Commercial disputes
Financial 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.
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.
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