Commercial disputes

Perspective - Blog

Crypto damages quantification: valuation at the date of breach or date of judgment?

Published on 10 July 2024. By Dan Wyatt, Partner and Christopher Whitehouse, Senior Associate

In Southgate v. Graham [2024] EWHC 1692 (Ch), the High Court addressed an appeal from the County Court concerning inter alia the appropriate date for assessing damages in a cryptocurrency loan dispute. Initially, the County Court determined that the damages should be based on the cryptocurrency's fiat value at the breach date. Due to the volatility of the cryptocurrency, this decision would have resulted in significantly lower fiat damages award than if the valuation were based on a later date. The High Court allowed the valuation date part of the appeal, directing a further hearing to establish the appropriate date.

Read more
Perspective - Blog

New digital markets regime guidance published for consultation

Published on 28 June 2024. By Tom McQuail, Partner and David Cran, Partner, Head of IP & Tech and Melanie Musgrave, Of Counsel and Leonia Chesterfield, Of Counsel and Ben Powell, Associate

The Digital Markets, Competition and Consumers Act 2024 received Royal Assent on 24 May 2024. This article considers who will be impacted by the new digital markets regime, the requirements it will introduce, and how it may be enforced, and summarises the CMA’s new draft guidance under consultation on how it intends to implement the regime in practice.

Read more
Perspective - Blog

The Digital Markets, Competition and Consumers Act – the Competition Perspective

Published on 28 June 2024. By Tom McQuail, Partner and Chris Ross, Partner and Melanie Musgrave, Of Counsel and Leonia Chesterfield, Of Counsel

This article considers the key changes to general competition law under the Digital Markets, Competition and Consumers Act which received Royal Assent on 24 May 2024 and is expected to enter into force in the Autumn.

Read more
Perspective - Blog

Summary judgment against persons unknown – a tale of two crypto judgments

Published on 09 May 2024. By Dan Wyatt, Partner and Christopher Whitehouse, Senior Associate

Two recent crypto judgements in the High Court, Mooij v Persons Unknown (February 2024) and Boonyaem v Persons Unknown (December 2023) reached different conclusions regarding whether a summary judgment could be granted against unidentified (and unidentifiable) fraudsters, with Mooji deciding 'yes' and Boonyaem deciding 'no'.

Read more
Perspective - Blog

Supreme Court confirms no knowing receipt claim where equitable interest is destroyed: Byers v Saudi National Bank

Published on 17 April 2024. By Jake Hardy, Partner and Ana Margetts, Associate

In Byers v Saudi National Bank, the Supreme Court affirmed the findings of the lower courts by holding that a claim for knowing receipt cannot be made if a claimant’s equitable interest in the property in question has been extinguished by the time of the defendant’s knowing receipt of the property.

Read more
Perspective - Publication

CRE funds – targets for future litigation

Published on 20 March 2024. By Jake Hardy, Partner and Tom Hibbert, Partner, Global Head of Commercial Disputes

There was a wave of negative press about commercial real estate funds during the course of 2023. The higher interest rate environment and the pandemic’s economic and social legacy has stressed the sector. This was reflected in suspensions of redemptions by funds including BlackRock UK Property Fund and Blackstone’s (US) Blackstone Real Estate Income Trust, and the closure of the M&G Property Portfolio fund. Asset valuation concerns are leading to many CRE funds trading at a significant discount to their net asset value. Shortsellers are circling – see for instance, Muddy Waters’ disclosure of a large short position on the Blackstone Mortgage Trust.

Read more
Perspective - Blog

BT case may shape UK class action landscape

Published on 05 March 2024. By Chris Ross, Partner and Leonia Chesterfield, Of Counsel and William Carter, Senior Associate

In January, the trial in Justin Le Patourel v. BT Group PLC[1] commenced in the U.K. Competition Appeal Tribunal, or CAT. The trial is scheduled to be heard over eight weeks.

Read more
Perspective - Blog

Collective proceedings - robust approach to determining carriage prior to certification (Hunter v Amazon.com)

Published on 15 February 2024. By Chris Ross, Partner and William Carter, Senior Associate

In a recent decision, the CAT has given guidance on how carriage disputes between competing proposed class representatives (PCRs) will be addressed in future.

