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HMRC Crackdown on Facilitation of Tax Evasion
Increased pressure on HMRC to boost tax revenues due to the economic cost of COVID-19 may bring about a surge in charging decisions for failure to prevent the facilitation of tax evasion (Corporate Criminal Offences (CCO)).
Read morePrivy Council gives a lesson on the remoteness of damage in contract law within a judgment on damages for breach of separate but related contracts
Where parties have entered into separate but related contracts, breach of one contract does not necessarily preclude the recovery of damages under another.
Read moreDisputes, disputed: The court’s approach to competing dispute resolution clauses in successive agreements
How are contradictory dispute resolution clauses resolved, where the agreements are entered into at different times? Intention and purpose is key, as set out in the test in BNP Paribas v Trattamento, where parties intended two agreements to perform separate roles as part of one transaction (even though the second is not contemplated at the time of the first).
Read moreLIBOR claim by US agency will continue in London
A decision in the London High Court has demonstrated that the fallout from the long-running LIBOR fixing scandal is far from over.
Read moreHong Kong – Refusal to regrant injunction that lapsed during general adjournment successfully appealed
In a previous update dated 29 April 2020, we noted that a first instance court held that the general adjourned period (GAP), during which the Hong Kong courts were closed save for urgent and essential court business, did not generally extend the duration of an injunction which was granted on an urgent basis before the GAP commenced and listed for a "return date" during the GAP (for further details, see "General adjournment in Hong Kong does not extend duration of ex parte injunction", dated 29 April 2020).
Read moreHong Kong Courts – COVID-19 Update
The general adjourned period (GAP), during which the courts were closed save for urgent and essential business, ended on 3 May 2020, enabling the courts to resume normal business in Hong Kong. Since then, the number of reported cases of COVID-19 in Hong Kong has approximately tripled following a third wave of infections.
Read moreSupreme Court reflects on a narrower interpretation of "reflective loss"
The Supreme Court has scaled back the scope of the reflective loss principle which has been expanded over the years. The reflective loss principle essentially prevents a shareholder from bringing a claim against a wrongdoer for the diminution in value of its shares or distributions that results from a loss caused by that wrongdoer to the company itself.
Read moreCourts reach a landing on the test for jurisdiction over co-defendants
The court can only assert jurisdiction over an EU domiciled co-defendant under Article 8(1) of the Recast Brussels Regulation if the claim against the anchor defendant is sustainable.
Read moreOrders for pre-action disclosure – exceptional in a commercial context?
Although parties are expected to exchange key documents before starting proceedings in the English court, a recent decision in the Commercial Court highlights the limited nature of those obligations, particularly in a commercial context.
Read moreEl Dorado in the Commercial Court: Domestic Law, Foreign Law and Foreign Relations
Why is a dispute between Mr Nicolás Maduro and Mr Juan Guaidó as the rival contenders to the Presidency of Venezuela being heard by the English Commercial Court? The answer involves US$1 billion of gold reserves held at the Bank of England and who has the authority to deal with them.
Read moreIt's good to talk
A successful party has been declined some of its costs on the basis of an unreasonable refusal to engage in mediation. Wales (t/a Selective Investment Services) v CBRE Managed Services Ltd & Aviva.
Read moreExamining the time bar for causes of action for the tort of negligent misrepresentation
Section 24A of Singapore’s Limitation Act (Cap. 163) provides, amongst other things, that the limitation period for any cause of action for damages for negligent misrepresentation accrues upon proof of damage in reliance of the negligent misrepresentation.
Read moreHong Kong Courts – Further guidance on remote court hearings
A second, more comprehensive guidance note on remote hearings in civil proceedings came into effect on 15 June 2020. The phase 2 guidance note provides for expanded videoconferencing facilities and telephone hearings with respect to the civil business of the first instance courts and the Court of Appeal, and is to be read together with the phase 1 guidance note issued on 2 April 2020.
Read moreWaiving goodbye to privilege – reliance is key
In what circumstances will a party waive privilege over legal advice by referring to it in evidence?
Read morePrivileged but admissible? When can without prejudice material be pleaded in statements of case?
