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Court of Appeal strikes out defences that funds' losses resulting from FX manipulation have been passed on to investors following redemption
In Allianz Global Investors GmbH & Ors v Barclays Bank PLC & Ors(1), the Court of Appeal allowed an appeal by the claimant funds (the Funds) and struck out defences by the Defendant banks (the Banks) that losses incurred by the Funds had been avoided or passed on upon redemption by their investors.
Read moreHong Kong – General adjournment of court proceedings ends with more guidance for remote hearings
Hong Kong's general adjournment of court proceedings ends with more guidance for remote hearings.
Read moreCommercial Court confirms limits of full and frank disclosure duty in arbitration enforcement action
What happens when a party makes a without notice application? How far should it go to meet its obligation of full and frank disclosure? The Commercial Court gave clear guidance on the limits of this duty when it dismissed the latest claim by the State of Libya that challenged General Dynamic's permission to enforce an arbitral award in General Dynamics United Kingdom Ltd v State of Libya.(1) This was one in a series of cases between the company and the North African country.
Read moreCourt of Appeal holds that Quincecare duty can arise in principle where customer gives instructions in authorised push payment fraud
The Court of Appeal has clarified in Philipp v Barclays Bank UK Plc [2022] EWCA Civ 318 that the Quincecare duty, which requires a bank to refrain from acting on a payment instruction and to make inquiries when it is on notice of a serious possibility of fraud, can arise for a bank even where it is the customer themselves giving instructions to pay money out of their account to a fraudster.
Read moreCourt of Appeal draws distinction between claims for recovery of tax and restitution for tax paid out fraudulently
In Skatteforvaltningen v Solo Capital Partners,(1) the Court of Appeal investigated in detail the operation of rule 3(1) of Dicey, Morris & Collins on the Conflict of Laws (edition 15) (Dicey rule 3), which provides that English courts do not have jurisdiction over actions for "the enforcement, either directly or indirectly, of a penal, revenue, or other public law of a foreign State". The Court decided that the Danish tax authority's claim did not fall within Dicey rule 3 as it concerned the restitution of monies misappropriated by fraud rather than enforcement of tax.
Read moreCompeting opt-out claims refused certification in CAT's FX decision
Since the first opt-out certification last summer in Merricks, a steady stream of collective claims has been certified by the CAT. There have now been four opt-out certifications with many more applications in the wings. Last week's FX decision is the CAT's first certification refusal following Merricks.
Read moreHong Kong – General adjournment of court proceedings given severity of “5th Wave” of COVID-19
Given the severity of the “5th Wave” of the pandemic in Hong Kong, on 4 March 2022 the judiciary announced another “general adjournment of proceedings”; this time to run from 7 March to 11 April 2022.
Read moreCourt of Appeal holds that Quincecare duty can arise where the customer gives instructions in authorised push payment fraud
The Court of Appeal has allowed an appeal in relation to a bank's Quincecare duty and authorised push payment fraud, finding in favour of the customer who lost the bulk of her life savings.
Read moreHigh Court finds that a cryptocurrency exchange arrangement was not a trust
The High Court decided that no trust could arise where two parties had agreed to an exchange of cryptocurrencies (in essence a sale and repurchase agreement), as the essential economic reciprocity precluded the existence of any trust.
Read moreESG claims in the banking and financial markets Sector: will "greenwashing" claims soon be common in the UK?
Environmental, Social and Governance "ESG" funds are an attractive avenue for investors seeking responsible investment choices.
Read moreHide and Seek: Limitation Periods in Competition Law Damages Claims
The recent judgment in Gemalto v Infineon and Renesas put back into focus the duty of potential claimants in competition damages claims to reasonably investigate potential claims against cartelists when relevant facts emerge.
Read moreCase closed: Court of Appeal has no inherent jurisdiction to review decision by single Court of Appeal Judge refusing permission to appeal if refusal is 'arguably wrong'
The Court of Appeal has confirmed that it has no inherent jurisdiction (outside Civil Procedure Rule.52.30 which applies in very limited circumstances) to reopen an appeal where a single judge has refused permission
Read moreHow aware were you? High Court refuses to strike out fraudulent misrepresentation claim in VW 'Dieselgate' emissions
In Crossley and others v Volkswagen Aktiengesellschaft and others(1) the High Court refused to strike out or summarily dismiss the fraudulent misrepresentation claim brought by more than 86,000 vehicle owners against Volkswagen ("VW").
Read moreHigh Court dismisses application for extension of limitation period on basis of fraud at summary judgment stage
In Libyan Investment Authority v Credit Suisse International & Ors ([2021] EWHC 2684 (Comm), the Commercial Court granted summary judgment dismissing the Libyan Investment Authority's (LIA's) claims against Credit Suisse International (Credit Suisse) and others on the grounds that they were time-barred.
