Jonathan is a partner in the Commercial Disputes group, specialising in banking and finance litigation. He has extensive experience of acting in litigation, commercial disputes and contentious regulatory matters.
Before joining RPC, Jonathan acted principally for large financial institutions and has undertaken secondments to the Legal and Compliance teams of two global investment banks. He now advises a broad range of clients, commonly in disputes against such institutions.
In contentious regulatory, Jonathan has advised and conducted investigations in relation to potential enforcement actions, including in respect of anti-bribery and corruption issues, in a number of jurisdictions.
Jonathan has worked in Hong Kong, where he is locally qualified.
The International Swaps and Derivatives Association (ISDA) has published the 2013 ISDA Arbitration Guide, which sets out an overview of arbitration and includes a number of model arbitration clauses designed to be used with the 1992 and 2002 ISDA Master Agreements. The publication of the guide is a welcome step and reflects the growing use of arbitration in financial disputes.
The Court of Appeal recently examined the circumstances in which a threat not to enter into a contract can amount to economic duress and found that, broadly speaking, it is when pressure is exerted in bad faith. The main thread running through the court's decision is the need for clarity and certainty in contract law, particularly in commercial dealings.
The Court of Appeal recently held that a seller paying a fee to an acquisition agent without the buyer's knowledge does not render the contract for sale void or voidable. This judgment sets the bar high for parties to prove that a sufficient relationship of trust and confidence exists in order to engage the law on bribery and secret commissions. Notably, an agency relationship will not necessarily be enough to evidence the requisite degree of fiduciary duty.
A recent Court of Appeal decision examined a dispute concerning entitlements under an earn-out provision in a share purchase agreement. The claimant argued that, under the agreement, he was entitled to provide consultancy services for a further period to be agreed by the parties. However, the court found that there is no obligation on parties to negotiate in good faith about matters which remain to be agreed and that the defendant was free to negotiate in accordance with its own commercial interests.
With privilege remaining a hot topic, and with the recent SFO v ENRC decision still fresh in many legal professionals' minds, another judgment on legal advice privilege has been handed down – this time with a lesson for solicitors drafting supporting witness statements. It is of crucial importance to ensure that the utmost care is taken when making a claim to privilege, not least because the opposing party will usually have no choice other than to rely on what it is told.
The proliferation of fraud and blackmail offences carried out online has left victims, and the courts, playing catch-up. However, in a number of recent cases, the civil courts have shown that they are adapting to keep pace with cybercriminals and are addressing the imbalance that exists between victims and criminals who seek to hide behind a veil of anonymity in this digital age.
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.
Freezing orders are a valuable weapon in the arsenal of parties seeking enforcement in England and Wales. However, they come with a heavy responsibility on the part of the applicant. If one gets it wrong, a great deal of time, effort, costs and tactical initiative are likely to be lost. The High Court recently provided helpful guidance as to which factors may be relevant when determining whether a freezing order should be discharged.
The English courts can make draconian worldwide freezing orders. Such an order will usually contain an undertaking by the applicant to seek permission from the English court before enforcing the order outside England and Wales or seeking an order "of a similar nature". A recent commercial court decision provides welcome guidance on how it will approach the scope of this undertaking.
The High Court recently heard an appeal regarding the costs consequences of a withdrawn Part 36 offer where a second offer was made and neither was beaten at trial. In holding that costs flowed from the second offer only, the court provided useful guidance on how to structure multiple offers so that a party's original costs protection is preserved.
The High Court recently confirmed for the first time the availability of the commonly encountered Bankers Trust order to trustee claimants of stolen or misappropriated property, highlighting the flexibility of the court's equitable jurisdiction when presented with new situations. The decision also illustrates the court's willingness to grant Norwich Pharmacal relief to facilitate the recovery of unlawfully dissipated assets and the complimentary interim remedies available for that purpose.
The English High Court recently 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.
The Court of Appeal recently upheld a decision to allow summary judgment for sums due under a facility agreement, rejecting the defendants' arguments that the facility agreement – based on the Loan Market Association model form – constituted the lenders' standard terms for the purposes of the Unfair Contract Terms Act 1977. Had the act applied, the terms of the facility agreement would have been subject to a reasonableness test.
