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A look back at the Year of the Dog
Over the past 12 months, the courts of Hong Kong have made a number of interesting decisions, many of which we have written about, and which are likely to prove instructive for lawyers in 2019 and beyond.
Read moreFunding for disputes – “one step forward”
In a significant development in June 2017, the Arbitration and Mediation Legislation (Third Party Funding) (Amendment) Ordinance was enacted. It provides for a legislative regime for third party funding of arbitration and mediation in Hong Kong.
Read moreAn excessive demand is still a demand - Barclays Bank plc v Price
A demand made under a guarantee may be effective even when the amount demanded exceeds an express liability cap.
Read moreWatch out! Internal settlement negotiations may not always remain "internal"
WH Holding Limited (1) West Ham United Football Club Limited (2) v E20 Stadium LLP [2018] EWCA Civ 2652 finds that internal settlement negotiations are not protected by litigation privilege.
Read moreOn the twelfth day of Christmas, the High Court gave to me…twelve judges judging
It attracted nothing like the controversy of the US Senate's confirmation of US Supreme Court Justice Kavanaugh. However, the decision of the two selection commissions to recommend, and of the Lord Chancellor to recommend to the Prime Minister, the appointment of Lady Hale to the Presidency of the UK Supreme Court and of Ladies Black and Arden to the Court marked historic firsts in 2018.
Read moreOn the eleventh day of Christmas, the High Court gave to me…eleven groups a-growing
Unlike Scrooge, litigation will not wake transformed on Christmas Day into a gentler, kinder activity. But it is undergoing a slower transformation with the growth of various forms of group litigation in England.
Read moreOn the tenth day of Christmas, the High Court gave to me…ten claims a-noticed
Christmas may come but once a year, but 2018 was book-ended by two cases in the Court of Appeal on claim notices in the context of share sale purchases.
Read moreOn the ninth day of Christmas, the High Court gave to me…nine losses mounting
It's rare for cases on damages to reach the Supreme Court, and there was just one in 2018: Morris-Garner v One Step (Support) Ltd (possibly particularly appropriate for a verse normally taken up with possibly aged leaping lords).
Read moreOn the eighth day of Christmas, the High Court gave to me…eight duties owing
To borrow from a distinctly non-Christmassy text: to owe or not to owe a duty? That is often the difficult question. (It could be worse: o-ho-ho-ho-we, yes, it could.) By way of a round-robin letter on the topic, by and large, 2018 was a good year for.
Read moreOn the seventh day of Christmas, the High Court gave to me…seven fraudsters fleeing
A Home Office report in July 2018 found that in 2015/16 there were 3.6m incidents of fraud with an immediate cost of £3.04bn and 2m incidents of cybercrime with an immediate cost of £526m. It seems improbable that the number or value of those incidents has declined since then, and certainly fraud of all types has had a busy 12 months in the English courts.
Read moreOn the sixth day of Christmas, the High Court gave to me…six exclusion clauses
Geese, which normally feature in this verse, can pack a nasty bite. In a gaggle of cases this year, exclusion clauses bit claimants hard – but in two cases the claimants successfully fought back.
Read moreOn the fifth day of Christmas, the High Court gave to me…five time bars!
A defendant who can rely on a limitation defence strikes gold. However, the extreme impact of a time bar in wiping out a claim, however meritorious, combined with the impenetrability of some parts of the Limitation Act 1980, makes limitation a fertile source of dispute, and so it proved in 2018.
Read moreAre the US courts eroding collective redress? Why England may be becoming a more attractive place for class actions
The UK may be becoming a more favourable jurisdiction than the US for class actions or collective redress.
Read moreOn the fourth day of Christmas, the High Court gave to me…four contracts
Questions of contractual interpretation can be hard nuts to crack. We pick out today some nuts that you might find at the bottom of your legal stocking this year.
Read moreOn the third day of Christmas, the High Court gave to me…three corporate crimes
Beware of employees bearing gifts of frankincense, myrrh and especially gold: 2018 saw the first conviction after a contested prosecution for the corporate offence of failing to prevent bribery, under s7 of the Bribery Act 2010.
Read moreOn the second day of Christmas, the High Court gave to me…two LIBOR reps
The long-running and hard-fought saga of Property Alliance Group v Royal Bank of Scotland came to a close with the Court of Appeal's judgement in March 2018, after four and a half years and at least 12 reported decisions. So what will we remember from the litigation?
Read moreOn the first day of Christmas, the High Court gave to me…a privilege in E-N-RC
With Advent upon us, and Christmas on the horizon, RPC takes a musical look back at the most important English judgments of 2018. Liability for all failures of rhythm and rhyme is hereby excluded.
Read moreTerraLex guide to tracing assets around the world 2018
We are delighted to present the TerraLex 2018 Guide to Tracing Assets Around the World.
