Latest by Jonathan Cary

Blog

Economic duress: when is a threat not an (illegitimate) threat?

Published on 31 May 2019. By Jonathan Cary, Partner and Suzan Kurdi, Senior Associate

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In what circumstances can a threat not to enter into a contract amount to economic duress? Broadly speaking, when pressure is exerted "in bad faith", according to the Court of Appeal in Times Travel (UK) Limited v Pakistan International Airlines Corporation

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Blog

"Agency" is not always enough to engage the law of bribery and secret commissions

Published on 13 March 2019. By Charlotte Henschen (née Ducker), Senior Associate and Jonathan Cary, Partner

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The Court of Appeal has held that the payment by a seller of a fee to an acquisition agent without the buyer's knowledge does not render the contract for sale void or voidable. The decision turned on whether there was sufficient trust and confidence in the relationship between the buyer and the acquisition agent. Prince Arthur Ikpechukwu Eze v Conway and another [2019] EWCA Civ 88

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Blog

Drafting a contract? Beware the well-intentioned but unenforceable agreement to agree

Published on 05 February 2019. By Jonathan Cary, Partner and Rebecca Birkby, Senior Associate

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"Such period as shall reasonably be agreed between (the parties)" is an agreement to agree and therefore unenforceable according to the Court of Appeal in Philip Morris v Swanton Care & Community Limited.

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Blog

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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Blog

Five ways the civil courts are fighting back against cybercrime

Published on 06 November 2018. By Jonathan Cary, Partner and Eliot Henderson, Associate

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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.

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Blog

Section 1782 order allowed

Published on 18 September 2018. By Jonathan Cary, Partner and Alan Williams, Partner

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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.

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Blog

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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Blog

The High Court confirms the availability of Bankers Trust orders to trustee Claimants seeking to recover misappropriated assets

Published on 16 March 2018. By Jonathan Cary, Partner

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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.

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Blog

Court 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…

Published on 15 February 2018. By Charlotte Henschen (née Ducker), Senior Associate and Jonathan Cary, Partner

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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.

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Blog

Service by Email – Lessons from Glencore Agriculture B.V. v Conqueror Holdings Limited [2017] EWHC 2893

Published on 19 December 2017. By Laura Evans, Associate and Jonathan Cary, Partner

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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.

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Publication

Claimant investors establish advisory duty against bank

Published on 26 September 2016. By Jonathan Cary, Partner

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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.

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Blog

"Mis-selling" claim fails on appeal in Hong Kong

Published on 12 July 2016. By Jonathan Cary, Partner

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Hong Kong Court of Appeal confirms challenges in bringing mis-selling claims against banks and financial intermediaries.

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Blog

Disputes over bank's contractual right to freeze customer's account

Published on 27 April 2016. By Jonathan Cary, Partner

As banks tighten-up their standard terms concerning due diligence on customers and their transactions, it is inevitable that disputes will arise and that some will make their way to court.

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Blog

Privilege - the Hong Kong courts giveth back what the English Courts hath swept away in Three Rivers

Published on 21 September 2015. By Jonathan Cary, Partner

Introducing a healthy dose of common sense, the Hong Kong courts have rejected the English Court of Appeal's restrictive approach to legal advice privilege in Three Rivers (No5) and adopted a broader and more practical "dominant purpose" test.

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Blog

Still no joy for investors' mis-selling claims

Published on 18 May 2015. By Jonathan Cary, Partner

In the latest alleged mis-selling case in Hong Kong, the Court of First Instance maintained a consistent approach with other recent cases, rejecting an investor's claim based on misrepresentation and suggesting that the principle of contractual estoppel is alive and well.(1)

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Blog

Marketing to professional investors – the Court of Final Appeal's verdict

Published on 18 May 2015. By Jonathan Cary, Partner

In Securities and Futures Commission v Pacific Sun Advisors Ltd, the Hong Kong Court of Final Appeal recently ruled that the advertisement of a collective investment scheme intended to be disposed of only to professional investors ...

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Blog

Non-exclusive jurisdiction clauses in cross-border agreements

Published on 25 March 2015. By Jonathan Cary, Partner

Hong Kong courts adopt robust approach to uphold parties' contractual bargain as to their choice of forum

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Blog

SFC provides further guidance on Corporate Professional Investor Regime

Published on 09 February 2015. By Jonathan Cary, Partner

As noted in my blog dated 3 October 2014 concerning the SFC's conclusions on professional investors and client agreements (link), the SFC is looking to enhance the protection afforded to professional investors who are not institutional investors.

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Blog

Defend and submit: Challenging the jurisdiction of the Court

Published on 18 December 2014. By Jonathan Cary, Partner

A defendant who wishes to challenge the civil jurisdiction of a Hong Kong court should not file and serve a defence pending the outcome of the challenge.

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Blog

Market Misconduct Tribunal gives Tiger Asia the "cold shoulder"

Published on 10 October 2014. By Jonathan Cary, Partner

Hong Kong's Market Misconduct Tribunal (the MMT) has banned Tiger Asia Management LLC (a hedge fund based in New York) and one of its principal officers from dealing in Hong Kong securities for four (of a maximum five) years.

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Blog

Leveling the playing field - SFC conclusions on professional investor regime and client agreements

Published on 03 October 2014. By Jonathan Cary, Partner

Despite the ongoing political noise coming out of Hong Kong, commercial life and the operation of the financial markets continue unabated.

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Blog

RMB exchange rate causing distress: Recent depreciation risks significant losses under exotic currency derivatives

Published on 25 March 2014. By Jonathan Cary, Partner

The renminbi (RMB) appreciation over the last several years appears to have halted for now (at least in the short-term), which has taken much of the market by surprise.

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