Latest by Simon Hart
Exceptions to the without prejudice rule – another retrenchment
The Court of Appeal has resisted the temptation to provide clarity on the scope and application of the so-called Muller(1) exception to the without prejudice rule. In Berkeley Square Holdings Limited v Lancer Property Asset Management Limited(2), it indicated that recent first instance decisions had strayed beyond the facts in Muller, a development that might widen the scope of the exception unjustifiably.
Read moreHand in your notice - how to bring a successful warranty claim
Buyers wishing to make a claim under contractual warranty provisions must comply with those provisions to the letter; sufficient and timely information is key. In Arani & Others v Cordic Group(1), the buyer had given inadequate notice of its contractual warranty claim and also could not bring a misrepresentation claim based on the warranties.
Read moreDisputes Yearbook 2021: Financial disputes
As part of the acclaimed Disputes Yearbook, Legal Business interviewed members of our disputes team exploring the litigation landscape and what RPC brings to the table.
Read moreDoes an expert owe a fiduciary duty to its client?
For the first time, the Court of Appeal has considered the duties of an expert concurrently engaged on two potentially conflicting disputes. While this case involved an unusual set of circumstances, it provides an interesting review of the duties owed by expert witnesses to their clients and the Court, and highlights important considerations for those engaging expert witnesses and drafting engagement letters Secretariat Consulting Pte Ltd, Secretariat International UK Ltd, Secretariat Advisors LLC v A Company.(1)
Read moreLargest 'white elephant' in history of group actions
BHP successfully applies to strike out 200,000 claims as an abuse of process. Had the judge not struck the claims out, he would have stayed proceedings on jurisdictional grounds under Article 34 and the doctrine of forum non conveniens. (1)
Read moreLIBOR: Litigation risks in the endgame?
In 2021 we will bid farewell to LIBOR and welcome in SONIA. The two systems work in different ways, with LIBOR looking forward and SONIA looking back.
Read moreCFH Clearing Limited v Merrill Lynch International [2020] EWCA Civ 1064
The Court of Appeal has held that "Market Practice" is too wide a term to be implied into an ISDA Master Agreement covering currency trading transactions, in dismissing a claim arising from the "de-pegging" of the Swiss Franc from the Euro.
Read moreCourts reach a landing on the test for jurisdiction over co-defendants
The court can only assert jurisdiction over an EU domiciled co-defendant under Article 8(1) of the Recast Brussels Regulation if the claim against the anchor defendant is sustainable.
Read morePrivileged but admissible? When can without prejudice material be pleaded in statements of case?
The High Court considered the scope of the existing exceptions to the Without Prejudice Rule in its recent decision of Berkeley Square Holding & others v Lancer Property Asset Management & others(1). This well-known rule protects communications made in a genuine attempt to settle an existing dispute from later deployment in court. The Court allowed passages from papers prepared for a mediation to be admitted into the proceedings under two exceptions to the Without Prejudice Rule.
Read moreWhat are good grounds for appeal in insolvency applications?
Applying for permission to advance fresh evidence on appeal is a tricky application, which has had varying degrees of success in the courts. Zheng Yougxiong v Gate Ventures Plc(1) is a useful example of the application of the criteria, albeit in the context of insolvency proceedings.
Read moreWitness evidence reform - evolution not revolution?
The Witness Evidence Working Group's recommendations for witness evidence reform focus on the more consistent enforcement of existing rules with some limited new measures.
Read moreOpen justice versus confidentiality - which wins?
Court proceedings can expose the most sensitive details of an individual's personal and financial affairs. However, the principle of open justice requires that the public is given sufficient information about proceedings so that they can understand and scrutinise the decisions courts make.
Read moreWorld freezing orders: recent dissipations and reasonable delays
Delay is not fatal to the continuation of a world freezing order and an applicant need not adduce evidence of recent dissipations (1) PJSC National Bank Trust v Boris Mints [2019] EWHC 2061 (2) Holyoake v Candy [2017] EWCA Civ 92
Read moreWhat expenditure falls within ‘ordinary and proper course of business’ exception in freezing orders?
