Latest by Davina Given

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Disclosure Pilot Scheme: Cooperation and culture

Published on 07 May 2019. By Davina Given, Partner and Parham Kouchikali, Partner

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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.

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The High Court removes its cap for litigation funders

Published on 03 May 2019. By Davina Given, Partner and Chris Ross, Partner and Lambros Kilaniotis, Partner

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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)).

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What if third parties helped to hide the golden egg?

Published on 25 April 2019. By Davina Given, Partner and Emma West, Associate

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What if third parties helped to hide the golden egg?

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The fraudster is insolvent – can you add more eggs to the basket?

Published on 24 April 2019. By Davina Given, Partner and Emma West, Associate

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The fraudster is insolvent – can you add more eggs to the basket?

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What to do if the golden egg hatches (or you need to trace into the fraudster's other assets)

Published on 24 April 2019. By Davina Given, Partner and Emma West, Associate

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What to do if the golden egg hatches (or you need to trace into the fraudster's other assets)

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How can I find the golden egg? Part 2: ask the Easter bunny (or third parties)

Published on 23 April 2019. By Davina Given, Partner and Emma West, Associate

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How can I find the golden egg? Part 2: ask the Easter bunny (or third parties)

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Egg supplier ends up with egg on its face

Published on 18 April 2019. By Davina Given, Partner

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Egg supplier ends up with egg on its face

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How can I find the golden egg? Part 1: ask the fraudster and accept no eggs-cuses

Published on 17 April 2019. By Davina Given, Partner and Emma West, Associate

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How do I find the golden egg? Part 1: ask the fraudster and accept no eggs-cuses

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How do you stop the treasure map leading to the golden egg being destroyed?

Published on 17 April 2019. By Davina Given, Partner and Emma West, Associate

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How do you stop the treasure map leading to the golden egg being destroyed?

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How do you stop the golden egg rolling away?

Published on 15 April 2019. By Davina Given, Partner and Emma West, Associate

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How do you stop the golden egg rolling away?

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The greatest Easter egg hunt: asset recovery in the English courts

Published on 15 April 2019. By Davina Given, Partner and Emma West, Associate

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The greatest Easter egg hunt: asset recovery in the English courts

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English Court trumps the FBI

Published on 05 April 2019. By Davina Given, Partner and Joe Cresswell, Associate

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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.

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Time waits for know-ledge: but what does that mean for limitation?

Published on 12 February 2019. By Davina Given, Partner and Laura Evans, Associate

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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.

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Watch out! Internal settlement negotiations may not always remain "internal"

Published on 19 December 2018. By Davina Given, Partner and Suzan Kurdi, Senior Associate

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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.

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On the twelfth day of Christmas, the High Court gave to me…twelve judges judging

Published on 18 December 2018. By Davina Given, Partner

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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.

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On the eleventh day of Christmas, the High Court gave to me…eleven groups a-growing

Published on 17 December 2018. By Davina Given, Partner and Chris Ross, Partner and Lambros Kilaniotis, Partner

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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.

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On the tenth day of Christmas, the High Court gave to me…ten claims a-noticed

Published on 14 December 2018. By Davina Given, Partner

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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.

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On the ninth day of Christmas, the High Court gave to me…nine losses mounting

Published on 13 December 2018. By Davina Given, Partner

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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).

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On the eighth day of Christmas, the High Court gave to me…eight duties owing

Published on 12 December 2018. By Davina Given, Partner

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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.

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On the seventh day of Christmas, the High Court gave to me…seven fraudsters fleeing

Published on 11 December 2018. By Davina Given, Partner and Jonathan Cary, Partner

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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.

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On the sixth day of Christmas, the High Court gave to me…six exclusion clauses

Published on 10 December 2018. By Davina Given, Partner

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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.

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On the fifth day of Christmas, the High Court gave to me…five time bars!

Published on 07 December 2018. By Davina Given, Partner

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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.

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On the fourth day of Christmas, the High Court gave to me…four contracts

Published on 06 December 2018. By Davina Given, Partner

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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.

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On the third day of Christmas, the High Court gave to me…three corporate crimes

Published on 05 December 2018. By Davina Given, Partner and Sam Tate, Partner

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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.

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On the second day of Christmas, the High Court gave to me…two LIBOR reps

Published on 04 December 2018. By Davina Given, Partner

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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?

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On the first day of Christmas, the High Court gave to me…a privilege in E-N-RC

Published on 03 December 2018. By Davina Given, Partner

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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.

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Anti-money laundering legislation meets the art market

Published on 19 November 2018. By Davina Given, Partner

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.