Read moreIs your phone tracking you? Perhaps, but it is a mere witness to your whereabouts according to the Court of Appeal
In EUI Ltd v UK Vodaphone Ltd(1) a claimant insurance company sought a Norwich Pharmacal order for mobile phone records to prove that an insurance claim had been falsely made.
Read moreHigh Court clarifies new witness evidence rules and requirement for list of documents under Practice Direction 57AC
Only list the documents used to refresh the memory of the witness, use the statement of best practice as a checklist and follow the principles of the practice direction: these are some of the main points arising out of the decision in Mansion Place Ltd v Fox Industrial Services Ltd [2021] EWHC 2747 (TCC), the first decision to give substantial guidance on the new witness statement rules under Practice Direction (PD) 57 AC.
Read moreEnglish Commercial Court upholds the validity of swap contracts entered into by an Italian local authority
The Commercial Court has found that there was no limitation on the capacity of the Italian local authority Busto di Arsizio to enter into a valid swap contracts with Deutsche Bank.
Read moreCourt of Appeal holds that uncontroverted expert evidence can be rejected
The Court of Appeal has held that there is no rule that an uncontroverted expert report which complies with CPR PD 35 cannot be impugned in submissions and ultimately rejected by the judge.
Read moreHigh Court finds agency relationship and 'control' for purposes of disclosure where third party not authorised to sign contract for principal
In Quartz Assets LLC and another v Kestrel Coal Midco Pty Ltd [2021] EWHC 2675 (Comm), the High Court held that a third party authorised to conduct contractual negotiations on behalf of the Defendant, but not sign the contract, was acting as an agent, and that relevant documents which it had created were therefore in the Defendant's control and ought to be disclosed. The decision emphasises that the courts will consider substance over form when determining whether an agency relationship exists, and constitutes a reminder of the definition of 'control' for the purposes of disclosure.
Read moreChoose your words wisely: waiving privilege in witness evidence
In a cautionary tale for litigators, the High Court has ordered disclosure of privileged notes of a conversation after a witness referred to the conversation in his witness statement.(1)
Read moreHigh Court refuses permission for unissued contempt application where breach of freezing order only technical
In Pharmagona Limited v Taheri,(1) the High Court refused to seal and issue a contempt application as the breach, if it had occurred, was only technical, and it was therefore inappropriate for the application to succeed.
Read moreExceptional Circumstances: CPR 52.30 and a lesson on drafting grounds of appeal from the Court of Appeal
The Court of Appeal has given guidance on how to draft grounds of appeal in a rap over the knuckles for lawyers responsible for "over-lengthy and ill-focused" grounds (Municipio de Mariana v (1) BHP Group PLC and (2) BHP Group Ltd(i)).
Read moreCrypto-assets again confirmed as property by the English Commercial Court
In the Commercial Court's latest crypto-related judgment, Fetch.AI(1), a proprietary injunction and worldwide freezing order were granted against various categories of persons unknown who had misappropriated various crypto-assets from one of the claimant's Binance trading accounts. In doing so, the Court agreed with the key finding in the seminal case AA v Persons Unknown, Re Bitcoin [2019] EWHC 3556 (Comm) – that bitcoin is 'property' – albeit it did so on a different basis.
Read moreForum conveniens – English High Court decides that parallel proceedings are not a "trump card" when determining jurisdiction
Hot on the heels of another recent decision on forum conveniens, PJSC National Bank Trust v Mints(1) (see our article on this decision), the English High Court has re-affirmed that the risk of irreconcilable decisions from parallel proceedings in other jurisdictions is not a "trump card" in determining the proper forum for a dispute.
Read moreExpert evidence is not an absolute right: High Court issues stark reminder that breaches of rules on expert evidence will not be tolerated
The High Court has recently issued a stark reminder that breaches of the rules on expert evidence will not be tolerated.
Read moreHigh Court reminds us of the principles of res judicata and abuse of process
The court has and will act to prevent claims being re-litigated by parties not content with earlier outcomes; Elite Property Holdings Limited v Barclays Bank(1)
Read moreExceptions 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 moreForum conveniens – context is key
The English High Court has allowed conspiracy proceedings brought by two Russian banks against several Russian nationals to proceed in England, despite there being "no doubt, and no dispute, that [it] is a Russian case".(1)
Read moreA Lack of List of Issues for Disclosure is not a bar to specific disclosure under the Disclosure Pilot Scheme
The court can order specific disclosure under the Disclosure Pilot Scheme, even where there is no agreed or approved List of Issues for Disclosure HMRC v IGE USA Investments Ltd and Ors(1).