In an important decision reported earlier this year, the Court of First Instance decided that the Securities and Futures Commission should adopt a generous test of relevance when giving disclosure of materials in director disqualification proceedings – an approach to disclosure that was more commensurate with the duty of a prosecutor in criminal proceedings.
The Judiciary Administration in Hong Kong has proposed to increase the monetary jurisdiction limits for civil claims in the District Court. The proposals were recently considered by the Legislative Council Panel on Administration of Justice and Legal Services, further to a report of the Judiciary Administration. The proposals appear to have broad agreement among different stakeholders and, subject to the passage of a necessary resolution in the Legislative Council, look likely to be implemented sometime in 2018.
A recent decision is a reminder of the statutory right of qualifying shareholders to seek access to a company's records or documents for the purpose of protecting their financial interests as shareholders. It confirms the principles arising in connection with the statutory provision. It also demonstrates a general willingness on the part of the courts to assist with the protection of shareholders' interests while, at the same time, preventing so-called 'fishing' expeditions.
Since the financial crisis, only a handful of mis-selling claims on behalf of investors have gone to trial in Hong Kong and even fewer have gone on to appeal. DBS Bank (Hong Kong) Ltd v Sit Pan Jit is one such case. That the investor took his case as far as the Appeal Committee of the Court of Final Appeal means that his mis-selling claim has gone as far as any other in Hong Kong in recent years.
The interest payable by losing parties in litigation, both pre and post-judgment, is an issue of considerable importance to all parties concerned – especially in long-running, complex commercial cases, in which millions of dollars in interest may be at stake. In a recent judgment which should attract the attention of lawyers and litigants, the High Court examined important questions of the court's power to award both pre and post-judgment interest.
In the most recent so-called 'mis-selling' case in Hong Kong, three claimant investors succeeded in establishing that a bank owed them a contractual duty to exercise reasonable care and skill with regard to their portfolio of investments held with the bank. While the decision is a rare example in Hong Kong of a bank being found to have owed an advisory duty and to have breached it, the case turned on its facts – in particular, the bank was not acting on an execution-only basis.
The Court of Appeal recently held that there was no legitimate interest in having a provision in a settlement letter between the defendant and a material witness which precluded the witness from giving a witness statement to the plaintiff. Therefore, the settlement letter was not 'without prejudice' and could be referred to in a witness statement for the plaintiff.
Since the financial crisis, only a handful of so-called 'mis-selling' claims by investors against banks have gone to trial in Hong Kong and resulted in reported judgments. In none of these cases has the investor succeeded. Of these cases, to date only one has been decided by the Court of Appeal. The investor lost on all material points, in a decision which highlights the challenges of bringing such claims.
The courts in Hong Kong have generally been consistent in rejecting investors' mis-selling claims and in upholding the banks' reliance on the principle of contractual estoppel. This is why a recent High Court judgment is of particular interest. While the plaintiff investor's claim was unsuccessful, he was able to make significant inroads into the usual defence used by banks in this situation.
As banks tighten their standard terms concerning due diligence on customers and their transactions, it is inevitable that disputes will arise and that some will make their way to court. This has been a trend in other jurisdictions; it is now being seen in Hong Kong. One such recent case sheds light on a bank's contractual power to freeze a customer's bank account while it carries out due diligence.
In circumstances where the parties to a contract choose the forum and mechanism for dispute resolution, it is critical to ensure that their intentions are precisely expressed. This is particularly the case where there are multiple related agreements. The Hong Kong Court of First Instance recently considered the proper approach when asked to grant a stay of proceedings commenced in potential breach of an arbitration agreement.
Section 213 of the Securities and Futures Ordinance can be used by the regulator to seek declarations in civil proceedings that a person has committed acts in contravention of a "relevant provision" without first having to obtain a finding of (for example) market misconduct. A recent case demonstrates that Section 213 has become a powerful weapon in the regulator's arsenal with respect to alleged wrongdoers, both at home and abroad.
A proposed overhaul of the civil claims monetary jurisdiction limit for cases in the Hong Kong District Court could bring significant improvements in public access to justice in the jurisdiction. The changes, if implemented, would represent the first increase in the jurisdictional limit of the District Court since 2003.
Pursuing a civil claim in Hong Kong can be a costly exercise. In bigger commercial disputes, opportunities for financial assistance from a commercial third-party funder can help to alleviate and manage the cost and ensure that a party's lack of financial resources does not prevent its pursuit of a meritorious claim. However, such opportunities are limited by the crimes and torts of maintenance and champerty that continue to survive in Hong Kong.