Read more
Perspective - Blog

Not the last word: High Court holds that ICSID Convention does not effect automatic waiver of immunity

Published on 07 February 2024. By Tatiana Minaeva, Partner and Head of Investor-State Arbitration and Kirtan Prasad, Of Counsel

The decision in Border Timbers Ltd v. Republic of Zimbabwe [2024] EWHC (Comm) [2024] EWHC 58 (Comm) considers state immunity under English law in the context of enforcement of ICSID arbitral awards.

Read more
Perspective - Blog

Coming to a bank near you? How "investment AI" could transform financial mis-selling claims

Published on 09 November 2023. By Daniel Hemming, Partner and Olivia Dhein, Knowledge Lawyer

Living under a rock is probably the only way anyone might have escaped the media attention given to ChatGPT and generative AI in recent months. Beyond the (considerable) hype, this technology could have a profound impact on financial mis-selling claims where financial institutions and fund managers turn to the new technology to help them select investments and products.

Read more
Perspective - Blog

CAT to Roll-Out its Collective Settlement Procedure

Published on 19 October 2023. By Chris Ross, Partner and Leonia Chesterfield, Of Counsel

In the fledgling class action regime for competition claims in the UK's Competition Appeal Tribunal (CAT), many aspects of the regime remain untested. One such aspect is how the CAT's settlement approval procedure will be approached in practice.

Read more
Perspective - Blog

UK tech cases warn of liability clause drafting pitfalls

Published on 21 September 2023. By Helen Armstrong, Partner

Excluding and limiting liability is a vital part of any commercial contract. The irony, though, is that despite its importance, almost any exclusion or limitation of liability — if pored over to the nth degree — will have some ambiguity in the face of complex and often unforeseen consequences of breach.

Read more
Perspective - Blog

A tool that French law does not like: English Court refuses to grant anti-suit injunction in support of French-seated ICC arbitration

Published on 20 September 2023. By Shai Wade, Partner, Head of International Arbitration and Fred Kuchlin, Senior Associate

The English Court has refused to grant an anti-suit injunction (ASI) in support of an ICC arbitration seated in France.

Read more
Perspective - Blog

Fraud not "some kind of open sesame" in Privy Council appeal to set aside judgment

Published on 05 September 2023. By Jonathan Cary, Partner

An appellant was unsuccessful in his bid to set aside judgment on the basis of fraud as the Board of the Privy Counsel dismissed his claim as an abuse of process (1). The appellant had failed to show "fresh evidence" of fraud as he already had all of the information he was relying on to allege fraud at the time he entered into a final settlement agreement, and had not offered an explanation of why he had not deployed this information whilst the original dispute was live.

Read more
Perspective - Blog

Caught out by APP fraud? Here's the 101 of what can be done

Published on 11 August 2023. By Dan Wyatt, Partner

Dan Wyatt, partner at RPC, takes a look at the best strategy for APP fraud victims and their recovery options.

Read more
Perspective - Blog

High Court sets aside disclosure orders against Australian banks in 'lukewarm' pursuit case

Published on 03 August 2023. By Charlotte Henschen (née Ducker), Partner and Suera Hajzeri, Associate

In Scenna v Persons unknown using the identity ‘Nancy Chen’[2023] EWHC 799 (Ch), the High Court set aside disclosure orders made against two Australian banks which had previously been granted at an urgent hearing without notice.

Read more
Perspective - Blog

Court of Appeal: strength of a case not a relevant factor for late amendments to statements of case

Published on 03 August 2023. By Daniel Hemming, Partner and Alastair Hall, Associate

The Court of Appeal has clarified that once a court has determined that amendments to a statement of case have a real prospect of success, the perceived strength of the case should not be a consideration when determining an application for permission to amend (CNM Estates (Tolworth Tower) Limited v Carvill-Biggs and another). ([2023] EWCA Civ 480)

Read more
Perspective - Blog

Best of both worlds with PD57AC? High Court allows opinion evidence in factual witness statement

Published on 02 August 2023. By Rosy Gibson, Associate

The High Court has allowed the witness statement of a factual witness even though the claimant had previously intended to instruct him as an expert and his statement contained opinion evidence (Polypipe Limited v Peter Russell Davidson) ([2023] EWHC 1691 (Comm). The judge confirmed that such evidence is admissible where the witness is suitably qualified, but it will not be accorded the same weight as a formal expert report. Separately, this appears to be the first reported case in which the court accepted that permission for an extension to the deadline for expert reports could be made conditional on disclosure of any unserved report(s), though the court declined to prescribe that condition in this case.