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 moreA new cause of action can only be introduced by amendment if it arises out of substantially the same facts that remain in issue at the time of the amendment
Pleadings that have previously been struck out cannot be used to introduce a new, limitation-barred claim that arises out of substantially the same set of facts as the struck out claim according to the Court of Appeal in Libyan Investment Authority v King [2020] EWCA Civ 1690.
Read moreBeware of trying to address gaps in your evidence during trial: High Court refuses permission to rely on a new witness statement prepared part-way through trial
The "inherent unreliability" in evidence prepared during trial, and the high risk that the evidence had been tailored to fit the current state of the claimant's case, caused the High Court to refuse the claimant permission to rely on a witness statement of one its in-house lawyers, prepared during an ongoing trial, and to call that witness to give oral evidence during the trial. (1)
Read moreLate service of evidence requires relief from sanctions
An application to admit witness evidence outside the directions timetable should be treated like an application for relief from sanctions under CPR 3.9 according to the High Court in Wolf Rock (Cornwall) Ltd v Langhelle
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 moreCan an appeal court order repayment after it has reversed the relevant order?
An appellate court has an inherent power to restore money paid or property transferred under an order which it has reversed. And not all contractual provisions are susceptible to being waived by election. These are the two key takeaways from the Privy Council's judgment in Delta Petroleum (Caribbean) Ltd v British Virgin Islands Electricity Corporation [2020] UKPC 23.
Read moreHidden owners, ostensible authority and the Duomatic principle
The Duomatic principle can apply to ostensible authority as well as actual authority, according to the Privy Council in Ciban Management Corporation v Citco (BVI) Ltd & Anor (British Virgin Islands) [2020] UKPC 21.
Read moreHold on to your seats: UK Supreme Court ends the argument about the law governing arbitration agreements
Identifying what law governs a contractual term requiring the parties to arbitrate their disputes, rather than taking them to court, can be profoundly important.
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 moreHMRC Crackdown on Facilitation of Tax Evasion
Increased pressure on HMRC to boost tax revenues due to the economic cost of COVID-19 may bring about a surge in charging decisions for failure to prevent the facilitation of tax evasion (Corporate Criminal Offences (CCO)).
Read moreDisputes, disputed: The court’s approach to competing dispute resolution clauses in successive agreements
How are contradictory dispute resolution clauses resolved, where the agreements are entered into at different times? Intention and purpose is key, as set out in the test in BNP Paribas v Trattamento, where parties intended two agreements to perform separate roles as part of one transaction (even though the second is not contemplated at the time of the first).
Read moreLIBOR claim by US agency will continue in London
A decision in the London High Court has demonstrated that the fallout from the long-running LIBOR fixing scandal is far from over.
Read moreHong Kong Courts – COVID-19 Update
The general adjourned period (GAP), during which the courts were closed save for urgent and essential business, ended on 3 May 2020, enabling the courts to resume normal business in Hong Kong. Since then, the number of reported cases of COVID-19 in Hong Kong has approximately tripled following a third wave of infections.
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 moreEl Dorado in the Commercial Court: Domestic Law, Foreign Law and Foreign Relations
Why is a dispute between Mr Nicolás Maduro and Mr Juan Guaidó as the rival contenders to the Presidency of Venezuela being heard by the English Commercial Court? The answer involves US$1 billion of gold reserves held at the Bank of England and who has the authority to deal with them.
Read moreIt's good to talk
A successful party has been declined some of its costs on the basis of an unreasonable refusal to engage in mediation. Wales (t/a Selective Investment Services) v CBRE Managed Services Ltd & Aviva.
Read moreHong Kong Courts – Further guidance on remote court hearings
A second, more comprehensive guidance note on remote hearings in civil proceedings came into effect on 15 June 2020. The phase 2 guidance note provides for expanded videoconferencing facilities and telephone hearings with respect to the civil business of the first instance courts and the Court of Appeal, and is to be read together with the phase 1 guidance note issued on 2 April 2020.
Read moreFreezing orders: risk of dissipation? Get real
The High Court has issued an important reminder of the need for solid evidence of a real risk that the respondent will take steps to dissipate their assets to frustrate a judgment in applications to continue a worldwide freezing order (WFO). Evidence of dishonesty alone is not enough, and conduct falling short of dishonesty is less likely to suffice. Evidence of untrustworthiness, or even dishonesty, does not amount to sufficiently robust evidence of a real risk of dissipation to continue a worldwide freezing order.
Read moreHong Kong Courts – Expansion of use of remote hearings
As expected, the judiciary in Hong Kong has announced that it will expand the use of remote hearings for civil cases. The first Guidance Note for Remote Hearings for Civil Business in the High Court (Phase 1) came into effect on 3 April 2020. This was during the general adjourned period (GAP), when the courts were generally closed as a result of COVID-19, save for urgent and essential court business. The GAP came to an end on 3 May 2020.
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