Deciding whether to apply for an injunction ex parte in civil proceedings in Hong Kong requires a more careful exercise of judgement on the part of an applicant's lawyers than used to be the case. Recently, the courts have continued the trend in scrutinising an applicant's need to apply ex parte for injunctive relief. The lessons are clear: ex parte applications are for cases of genuine urgency or secrecy.
In an important and much-anticipated judgment, the Hong Kong Court of Appeal recently decided that legal advice privilege (often referred to as 'solicitor-client' or 'attorney-client' privilege) can extend to confidential internal communications between employees of a client organisation, provided that those communications were created for the sole or dominant purpose of obtaining legal advice.
While there appears to be no precise legal definition of 'dormant claim' in Hong Kong, the expression tends to refer to stale proceedings in which nothing much has happened for over a year or more. As a recent case shows, there has been some welcome judicial willingness to strike out dormant claims (and counterclaims) where one or more parties have effectively abandoned the proceedings.
In a series of recent cases in Hong Kong, the courts have brought welcome clarification to the vexed issue of the interaction between disclosure of relevant documents in civil disputes and balancing competing confidentiality and personal data concerns arising out of the contents of such documents. In light of these cases, public bodies should pay closer attention to information requests involving personal data.
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. The decision shows that the courts will generally be slow to interfere with the principle that written commercial contracts are intended to mean what they say.
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 was exempt from the Securities and Futures Commission authorisation requirement under the Securities and Futures Ordinance, even though it was not apparent from the advertisement that the scheme was confined to professional investors.
In a recent case an unsophisticated investor invested significant sums of money through a series of transactions with a "best friend" adviser. When the funds were not repaid on time, he sued the friend. The case is a useful reminder that investing money on behalf of someone else in these circumstances can give rise to a duty of care and/or a fiduciary relationship.
The Court of First Instance recently considered the effect of a non-exclusive jurisdiction clause in a cross-border agreement and refused an application to stay the Hong Kong proceedings, notwithstanding that parallel proceedings were underway in mainland China between the same parties. The decision shows that the courts will adopt a robust approach to uphold parties' contractual bargain as to their choice of forum.
The Occupy Central movement has involved large numbers of protesters occupying major roads in Hong Kong, but what has been less widely reported is that many of the efforts to disperse them have been the result of civil injunctions obtained by parties negatively affected by the protests (rather than direct government action). These actions demonstrate the extent to which injunctions can be sought to remedy a variety of civil offences.
A defendant that wishes to challenge the civil jurisdiction of a Hong Kong court should not file and serve a defence pending the outcome of the challenge. This will amount to a submission to the court's jurisdiction. Cases in which service of a defence has occasionally not been deemed a submission to jurisdiction are best explained on their facts and do not reflect normal practice.
In Garritt-Critchley the High Court ordered the defendants to pay the claimants' costs on an indemnity basis after a continuing and unreasonable failure to engage with mediation before then accepting a Part 36 offer late following trial. The case clearly demonstrates the importance that the court places on engaging in mediation, which extends to the communications relating to the process.
In proceedings with multiple defendants in which the claimant had obtained default judgment against Defendant A, 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. Further, B was entitled (notwithstanding substantial delay on its part) to set aside the default judgment which had been obtained against A.
A recent case before the Commercial Court confirms that the powers granted under Section 68 of the Arbitration Act will be exercised sparingly by the courts. A challenge under Section 68 must meet a high hurdle and the vast majority of applications fail. Applicants may be tempted to use Section 68 as a way of indirectly challenging the court's findings of fact, but this is a wholly inappropriate approach.
A recent Commercial Court case reinforces the importance of providing for a governing law in contracts and the need to make this expressly clear should the parties wish that an arbitration agreement be governed by a different law from the law of the seat. Careful consideration of the dispute resolution provisions in a contract at the drafting stage is likely to be a more efficient use of time and money than a satellite dispute.
The High Court recently considered the nature and extent of the duty of care owed by a securities lending agent when managing a client's portfolio. The judgment, which is likely to have implications for the securities lending industry, underscores the need for securities lending agents to act fairly when communicating with their clients.