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Hong Kong courts – Latest guidance on COVID-19 measures

Published on 10 Dec 2020. By Antony Sassi, Managing Partner, Asia and David Smyth, Senior Consultant

Largest 'white elephant' in history of group actions

Published on 03 Dec 2020. By Simon Hart, Partner, Head of Banking & Financial Markets Disputes

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)

Can an appeal court order repayment after it has reversed the relevant order?

Published on 30 Nov 2020. By Fred Kuchlin, Senior Associate and Parham Kouchikali, Partner

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.

Hong Kong courts keeping calm and carrying on

Published on 11 Nov 2020. By Carmel Green, Partner and Antony Sassi, Managing Partner, Asia

Hidden owners, ostensible authority and the Duomatic principle

Published on 26 Oct 2020. By Gill O'Regan, Senior Associate and Alan Williams, Partner

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.

Hold on to your seats: UK Supreme Court ends the argument about the law governing arbitration agreements

Published on 22 Oct 2020. By Charles Allen, Partner & Head of Hong Kong office

Identifying what law governs a contractual term requiring the parties to arbitrate their disputes, rather than taking them to court, can be profoundly important.

CFH Clearing Limited v Merrill Lynch International [2020] EWCA Civ 1064

Published on 24 Sep 2020. By Simon Hart, Partner, Head of Banking & Financial Markets Disputes

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.

Hong Kong Courts – COVID-19 and Typhoon "Higos"

Published on 02 Sep 2020. By Carmel Green, Partner

HMRC Crackdown on Facilitation of Tax Evasion

Published on 01 Sep 2020. By Michelle Sloane, Partner

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)).

Disputes, disputed: The court’s approach to competing dispute resolution clauses in successive agreements

Published on 20 Aug 2020. By Parham Kouchikali, Partner

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).

LIBOR claim by US agency will continue in London

Published on 10 Aug 2020. By Jake Hardy, Partner and Rosy Gibson, Associate

A decision in the London High Court has demonstrated that the fallout from the long-running LIBOR fixing scandal is far from over.

Hong Kong Courts – COVID-19 Update

Published on 10 Aug 2020. By Carmel Green, Partner

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.

Courts reach a landing on the test for jurisdiction over co-defendants

Published on 06 Aug 2020. By Simon Hart, Partner, Head of Banking & Financial Markets Disputes and Emma West, Senior Associate

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.

El Dorado in the Commercial Court: Domestic Law, Foreign Law and Foreign Relations

Published on 17 Jul 2020.

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.

It's good to talk

Published on 16 Jul 2020. By Adam Forster, Senior Associate

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.

Examining the time bar for causes of action for the tort of negligent misrepresentation

Published on 10 Jul 2020.

Section 24A of Singapore’s Limitation Act (Cap. 163) provides, amongst other things, that the limitation period for any cause of action for damages for negligent misrepresentation accrues upon proof of damage in reliance of the negligent misrepresentation.

Hong Kong Courts – Further guidance on remote court hearings

Published on 10 Jul 2020. By Carmel Green, Partner

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.

Freezing orders: risk of dissipation? Get real

Published on 18 Jun 2020. By Jonathan Cary, Partner

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.

Hong Kong Courts – Expansion of use of remote hearings

Published on 17 Jun 2020. By Carmel Green, Partner

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.

Hong Kong Courts – Closing the GAP

Published on 22 May 2020. By Carmel Green, Partner

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.

Arbitrable disputes in the context of winding up proceedings

Published on 05 May 2020.

This note discusses two recent decisions of the Court of Appeal of Singapore that dealt with the standard of review to be applied in winding up proceedings where a debtor asserts that there is a dispute which parties agreed to resolve by way of arbitration.

High Court provides a reminder against "over-lawyering" of witness statements

Published on 30 Apr 2020. By Parham Kouchikali, Partner and Harriet Evans, Associate

In a reminder not to "over-lawyer" witness statements, a High Court judge has ordered that statements be revised to remove inappropriate content(1).

General adjournment in Hong Kong does not extend duration of ex parte injunction

Published on 29 Apr 2020. By Carmel Green, Partner and Antony Sassi, Managing Partner, Asia

In Hong Kong, the courts have generally been closed, save for urgent and essential court business as a result of COVID-19.

