Latest updates

Court dismisses health and safety charge given due diligence
Dentons
  • Canada
  • December 12 2017

An Ontario court recently dismissed an Occupational Health and Safety Act charge in a fatality case, finding that the employer had established due diligence. The court decided that the worker had deviated from the standard practice that he and other workers had followed on previous occasions. While no training courses were available for the task in question, the employer was entitled to rely on the experience of the worker.

Amendments to Evidence Act for civil litigators
Wilson Harle
  • New Zealand
  • December 12 2017

The Evidence Amendment Act 2016 came into force in January 2017 and is the fourth and most substantial amendment to the Evidence Act since its introduction in 2006. Most of the amendments relate to evidence in criminal proceedings. However, several amendments are relevant to civil proceedings. The amendments relate to the definitions relevant to the application of privilege, legal advice privilege, settlement privilege, prior consistent statements and the prohibition on using previous decisions as evidence.

Supreme Court holds defendant cannot be liable for greater loss than was caused by its negligent valuation
RPC
  • United Kingdom
  • December 12 2017

The Supreme Court recently clarified that when applying the 'but for' test in the context of a negligent valuation, the basic comparison is between the position that the claimant would have been in if the defendant had fulfilled its duty of care and the claimant's actual position. This means that a defendant cannot be liable for a greater loss than was caused by its negligent valuation.

Settlement agreement releases parties from rights and obligations under initial agreement
Elias Neocleous & Co LLC
  • Cyprus
  • December 12 2017

The Supreme Court recently reaffirmed the long-established principle that when contracting parties agree to amend or replace an agreement, the new agreement will replace the old one and define all of their rights and obligations. Accordingly, in a case where a settlement agreement is agreed between the parties, but not fully complied with by one of them, the other party cannot reinstate any of its rights under the initial agreement.

Fact(or) finding: locating pure financial damage in cross-border securities class actions
AKD NV
  • Netherlands
  • December 12 2017

The Amsterdam Court of Appeal recently ruled in favour of British Petroleum Plc (BP) in a securities class action initiated by the Dutch Association of Shareholders (VEB). VEB had initiated proceedings on the basis of the Civil Code, in which it sought a declaratory judgment regarding BP's liability towards investors who had bought, sold or held BP ordinary shares around the time of the Deepwater Horizon oil platform explosion in 2010. The court's judgment is a setback for international investors.

Costs orders are not an 'indemnity'
RPC
  • Hong Kong
  • December 12 2017

There has been a number of recent cases in Hong Kong in which successful parties have been awarded their costs on a more generous basis against unsuccessful parties – known as an 'indemnity' basis (in contrast to what is commonly called a 'standard' or 'party and party' basis). A recent example in the Court of Appeal is Qiyang Ltd v Mei Li New Energy Ltd. One might be forgiven for sometimes thinking that orders for indemnity costs are a norm, but they are not.

Documents from which legal advice can be inferred – are they privileged?
RPC
  • United Kingdom
  • December 05 2017

The High Court recently 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.

Supreme Court of Cassation issues decision on reasons for appeal under Civil Procedure Code
Mariconda e Associati Studio Legale
  • Italy
  • December 05 2017

In a recent decision, the Supreme Court of Cassation consulted its united sections on an important question regarding the specificity of reasons for appeal under Article 342 of the Civil Procedure Code. The question concerned whether the code requires an appellant to specify different content as part of its reason for appeal or provide only a detailed criticism of sections of the appealed decision.

Supreme Court sets standards for direct and indirect infringement of Swiss-type claims
AKD NV
  • Netherlands
  • December 05 2017

The Supreme Court recently rendered a landmark judgment on second medical use claims – more specifically, Swiss-type claims – which have been the subject of significant legal uncertainty throughout Europe. Although the judgment provides welcome clarification on Swiss-type claims with regard to the possibility of indirect infringement and the standards for direct and indirect infringement, some questions still remain.

Court rules on applicable test in medical negligence suits
Gan Partnership
  • Malaysia
  • December 05 2017

The Federal Court recently examined whether the Bolam test or the test in the Australian case of Rogers v Whitaker with regard to the standard of care in medical negligence should apply, following conflicting decisions by the Malaysian Court of Appeal and legislative changes in Australia. The Federal Court's decision provides a clearer legal position with regard to the distinction between diagnosis and treatment on the one hand and the duty to advise of risks on the other hand.

