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High 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.
Read moreHong Kong Courts – Closing the GAP
The general adjourned period (GAP), during which the courts in Hong Kong were closed save for urgent and essential court business, started on 29 January 2020 with the early onset of COVID-19 in Hong Kong.
Read moreHigh Court provides a reminder against "over-lawyering" of witness statements
In a reminder not to "over-lawyer" witness statements, a High Court judge has ordered that statements be revised to remove inappropriate content(1).
Read moreGeneral adjournment in Hong Kong does not extend duration of ex parte injunction
In Hong Kong, the courts have generally been closed, save for urgent and essential court business as a result of COVID-19.
Read moreCOVID-19 – Hong Kong Courts set for phased reopening from May
On 22 April 2020, the Hong Kong Judiciary announced that the general adjourned period ("GAP") for court proceedings, which started on 29 January 2020, will end on 3 May 2020. Stressing that the health and safety of court users, the Judiciary's staff and Judges and Judicial Officers ("JJOs") remains paramount, the Judiciary will move to a phased reintroduction of general business.
Read moreCOVID-19: Trials - the show must go on
Judges are taking to heart the HMCTS's guidance focused on encouraging judges to maximise the use of video and telephone hearings using current technology. So, while the theatres in the UK remain closed, the theatres of justice continue with their activities.
Read moreCOVID-19 – Hong Kong Courts handling urgent and essential matters
On 8 April 2020, the Hong Kong Judiciary announced that the general adjourned period ("GAP") for court proceedings will continue until at least 3 May 2020. During the GAP, court registries and offices are, for the most part, closed. However, the GAP does not apply to "urgent and essential court hearings and/or matters".
Read moreCOVID-19: Virtual hearings - what we've learned
Remote court hearings have very quickly become the "new normal". We've taken part in a fair few in recent weeks so wanted to share some practical tips that we hope will help those about to enter the virtual courtroom….
Read moreCOVID-19 - The official guidance on remote hearings; early engagement is key to success
COVID-19. The courts are trying to conduct "business as usual" as much as possible in this challenging climate. The latest official guidance, published on Friday, covers remote hearings in all Civil Courts in England & Wales; it relates to all types of hearings – applications, trials and appeals.
Read moreCOVID-19: Impact on court hearings and successful virtual mediations
As anticipated, the Courts are now moving to a (mainly) remote working basis.
Read moreBeware: English jurisdiction clauses do not mean choice of English law
Where parties have agreed in a contract that the English courts will have jurisdiction in the event of a dispute, it does not automatically follow that English law will be the governing law. A party recently found this out, to its cost, when a different governing law clause meant an expired limitation period. This case demonstrates that those entering into contractual agreements should carefully consider a choice of law clause that specifically designates the laws of a country that suits them. GDE LLC v Anglia Autoflow Limited.
Read moreHigh Court: Claimants' litigation funder ordered to provide security for costs
The High Court has handed down a significant judgment giving important guidance on the Court’s approach to issues of costs-sharing and security for costs against litigation funders in large multi-party claims. The judgment will be a key touchpoint in this developing area of law. RPC acts for Ingenious in the proceedings. The judgment citation is [2020] EWHC 235 (Ch).
Read moreEquitable compensation for breach of fiduciary duty: a question of loss?
A director who extracted money from a company by way of sham invoices may have a defence to an equitable compensation claim for misappropriation of the company's funds, if the director could have lawfully transferred the funds to the same recipients for no value. The Court of Appeal explored this possibility in Auden McKenzie (Pharma Division) Ltd v Patel
Read moreLenders face more allegations about their actions on restructuring
Representatives of a lender on a board will not automatically impose directors' duties on the lender, but they may apply where a director's specific instructions have led directly to a breach of fiduciary duty. The High Court recently explored this issue in an appeal in the case of Standish v Royal Bank of Scotland plc.
