Latest by Davina Given

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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

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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, Senior 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, Associate

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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, Senior 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 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, Partner 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 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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Agreement to submit to a foreign jurisdiction: Can it be implied or inferred?

Published on 14 March 2016. By Alexis Armitage, Associate and Davina Given, Partner

In Vizcaya Partners Ltd v Picard and another, the Privy Council recently held that an agreement to submit to the jurisdiction of a foreign court can arise through an implied term but there must be actual agreement (or consent).

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One man's loss is another man's gain: choice of law rules for unjust enrichment claims

Published on 19 February 2016. By Davina Given, Partner

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In a recent case,[1] the English Commercial Court has determined that a claim in restitution based on unjust enrichment was governed by English law pursuant to EU Regulation 864/2007 (Rome II) and not the law of Geneva.

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High Court holds deception undermines "dominant purpose" for claim to litigation privilege

Published on 12 January 2016. By Davina Given, Partner

In Property Alliance Group Ltd v Royal Bank of Scotland Plc the Court held that where a claimant had met the defendant's former employees to seek evidence for the claim, but had misled them as to the purpose of the meetings, the dominant purpose of those meetings could not be said to be the litigation.

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Litigation privilege: A tangled web unwoven

Published on 15 December 2015. By Davina Given, Partner

Deception undermines the "dominant purpose" necessary for a claim to litigation privilege in the most recent instalment in the ongoing saga of Property Alliance Group Ltd v Royal Bank of Scotland Plc.

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Privileged Information

Published on 12 November 2015. By Davina Given, Partner

As every lawyer knows, legal professional privilege is a tricky area and can be hotly contested.

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Exclusive (jurisdiction), read all about it!

Published on 05 November 2015. By Davina Given, Partner

In Global Maritime Investments Cyprus Limited v OW Supply & Trading A/S (under konkurs),[1] a jurisdiction clause prevented the defendant from pursuing issues in the Danish courts, even though jurisdiction was not stated to be "exclusive".

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The better part of discretion is – an implied term?

Published on 07 August 2015. By Christopher Whitehouse, Senior Associate and Davina Given, Partner

In Portsmouth City Council v Ensign Highways Ltd [2015] EWHC 1969 (TCC), the High Court implied a term imposing limits on a party's contractual discretion, ...

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Limiting liability in standard terms: cause for concern?

Published on 03 August 2015. By 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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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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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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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 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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RPC responds to PRA's consultation paper concerning powers over auditors and actuaries

Published on 29 May 2015. By Davina Given, Partner

In a recent blog we noted that the PRA had outlined in a consultation paper its plans to introduce two significant changes for auditors and actuaries.

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Bringing EU regulation home – a sign of things to come?

Published on 28 April 2015. By Davina Given, Partner

A short recent judgment is a reminder of the need for financial institutions to keep an eye not only on what their home regulator is doing, but also European regulators.

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Extending the PRA's powers over auditors and actuaries

Published on 27 March 2015. By Davina Given, Partner

Auditors and actuaries are used to being overseen by the Financial Reporting Council (FRC).

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Registering the effects of the MLRs

Published on 26 March 2015. By Davina Given, Partner

A recent case is a stark reminder of the wide-reaching impacts of the Money Laundering Regulations 2007.

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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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Chickens coming home to roost: SFO's first conviction of a company for bribery after contested trial

Published on 07 January 2015. By Davina Given, Partner

Hot on the heels of the SFO's first conviction under the Bribery Act 2010, discussed in George's post, and just as some of us were disappearing for a Christmas break...

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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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Crime and privilege

Published on 23 September 2014. By Davina Given, Partner

Under English law, legal professional privilege permits a civil litigant or a defendant in criminal proceedings to withhold from the other side documents subject to the privilege.

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Is an Old Master the same as office chair? The devil's in the detail

Published on 07 April 2014. By Davina Given, Partner

In March 2014, the English Court of Appeal determined that Omai, an 18th century masterpiece by Sir Joshua Reynolds, was an item of "plant or machinery" and a "wasting asset", no different from other trade equipment such as tables, chairs and cars.

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