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A litigator's quiz: Second candle of Advent
Festive fraud seems a contradiction in terms. But Advent is traditionally a time to reflect on sin, so this week our quiz focuses on the year in crime and civil fraud under English law. Good luck trying to light the second Advent candle!
Read morePrevention principle – can parties sue for breach of contract occasioned by their own breach?
According to the High Court in TMF Trustee Ltd v Fire Navigation Inc, the prevention principle can excuse a breach of contract when a party has been prevented from performing the relevant obligation by a breach of the other party.
Read moreA Litigator's Quiz: First Candle of Advent
Legal professional privilege burns bright in the hearts of most disputes lawyers. Does it burn bright enough to light the first Advent candle in 2019?
Read moreIn house lawyer prevented from relying on a leaked email and an overhead conversation
Mr Curless was a senior legal counsel at Shell International Limited (Shell) from January 1990 until he was made redundant in January 2017. He suffers from Type 2 diabetes and Obstructive Sleep Apnoea. He brought a claim against Shell for disability discrimination, victimisation and unfair dismissal.
Read moreContribution to legal costs: natural love and affection or calculated self-interest?
When will an order for costs be made against a family member who was not a party to the underlying proceedings, but who contributed significantly to funding the losing party's defence? Answer: when the funder has a personal interest in the litigation. Kazakhstan Kagazy Plc (and others) v Maksat Arip (and others)[1]
Read moreRisky business: the perils of taking over someone else's contract
The High Court has held that the tort of inducing breach of contract requires more than merely "facilitating" a breach. Flexidig Ltd v A Coupland (Surfacing) Ltd(1) also reminds third parties of the perils of becoming embroiled in others' disputes.
Read moreAnchor Defendants: Court of Appeal confirms no 'sole object' test applies
Recently, the Court of Appeal confirmed that article 6(1) of the Lugano Convention is not subject to a 'sole object' test. Where claimants have a sustainable claim against an 'anchor defendant' that they intend to pursue to judgment, they may rely on article 6(1) to bring a foreign co-defendant within the jurisdiction. This will be the case even if the claimant's sole object in suing the anchor defendant is to sue the foreign co-defendant in the same proceedings.
Read moreWhen is opinion evidence admissible?
To be prima facie admissible in court, opinion evidence must be relevant and prepared by someone who would be qualified to give expert evidence. Only evidence which falls within CPR 35 will be subject to the attendant restrictions on admissibility contained in that rule (Gregory v Moore).
Read moreWorld freezing orders: recent dissipations and reasonable delays
Delay is not fatal to the continuation of a world freezing order and an applicant need not adduce evidence of recent dissipations (1) PJSC National Bank Trust v Boris Mints [2019] EWHC 2061 (2) Holyoake v Candy [2017] EWCA Civ 92
Read moreTortious claims against third party may trigger anti-suit injunction
A party's attempt to circumvent a jurisdiction clause by bringing tortious claims against a third party has been thwarted by the High Court. In granting an anti-suit injunction, the court explored the substance of the claims and found them to be "vexatious and oppressive", designed simply to evade the exclusive jurisdiction clause.
Read moreSubjective expectation versus objective intention; when will a term be implied into a contract?
The High Court has implied a term into a contract for the sale of Peruvian Government Global Depository Notes (GDNs) by Lehman Brothers International (Europe), in order to make the contract workable.
Read moreCourt orders mediation
The High Court has upheld a tiered dispute resolution clause in accordance with established principles of contractual interpretation. The court ordered a stay of proceedings for mediation, and in support of the mediation also ordered pleadings to be served in advance in order to optimise the prospects of a settlement.
Read moreArbitration or winding up?
In But Ka Chon v Interactive Brokers LLC [2019] HKCA 873, the Hong Kong Court of Appeal upheld a lower court's decision to reject an application to set aside a statutory demand. The appellant had argued (among other things) that an arbitration clause in his agreement with the respondent required their dispute to be referred to arbitration.
Read moreHigh Court waits for no lawyer
An appeal was recently lost after an application for an oral hearing was made just two days late. Evans v Pinsent Mason LLP [2019] EWHC 2150 (QB) This decision is a timely reminder of the strictness of court deadlines and of the importance of being upfront with the court (and your opponent) which, on this occasion, was unwilling to forgive ambiguity as to whether the deadline had been met.