Read moreCovertly obtained information cannot be deployed until its legitimacy is resolved
Read moreBitcoin is 'property' and can therefore be subject of proprietary injunction
Following recent case law on the matter, the High Court has found that bitcoin can be 'property' and can therefore be the subject of a proprietary injunction.(1) In reaching its conclusion, the court adopted the detailed analysis of the issue set out in the UK Jurisdictional Task Force's November 2019 Legal Statement on Crypto-Assets and Smart Contracts, thereby providing a far more detailed judicial basis for the finding than found in previous cases. The bitcoins at the heart of this case were part of a ransom payment paid to a hacker who installed malware on a company's IT systems.
Read moreBreaking news - dominant purpose test extends to legal advice privilege
The Court of Appeal has held that legal advice privilege will apply to communications only if seeking or giving legal advice is their dominant purpose.
Read moreFreezing orders: when will past conduct show a real risk of dissipation?
In Lakatamia Shipping Company Limited v Morimoto, the Court of Appeal overturned a decision to discharge a worldwide freezing order. This case provides helpful guidance as to when a respondent's prior conduct may support a finding that a real risk of dissipation exists. WFO; Dissipation; Su.
Read moreGuaranteed to fail? Oral funding arrangements may be enforceable
Funding arrangements should be in writing, or at least impose a primary obligation on the funder to pay. So said the Court of Appeal in exploring whether an oral arrangement to fund a litigant was an unenforceable guarantee or an enforceable agreement to pay in any event (Deepak Abbhi -and- Richard John Slade (t/a Richard Slade and Company)
Read moreA litigator's quiz: Fourth candle of Advent
The UK Supreme Court, and Lady Hale's brooch, hit the headlines this year with a landmark constitutional decision on the prorogation of Parliament. Outside that context, however, the Supreme Court has been busy. In this fourth and final part of our Advent quiz, test your knowledge of the key commercial decisions of 2019 and the decisions to look out for in 2020.
Read moreA litigator's quiz: Third candle of Advent
The third Sunday of Advent was traditionally a time to lift the gloom of Advent and celebrate Christmas to come – and hence was also known as Gaudete (Rejoice!) Sunday or Rose Sunday. So what has there been to celebrate in the legal profession in 2019?
Read moreDuty of care can exist between parent company and third parties affected by subsidiaries' actions
Vedanta(1) is one of three similar cases progressing through the English courts concerning jurisdiction, mass tort claims and the potential liability of an English parent company for the actions of its foreign subsidiaries,(2) the others being Unilever and Dutch Shell.
Read moreFurther welcome news from the FCA – this time on co-manufacturing
Following on from our earlier blog, our review of the FCA's 'Discussion Paper' (DP24/1) continues, this time considering the rules relating to co-manufacturers of insurance products.
Read morePotential deregulation and a pragmatic approach to commercial insurance – welcome news from the FCA
The FCA has published a 'Discussion Paper' (DP24/1) seeking feedback on its rules on commercial insurance including in respect of the types of commercial customers in-scope, co-manufacturing of products and bespoke insurance products.
Read moreIs the FCA to blame for BSPS? MPs seem to think so
The House of Commons Public Accounts Committee (PAC) yesterday published a report entitled "Investigation into the British Steel Pension Scheme". The report makes a number of recommendations in light of its investigations in to the FCA's conduct and regulatory oversight at the time of the issues arising from the British Steel Pension Scheme (BSPS) and in particular the decision by 7,834 members to transfer to a personal pension arrangement. The report is heavily critical of the FCA's handling of BSPS and its regulatory oversight of the defined benefit transfer market generally. Given the request in the report for an update from the FCA on its progress on the various recommendations and conclusions in 6 months' time, we wait to see how the FCA reacts to yet further criticism of its handling of BSPS at a time when it is reviewing responses to the consumer redress scheme consultation.
Read moreSIPPs and FOS - does the Rowanmoor decision change anything?
Last week FOS published a decision it reached last year in a complaint against a SIPP provider involving advised sales. The FOS upheld the complaint, finding that the SIPP provider should have rejected business from the regulated financial adviser, CIB Life and Pensions Limited (CIB), given, broadly, red flags available to the SIPP provider with respect to the operation of CIB's business model including that CIB was not advising on the ultimate investment within the SIPP and as a result such introductions involved a significant risk of consumer detriment. The decision has received quite a bit of press attention - but has it moved the dial for SIPP complaints before FOS or not?
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