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Collective proceedings - robust approach to determining carriage prior to certification (Hunter v Amazon.com)
In a recent decision, the CAT has given guidance on how carriage disputes between competing proposed class representatives (PCRs) will be addressed in future.
Read moreNot the last word: High Court holds that ICSID Convention does not effect automatic waiver of immunity
The decision in Border Timbers Ltd v. Republic of Zimbabwe [2024] EWHC (Comm) [2024] EWHC 58 (Comm) considers state immunity under English law in the context of enforcement of ICSID arbitral awards.
Read moreMenopause discrimination: Where are we now?
October heralded an important legal first when a Leicester employment tribunal began hearing the case of Rooney v Leicester City Council. It is the first case where a person's menopausal symptoms have been deemed by an appeal court to potentially amount to a disability for the purposes of the Equality Act 2010.
Read moreComing to a bank near you? How "investment AI" could transform financial mis-selling claims
Living under a rock is probably the only way anyone might have escaped the media attention given to ChatGPT and generative AI in recent months. Beyond the (considerable) hype, this technology could have a profound impact on financial mis-selling claims where financial institutions and fund managers turn to the new technology to help them select investments and products.
Read moreA tool that French law does not like: English Court refuses to grant anti-suit injunction in support of French-seated ICC arbitration
The English Court has refused to grant an anti-suit injunction (ASI) in support of an ICC arbitration seated in France.
Read moreAdjusting your recruitment process for a candidate with a disability: What is reasonable?
The Employment Appeal Tribunal (EAT) has held that a failure to make enquiries into a job applicant's disability amounted to a failure to make reasonable adjustments.
Read moreFraud not "some kind of open sesame" in Privy Council appeal to set aside judgment
An appellant was unsuccessful in his bid to set aside judgment on the basis of fraud as the Board of the Privy Counsel dismissed his claim as an abuse of process (1). The appellant had failed to show "fresh evidence" of fraud as he already had all of the information he was relying on to allege fraud at the time he entered into a final settlement agreement, and had not offered an explanation of why he had not deployed this information whilst the original dispute was live.
Read moreCaught out by APP fraud? Here's the 101 of what can be done
Dan Wyatt, partner at RPC, takes a look at the best strategy for APP fraud victims and their recovery options.
Read moreHigh Court sets aside disclosure orders against Australian banks in 'lukewarm' pursuit case
In Scenna v Persons unknown using the identity ‘Nancy Chen’[2023] EWHC 799 (Ch), the High Court set aside disclosure orders made against two Australian banks which had previously been granted at an urgent hearing without notice.
Read moreCourt of Appeal: strength of a case not a relevant factor for late amendments to statements of case
The Court of Appeal has clarified that once a court has determined that amendments to a statement of case have a real prospect of success, the perceived strength of the case should not be a consideration when determining an application for permission to amend (CNM Estates (Tolworth Tower) Limited v Carvill-Biggs and another). ([2023] EWCA Civ 480)
Read moreDelay at your peril: High Court holds that two week delay causes party to lose right to object to irregularity in arbitration
In Radisson Hotels v Hayat Otel, (1). the High Court found that the claimant ("Radisson") had lost its right to challenge an arbitration award (the "Award") by continuing to take part in the proceedings for a period of two weeks after becoming aware of improper conduct by one of the arbitrators (the "Arbitrator"). The court also rejected Radisson's subsequent application seeking to redact the identities of the parties and any details which might identify them in the judgment, in order to preserve the confidentiality of the underlying arbitration (2). While the judge acknowledged Radisson's desire to keep the arbitration confidential, this ultimately did not outweigh the general public interest in open justice.
Read moreBest of both worlds with PD57AC? High Court allows opinion evidence in factual witness statement
The High Court has allowed the witness statement of a factual witness even though the claimant had previously intended to instruct him as an expert and his statement contained opinion evidence (Polypipe Limited v Peter Russell Davidson) ([2023] EWHC 1691 (Comm). The judge confirmed that such evidence is admissible where the witness is suitably qualified, but it will not be accorded the same weight as a formal expert report. Separately, this appears to be the first reported case in which the court accepted that permission for an extension to the deadline for expert reports could be made conditional on disclosure of any unserved report(s), though the court declined to prescribe that condition in this case.
Read moreClear failure required: High Court refuses directions under s 18 of the Arbitration Act 1996 where procedure for appointing arbitrator had not failed
The recent judgment of the English High Court in Global Aerospares Limited v Airest AS [2023] EWHC 1430 (Comm) demonstrates that the court will not issue directions under section 18 of the Arbitration Act 1996 (AA 1996), until it is satisfied that the procedure for appointing an arbitrator has indeed failed. The court dismissed a claim for directions under section 18 which is described as a "gateway provision", providing a way of getting an arbitration started or preventing its abortion where there is a failure in the parties' agreed appointment process. It gives the court powers as to the arbitrator appointments, including the power "to give directions as to the making of any necessary appointments" and "to direct that the tribunal shall be constituted by such appointments … as have been made".