Read moreNotice givers take care – ignore the contract at your peril
The Court of Appeal has confirmed in Stobart Group Ltd & Anor v William Stobart & Anor [1] that an objective test will be applied when assessing whether a unilateral contractual notice has been validly given. This decision also provides a cautionary reminder of the consequences of a party's failure to comply strictly with contractual notice provisions. [1] [2019] EWCA Civ 1376
Read moreClarity, clarity, clarity; more contract drafting lessons from the court
Keep under review options for terminating contracts which are no longer needed or pay the price. We discuss an interesting approach from the High Court to the well-known principles of contractual interpretation in Macquarie Capital v Nordsee. [2019] EWHC 1655 (Comm)
Read moreAn innocent party is entitled to damages, even though performance of the contract is impossible
The Court of Appeal considered the proper interpretation of exceptions or force majeure clauses and provided guidance on the correct application of the compensatory principle of damages in Classic Maritime v Limbungan. Classic Maritime Inc v Limbungan Makmur SDN BHD & Anor [2019] EWCA Civ 1102
Read moreThe Art of the (Settlement) Deal
According to the English Court of Appeal, giving up a right which the debtor does not even know he has is sufficient consideration for settling a debt. But the vexed question of what amounts to "good" consideration remains uncertain enough for those entering into a contract always to consider whether good consideration has been given. If in doubt, pay a nominal amount.[1]
Read moreMake the most of a mediation - 10 Top Tips
Preparation for a mediation is key- you get out what you put in. Here are our top 10 tips for making the most out of the mediation process to successfully settle your dispute.
Read moreServing up the truth, the whole truth and nothing but the truth?
The Court has reminded us that the duty of full and frank disclosure applies to any application made without notice to the other party. Although this is most typically an issue in applications for injunctions, permission to serve a claim out of the jurisdiction was recently set aside on the grounds of the claimant's failure to disclose to the Court a potential limitation defence to the claim.(1)
Read moreCourt of Appeal makes rare order for rectification, with interesting consequences…
The Court of Appeal has ordered rectification resulting in one party being in breach of warranty and liable pay damages. In Persimmon Homes Limited v Hillier and Creed [2019] EWCA Civ 800, the dispute centred on whether all plots of land required to create a development site were intended by both parties to be included in a sale, when in fact two plots out of six were not included.
Read moreWhat expenditure falls within ‘ordinary and proper course of business’ exception in freezing orders?
The cost of pursuing related arbitration proceedings and fighting extradition proceedings could be costs incurred in the ‘ordinary and proper course of business’ according to the Court of Appeal in Koza Ltd v Koza Altin.(1)
Read moreCourt of Appeal upholds decision on importance of industry standard documents in conflicting jurisdiction clauses
The Court of Appeal upheld the decision of the High Court[1], highlighting the risk that the English and Italian Courts may reach different decisions on the underlying factual background of related disputes even where the disputes could be said to fall under different agreements [2]. Therefore, parties need to appreciate that the English Court will put the certainty of industry standard documentation (such as ISDA Master Agreements) first such that it is dangerous to have different jurisdiction and/or governing law clauses in related agreements.
Read moreEconomic duress: when is a threat not an (illegitimate) threat?
In what circumstances can a threat not to enter into a contract amount to economic duress? Broadly speaking, when pressure is exerted "in bad faith", according to the Court of Appeal in Times Travel (UK) Limited v Pakistan International Airlines Corporation
Read moreDisclosure Pilot Scheme: Technology
How does the Disclosure Pilot encourage the use of technology?
Read moreNovel approach to measuring damages resulting from a breach of warranty
The accepted approach of diminution in the value of the target company has been unsuccessfully challenged in Oversea-Chinese Banking Corporation Limited v ING Bank NV ([2019] EWHC 676 (Comm)).
Read moreDisclosure Pilot Scheme: A balancing act
Disclosure has always involved a balancing act between all parties involved, to progress cases in an efficient and cost effective manner, but the Disclosure Pilot Scheme seeks to change where that balance lies. Partners Parham Kouchikali and Davina Given discuss in more detail.
Read moreAng(er) over jurisdiction challenge: High Court seeks to clarify whether speculative investment by a private individual is a business or consumer activity
Failed jurisdiction challenge against a private individual making speculative currency transactions on the basis that she could be considered a consumer under the Recast Brussels Regulation (Romana Ang v Reliantco Investments Limited [2019] EWHC 879 (Comm))
Read moreNo exceptions to exclusionary rule: Court of Appeal confirms established principle
While evidence of pre-contractual negotiations can be adduced to demonstrate how a transaction came about or what its commercial aims were, it cannot be relied on to aid the interpretation of the contractual provisions themselves. Merthyr (South Wales) Ltd v Merthyr Tydfil County Borough Council ) [2019] EWCA Civ 526.
