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Minority shareholder oppression and the proper plaintiff rule – it gets personal
Section 216 of the Companies Act (Cap. 50) affords protection for minority shareholders where their interests are oppressed by the manner in which the company’s affairs are being conducted or by how the directors’ powers are being exercised.
Read moreThe commission omission? English High Court balances text and context in contractual interpretation
English law's flexible, rational, yet stable approach to contractual interpretation has been demonstrated again in Clark Street Associates v Norsk Titanium(1), a decision concerning commission payments.
Read moreHong Kong Courts – Closing the GAP
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.
Read moreTo perform or not to perform? When tendering performance means actual performance
A consultant was alleged to be in material breach of a consultancy contract for refusing to supply his services. He responded to a notice of material breach by stating that he was willing to perform. However, the Court of Appeal held that this was insufficient to remedy the breach (Bains v Arunvill Capital Limited and others)(1).
Read moreWhen will reference to a document in a witness statement waive privilege in that document
Tread carefully when considering whether and how to reference privileged documents; "deployment" of a document may draw back the cloak of privilege but a "mere reference" may not. Context will be key.
Read moreWhat are good grounds for appeal in insolvency applications?
Applying for permission to advance fresh evidence on appeal is a tricky application, which has had varying degrees of success in the courts. Zheng Yougxiong v Gate Ventures Plc(1) is a useful example of the application of the criteria, albeit in the context of insolvency proceedings.
Read moreHigh Court provides a reminder against "over-lawyering" of witness statements
In a reminder not to "over-lawyer" witness statements, a High Court judge has ordered that statements be revised to remove inappropriate content(1).
Read moreGeneral adjournment in Hong Kong does not extend duration of ex parte injunction
In Hong Kong, the courts have generally been closed, save for urgent and essential court business as a result of COVID-19.
Read moreCOVID-19 – Hong Kong Courts set for phased reopening from May
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.
Read moreCOVID-19: Trials - the show must go on
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.
Read moreCOVID-19 – Hong Kong Courts handling urgent and essential matters
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".
Read moreParental controls: when does standing consent put subsidiaries' documents within its parent's control?
A parent company does not exercise control over the documents of, or held by, its subsidiaries merely by virtue of its shareholdings in those subsidiaries.(1).
Read moreCOVID-19: Virtual hearings - what we've learned
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….
Read moreCOVID-19 - The official guidance on remote hearings; early engagement is key to success
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.
Read moreCOVID-19: Impact on court hearings and successful virtual mediations
As anticipated, the Courts are now moving to a (mainly) remote working basis.
Read moreQuasi-proprietary claims: use of disputed funds to pay legal costs
In Kea Investments Ltd v Eric John Watson, the High Court considered to what extent a defendant should be permitted to use funds subject to a freezing injunction to fund its legal expenses where the claimant advances a quasi-proprietary claim over those funds
Read moreLitigation funder liable for uncapped adverse costs
In ChapelGate Credit Opportunity Master Fund Ltd v James Money, the Court of Appeal ordered a funder to pay the full amount of adverse costs. [2020] EWCA Civ 246. In a significant judgment for commercial litigation funders, the court found that the ‘Arkin cap’ (which can cap a litigation funder's liability for adverse costs to the amount of funding that was provided) is not a binding rule to be applied automatically in every case involving a litigation funder. Instead, the court considered all of the facts of the case and exercised its discretion in determining whether to cap the litigation funder's liability for adverse costs.
Read moreBeware: English jurisdiction clauses do not mean choice of English law
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.
Read moreHigh Court: Claimants' litigation funder ordered to provide security for costs
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).
Read moreEquitable compensation for breach of fiduciary duty: a question of loss?
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
Read moreLenders face more allegations about their actions on restructuring
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.
Read moreCovertly obtained information cannot be deployed until its legitimacy is resolved
Read moreBitcoin is 'property' and can therefore be subject of proprietary injunction
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.
Read moreBreaking news - dominant purpose test extends to legal advice privilege
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.
Read moreWitness evidence reform - evolution not revolution?
The Witness Evidence Working Group's recommendations for witness evidence reform focus on the more consistent enforcement of existing rules with some limited new measures.
Read moreFull and frank disclosure means more than just putting relevant matters in evidence – a new year warning in UKIP v Braine & Others
New year, new reminder of the obligation to make full and frank disclosure in without notice applications, this time in the context of a falling out within the UKIP party. The obligation can only be satisfied by drawing the court's attention to legal or factual matters which could undermine the applicant's own application; it is not enough to simply put relevant matters in evidence before the court (UKIP v Braine & Others). Injunction, confidential, publication and non-disclosure.
Read moreFreezing orders: when will past conduct show a real risk of dissipation?
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.
Read moreGuaranteed to fail? Oral funding arrangements may be enforceable
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)
Read moreA litigator's quiz: Fourth candle of Advent
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.
Read moreOral contract does not prevent agent from being paid in circumstances not catered for in contract
In a recent case, the Court of Appeal held that an oral contract for a specified introduction fee payable to an agent if a property sold at a particular price did not prevent the agent from being remunerated when that property was sold for a lesser sum (despite the contract being silent on the matter). Philip Barton v Timothy Gwyn-Jones [2019] EWCA Civ 1999. However, the sum awarded by the court was significantly lower than the introduction fee specified in the contract.
Read moreA litigator's quiz: Third candle of Advent
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?
Read moreA 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 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.
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