Commercial disputes
An 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 treasure map leading to the golden egg being destroyed?
How do you stop the treasure map leading to the golden egg being destroyed?
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.
Read moreCan expert evidence be used to determine dishonesty?
Dishonesty in relation to financial market practices is to be determined against an objective standard; expert evidence as to market practices cannot be adduced to decide the issue.
Read moreA 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.
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