Read moreLetter of contract versus business common sense – latest from Court of Appeal
In the latest of a long line of higher court authorities debating the boundaries between black letter and more purposive approaches to contractual construction, the Court of Appeal has taken another step away from the high-water marks of the business common sense approach to contractual meaning.
Read moreFive ways the civil courts are fighting back against cybercrime
Service by text and data room, worldwide freezing orders against persons unknown, self-identification orders and hearings on paper and in private are ways the court is dealing with cyber-crime. Here are five ways that the courts are addressing the imbalance that exists between victims and criminals who seek to hide behind a veil of anonymity in this digital age.
Read moreReflections on the UK Bribery Act seven years on
Following the appearance of RPC's Sam Tate at the annual IBA conference earlier this month, where he joined a panel of experts discussing Corruption and Corrupt Contracts, here are our reflections on how the Bribery Act has changed the landscape of bribery offences and corporate criminal liability, first published by the IBA earlier this year and now updated.
Read moreOil or nothing: Court of Appeal considers damages in continuing misrepresentation claim
The Court of Appeal recently held that a director who had made continuing fraudulent misrepresentations was liable for damages calculated at the point of sale and not at the point of entering into the contract. This judgment is a reminder that, in the right case, deceit may be used to pierce the corporate veil. It also highlights the considerations when assessing damages regarding continuing representations, particularly when there is time between the representation being made and the performance of the contract.
Read moreForce Majeure – specificity is vital – Seadrill v Tullow
Force majeure clauses in contracts must be clear on the events that can excuse a party from fulfilling its obligations. Inability to perform under the contract must be wholly caused by that event. So said the High Court in the case of Seadrill Ghana Operations Ltd v Tullow Ghana Ltd.
Read moreHigh Court warns directors to get match fit for new reporting regulations
It is understandable that directors might be reluctant to seek legal advice – be it due to concern about time or cost or a potential conflict of interest if seeking advice internally. However, as a recent case demonstrates, this is a small price to pay to avoid the time and financial cost of a claim, especially when a company's subsequent precarious financial position shines a light on an officer's behaviour and competence.
Read moreSection 1782 order allowed
The Commercial Court recently discharged an injunction restraining the enforcement of a US court order made under Section 1782 of Title 28 of the US Code (Assistance to foreign and international tribunals and to litigants before such tribunals). Section 1782 applications can be a useful weapon in an English litigator's armoury as a means of obtaining evidence under the control of a US-based entity through US-style discovery, including by the use of depositions and documentary evidence.
Read moreNegligent misstatement and undisclosed principals – a gamble not worth taking
The Supreme Court recently ruled that a bank providing a reference relating to its customer owed a tortious duty of care only to the addressee. The decision reflects the wider judicial trend of restricting the circumstances in which duties of care for negligent misstatement are found to exist on the basis of an assumption of responsibility by the party making the statement.
Read moreBreaking news – a victory for privilege
Today the Court of Appeal handed down its eagerly anticipated judgment in the appeal of Andrews J's controversial High Court decision in Serious Fraud Office v Eurasian Natural Resources Corporation.
Read moreISDA agreement wins jurisdiction clause battle in Court of Appeal
The Court of Appeal recently confirmed that an English jurisdiction clause in the underlying International Swaps and Derivatives Association Master Agreement under which certain swaps were made should be applied to disputes relating to the swap transactions, rather than an Italian jurisdiction clause in a competitor agreement governing the parties' generic relationship
Read moreFootball club's entire agreement clause performs impressive save against negligent misrepresentation claim
A recent case(1) serves as a lesson that context is key to a watertight entire agreement clause.
Read moreNon-party access to documents on court file: normal service resumes
A master's decision to allow a non-party to proceedings to access a wide range of documents in the proceedings was reviewed by the Court of Appeal in Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group).(1) In its judgment, the court provided helpful guidance on the principles that should be applied when deciding whether to allow such an application.
Read moreA variation on a theme of settlement
In this unusual case, the Court was asked to determine a dispute regarding the settlement of a debt alleged to be owed to the Claimant following a sale at Sotheby's of various Persian antiquities. The case will be of interest to practitioners in its examination of the circumstances in which a party is able to discharge its liability under a settlement agreement through the payment of a lesser sum than that originally agreed. The judgment also provides a valuable insight into the antiquities world, and its comments on the close community in which the parties operated are particularly pertinent for those in the art arena who are considering embarking upon litigation.
Read moreImportant issues relating to effect and interpretation of non-assignment clauses
Service by text and data room, worldwide freezing orders against persons unknown, self-identification orders and hearings on paper and in private are ways the court is dealing with cyber-crime. Here are five ways that the courts are addressing the imbalance that exists between victims and criminals who seek to hide behind a veil of anonymity in this digital age.
Read moreSignificant increases to District Court's monetary jurisdiction
Significant increases to the jurisdictional limits for civil claims in the District Court have been proposed.