Read moreConfidentiality of arbitration proceedings may not always be protected - The Republic of India v Deutsche Telkom AG [2023] SGCA(I) 4
In general, arbitration proceedings are confidential. Arbitration-related cases which end up in the courts often are reported only after the names of parties have been anonymised, and it is quite common for a sealing order to be issued on the court file, so as to preserve the confidential nature of the arbitration.
Read moreScots law decision confirms that privilege doesn’t change its spots
The Scots law judgment in University of Dundee v Chakraborty [2023] CSIH 22 has reiterated that whether or not a document is protected by legal professional privilege is determined at the point in time at which the document is created. A non-privileged document cannot later acquire privileged status. The judgment also made certain findings about waiver of privilege which may be more controversial, particularly in the context of regulatory investigations.
Read moreStrictly need to know: High Court provides further guidance on confidential embargoed draft judgments
In a judgment that has recently become available, the English High Court has once again warned parties and their legal representatives of the importance of ensuring that the embargo on sharing confidential draft judgments is not breached, a consistent message with a growing body of case law on this subject. The judgment or its outcome should only be shared with those who need to see the draft judgment or be informed of its contents before the judgment is handed down. If in doubt, parties should seek the court's permission before distributing, or risk being held in contempt of court (R (on the application of Kinsey) v London Borough of Lewisham [2022] EWHC 2723) (1).
Read moreThe CPR 3.10 cure: Court of Appeal prioritises substance over form in defective jurisdiction challenge
In a recent decision, the Court of Appeal, considered whether a failure to expressly state that an application to strike out a claim on the basis that the court lacked jurisdiction was being made pursuant to CPR 11, was a defect that could be cured by CPR 3.10. The Court of Appeal concluded that it could and the claim was struck out.
Read moreBinance successfully challenges interim proprietary injunction over deposited cryptoassets
In Piroozzadeh v Persons Unknown and Others [2023] EWHC 1024 (Ch), the cryptocurrency exchange Binance successfully applied to discharge an interim proprietary injunction obtained by a claimant whose misappropriated cryptoassets had been deposited at the exchange. This is the first recorded case of an exchange successfully having discharged such an injunction.
Read moreSingapore Court of Appeal Sends Acceleration of Interest Payment Clause To The Penalty Box
Commercial contracts commonly include clauses providing for liquidated damages, accelerated repayment or late payment interest in the event one party breaches the contract.
Read moreCase Note: Anupam Mittal v Westbridge Ventures II Investment Holdings [2023] SGCA 1 – Examining the law governing arbitrability at the pre-award stage
The Court of Appeal ("CA") in the case of Anupam Mittal v Westbridge Ventures II Investment Holdings [2023] SGCA 1 ("Anupam Mittal") had to determine a previously undecided point of law in Singapore: which system of law governs the arbitrability of a dispute at the pre-award stage, i.e., the law of the seat of the arbitration (lex fori) or the law governing the arbitration agreement.
Read moreDoctrine of separability in arbitration: should the arbitration agreement and the main contract "sink or swim" together or alone?
In DHL Project & Chartering Ltd v Gemini Ocean Shipping Co Ltd, the Court of Appeal considered the arbitration law doctrine of separability.
Read moreArbitration jurisdictional challenge no bar to English court ordering compliance with a tribunal peremptory order
The Court of Appeal has found that the English court may grant an order requiring a party to comply with a peremptory order of a tribunal before the determination of an outstanding challenge to jurisdiction of the tribunal.
Read moreHigh Court favours English jurisdiction in bribery claim brought by Kuwaiti pension fund
The High Court recently rejected an application, brought by two defendants to an alleged bribery claim advanced by a Kuwaiti pension fund, that the claim should be heard before the Swiss courts, holding that England was the proper jurisdiction both in order to avoid the risk of fragmentation of proceedings, and in view of the close connection of the claim to England.
Read moreA matter of interpretation – the Supreme Court look at contractual interpretation once more
In their recent Judgment in Sara & Hossein Asset Holdings Ltd (a company incorporated in the British Virgin Islands) v Blacks Outdoor Retails Ltd [2023] UKSC 2 the Supreme Court adopted a commercially balanced interpretation of a lease; rejecting the overly textual approach of the Court of Appeal in favour of reading the relevant clause in the context of the lease as a whole.
Read moreConsidering bringing an RFI application? Is it strictly necessary?
Andrew Ayres KC and Andrew Dinsmore (Twenty Essex), instructed by Parham Kouchikali and Suzie Kurdi of this firm, successfully resisted a Request for Further Information (RFI) in the High Court.