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Reflections on the UK Bribery Act seven years on

Published on 23 October 2018. By Davina Given, Partner and Lucy Kerr, Senior Associate

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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.

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Oil or nothing: Court of Appeal considers damages in continuing misrepresentation claim

Published on 16 October 2018. By Harriet Evans, Associate and Davina Given, Partner

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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.

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Relief for Skilled Persons as the Court of Appeal rules they are not amenable to judicial review

Published on 04 October 2018. By Davina Given, Partner and Lucy Kerr, Senior Associate

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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.

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Breaking news – a victory for privilege

Published on 05 September 2018. By Davina Given, Partner and Jonathan Cary, Partner and Alan Williams, Partner and Lucy Kerr, Senior Associate

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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.

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Non-party access to documents on court file: normal service resumes

Published on 22 August 2018. By Davina Given, Partner and Laura Evans, Associate

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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.

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A variation on a theme of settlement

Published on 14 August 2018. By Davina Given, Partner and Parham Kouchikali, Partner

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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.

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Litigation privilege: whose privilege?

Published on 15 March 2018. By Davina Given, Partner and Christopher Whitehouse, Associate

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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.

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Privilege: A welcome respite from ENRC?

Published on 05 February 2018. By Davina Given, Partner and Mafruhdha Miah, Trainee Solicitor

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Are interviews held with employees to prepare a report intended to deter a governmental authority from taking legal action privileged?

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Documents from which legal advice can be inferred – are they privileged?

Published on 28 December 2017. By Christopher Whitehouse, Associate and Davina Given, Partner

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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.

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Ghosh test overturned: dishonesty according to the standards of ordinary, reasonable and honest people

Published on 14 December 2017. By Sarah Shaul, Associate and Davina Given, Partner

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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.

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The Proceeds of Crime Act 2002: harsh but fair?

Published on 05 May 2017. By Davina Given, Partner

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A recent case highlights the dilemma of businesses whose assets are frozen as suspected proceeds of crime.

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Lessons learned from Property Alliance Group v RBS

Published on 25 April 2017. By Daniel Hemming, Senior Associate and Davina Given, Partner

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This article assesses the key aspects of the High Court's judgment and considers their implications for similar claims.

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Guidance on the "cardinal rule" for implying terms

Published on 21 April 2017. By Davina Given, Partner

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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.

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Cultural Property (Armed Conflicts) Act 2017: what do collectors and dealers need to know?

Published on 19 April 2017. By Davina Given, Partner

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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?

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The law of unintended consequences

Published on 12 April 2017. By Victoria Sugden, Senior Associate and Davina Given, Partner

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Why professional indemnity insurers should closely examine losses in professional negligence claims

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Prior arbitral award – abuse of process?

Published on 30 March 2017. By Davina Given, Partner

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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.

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The long arm of the law: chasing the proceeds of (alleged) crime

Published on 13 February 2017. By Davina Given, Partner

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The English Court has recently upheld a freezing order over the sale proceeds from shares alleged to be a Canadian company's bribes to a Chadian diplomat's wife in the US.

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"It's privileged" – is not enough! High Court orders a full list of each document over which a claim to privilege is asserted

Published on 20 December 2016. By Alexis Armitage, Associate and Davina Given, Partner

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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.

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Sidestepping Limitation: A Cautionary Tale

Published on 03 October 2016. By Charlotte Henschen (née Ducker), Senior Associate and Davina Given, Partner

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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.

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High Court dismisses claimants' application for an independent re-review of defendants' disclosure

Published on 16 August 2016. By Alexis Armitage, Associate and Davina Given, Partner

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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.

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Sanctions: brainteasers with serious consequences

Published on 02 August 2016. By Davina Given, Partner

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Failure to comply with financial sanctions carries serious penalties, most notably in the US, where banks have collectively paid billions of dollars in fines.

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Retainers and assumed responsibility for third parties – draw your parameters at the outset

Published on 31 March 2016. By Davina Given, Partner

In Caliendo v Mishcon de Reya the High Court recently found that there was no implied retainer between Mishcon de Reya (Mishcon) and the Claimant shareholders of a company for which Mishcon was acting in relation to a sale of shares.

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High Court holds tortious claim unsustainable in respect of interest rate hedging product redress scheme

Published on 23 March 2016. By Davina Given, Partner

In the recent case of CGL Group Ltd v (1) Royal Bank of Scotland plc (2) National Westminster Bank plc, the High Court was satisfied that a bank did not owe its customer a tortious duty of care in operating a redress scheme for alleged mis-selling of interest rate hedging products (IRHPs).

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