COVID-19 – Hong Kong Courts set for phased reopening from May

Published on 23 Apr 2020. By Jonathan Crompton, Partner

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.

A Review in Confidence: Modernising the Law of Breach of Confidence in Singapore

Published on 17 Apr 2020.

The elements for a claim for breach of confidence were trite, having been established more than 50 years ago in the English case of Coco v. AN Clark (Engineers) Ltd (1) and affirmed in numerous Singapore decisions (2) .

Hong Kong Courts – In with the old and the new technology

Published on 15 Apr 2020. By Antony Sassi, Managing Partner, Asia and Jonathan Crompton, Partner and David Smyth, Senior Consultant

In Re Cyberworks Audio Video Technology Ltd,(1) the High Court of Hong Kong decided that it can, as part of its case management powers and of its own volition, order that a directions hearing take place by means of a telephone conference without the physical presence in court of the parties or their legal representatives.

Hong Kong courts begin use of video conferencing

Published on 15 Apr 2020. By Antony Sassi, Managing Partner, Asia and Carmel Green, Partner

Given the extended general adjourned period (GAP), during which the courts in Hong Kong have been closed except for urgent and essential court business, the judiciary has adopted an incremental approach to the use of technology for remote hearings.

Hong Kong Court of Appeal hears appeal using video conferencing

Published on 15 Apr 2020. By Charles Allen, Partner & Head of Hong Kong office and Carmel Green, Partner

On 2 April 2020 the Chief Judge of the High Court issued a Guidance Note setting out the practice for remote hearings in the Court of First Instance of the High Court (but not the District Court) using the court's existing video conferencing facilities (VCF). Hard on its heels, on 6 April 2020 the Court of Appeal conducted a hearing by VCF in CSFK v. HWH [2020] HKCA 207.

COVID-19: Trials - the show must go on

Published on 09 Apr 2020. By Alexandra Anderson, Partner

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.

COVID-19 – Hong Kong Courts handling urgent and essential matters

Published on 09 Apr 2020. By Charles Allen, Partner & Head of Hong Kong office

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".

COVID-19: Virtual hearings - what we've learned

Published on 27 Mar 2020. By Dan Wyatt, Partner

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….

COVID-19 - The official guidance on remote hearings; early engagement is key to success

Published on 24 Mar 2020. By Geraldine Elliott, Partner and David Cran, Partner, Head of IP & Tech

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.

COVID-19: Impact on court hearings and successful virtual mediations

Published on 20 Mar 2020. By David Cran, Partner, Head of IP & Tech and Geraldine Elliott, Partner

As anticipated, the Courts are now moving to a (mainly) remote working basis.

Beware: English jurisdiction clauses do not mean choice of English law

Published on 06 Mar 2020. By Geraldine Elliott, Partner and Fred Kuchlin, Senior Associate

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.

High Court: Claimants' litigation funder ordered to provide security for costs

Published on 21 Feb 2020. By Chris Ross, Partner and Gill O'Regan, Senior Associate

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).

Equitable compensation for breach of fiduciary duty: a question of loss?

Published on 20 Feb 2020. By Davina Given, Partner

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

Lenders face more allegations about their actions on restructuring

Published on 14 Feb 2020. By Parham Kouchikali, Partner and Joe Cresswell, Senior Associate

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.

Covertly obtained information cannot be deployed until its legitimacy is resolved

Published on 07 Feb 2020.

Bitcoin is 'property' and can therefore be subject of proprietary injunction

Published on 03 Feb 2020. By Christopher Whitehouse, Senior Associate

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.

Breaking news - dominant purpose test extends to legal advice privilege

Published on 31 Jan 2020. By Davina Given, Partner and Joe Cresswell, Senior Associate and Kiran Dhoot, Associate

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.

Freezing orders: when will past conduct show a real risk of dissipation?

Published on 16 Jan 2020. By Jonathan Cary, Partner

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.

Guaranteed to fail? Oral funding arrangements may be enforceable

Published on 09 Jan 2020. By Geraldine Elliott, Partner

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)

A litigator's quiz: Fourth candle of Advent

Published on 23 Dec 2019. By Davina Given, Partner

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.

A litigator's quiz: Third candle of Advent

Published on 16 Dec 2019.

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?

Duty of care can exist between parent company and third parties affected by subsidiaries' actions

Published on 30 Apr 2019. By Parham Kouchikali, Partner

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.