Read more
Perspective - Blog

Delay at your peril: High Court holds that two week delay causes party to lose right to object to irregularity in arbitration

Published on 02 August 2023. By Ana Margetts, Associate and Tatiana Minaeva, Partner and Head of Investor-State Arbitration

In Radisson Hotels v Hayat Otel, (1). the High Court found that the claimant ("Radisson") had lost its right to challenge an arbitration award (the "Award") by continuing to take part in the proceedings for a period of two weeks after becoming aware of improper conduct by one of the arbitrators (the "Arbitrator"). The court also rejected Radisson's subsequent application seeking to redact the identities of the parties and any details which might identify them in the judgment, in order to preserve the confidentiality of the underlying arbitration (2). While the judge acknowledged Radisson's desire to keep the arbitration confidential, this ultimately did not outweigh the general public interest in open justice.

Read more
Perspective - Blog

Clear failure required: High Court refuses directions under s 18 of the Arbitration Act 1996 where procedure for appointing arbitrator had not failed

Published on 31 July 2023. By Anna Riquetti, Associate and Shai Wade, Partner, Head of International Arbitration

The recent judgment of the English High Court in Global Aerospares Limited v Airest AS [2023] EWHC 1430 (Comm) demonstrates that the court will not issue directions under section 18 of the Arbitration Act 1996 (AA 1996), until it is satisfied that the procedure for appointing an arbitrator has indeed failed. The court dismissed a claim for directions under section 18 which is described as a "gateway provision", providing a way of getting an arbitration started or preventing its abortion where there is a failure in the parties' agreed appointment process. It gives the court powers as to the arbitrator appointments, including the power "to give directions as to the making of any necessary appointments" and "to direct that the tribunal shall be constituted by such appointments … as have been made".

Read more
Perspective - Blog

Confidentiality of arbitration proceedings may not always be protected - The Republic of India v Deutsche Telkom AG [2023] SGCA(I) 4

Published on 20 July 2023. By Swee Siang Boey, Partner

In general, arbitration proceedings are confidential. Arbitration-related cases which end up in the courts often are reported only after the names of parties have been anonymised, and it is quite common for a sealing order to be issued on the court file, so as to preserve the confidential nature of the arbitration.

Read more
Perspective - Blog

Scots law decision confirms that privilege doesn’t change its spots

Published on 19 July 2023. By Tim Potts, Senior Associate and Parham Kouchikali, Partner

The Scots law judgment in University of Dundee v Chakraborty [2023] CSIH 22 has reiterated that whether or not a document is protected by legal professional privilege is determined at the point in time at which the document is created. A non-privileged document cannot later acquire privileged status. The judgment also made certain findings about waiver of privilege which may be more controversial, particularly in the context of regulatory investigations.

Read more
Perspective - Blog

Strictly need to know: High Court provides further guidance on confidential embargoed draft judgments

Published on 19 July 2023. By Dan Wyatt, Partner and Heather Clark, Senior Associate

In a judgment that has recently become available, the English High Court has once again warned parties and their legal representatives of the importance of ensuring that the embargo on sharing confidential draft judgments is not breached, a consistent message with a growing body of case law on this subject. The judgment or its outcome should only be shared with those who need to see the draft judgment or be informed of its contents before the judgment is handed down. If in doubt, parties should seek the court's permission before distributing, or risk being held in contempt of court (R (on the application of Kinsey) v London Borough of Lewisham [2022] EWHC 2723) (1).