Constitutional Court rules on annulment request regarding Article 5 of Cheque Law
Gün + Partners
  • Turkey
  • November 28 2017

Article 5 of the Cheque Law imposes a judicial fine on cheque account owners for a bounced cheque. These fines cannot be less than the amount of the bounced cheque plus the accrued interest on the cheque's submission date and the total fees for execution and legal proceedings. Several courts recently applied to the Constitutional Court to request the annulment of Article 5 based on, among other things, the uncertain criteria used to calculate such fines.

Supreme Court dismisses Marfin's appeal against €100,000 fine from CySec
Elias Neocleous & Co LLC
  • Cyprus
  • November 28 2017

The Supreme Court recently issued its decision in a case concerning the Cyprus Securities and Exchange Commission's imposition of a €100,000 fine on Marfin for buying shares in Marfin Popular Bank Plc on the Athens Stock Exchange during a closed period, which had contravened the Insider Dealing and Market Manipulation (Market Abuse) Law 2005 and the Code of Conduct for Advisers and Related Persons issued thereunder.

Ghosh test overturned: dishonesty according to the standards of ordinary, reasonable and honest people
RPC
  • United Kingdom
  • November 28 2017

The Supreme Court recently held that the test for dishonesty should be assessed only by reference to whether the defendant's conduct is dishonest by the objective standards of ordinary, reasonable and honest people. In its ruling, the Supreme Court concluded that there were convincing grounds for holding that the second limb of the well-known Ghosh test did not correctly represent the law and that directions based on it should no longer be given.

Solicitors owed no duty of care to other party to settlement
RPC
  • Hong Kong
  • November 28 2017

First Asia Finance International Ltd v Tso Au Yim & Yeung appears to be another example of a misconceived claim against a defendant solicitors' firm. In this case, the court held that the solicitors owed no duty of care to the plaintiff company (which was not a client) with respect to the preparation of a settlement agreement. The plaintiff also failed with a claim that it had informally retained the defendant solicitors with respect to the drafting of the settlement agreement.

Supreme Court confirms its restrictive approach to estoppel principle
Kalliopé
  • France
  • November 28 2017

A recent Supreme Court decision confirms that the estoppel principle is recognised under French law as a general principle and is now a procedural tool in the hands of litigators. However, the decision also revives the debate about the principle's true effectiveness before the French courts.

Regulator's use of Section 213 'combo' civil proceedings
RPC
  • Hong Kong
  • November 21 2017

The Securities and Futures Commission (SFC) has cast a wide net with its use of civil proceedings pursuant to Section 213 of the Securities and Futures Ordinance. Recently, the Court of Appeal dismissed an appeal arising out of the SFC's use of Section 213 proceedings to obtain declarations that three defendants based in Hong Kong had contravened Section 300 of the ordinance by engaging in a deceptive course of business in transactions involving shares listed on an overseas stock exchange.

In the Matter of Agrokor DD: model laws and PIK toggle loans
RPC
  • United Kingdom
  • November 21 2017

A recent application made by the 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 group's affairs.

When will pleading 'special circumstances' permit collateral use?
RPC
  • United Kingdom
  • November 14 2017

The Commercial Court recently clarified the test for 'special circumstances' in applications for permission to use previously disclosed documents. The court did not grant permission to the applicant in this instance, on jurisdictional grounds. However, in setting out a number of factors which influence its discretion to waive or vary the restriction, the court has given useful guidance to those that may pursue applications for collateral use in future.

Logistics service providers must be clear on general terms and conditions
AKD NV
  • Netherlands
  • November 14 2017

Many logistics service providers – such as terminals, warehouse keepers, freight forwarders and shipyards – use general terms and conditions in order to limit their risks. They often make use of several sets of standard terms and conditions, depending on the activities being carried out. However, a recent district court case should serve as a warning to these service providers of the severe risk that no standard terms will be regarded as validly incorporated.

Assisting lay litigants: recent guidance
Matheson
  • Ireland
  • November 07 2017

Straitened times have led to an increase in litigation before the courts involving lay litigants or litigants in person acting without formal legal representation. Notwithstanding that such litigants may not have instructed a solicitor or barrister, they sometimes appear with assistance from a non-legally qualified third party. Recent practice directions across the various levels of the court provide important guidance on the scope of such assistance.

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