Read moreCourt of Appeal rejects timing and informed consent defences in bond bribery case
In a recent decision, the Court of Appeal decided in Trafalgar Multi Asset Trading Company Limited (in liquidation) v James David Hadley and others that pleaded defences to a bribery claim were so fanciful as to entitle the claimant to summary judgment.
Read moreHigh Court rejects Group Litigation Order in FSMA litigation as it would not further the Overriding Objective
In a recent decision in Edward Moon & Ors v Link Fund Solutions, Mr Justice Trower dismissed an application by two groups of claimants, declining to make the Group Litigation Order (GLO) sought.
Read moreHong Kong – Parties agreed settlement terms without formal settlement agreement
In MSB International Ltd v Lok & Anor , the Court of First Instance of the High Court found that the parties had agreed a full and final settlement of all their claims in two related proceedings, by way of an exchange of without prejudice written communications between their legal representatives, although no formal draft settlement agreement referring to more comprehensive release terms and stated to be "subject to contract" had been agreed.
Read moreNo loss? No Quincecare claim … the Supreme Court judgment in Stanford International Bank v HSBC
The Supreme Court has handed down its judgment in Stanford International Bank Ltd v HSBC Bank plc, deciding that there was no pecuniary loss suffered by the Claimant and therefore no basis for a Quincecare claim.
Read moreNo need for perfection: ISDA Master Agreement default notice still valid where some errors made
The High Court has decided that a default notice under an ISDA Master Agreement is still valid even if it does not contain wholly accurate statements of the amount of the payment not made, the confirmation of the trade, or the currency of the payment.
Read moreNo need for late night panic: Court of Appeal decides that midnight e-filing is permissible
The Court of Appeal recently considered the short, but important, procedural question of whether a document may be filed electronically at any time up to midnight on the date by which the document is due.
Read moreGreat Peace confirmed: High Court decides that test for common mistake is settled
The High Court has clarified the test to void a contract for common mistake in John Lobb S.A.S v John Lobb Ltd, confirming that the four part test laid down by the Court of Appeal in Great Peace Shipping Ltd v Ttsavliris Salvage (International) Ltd remains the relevant test.
Read moreThe FTX fallout so far and what may come next
The collapse of FTX Trading Ltd. has been as dramatic as it has been fast. Until then, FTX had been the second-largest exchange in the world.
Read moreThree Crypto firsts for the English courts
The recent judgment handed down in Jones v Persons Unknown [2022] EWHC 2543 (Comm) contained three firsts in the English Court: the imposition of a constructive trust between a crypto exchange and a victim of crypto fraud, an order for delivery up of Bitcoin, and summary judgment served by NFT airdrop. It shows the English courts' continued willingness to push the boundaries of English law in relation to the recovery of misappropriated cryptoassets. The innovative application of English law procedures and remedies to the growing problem of crypto theft and fraud is of considerable assistance to the victims of this pernicious and widespread fraudulent activity.
Read moreItalian Local Authority succeeds in swap claim before the English Court
In a significant judgment in Banca Intesa Sanpaolo SpA v Comune di Venezia [2022] EWHC 2586, the English Commercial Court has found that, as a consequence of the 2020 decision of the Italian Supreme Court in Banca Nazionale del Lavoro SpA v Comune di Cattolica (Cattolica), English law governed interest rate swaps entered into by the Municipality of Venice (Venice) were void for lack of capacity. Venice was therefore entitled to restitution for the amounts paid to the Banks under the interest rate swaps. However, the English Court also found that the Banks were in principle entitled to rely on a defence of change of position in respect of payments made under back-to-back swaps with other financial institutions which operates to reduce the sums recoverable by Venice.
Read moreCourt of Appeal refuses to drive "a coach and horses" through the concept of a limited liability company in joint tortfeasor decision
The Court of Appeal upheld a finding of corporate liability, but no director accessory liability, for failure to advise of risks of property investment scheme, despite the director being the driving force behind the company's marketing of the scheme.
Read moreA balancing act: IMF confidentiality obligations do not trump duty of disclosure in Argentinian securities dispute
This case serves an illustration of the factors that the court will take into consideration when weighing up the competing interests of confidentiality obligations against the duty of disclosure, here under the rules of the disclosure pilot under PD 51U. The court found that confidentiality obligations owed to the IMF did not override the duty of disclosure. The court took into account both the scope of the confidentiality obligation and the relevancy and contemporaneous quality of the documents.
Read moreHong Kong court grants reported Norwich Pharmacal in aid of execution
Unsurprisingly, claimants want to be able to enforce their judgments, especially when the underlying proceedings have been hard-fought and (therefore) expensive.
