Commercial disputes
Appeal court considers constructive knowledge in limitation period extension claim
The Court of Appeal* has recently held that an individual investor was too late to bring a claim in negligence and could not take advantage of the provisions of section 14A Limitation Act 1980 as she had constructive knowledge of relevant facts ascertainable during the primary limitation period.
Read moreStill no joy for investors' mis-selling claims
In the latest alleged mis-selling case in Hong Kong, the Court of First Instance maintained a consistent approach with other recent cases, rejecting an investor's claim based on misrepresentation and suggesting that the principle of contractual estoppel is alive and well.(1)
Read moreMarketing to professional investors – the Court of Final Appeal's verdict
In Securities and Futures Commission v Pacific Sun Advisors Ltd, the Hong Kong Court of Final Appeal recently ruled that the advertisement of a collective investment scheme intended to be disposed of only to professional investors ...
Read moreGood Russian Service
Following the decision in Sloutsker v Romanova[1], it should now be more difficult for parties to evade the effective service of English court documents in Russia.
Read moreContractual notice of warranty claim
In The Hut Group Limited v Nobagar-Cookson[2], the High Court considered what was required to comply with a provision in a share purchase agreement requiring notice to be given of a breach of warranty claim.
Read moreHigh Court considers iniquity exception for disclosure of privileged documents
In the case of London Borough of Brent v Kane, the court considered an application for the disclosure of legal advice that was alleged to have been given for an iniquitous purpose such that the benefit of any privilege that might otherwise have attached to the document was lost.
Read moreFriends without benefits – what happens when investments go wrong?
Investors have had something of a hard time suing financial institutions or financial advisers in Hong Kong for alleged claims sounding in breach of contract or negligence.
Read moreLitigation meets regulation
In an ever more regulated world, commercial litigators need to be aware of both the risks and opportunities regulation may bring.
Read moreNon-exclusive jurisdiction clauses in cross-border agreements
Hong Kong courts adopt robust approach to uphold parties' contractual bargain as to their choice of forum
Read moreImportant judgment on liquidators' ability to obtain documents
In an important judgment handed down recently by the Court of First Instance in Hong Kong, ...
Read moreReflex actions: Plaza BV -v- The Law Debenture Trust Corporation
The recent judgment of Mrs Justice Proudman in Plaza BV –v- The Law Debenture Trust Corporation1 illustrates and extends a line of authorities in which the English courts have sought to narrow the scope of the mandatory application of Article 2 of the Brussels Regulation 44/2001.
Read moreScheming for foreign companies
In the recent case of Re LDK Solar Co Ltd,(1) Justice Lam considered the approach that the court should take in deciding whether to invoke its jurisdiction to approve an arrangement or compromise between a foreign company and its creditors or members.
Read moreCivil Appeals - one shot as of right only
The right of appeal to the Court of Final Appeal (CFA) with respect to final judgments of the Court of Appeal amounting to HK$1 million or more has been repealed as of 24 December 2014.
Read moreHigh Court considers jurisdiction over non-EU defendant in proceedings also including domestic defendants
The decision in Jong v HSBC Private Bank (Monaco) SA and others[i]serves as a useful reminder that the Court will be guided by the substance, and not the form, of proceedings when considering questions of jurisdiction.
Read moreNo discretion to extend time to appeal registration of foreign judgments
In Taylor-Carr -v- Howkins & Harrison LLP[1], it was held that the English courts have no power to extend the time for appealing against the registration of a foreign judgment under Council Regulation 44/2001, which permits judgments in one member state to be enforced in another.
Read moreInjunctions: Hearsay evidence and dissipation risk considered
The case of JSC Bank & anor v Sergei Pugachev[1] serves as a useful reminder of the need to take care with the use of hearsay evidence and the standard and evidence required of the dissipation of assets.
Read moreModified Universalism – Privy to Singular Clarification
While most jurisdictions provide liquidators with wide investigative powers to locate and realise assets locally, the exercise of such powers becomes more complicated when the assets are situated overseas.
