Commercial disputes
ISDA 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 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.
Read moreLitigation privilege: whose privilege?
The claimants, companies in the corporate group of the mining company MMG, applied to inspect certain documents created in foreign proceedings over which the defendants, companies belonging to the mining company Glencore, asserted litigation privilege.
Read moreSharp v Blank and others [2017] EWHC 3390 (Ch)
The Court considered the Defendants' application for approval of their revised cost budget on the basis that there had been significant developments in the litigation.
Read moreThe perils of using disclosed documents for a collateral purpose
In Grosvenor Chemicals Ltd v UPL Europe Ltd disclosed documents were used by the UPL for a collateral purpose in breach of the Civil Procedure Rules.
Read moreBank liable for breach of Quincecare duty
The Court of Appeal has upheld a decision that the appellant bank breached the Quincecare duty of care which it owed to its corporate customer by making payments without proper enquiry, in circumstances in which a reasonable banker would have been on notice that the customer's director was perpetrating a fraud.
Read moreEnforcement Reporter - SFC sets out its enforcement priorities for 2018
On 26 February 2018 the SFC released the third edition of its new series of the Enforcement Reporter. The communication outlines the SFC's key enforcement priorities for the coming year and highlights significant recent enforcement actions. The Enforcement Reporter follows the general themes of previous editions and is a useful indication to the market of the SFC's key concerns. In particular, tackling corporate fraud remains top of the agenda, with insider dealing, misconduct by intermediaries and sponsors, and money laundering on the SFC's radar.
Read moreIn the Matter of Agrokor DD: Model Laws and PIK toggle loans
A recent application made by insolvency practitioner of Agrokor, a major Croatian conglomerate, resulted in recognition in England of a stay of civil proceedings against the group. The purpose of the application was to halt any proceedings in relation to Agrokor's securities and debt obligations containing English law and jurisdiction provisions, pending the restructuring in the Croatian insolvency proceedings of the affairs of the group.
Read moreWhen will pleading "special circumstances" permit collateral use?
Having taken a strict approach when considering what constituted "collateral use" in Tchenguiz v Grant Thornton UK LLP, the Commercial Court has moved quickly to clarify the test for "special circumstances" in applications for permission to use previously disclosed documents in The Libyan Investment Authority v Société Générale SA and others.
Read moreCourt of Appeal holds that a facility agreement based on the LMA model form does not constitute lenders' standard terms for UCTA: But never say never…
The Court of Appeal has upheld a decision that a facility agreement based on the LMA model form did not constitute the lenders' standard terms for the purposes of UCTA. Had UCTA applied, the terms of the facility agreement would have been subject to a reasonableness test.
Read moreBeware of the risks when notifying warranty claims
In Teoco UK Limited v Aircom Jersey 4 Limited, Aircom Global Operations Limited(1) the Court of Appeal upheld the High Court's decision to strike out certain breach of warranty claims on the basis that the buyer had given the seller inadequate notice of those claims. The buyer's attempt to keep its options open by drafting its notices widely proved fatal to its claims, as it failed to identify the specific warranties to which its claims related as required by the share purchase agreement.
Read moreDocuments from which legal advice can be inferred – are they privileged?
The High Court considered the extent to which legal advice privilege could attach to documents which were not communications of legal advice between lawyer and client but from which privileged legal advice could be inferred and held that privilege could indeed apply to such documents. The test is whether there is a "definite and reasonable foundation" for such an inference to be made as opposed to material that would merely make the reader speculate what the legal advice was.
Read moreService by Email – Lessons from Glencore Agriculture B.V. v Conqueror Holdings Limited [2017] EWHC 2893
The English High Court has found that service by email of arbitration proceedings was not valid under section 76 of the Arbitration Act 1996 on the basis that the correspondence had been directed to the email address of an employee who did not have the authority to accept service. The judge found that in circumstances where service is by way of an individual email address, validity of service depends on the application of agency principles.
Read moreGhosh test overturned: dishonesty according to the standards of ordinary, reasonable and honest people
The Supreme Court has held that the test for dishonesty should be assessed only by reference to whether or not the defendant's conduct is dishonest by the objective standards of ordinary, reasonable and honest people. The Court concluded that there were convincing grounds for holding that the second limb of the longstanding Ghosh test did not correctly represent the law and that directions based upon it ought no longer to be given. The Court further stated that the assessment of dishonesty in criminal and civil proceedings should be made by reference to the same test.
