last unregulated market. Even if that is true, it is set to change in the next couple of years, with the market being brought firmly within the ambit of European Union anti-money laundering legislation.
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 moreRelief for Skilled Persons as the Court of Appeal rules they are not amenable to judicial review
In what circumstances might skilled persons appointed under FSMA be subject to judicial review? The Court of Appeal recently explored the vulnerability of skilled persons to judicial review and dismissed an application for judicial review against KPMG, acting as a skilled person on behalf of Barclays Bank, as it found the framework in which KPMG operated was not sufficient to bring it into the public law arena.
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 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 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 morePrivilege: A welcome respite from ENRC?
Are interviews held with employees to prepare a report intended to deter a governmental authority from taking legal action privileged?
Read more