Read moreMareva Injunctions – Substance and Form
Recent cases in Hong Kong highlight a need to exercise care when applying for a mareva (freezing assets) injunction before trial.
Read moreThe claimants that knew too much: High Court rules on applicability of concealment provisions in Limitation Act 1980 in competition damages claim
The Arcadia Group[1] case arose in the context of ongoing damages claims brought by a number of retailers and other merchants against both Visa and MasterCard for breaches of competition law in relation to the charging of interchange fees in the Visa and MasterCard payment systems.
Read moreThe beginning of the end to mis-selling claims?
Mis-selling of interest rate products to unsophisticated customers has been the subject of intense regulatory scrutiny, with the banks paying out over £1.5bn to around 10,000 customers in the course of the Financial Conduct Authority's Interest Rate Hedging Product Review which began in May 2013.
Read moreDefend and submit: Challenging the jurisdiction of the Court
A defendant who wishes to challenge the civil jurisdiction of a Hong Kong court should not file and serve a defence pending the outcome of the challenge.
Read moreOccupy Central: Civil disobedience and civil remedies
The "Occupy Central" movement in Hong Kong has involved large numbers of protesters occupying major roads in Hong Kong, particularly in the areas of Admiralty (on Hong Kong Island) and Mong Kok (on the Kowloon Peninsula).
Read moreThe Commercial Court assesses the power and limitations of "Chabra" jurisdiction
The Commercial Court has recently considered[1] that it did not have jurisdiction to grant a freezing order to assist in the enforcement of an arbitration award against subsidiaries of the first defendant, which were incorporated outside the jurisdiction and had no assets or other presence in England.
Read moreEntitlement to inheritance claim not within the "wills and succession" exclusion under Article 1(2) of the "Brussels I" Regulation on jurisdiction and enforcement
The High Court has recently dismissed a tortious claim[1] for conspiracy to deprive the claimant of inheriting her late father's shares on the basis that it had no real prospect of success.
Read moreInjunctions - when will the court order fortification of a cross-undertaking in damages?
The Court of Appeal endorsed for the first time the accepted criteria that must be satisfied before the court can order an application for fortification of a cross-undertaking in damages in EVP v Malabu Oil.[1]
Read moreDefendant which unreasonably refused to mediate escapes costs sanctions
When considering costs and exercising its discretion under CPR 44.2, the court has regard to all the circumstances including the conduct of the parties before as well as during the proceedings.
Read moreNo anti-suit injunction for parties not subject to an arbitration agreement
The importance of drafting arbitration agreements carefully and precisely has been highlighted by the Commercial Court when it rejected an application for an anti-suit injunction restraining New York court proceedings in favour of arbitration[1].
Read moreBribes and Undisclosed Commissions to Agents: Supreme Clarity.
In late July, the Supreme Court of England and Wales handed down a succinct judgment on a topic which, while narrow, is of considerable importance in its sphere.
Read moreFTT prevents HMRC from having two bites of the cherry!
In Lady Henrietta Pearson v HMRC [2014] UKFTT 890 (TC), the First-tier Tribunal (Tax Chamber) ('FTT') concluded that HMRC had "ignored" its previous decision by seeking to reduce the amount of a VAT refund which it had ordered HMRC make to Lady Henrietta Pearson ('the taxpayer').
Read moreThe importance of commercial considerations in contractual construction
The principles governing contractual interpretation under English law are reasonably well-established.
Read moreLeveling the playing field - SFC conclusions on professional investor regime and client agreements
Despite the ongoing political noise coming out of Hong Kong, commercial life and the operation of the financial markets continue unabated.
Read moreCrime and privilege
Under English law, legal professional privilege permits a civil litigant or a defendant in criminal proceedings to withhold from the other side documents subject to the privilege.