Read more
Perspective - Blog

The CPR 3.10 cure: Court of Appeal prioritises substance over form in defective jurisdiction challenge

Published on 03 July 2023.

In a recent decision, the Court of Appeal, considered whether a failure to expressly state that an application to strike out a claim on the basis that the court lacked jurisdiction was being made pursuant to CPR 11, was a defect that could be cured by CPR 3.10. The Court of Appeal concluded that it could and the claim was struck out.

Read more
Perspective - Publication

Court of Appeal orders solicitor be struck off for serious breaches of accounts rules

Published on 27 June 2023. By Sumarsono Darsono, Partner and Jennifer Leung, Associate

In an important judgment in Law Society of Hong Kong v A Solicitor, the Court of Appeal set aside an order that a solicitor be suspended from practice for 24 months and substituted it with an order that he be struck off from the roll of solicitors.

Read more
Perspective - Blog

Thirty minutes in Decentraland: A metaverse adventure

Published on 14 June 2023. By Christopher Whitehouse, Senior Associate and Becky Baker , Associate

Decentraland is one of the best known 'metaverses' that currently exist. It is a giant virtual world where users can create 'avatars' (a digital representation of yourself) and interact with one another. Users can also buy and develop virtual land, the mechanics of which involve purchasing an NFT (non-fungible token) connected with the relevant land plot. Users can then develop their land and build unique 3D environments.

Read more
Perspective - Blog

The CAT's new approach: I can't afford a carriage (dispute)

Published on 02 June 2023. By Chris Ross, Partner and Leonia Chesterfield, Of Counsel

Since the collective proceedings regime in the UK's Competition Appeal Tribunal (CAT) kicked off, a number of carriage disputes have arisen. So-called 'carriage disputes' arise when there are two or more competing proposed class representatives (PCRs) seeking certification (and therefore 'carriage') of overlapping class actions.

Read more
Perspective - Blog

Binance successfully challenges interim proprietary injunction over deposited cryptoassets

Published on 24 May 2023. By Dan Wyatt, Partner and Christopher Whitehouse, Senior Associate

In Piroozzadeh v Persons Unknown and Others [2023] EWHC 1024 (Ch), the cryptocurrency exchange Binance successfully applied to discharge an interim proprietary injunction obtained by a claimant whose misappropriated cryptoassets had been deposited at the exchange. This is the first recorded case of an exchange successfully having discharged such an injunction.

Read more
Perspective - Blog

Singapore Court of Appeal Sends Acceleration of Interest Payment Clause To The Penalty Box

Published on 24 April 2023. By Yuankai Lin, Partner

Commercial contracts commonly include clauses providing for liquidated damages, accelerated repayment or late payment interest in the event one party breaches the contract.

Read more
Perspective - Blog

Case Note: Anupam Mittal v Westbridge Ventures II Investment Holdings [2023] SGCA 1 – Examining the law governing arbitrability at the pre-award stage

Published on 08 March 2023. By Yuankai Lin, Partner and Selina Toh, Senior Associate

The Court of Appeal ("CA") in the case of Anupam Mittal v Westbridge Ventures II Investment Holdings [2023] SGCA 1 ("Anupam Mittal") had to determine a previously undecided point of law in Singapore: which system of law governs the arbitrability of a dispute at the pre-award stage, i.e., the law of the seat of the arbitration (lex fori) or the law governing the arbitration agreement.

Read more
Perspective - Blog

Doctrine of separability in arbitration: should the arbitration agreement and the main contract "sink or swim" together or alone?

Published on 07 March 2023. By Shai Wade, Partner, Head of International Arbitration and Jessica Davies, Associate

In DHL Project & Chartering Ltd v Gemini Ocean Shipping Co Ltd, the Court of Appeal considered the arbitration law doctrine of separability.

Read more
Perspective - Blog

Arbitration jurisdictional challenge no bar to English court ordering compliance with a tribunal peremptory order

Published on 02 March 2023. By Fred Kuchlin, Senior Associate and Tatiana Minaeva, Partner and Head of Investor-State Arbitration

The Court of Appeal has found that the English court may grant an order requiring a party to comply with a peremptory order of a tribunal before the determination of an outstanding challenge to jurisdiction of the tribunal.