The High Court considered the scope of the existing exceptions to the Without Prejudice Rule in its recent decision of Berkeley Square Holding & others v Lancer Property Asset Management & others(1). This well-known rule protects communications made in a genuine attempt to settle an existing dispute from later deployment in court. The Court allowed passages from papers prepared for a mediation to be admitted into the proceedings under two exceptions to the Without Prejudice Rule.
Read moreFreezing orders: risk of dissipation? Get real
The High Court has issued an important reminder of the need for solid evidence of a real risk that the respondent will take steps to dissipate their assets to frustrate a judgment in applications to continue a worldwide freezing order (WFO). Evidence of dishonesty alone is not enough, and conduct falling short of dishonesty is less likely to suffice. Evidence of untrustworthiness, or even dishonesty, does not amount to sufficiently robust evidence of a real risk of dissipation to continue a worldwide freezing order.
Read moreHong Kong Courts – Expansion of use of remote hearings
As expected, the judiciary in Hong Kong has announced that it will expand the use of remote hearings for civil cases. The first Guidance Note for Remote Hearings for Civil Business in the High Court (Phase 1) came into effect on 3 April 2020. This was during the general adjourned period (GAP), when the courts were generally closed as a result of COVID-19, save for urgent and essential court business. The GAP came to an end on 3 May 2020.
Read moreMinority 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 moreArbitrable disputes in the context of winding up proceedings
This note discusses two recent decisions of the Court of Appeal of Singapore that dealt with the standard of review to be applied in winding up proceedings where a debtor asserts that there is a dispute which parties agreed to resolve by way of arbitration.
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 moreA Review in Confidence: Modernising the Law of Breach of Confidence in Singapore
The elements for a claim for breach of confidence were trite, having been established more than 50 years ago in the English case of Coco v. AN Clark (Engineers) Ltd (1) and affirmed in numerous Singapore decisions (2) .
Read moreHong Kong Courts – In with the old and the new technology
In Re Cyberworks Audio Video Technology Ltd,(1) the High Court of Hong Kong decided that it can, as part of its case management powers and of its own volition, order that a directions hearing take place by means of a telephone conference without the physical presence in court of the parties or their legal representatives.
Read moreHong Kong courts begin use of video conferencing
Given the extended general adjourned period (GAP), during which the courts in Hong Kong have been closed except for urgent and essential court business, the judiciary has adopted an incremental approach to the use of technology for remote hearings.
Read moreLitigation in the time of Coronavirus (Hong Kong - Update)
The "General Adjourned Period" (GAP) during which the courts in Hong Kong have been closed, save for urgent and essential court business, has been extended to 13 April 2020.
Read moreHong Kong Court of Appeal hears appeal using video conferencing
On 2 April 2020 the Chief Judge of the High Court issued a Guidance Note setting out the practice for remote hearings in the Court of First Instance of the High Court (but not the District Court) using the court's existing video conferencing facilities (VCF). Hard on its heels, on 6 April 2020 the Court of Appeal conducted a hearing by VCF in CSFK v. HWH [2020] HKCA 207.
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 moreSingapore's COVID-19 (Temporary Measures) Act 2020 – Highlights and Commentary on Key Provisions for Temporary Relief for Inability to Perform Contracts
The COVID-19 pandemic has led to a severe contraction in economic activity on a global scale, as a result of supply chain disruptions, manpower shortages, travel restrictions and a swift decline in demand. Singapore is likewise grappling with the economic symptoms of these ongoing waves of COVID-19 outbreaks, which will continue to dampen global economic growth.
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 moreThe Supreme Court of Singapore Collaborates with the Supreme Court of the Union of Myanmar on the Enforcement of Money Judgments
The Supreme Court of Singapore Collaborates with the Supreme Court of the Union of Myanmar on the Enforcement of Money Judgments – the signing of the Memorandum of Guidance as to Enforcement of Money Judgments (the “MOG”) marks a significant milestone in bilateral relations between the Singapore and Myanmar judiciaries.
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 moreRPC represents party in key case for establishing the governing law of arbitration agreements.
In the recent case of Kabab-Ji S.A.L v Kout Food Group, RPC and Ricky Diwan QC (Essex Court) represented Kout Food Group before the Court of Appeal. In an important judgment, the Court established that on the proper construction of the relevant contract there was an express choice of English law governing the arbitration agreement despite that agreement providing for any arbitration to be seated in Paris.
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