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Disputes Yearbook 2022: Retail and Restructuring
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 moreDisputes Yearbook 2022: Civil Fraud
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 moreDisputes Yearbook 2022: Banking Litigation
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 moreDisputes Yearbook 2022: Technology 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 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 moreSupreme Court rules that solicitor's equitable lien was valid even though no proceedings were issued
An equitable lien allows solicitors involved in litigation to deduct their fees before paying compensation to their client and if the paying party deliberately bypasses the solicitor, they may be liable to pay any unrecoverable fees. The Supreme Court has re-confirmed that a solicitor benefits from this equitable lien when they are instructed to make a claim even if proceedings have not been issued and it is not anticipated that the claim will be disputed.
Read morePrivy Council widens law on freezing injunctions in "ground-breaking" exposition of the law
In Broad Idea International Ltd v Convoy Collateral Ltd / Convoy Collateral Ltd v Cho Kwai Chee [2021] UKPC 24, the Privy Council handed down a judgment which set new juridical boundaries for the law of freezing injunctions. Rejecting the long-established position in The Siskina, the panel of judges confirmed that a court's injunctive power extends to the grant of freezing orders where (i) there are no relevant domestic proceedings in prospect and (ii) the sole purpose of the order is to aid enforcement in foreign proceedings.
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 moreCan litigation privilege be claimed for exploratory correspondence with an expert before litigation is in prospect?
In a recent case, the Court decided that correspondence with an expert did not attract legal professional privilege. The expert's work had been intended to provide "ballast" for a claim in suspected mismanagement, but in fact the expert's investigation uncovered a potential alternative claim, which was quite distinct from the claim initially being investigated.
Read moreCourt of Appeal issues "clear message" that those who breach embargoes on draft judgments risk contempt proceedings
In only the third judgment ever to consider the issue, the Court of Appeal has issued a stark reminder that court users should take care to observe any embargo over a draft judgment or else face the possibility of proceedings for contempt of court.
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 moreWhere's the damage? High Court dismisses jurisdiction challenge in US$495 million claim
The High Court has dismissed UBS' challenge to jurisdiction in a ca. US$495 million claim – and in doing so set out useful guidance in terms of how the Court will determine "where the damage has occurred" in cases of economic loss. The judge looked for the most "natural analysis" in determining the manifestation of the loss, and broadly agreed that "the usual answer [in bad investment cases] will be that the loss occurs in, and at the place of, the bank account which was depleted."
Read moreRelying on the Defence to plead a new, time-barred claim – Court of Appeal provides clarity
The Court of Appeal has provided clarity on a claimant's ability to bring an otherwise time-barred claim in reliance on facts raised in the Defence. In the recent case of Mulalley & Co. Ltd v Martlet Homes Ltd [2022] EWCA Civ 32 the claimant was permitted to introduce a new claim, post-limitation, in response to what was potentially a full defence to the original Particulars of Claim.
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 moreNo knowing receipt claim where equitable interest is destroyed: Byers v Saudi National Bank
The Court of Appeal has held that a claim in knowing receipt will fail if, at the moment of receipt, the beneficiary’s equitable proprietary interest is destroyed or overridden so that the recipient holds the property as beneficial owner.
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 moreLimitation Act 1980 s.32(1): whether a claimant could have discovered fraud with "reasonable diligence" extends to events prior to accrual of the cause of action
The High Court found that, when considering the postponement of the limitation period for the purposes of Section 32(1) of the Limitation Act 1980, the question of whether the claimant could have discovered the fraud with "reasonable diligence" extends to the period before the claimant suffered a loss.
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 moreNo best endeavours order where documents are out of party's control
The High Court considered in Various Airfinance Leasing Companies & Anor v Saudi Arabian Airlines Corporation(1) whether a party could be obliged to seek disclosure from the personal mobile devices of its ex-employees (i) on the basis that documents on the phones were within the party's control; and (ii) alternatively, by using its best endeavours to seek disclosure. The application was dismissed as the court found that the documents were not within the "control" of the party as a matter of Saudi law and that there was no power to compel best endeavours to seek disclosure of documents outside a party's control.
Read moreRecent judgment on ad hoc admission of overseas counsel tells of wider COVID-19 story
Applications for ad hoc admission, pursuant to section 27(4) of the Ordinance, are fact dependent and the relevant legal principles are well-established.
Read moreUpdated P.R.I.M.E. Finance Arbitration Rules launched for 2022
P.R.I.M.E Finance, the Hague-based Panel of Recognised International Market Experts in Finance, has launched updated P.R.I.M.E Finance Arbitration Rules (the Rules), which come into force from 1 January 2022.