Read more
Perspective - Blog

High Court favours English jurisdiction in bribery claim brought by Kuwaiti pension fund

Published on 28 February 2023.

The High Court recently rejected an application, brought by two defendants to an alleged bribery claim advanced by a Kuwaiti pension fund, that the claim should be heard before the Swiss courts, holding that England was the proper jurisdiction both in order to avoid the risk of fragmentation of proceedings, and in view of the close connection of the claim to England.

Read more
Perspective - Publication

Hong Kong – At a glance: major changes to cross-border enforcement of judgments in Hong Kong and mainland China

Published on 17 February 2023. By Samuel Hung, Partner and Anson Lo, Associate

The highly anticipated Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance (the Ordinance) is set to take effect in mid-2023. Once the Ordinance is in place, applicants will be able to enforce a broader range of mainland judgments in Hong Kong by way of a registration procedure and vice versa in relation to Hong Kong judgments in mainland China.

Read more
Perspective - Blog

Considering bringing an RFI application? Is it strictly necessary?

Published on 31 January 2023. By Parham Kouchikali, Partner

Andrew Ayres KC and Andrew Dinsmore (Twenty Essex), instructed by Parham Kouchikali and Suzie Kurdi of this firm, successfully resisted a Request for Further Information (RFI) in the High Court.

Read more
Perspective - Blog

Court of Appeal rejects timing and informed consent defences in bond bribery case

30 January 2023

In a recent decision, the Court of Appeal decided in Trafalgar Multi Asset Trading Company Limited (in liquidation) v James David Hadley and others that pleaded defences to a bribery claim were so fanciful as to entitle the claimant to summary judgment.

Read more
Perspective - Blog

High Court rejects Group Litigation Order in FSMA litigation as it would not further the Overriding Objective

Published on 30 January 2023. By Charlotte Henschen (née Ducker), Partner and Alastair Hall, Associate

In a recent decision in Edward Moon & Ors v Link Fund Solutions, Mr Justice Trower dismissed an application by two groups of claimants, declining to make the Group Litigation Order (GLO) sought.

Read more
Perspective - Blog

Hong Kong – Parties agreed settlement terms without formal settlement agreement

Published on 19 January 2023. By Antony Sassi, Managing Partner, Asia and Rebecca Wong, Partner and James Lee, Associate

In MSB International Ltd v Lok & Anor , the Court of First Instance of the High Court found that the parties had agreed a full and final settlement of all their claims in two related proceedings, by way of an exchange of without prejudice written communications between their legal representatives, although no formal draft settlement agreement referring to more comprehensive release terms and stated to be "subject to contract" had been agreed.

Read more
Perspective - Blog

No need for perfection: ISDA Master Agreement default notice still valid where some errors made

Published on 10 January 2023. By Daniel Hemming, Partner and Olivia Dhein, Knowledge Lawyer

The High Court has decided that a default notice under an ISDA Master Agreement is still valid even if it does not contain wholly accurate statements of the amount of the payment not made, the confirmation of the trade, or the currency of the payment.

Read more
Perspective - Blog

No need for late night panic: Court of Appeal decides that midnight e-filing is permissible

Published on 22 December 2022. By Simon Hart, Partner, Head of Banking & Financial Markets Disputes

The Court of Appeal recently considered the short, but important, procedural question of whether a document may be filed electronically at any time up to midnight on the date by which the document is due.

Read more
Perspective - Blog

Great Peace confirmed: High Court decides that test for common mistake is settled

Published on 22 December 2022. By Simon Hart, Partner, Head of Banking & Financial Markets Disputes and Emily Saffer, Associate

The High Court has clarified the test to void a contract for common mistake in John Lobb S.A.S v John Lobb Ltd, confirming that the four part test laid down by the Court of Appeal in Great Peace Shipping Ltd v Ttsavliris Salvage (International) Ltd remains the relevant test.

Read more
Perspective - Blog

The FTX fallout so far and what may come next

Published on 16 December 2022. By Dan Wyatt, Partner

The collapse of FTX Trading Ltd. has been as dramatic as it has been fast. Until then, FTX had been the second-largest exchange in the world.