Read moreFinancial litigation roundup Spring/Summer 2019
Welcome to the latest edition of our financial litigation roundup. In this edition, we consider recent judgments and ongoing cases from the banking and financial world in the UK and Hong Kong, as well as legal developments across those jurisdictions.
Read moreDisclosure Pilot Scheme: Cooperation and culture
Partners Parham Kouchikali and Davina Given discuss the Disclosure Pilot Scheme and the change in cooperation and culture needed for the pilot to be successful for all parties involved.
Read moreThe High Court removes its cap for litigation funders
The High Court has declined to cap a litigation funder's liability for adverse costs at the amount of funding provided. It confirmed that the so-called Arkin cap is an approach to be considered, not a rule to be followed (Davey v Money [2019] EWHC 997 (Ch)).
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 moreWhat if third parties helped to hide the golden egg?
What if third parties helped to hide the golden egg?
Read moreThe fraudster is insolvent – can you add more eggs to the basket?
The fraudster is insolvent – can you add more eggs to the basket?
Read moreWhat to do if the golden egg hatches (or you need to trace into the fraudster's other assets)
What to do if the golden egg hatches (or you need to trace into the fraudster's other assets)
Read moreHow can I find the golden egg? Part 2: ask the Easter bunny (or third parties)
How can I find the golden egg? Part 2: ask the Easter bunny (or third parties)
Read moreEgg supplier ends up with egg on its face
Egg supplier ends up with egg on its face
Read moreShould fraud unravel all? The Supreme Court thinks so
Should fraud unravel all? The Supreme Court thinks so
Read moreHow can I find the golden egg? Part 1: ask the fraudster and accept no eggs-cuses
How do I find the golden egg? Part 1: ask the fraudster and accept no eggs-cuses
Read moreHow do you stop the golden egg rolling away?
How do you stop the golden egg rolling away?
Read moreThe greatest Easter egg hunt: asset recovery in the English courts
The greatest Easter egg hunt: asset recovery in the English courts
Read moreEnglish Court trumps the FBI
In HP's high profile claim against Mike Lynch in relation to its acquisition of Autonomy, the English High Court has held that the implied undertaking against collateral use of documents received in the course of litigation prevented disclosure of those documents to the FBI.
Read moreGame theory and the art of litigation strategy - Article 4
Escaping the Hobbesian Trap – the impact of aggression in litigation settlement strategy
Read moreWhat are the circumstances in which acting in breach of EU sanctions will kill a claim?
An Iranian oil company was defrauded in a failed attempt to circumvent EU sanctions - does its claim survive the Patel v Mirza illegality test?
Read more"Agency" is not always enough to engage the law of bribery and secret commissions
The Court of Appeal has held that the payment by a seller of a fee to an acquisition agent without the buyer's knowledge does not render the contract for sale void or voidable. The decision turned on whether there was sufficient trust and confidence in the relationship between the buyer and the acquisition agent. Prince Arthur Ikpechukwu Eze v Conway and another [2019] EWCA Civ 88
Read moreEnforceable oral contracts – Supreme Court looks to conduct and context
To avoid expensive litigation, contracting parties should ensure that all essential terms are expressly agreed within a legally binding contract. Where some essential terms are missing, but the parties clearly intend to be bound by and act on their agreement, the court will be keen to find an enforceable agreement. Wells v Devan 2019, UKSC 4.
Read moreIs a good arguable case good enough? The Court of Appeal considers the test for establishing jurisdiction
The test for deciding whether a claimant has a good arguable case is relative following the Court of Appeal's decision in Kaefar v AMS Drilling and others.
Read moreTime waits for know-ledge: but what does that mean for limitation?
Keep limitation under review, Section 14A does not extend the limitation period until each and every breach is identified and a claimant cannot postpone the date of 'knowledge' under Section 14A of the Limitation Act by choosing which breach of duty it relies on.
Read moreDrafting a contract? Beware the well-intentioned but unenforceable agreement to agree
"Such period as shall reasonably be agreed between (the parties)" is an agreement to agree and therefore unenforceable according to the Court of Appeal in Philip Morris v Swanton Care & Community Limited.
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