Read moreTurning the clock back
A recent Court of Appeal decision[1] in a pensions' dispute provides a reminder of circumstances in which the English courts will allow a statement of case to be amended to bring a new claim which would otherwise be time barred.
Read morePermission refused to use disclosed documents in foreign proceedings
At the end of June the SFO announced that it had settled claims brought by Vincent Tchenguiz arising from the manner in which his alleged involvement in the collapse of the Icelandic bank Kaupthing hf. was investigated by the SFO.
Read moreTrust and wealth disputes update
Our latest trust and wealth disputes update is available by clicking here. Topics include:
Read moreManage your damages expectations! Says the Commercial Court
The Commercial Court recently dampened the Fiat car group's hopes of receiving a loss of profits pay out from Lotus by dismissing its application for summary judgment on a claim for repudiatory breach of contract[1].
Read moreBe prepared to mediate or prepare to pay
The High Court has ordered costs on an indemnity basis after a continuing and unreasonable failure on the part of the Defendant to engage with mediation before then accepting a Part 36 offer late following trial.
Read moreRepudiation: dentist's breach does not go to the root of the contract
The Court of Appeal has determined that the actual and threatened breach by a dentist of the payment terms (requiring payments to be made monthly) for the use of a practice, was not a repudiation of the contract and the principal was wrong to terminate the contract.
Read moreJoint defendants, default judgments and the limits of issue estoppel
In proceedings with multiple Defendants in which the Claimant had obtained default judgment against Defendant A, another Defendant, B, (which had statutory joint liability for A's actions) was not bound by an issue estoppel raised by the default judgment against A.
Read moreAssessing compensation under cross-undertakings in damages: is remoteness relevant?
In short, yes; compensation under cross-undertakings in damages is assessed using the same rules as assessing damages for breach of contract, i.e. the principles of causation, remoteness and mitigation apply.
Read moreWhistleblowing partners – no need to add any mystery ingredient
The Supreme Court has provided welcome clarification of the scope of whistleblowing protection for partners and members of LLPs in the case of Clyde & Co v Bates van Winkelhof[1].
Read moreCourt shuts door on challenge to arbitral tribunal's findings
Applicants cannot use s.68 of the Arbitration Act to challenge indirectly the tribunal's finding of fact when they don’t like the decision made.
Read moreSupreme Court clarification on follow-on damages claims timing
On 9 April 2014, the Supreme Court, reversing the Court of Appeal's decision, ...
Read moreInterim decision in SFO's battle with Tchenguiz brothers
"They wanted to get some scalps …. And now I'm going to butcher them"
Read moreAgency corked
In Bailey & Ors. (Joint Liquidators of D&D Wines International Limited) v Angove’s Pty Limited [2014] EWCA Civ 215, ...
Read moreVitol Bahrain v Nasdec General Trading: Commercial Court declines jurisdiction
In the recent decision of Vitol Bahrain EC v Nasdec General Trading & Others the Commercial Court reaffirmed the need for caution when considering whether to bring foreign defendants within the jurisdiction of the English courts.
Read moreProtection for Partners – which way will the wind blow?
The Supreme Court's decision in the case of Clyde & Co v Bates van Winkelhof is eagerly awaited by partnerships, LLPs and those who advise them on their internal procedures.
Read moreNew LCIA Rules 2014, draft in consultation
The LCIA has released its draft of the new Arbitration Rules, which will be considered by the LCIA Court at its meeting next month on 9 May 2014.
Read moreCosts consequences of acceptance of a claimant's part 36 offer
The High Court in Haynes v Department for Business Innovation and Skills has allowed an appeal against a decision on the eighth defendant's liability for costs following its acceptance of the claimant's offer under part 36 of the CPR.
Read moreIs an Old Master the same as office chair? The devil's in the detail
In March 2014, the English Court of Appeal determined that Omai, an 18th century masterpiece by Sir Joshua Reynolds, was an item of "plant or machinery" and a "wasting asset", no different from other trade equipment such as tables, chairs and cars.
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