Read moreLitigation risk arising from recent LDI related disruption in the UK gilt market
In this bulletin, we examine the role of Liability Driven Investment (LDI) in the widely publicised disruption experienced in the UK gilts market in recent weeks and consider the disputes which might result.
Read moreA hedge or a gamble? Potential claims for losses under FX derivatives
The recent depreciation of various currencies, in particular against the US$, risks significant losses for businesses under complex foreign exchange (FX) derivative products. Jonathan Cary considers the dangers of these products in the current volatile markets and explains why there is significant potential for disputes in this area.
Read moreOverseas King's Counsel appearing remotely before Hong Kong's top court
In an interesting and fully reasoned decision, delivered against the background of "Wave-5" of the Covid-19 pandemic in Hong Kong, a judge of the Court of Final Appeal has given approval for two King's Counsel (based in London) to appear remotely at a final appeal in January 2023.
Read moreHong Kong Court of Appeal: pre-arbitration compliance is a matter of admissibility, not jurisdiction
The Court of Appeal, in C v D [2022] HKCA 729, has confirmed that compliance with pre-arbitration procedural requirements in a contractual escalation clause is an issue going to the admissibility of the claim, and not to the arbitral tribunal's jurisdiction, and that consequently an arbitral tribunal's decision was not liable to be set aside by the Court for lack of jurisdiction under Article 34 of the UNCITRAL Model Law.
Read more"Clear and unconditional communication" determines whether arbitrator appointment was valid
On 20 June 2022, the English High Court issued summary judgment in the case of ARI v WJX. The judgment arose from a dispute as to the validity of the arbitrator appointment in a London Maritime Arbitrators Association Arbitration (LMAA) and decided that it is the clear and unconditional communication by an arbitrator which determines whether their appointment was valid, as opposed to whether a contract had been formed with the arbitrator.
Read moreCourt of Appeal confirms that conditional fee arrangements do not give rise to an implied a duty of good faith
The Court of Appeal has upheld a High Court decision that conditional fee agreements (CFAs) do not imply a duty of good faith on the part of the client. A firm of solicitors acting under a CFA who had been instructed by their client to settle proceedings on a "drop hands" basis, with no order for costs, was not entitled to recover costs from their client on the basis that the client had breached a duty of good faith. The ruling cautions solicitors who enter into CFAs about the risks of clients agreeing a settlement that deprives them of their entitlement to conditional fees.(1)
Read moreNowhere to run: why a document can be "left" with a defendant and still be served in the right way
The High Court has clarified what it means to personally serve a defendant by "leaving" a document with them and confirmed that the court has jurisdiction to make an order obliging a defendant to reveal the whereabouts of missing property.
Read moreHigh Court confirms permission not needed for "Technology Assisted Review" to facilitate discovery in litigation
China Metal Recycling (Holdings) Ltd (in liquidation) v Deloitte Touche Tohmatsu,(1) is a recent decision of the Court of First Instance of the High Court that confirms that court approval is not needed for the use of technology assisted review (TAR) to facilitate the discovery process pursuant to an agreed protocol between the parties, although the court has power to order the manner in which discovery of documents is undertaken between the parties if they apply to court.
Read moreThe October CPR update: three important changes for litigators
The traditional autumn update to the CPR this year comes with three developments of particular note for litigators: the permanent incorporation of the disclosure pilot into the CPR, amendments to the rules relating to service out of jurisdiction, and the simplification of certain Practice Directions including PD16 regarding Statements of Case (PD16).
Read more"Specifically mentioned": High Court clarifies rules about documents referred to in evidence under the Disclosure Pilot
In a judgment that has recently become publicly available (Michael Wilson and Partners Ltd v Emmott and others [2022] EWHC 730 (Comm)) the High Court rejected the claimant's request for disclosure of documents referred to in a witness statement which were "bound to exist". In doing so, the court re-emphasised the importance of clarity and specificity in relation to requests for disclosure.
Read moreYou've been airdropped: English court approves service by NFT and finds it arguable that cryptocurrency-exchanges hold misappropriated assets as constructive trustees
In D’Aloia v (1) Persons Unknown (2) Binance Holdings Limited & Others [2022] EWHC 1723 (Ch), the English court approved service of proceedings by NFT and found that it was arguable that cryptocurrency exchanges owed constructive trustee duties to cyber-fraud victims.
Read moreBack to basics on contract interpretation as Court of Appeal finds that natural meaning of settlement agreement prevails
In Schofield & Anor v Smith & Anor [2022] EWCA Civ 824, the Court of Appeal dismissed the appeals of a group of companies, finding that a settlement agreement entered into between the group companies and their bank released the companies' former administrators and their solicitors from all relevant claims, even though the settlement agreement had been agreed without the involvement of the administrators, and after the administration of the group companies had been concluded.
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