Read moreUpdated P.R.I.M.E. Finance Arbitration Rules launched for 2022
P.R.I.M.E Finance, the Hague-based Panel of Recognised International Market Experts in Finance, has launched updated P.R.I.M.E Finance Arbitration Rules (the Rules), which come into force from 1 January 2022.
Read moreSummary judgment application does not amount to submission to English jurisdiction
Does applying for summary judgment application before the determination of a parallel application for a stay, amount to a step in the proceedings that results submission to the jurisdiction?
Read moreSummary judgment application does not amount to submission to English jurisdiction
Does applying for summary judgment application before the determination of a parallel application for a stay, amount to a step in the proceedings that results submission to the jurisdiction?
Read moreWhat's up with disclosure? The pilot goes into a new phase from November
November ushers in a brand new phase for the disclosure pilot with several substantive amendments being made to the rules.
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 moreOpening the gateway: Supreme Court favours wide interpretation for service out of the jurisdiction and clarifies rules of pleading foreign law
In order to sue a defendant who is outside the jurisdiction of the English courts, a claimant must show that damage was sustained in England.
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 moreStating the not-so-obvious: the importance of highlighting onerous standard contract terms and the perils of e-signing (Blu-Sky Solutions Limited v Be Caring Limited)
The importance of the duty to "fairly and reasonably" draw any particularly onerous clauses in standard conditions to the attention of customers has been highlighted by the High Court in Blu-Sky Solutions Limited v Be Caring Limited, where a party did not review standard terms when e-signing a contract.
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 moreAccess all areas? Privilege, the loss of confidentiality and a missed opportunity
Privilege is not necessarily lost when an opposing party has had access to that privileged material. The purpose and context of the access will lie at the heart of the court's decision in the event that a claim to privilege is disputed: ConocoPhillips Co v Chrysaor E&P Ltd [2021](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 moreHigh Court reviews permission for expert reports and delay after general adjourned period
In Redland Precast Concrete Products (China) Ltd v AES Steel Mould (Hong Kong) Ltd1 the Court of Appeal emphasised that it is unlikely to interfere with the exercise of a first instance court’s case management discretion regarding directions for expert reports, unless an applicant can show that the lower court’s decision is plainly wrong. This presents a party seeking to challenge such directions with a high threshold to overcome in order to obtain permission to appeal. In this case, the applicant (the plaintiff) was unable to meet the threshold – therefore, its application for permission to appeal was refused by the court. Had the plaintiff acted more expeditiously, immediately after the general adjourned period (when the courts were generally closed between January and May 2020 because of the pandemic), things may have turned out differently.
Read moreSecurity for costs – through what lens is the enforcement criteria viewed?
Political obstacles can trump legal obstacles when court is considering enforcement in security for costs applications Haque v Hussain(i)
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 moreWitnesses overseas and preparations for trial during a pandemic
A couple of recent High Court decisions demonstrate some of the issues that arise when a party applies for one or more of their witnesses to give evidence at trial by video conferencing facilities, or seeks an adjournment of a trial, because a witness is overseas and experiencing difficulties in returning to Hong Kong in time for a trial date given the COVID-19 pandemic. In such circumstances, the courts’ ultimate priority is the administration of justice, which involves (among other things) balancing the parties’ competing interests while exercising their case management powers. A trial date (a “milestone date”) is generally sacrosanct and live evidence in person at trial is the norm.
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 moreWhen will the court step in to correct a contractual mistake?
Only if contractual provisions are "nonsensical or absurd" will the Court intervene to correct mistaken drafting. The Court of Appeal recently considered this issue in the context of a dispute between a landlord and tenant in MonSolar IQ Ltd v Woden Park Ltd.(1)
Read moreThe current state of service
Civil war, competing Governments and a dangerous environment. None of these factors ultimately swayed the UK Supreme Court on 25 June, which held that an English court cannot simply dispense with service of the claim form in proceedings against a State, however difficult service may seem.
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 moreNever too late: English court issues anti-suit injunctions despite foreign proceedings reaching Supreme Court
If, contrary to an agreement to arbitrate, you are sued in the wrong jurisdiction the English courts stand willing to issue an anti-suit injunction – regardless of how quickly the foreign proceedings might have escalated. The recent case of UAU -v- HVB [2021] EWHC 1548 (Comm) serves as a good example of how a party should conduct itself in order successfully to obtain injunctive relief.
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