The cost of pursuing related arbitration proceedings and fighting extradition proceedings could be costs incurred in the ‘ordinary and proper course of business’ according to the Court of Appeal in Koza Ltd v Koza Altin.(1)
Read moreAng(er) over jurisdiction challenge: High Court seeks to clarify whether speculative investment by a private individual is a business or consumer activity
Failed jurisdiction challenge against a private individual making speculative currency transactions on the basis that she could be considered a consumer under the Recast Brussels Regulation (Romana Ang v Reliantco Investments Limited [2019] EWHC 879 (Comm))
Read moreGame theory and the art of litigation strategy - Article 4
Escaping the Hobbesian Trap – the impact of aggression in litigation settlement strategy
Read moreImportant issues relating to effect and interpretation of non-assignment clauses
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.
Read moreThat's not fair (market value)
Court of Appeal rules on application of GMRA close-out provisions in a distressed market. Icelandic bank LBI ehf (LBI) appealed against the High Court decision in its case against Raiffeisen Bank International AG (RZB) regarding the interpretation of the term "fair market value" in the close-out provisions of a repo agreement. The Court of Appeal rejected LBI's arguments that "fair market value" should preclude the use of prices, quotations and other pricing evidence obtained in a distressed or illiquid market and dismissed the appeal.
Read moreGame theory and the art of litigation settlement (Part 3)
This article is the third in a series targeted at litigators that consider the issue of settlement in litigation through a game theoretical lens.
Read moreGame theory and the art of litigation settlement (Part 2)
This article is the second in a series targeted at litigators that consider the issue of settlement in litigation through a game theoretical lens.
Read moreGame theory and the art of litigation settlement
This article is the first in a series targeted at litigators that consider the issue of settlement in litigation through a mathematical lens.
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Court 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 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 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 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 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 moreDon't gamble on a wager
In WW Property Investments v Natwest one of many interest rate swaps claims that have been made since the global financial crisis, the High Court confirmed, in line with previous decisions, that interest rate hedging agreements are not wagers in law where at least one party entered into the contract for a genuine commercial purpose and not to speculate.
Read moreThe Recast Brussels Regulation – considering exclusions
The High Court has recently considered jurisdictional issues relating to a claim concerning the claimants' entitlement to certain shares held by the deceased businessman, Sami Shamoon.
Read moreA (bright) green light for predictive coding in English litigation
A recent interlocutory judgment in Pyrrho Investments Limited & Anr -v- MWB Property Limited & Ors [2016] EWHC 256 (Ch) endorses, for the first time, the use of predictive coding when conducting disclosure in English civil proceedings.
Read more'Disproportionate' disclosure application denied in swaps mis-selling claim
In Claverton Holdings Ltd v Barclays Bank plc, the Commercial Court rejected an application by the claimant for specific disclosure against the defendant bank.
Read moreHigh Court clarifies scope of duties owed by directors to shareholders
The High Court has struck out a number of claims brought by shareholders in what was, in 2008, Lloyds TSB against its directors (Sharp & others v Blank & others).
Read moreThe effectiveness of a US exclusive jurisdiction clause in light of the (Recast) Brussels Regulation
The Court of Appeal ruled that a company which provides benefits to employees of associated group companies may be regarded as an employer if it provides those benefits to reward and encourage the employees for the benefit of their employer and the group as a whole.
Read moreNo way out: a recent Supreme Court decision re-states the principles of contractual interpretation and provides a salutary reminder that the English Courts are wary of re-writing "bad bargains"
The Supreme Court's decision in Arnold v Britton provides a salutary reminder of the reluctance of the English Courts to re-write "bad bargains" even if they have catastrophic unforeseen commercial outcomes for one of the contracting parties.
Read moreOne-stop adjudication – the rational approach to dispute resolution
The Commercial Court has found[1] that an arbitration clause in a consultancy services agreement was superseded by a dispute resolution clause in a later settlement agreement;...
Read moreMarket manipulation: why you should give a Forex
Allegations of manipulation in the Forex market have the potential to give rise to both regulatory fines and legal claims dwarfing those relating to LIBOR –
Read moreWhen should open justice be curtailed? Russian oligarchs learn the answer
It is an important principle of civil justice that proceedings are ordinarily conducted in public in open Court.
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