Read moreFinancial litigation roundup winter 2017
Welcome to the latest edition of our Financial Litigation roundup, where we share our insights into recent judgments and ongoing cases as well as new regulatory developments from the banking and financial world in the UK and Asia.
Read moreSFAT fines HSBC Private Bank record-breaking HK$400 million and suspends its securities licenses
On Tuesday (21 November 2017), Hong Kong's Securities and Futures Appeals Tribunal fined HSBC Private Bank (Suisse) SA HK$400 million, suspended its license to advise on securities and partially suspended its license to deal in securities, for one year. The previous largest fine was HK$30 million.
Read moreADR coming of age for financial disputes in Hong Kong
Alternative dispute resolution is coming of age for financial disputes in Hong Kong, as we see the FDRC's Financial Dispute Resolution Scheme expand from 1 January 2018 and 1 July 2018.
Read moreGulf between legal advice privilege in the UK and Hong Kong is widening
Jonathan Cary explains the gulf opening up between England and the other major common law jurisdictions such as Hong Kong in relation to legal advice privilege and the pitfalls to be aware of.
Read moreHigh Court sheds light on compulsory jurisdiction of Financial Ombudsman Service
The High Court has provided some clarification of the scope of the compulsory jurisdiction of the Financial Ombudsman Service (FOS). The decision has left the scope of that jurisdiction open to discussion, and appears to suggest that the courts will take a more mechanical approach to reviewing regulatory decisions.
Read moreDon't be scared – it's just an exemption clause
The Court of Appeal holds that an exemption clause is wide enough to exclude liability for negligence for a failure to identify asbestos.
Read moreDefective service and culpable delay: a warning to claimants
Commercial Court refuses application for alternative service and strikes out claim forms after claimant's delay in pursuing claim.
Read moreAnother bad bargain upheld: Wood v Sureterm Direct Ltd [2017] UKSC 24
The Supreme Court has dismissed an appeal in Wood v Sureterm Direct Ltd. The Court upheld the Court of Appeal's decision on the meaning of an indemnity clause, and agreed with its application of established contractual interpretation doctrine. The decision confirms the established judicial approach to contractual interpretation, namely the focus on the words of a given clause.
Read moreResponsibility of a parent company for the acts of its subsidiary
The Court provided helpful analysis of the circumstances in which a parent company owes a duty of care with regard to operations carried out by its subsidiary. The case is interesting to examine in the context of the readiness of the English courts to hear claims relating to conduct outside of the jurisdiction brought by foreign claimants.
Read moreBack to first principles: contractual intention
The High Court has denied a claim that €13.5m was due on the basis of an oral contract because there was no evidence of the parties' intention to create legal relations as well as a lack of certainty in relation to certain other fundamental terms which militated against the existence of a binding contract.
Read moreLessons learned from Property Alliance Group v RBS
This article assesses the key aspects of the High Court's judgment and considers their implications for similar claims.
Read moreGuidance on the "cardinal rule" for implying terms
In Irish Bank Resolution Corp Ltd (In Special Liquidation) v Camden Market Holdings Corp the Court of Appeal held that a term could not be implied into an agreement because, although it was linguistically consistent, it was substantively inconsistent with the express terms. In doing so, the court shed further light on the application of the "cardinal rule" that an implied term must not contradict any of the express terms of the contract.
Read moreCultural Property (Armed Conflicts) Act 2017: what do collectors and dealers need to know?
The UK Parliament has recently passed the Cultural Property (Armed Conflicts) Act 2017. Although the provisions of the Act have not yet come into force, how will this impact collectors and dealers?
Read moreThe law of unintended consequences
Why professional indemnity insurers should closely examine losses in professional negligence claims
Read moreCourt of Appeal provides a timely reminder of the principles relating to clear and unambiguous contractual negotiations
In Global Asset Capital, Inc and another v Aabar Block SARL and others the Court of Appeal found that the High Court had erred in its finding that in assessing whether a contract had been concluded, it need not take account of inconsistent subsequent communications between the parties following the arguable conclusion of a contract during a telephone call that had followed a "subject to contract" offer letter.
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