Read moreFinancial litigation roundup - Summer 2018 edition
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 moreCourt of Appeal upholds wide exclusion clause
In its recent decision in Goodlife Foods Limited v Hall Fire Protection Limited ([2018] EWCA Civ 1371) the Court of Appeal held that a particularly broad exclusion clause in a contract relating to a fire suppression system was reasonable within the framework of the Unfair Contract Terms Act 1977.
Read moreMore dismissal of 'dormant' claims
Defendants should welcome the recent judgment in Fiscalink International Ltd v Yiu Yu Sum Alex,(1) in which the court struck out the plaintiffs' claims against a majority of the defendants on the basis that the lack of progress over many years was an abuse of process such that the entire action against those defendants should be dismissed.
Read moreFirst Tower Trustees: contractual fiction clauses, unfair contract terms, parliamentary sovereignty and the limits of party autonomy
In its recent judgment in First Tower Trustees Ltd and Intertrust Trustees Ltd -v- CDS (Superstores International) Ltd, the Court of Appeal has set down a significant marker that so-called contractual estoppel does not have any special status and is to be treated as just another form of exclusion of liability.
Read moreCourt of Appeal clarifies meaning of 'knowledge' for purposes of Limitation Act
In Su v Clarksons Platou Futures Ltd ([2018] EWCA Civ 1115) the Court of Appeal upheld a decision granting summary judgment against a claimant on the basis that his claim in negligence was time barred.
Read moreGuarding professional secrets: A guide to English legal privilege for international lawyers
Most jurisdictions have some form of protection for preserving the confidentiality of communications involving lawyers, whether known as (legal professional) privilege, professional secrecy or something else. How far that protection extends, and how easily it may be broken, varies enormously. In England, the protection, once gained, remains strong, but recent cases have tended to restrict the extent of it, particularly by comparison to other common law jurisdictions (privilege/professional secrecy rules in civil law jurisdictions tend to be narrower than common law jurisdictions in any event). The issue becomes most acute in a pre-litigation (or investigative) phase.
Read moreSupreme Court curtails negotiating damages
The Supreme Court decision in Morris-Garner v One Step Support Ltd(1) is now the leading case on Wrotham Park(2) or – as the court preferred to call them – negotiating damages.
Read moreUnlawful distribution of shareholding: application of Limitation Act clarified
In Burden Holdings UK Limited v Fielding the Supreme Court considered the application of Section 21(1)(b) of the Limitation Act 1980 with respect to claims against the directors of a company for an unlawful distribution of the shareholding.
Read moreRegulation of cryptocurrency pre-ICO funding under English Law
Launching a cryptocurrency typically involves an initial fundraising process followed by a public sale process, by way of initial coin offering or token sale ("ICO").
Read moreThat's not fair (market value)
Court of Appeal rules on application of GMRA close-out provisions in a distressed market. Icelandic bank LBI ehf (LBI) appealed against the High Court decision in its case against Raiffeisen Bank International AG (RZB) regarding the interpretation of the term "fair market value" in the close-out provisions of a repo agreement. The Court of Appeal rejected LBI's arguments that "fair market value" should preclude the use of prices, quotations and other pricing evidence obtained in a distressed or illiquid market and dismissed the appeal.
Read moreGame theory and the art of litigation settlement (Part 3)
This article is the third in a series targeted at litigators that consider the issue of settlement in litigation through a game theoretical lens.
Read moreGame theory and the art of litigation settlement (Part 2)
This article is the second in a series targeted at litigators that consider the issue of settlement in litigation through a game theoretical lens.
Read moreGame theory and the art of litigation settlement
This article is the first in a series targeted at litigators that consider the issue of settlement in litigation through a mathematical lens.
Read moreProperty Alliance Group Limited v The Royal Bank of Scotland plc – a pyrrhic victory?
The Court of Appeal handed down its much anticipated judgment on the misselling and LIBOR manipulation test case in March. Whilst the appeal was dismissed in full, the Court of Appeal's decision clarified a number of aspects of the law in this area and, in particular, the circumstances in which an implied representation in respect of LIBOR would arise.
Read moreSFC requires ICO to be withdrawn from Hong Kong public
On 19 March 2018 the Securities and Futures Commission (SFC) announced that it had halted an initial coin offering (ICO) to the Hong Kong public by Black Cell Technology Limited (Black Cell).
Read moreThe High Court confirms the availability of Bankers Trust orders to trustee Claimants seeking to recover misappropriated assets
The decision of the High Court in Miles Smith Broking Limited –v– Barclays Bank PLC has confirmed for the first time the availability of the commonly encountered Bankers Trust order to trustee Claimants of stolen/misappropriated property, highlighting the flexibility of the Court's equitable jurisdiction when presented with new situations. The decision also serves as a neat illustration of the Court's willingness to grant Norwich Pharmacal relief to facilitate the recovery of unlawfully dissipated assets and the types of complimentary interim remedies available to Claimants for that purpose.
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