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Expert 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.
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 moreWhen can "deliberate concealment" postpone limitation periods?
The Court of Appeal has explored the meaning of "deliberate concealment" in Canada Square Operations Ltd v Potter(1) and has held that there need not be "active steps of concealment" for the start of a limitation period to be delayed under s.32(1)(b) Limitation Act 1980.
Read moreNeed for reasonable enquiries upon receipt of potentially confidential information
The Court of Appeal recently held that a recipient of information will be bound by a duty of confidentiality if it was reasonable for them to have made enquiries as to the confidential nature of the information and they failed to do so (Travel Counsellors Ltd v Trailfinders Ltd [2021] EWCA Civ 38).
Read moreParental Guidance from the Supreme Court: When may a UK domiciled parent company owe a duty of care to individuals affected by the acts of its foreign subsidiary?
We discuss a significant Supreme Court decision on parent company liability under English law, Okpabi and others v Royal Dutch Shell Plc and Shell Petroleum Development Company of Nigeria Ltd. This decision on jurisdiction provides helpful guidance on the circumstances in which a UK domiciled parent company may owe a common law duty of care in respect of the actions of a foreign subsidiary company.
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 moreTech-driven arbitration? What else can we look forward to in arbitration in the UK?
A look at the past year in arbitration in the UK and what the future holds.
Read moreThe jurisdiction eagle has landed…in the Courts of England & Wales
Does the governing law for passing off claims fall under Article 6 or Article 8 of Rome II? The High Court's explores this in Lyle & Scott Limited v American Eagle Outfitters Inc(1).
Read moreWhen is an error a serious irregularity? The English court demonstrates its approach to correcting arbitration awards
A tribunal's admission of a simple computational error, and its refusal to correct it, was a serious irregularity that had caused substantial injustice. On the basis of this, the English court remitted an arbitration award to the tribunal for correction so that the tribunal would have the room to carry outs its stated intention to award substantial damages to one of the parties.
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 moreThe Court of Appeal provides useful reminder of the force of the "subject to contract" label in the context of settlement negotiations
A Part 36 offer does not alter the status of "subject to contract" protection in solicitors' correspondence settling a dispute.
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 moreMore is more when giving a notice of claim under an SPA
A buyer's notice of claim pursuant to the terms of a sale and purchase agreement in a USD1 billion transaction failed adequately to comply with the notice requirements set out in the tax covenant of the SPA. As a result, a sum of USD50 million held in escrow for claims was paid out unconditionally to the sellers under the SPA. Dodika Ltd v United Good Luck Holdings Ltd [2020] EWHC 2101 (Comm).
Read moreWhen is an Application to Court an Abuse of Process?
While hearing the appeal of an application to discharge an interim order, the Court of Appeal clarified its approach to deciding when conduct is permissible and when it may amount to an abuse of process.
Read moreTo MAE or not to MAE? Commercial Court hands down preliminary issues judgment in first Covid-19 Material Adverse Effect case
In her recent decision in Travelport Limited and others v Wex Inc,(1) the Head of the Commercial Court provided topical guidance on the construction and application of Material Adverse Effect clauses in the context of the Covid-19 pandemic.
Read moreLIBOR: Litigation risks in the endgame?
In 2021 we will bid farewell to LIBOR and welcome in SONIA. The two systems work in different ways, with LIBOR looking forward and SONIA looking back.
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 moreThe LCIA Rules 2020 – what's new?
Changes in relation to complex multi-party cases and the use of technology form the backbone of the latest version of the London Court of International Arbitration (LCIA)'s arbitration rules (the LCIA Rules 2020).
Read moreOverseas In-house lawyer's advice covered by legal advice privilege
There is no additional requirement for in-house foreign lawyers to be "appropriately qualified" or recognised or regulated as a "professional lawyer" for legal advice privilege to extend to communications between them and company employees.
Read moreThe Quincecare duty bowls out HSBC
The High Court has held that banks may be liable for breaches of the Quincecare duty even where the customer's net assets have not been reduced by the breach; Stanford International Bank Ltd v HSBC Bank Plc(1)
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 moreSecurity for costs not ordered despite looming economic downturn caused by COVID-19
Evidence of the adverse impact of the COVID-19 pandemic on the Claimant's financial position was not enough to show an inability to pay adverse costs in a recent application for security for costs in the High Court in International Pipeline Products Limited v IK UK Ltd & Ors. [2020] EWHC 1602
Read moreStick to the process – a further reminder of how useful a process agent clause can be, especially following Brexit
Process agent clauses are commonly included in cross-border finance transactions. They avoid the need for the claimant, typically the lender, to have to serve process outside the jurisdiction, frequently a costly and time-consuming exercise, particularly when the court's permission is needed. Accordingly, lenders will often require a foreign borrower and/or any guarantors to appoint a process agent in the lender's jurisdiction to accept service on their behalf.
Read moreNo interim injunction over bitcoin account where damages would be adequate
The court has declined to continue interim injunctions granted in respect of a 'coin depot account' holding bitcoin over which the claimants asserted a proprietary right.
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 morePrivy Council gives a lesson on the remoteness of damage in contract law within a judgment on damages for breach of separate but related contracts
Where parties have entered into separate but related contracts, breach of one contract does not necessarily preclude the recovery of damages under another.
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 – Refusal to regrant injunction that lapsed during general adjournment successfully appealed
In a previous update dated 29 April 2020, we noted that a first instance court held that the general adjourned period (GAP), during which the Hong Kong courts were closed save for urgent and essential court business, did not generally extend the duration of an injunction which was granted on an urgent basis before the GAP commenced and listed for a "return date" during the GAP (for further details, see "General adjournment in Hong Kong does not extend duration of ex parte injunction", dated 29 April 2020).
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 moreSupreme Court reflects on a narrower interpretation of "reflective loss"
The Supreme Court has scaled back the scope of the reflective loss principle which has been expanded over the years. The reflective loss principle essentially prevents a shareholder from bringing a claim against a wrongdoer for the diminution in value of its shares or distributions that results from a loss caused by that wrongdoer to the company itself.
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 moreOrders for pre-action disclosure – exceptional in a commercial context?
Although parties are expected to exchange key documents before starting proceedings in the English court, a recent decision in the Commercial Court highlights the limited nature of those obligations, particularly in a commercial context.
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 moreWaiving goodbye to privilege – reliance is key
In what circumstances will a party waive privilege over legal advice by referring to it in evidence?
Read morePrivileged but admissible? When can without prejudice material be pleaded in statements of case?
The High Court considered the scope of the existing exceptions to the Without Prejudice Rule in its recent decision of Berkeley Square Holding & others v Lancer Property Asset Management & others(1). This well-known rule protects communications made in a genuine attempt to settle an existing dispute from later deployment in court. The Court allowed passages from papers prepared for a mediation to be admitted into the proceedings under two exceptions to the Without Prejudice Rule.
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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