Read more
Perspective - Blog

Three Crypto firsts for the English courts

Published on 22 November 2022. By Dan Wyatt, Partner and George Fahey , Associate

The recent judgment handed down in Jones v Persons Unknown [2022] EWHC 2543 (Comm) contained three firsts in the English Court: the imposition of a constructive trust between a crypto exchange and a victim of crypto fraud, an order for delivery up of Bitcoin, and summary judgment served by NFT airdrop. It shows the English courts' continued willingness to push the boundaries of English law in relation to the recovery of misappropriated cryptoassets. The innovative application of English law procedures and remedies to the growing problem of crypto theft and fraud is of considerable assistance to the victims of this pernicious and widespread fraudulent activity.

Read more
Perspective - Blog

Italian Local Authority succeeds in swap claim before the English Court

Published on 14 November 2022. By Daniel Hemming, Partner and Tim Potts, Senior Associate and Jessica Davies, Associate

In a significant judgment in Banca Intesa Sanpaolo SpA v Comune di Venezia [2022] EWHC 2586, the English Commercial Court has found that, as a consequence of the 2020 decision of the Italian Supreme Court in Banca Nazionale del Lavoro SpA v Comune di Cattolica (Cattolica), English law governed interest rate swaps entered into by the Municipality of Venice (Venice) were void for lack of capacity. Venice was therefore entitled to restitution for the amounts paid to the Banks under the interest rate swaps. However, the English Court also found that the Banks were in principle entitled to rely on a defence of change of position in respect of payments made under back-to-back swaps with other financial institutions which operates to reduce the sums recoverable by Venice.

Read more
Perspective - Blog

Court of Appeal refuses to drive "a coach and horses" through the concept of a limited liability company in joint tortfeasor decision

Published on 27 October 2022. By Karina Plain, Associate (Australian qualified) and Charlotte Henschen (née Ducker), Partner

The Court of Appeal upheld a finding of corporate liability, but no director accessory liability, for failure to advise of risks of property investment scheme, despite the director being the driving force behind the company's marketing of the scheme.

Read more
Perspective - Blog

A balancing act: IMF confidentiality obligations do not trump duty of disclosure in Argentinian securities dispute

27 October 2022

This case serves an illustration of the factors that the court will take into consideration when weighing up the competing interests of confidentiality obligations against the duty of disclosure, here under the rules of the disclosure pilot under PD 51U. The court found that confidentiality obligations owed to the IMF did not override the duty of disclosure. The court took into account both the scope of the confidentiality obligation and the relevancy and contemporaneous quality of the documents.

Read more
Perspective - Blog

Hong Kong court grants reported Norwich Pharmacal in aid of execution

Published on 27 October 2022. By Charles Allen, Partner & Head of Hong Kong office

Unsurprisingly, claimants want to be able to enforce their judgments, especially when the underlying proceedings have been hard-fought and (therefore) expensive.

Read more
Perspective - Publication

Restructuring Plans – A Sea Change?

Published on 26 October 2022. By Paul Bagon, Partner and Will Beck, Of Counsel and Knowledge Lawyer

Read more
Perspective - Blog

Litigation risk arising from recent LDI related disruption in the UK gilt market

Published on 18 October 2022. By Simon Hart, Partner, Head of Banking & Financial Markets Disputes and Daniel Hemming, Partner and Charlotte Henschen (née Ducker), Partner and Tim Potts, Senior Associate

In this bulletin, we examine the role of Liability Driven Investment (LDI) in the widely publicised disruption experienced in the UK gilts market in recent weeks and consider the disputes which might result.

Read more
Perspective - Blog

A hedge or a gamble? Potential claims for losses under FX derivatives

Published on 18 October 2022. By Jonathan Cary, Partner

The recent depreciation of various currencies, in particular against the US$, risks significant losses for businesses under complex foreign exchange (FX) derivative products. Jonathan Cary considers the dangers of these products in the current volatile markets and explains why there is significant potential for disputes in this area.

Read more

Stay connected and subscribe to our latest insights and views 

Subscribe Here