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RPC is a modern, progressive and commercially-oriented legal services business providing advice to clients across the globe. Headquartered in a state of the art site at Tower Bridge in the City of London, we also have offices in Hong Kong, Singapore and Bristol.

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Updates

Banking

Bitcoin is 'property' and can therefore be subject of proprietary injunction
United Kingdom | 31 January 2020

Following recent case law on the matter, the High Court has found that bitcoin can be 'property' and can therefore be the subject of a proprietary injunction. In reaching its conclusion, the court adopted the detailed analysis of the issue set out in the UK Jurisdictional Task Force's November 2019 Legal Statement on Crypto-Assets and Smart Contracts, thereby providing a far more detailed judicial basis for the finding than found in previous cases.

Litigation

Commission omission? High Court balances text and context in contractual interpretation
United Kingdom | 26 May 2020

English law's flexible, rational, yet stable approach to contractual interpretation has been demonstrated again in a recent decision concerning commission payments. The decision is logical and sensible by reference both to the case's commercial context and the contract's wording and exemplifies the benefit of choosing English law as the forum for resolving contractual disputes.

To perform or not to perform? When tendering performance means actual performance
United Kingdom | 19 May 2020

A consultant was alleged to be in material breach of a consultancy contract for refusing to supply his services. He responded to a material breach notice by stating that he was willing to perform. However, the Court of Appeal held that this was insufficient to remedy the breach. According to the court, actual performance, rather than an indication of a willingness to perform, was required to remedy the material breach of contract.

When will referencing a document in a witness statement waive privilege?
United Kingdom | 12 May 2020

Parties should tread carefully when considering whether and how to reference privileged documents; deployment of a document may draw back the cloak of privilege but a mere reference may not. A Court of Appeal judgment has shown that the context will be key. The guidance given on the difference between references to a document's effect and a document's content is useful and demonstrates that in some scenarios it is possible to refer in limited detail to a document without waiving privilege.

What are good grounds for appeal in insolvency applications?
United Kingdom | 05 May 2020

Applying for permission to advance new evidence on appeal is a complex application which has had varying degrees of success in the courts. A recent decision is a useful example of the application of the criteria in the context of insolvency proceedings. This case clarifies that if unreliable evidence is put before the court, decisions based on that unreliable evidence can be challenged on appeal or by a new action being brought.

High Court provides reminder against 'over-lawyering' witness statements
United Kingdom | 28 April 2020

In a reminder not to 'over-lawyer' witness statements, a High Court judge has ordered that statements be revised to remove inappropriate content. The judge held that witness statements should not contain arguments or references to documents with which the witness had no personal dealing. Further, fraud allegations do not give parties an increased latitude concerning what witness statements should (and should not) contain.

Parental controls: when does standing consent put subsidiaries' documents within their parent's control?
United Kingdom | 07 April 2020

A parent company does not exercise control over the documents of, or held by, its subsidiaries merely by virtue of its shareholdings in those subsidiaries. The situation is different when there is standing consent. The High Court has provided useful guidance on the circumstances in which documents held by subsidiaries would be within the parent company's 'control' for the purposes of disclosure.

COVID-19 and the courts: a headlong journey into remoteness
United Kingdom | 31 March 2020

The English civil justice system has shown itself to be capable of rapid change as it adapts to the new reality caused by COVID-19. The clarion call from the English courts is that they are open for business, driven by the need to maintain the access to justice which is vital for the functioning of civil society. However, this will not be an easy task and it would be naive to think that there will not be teething problems during the move into a new era of conducting litigation in new ways.

Quasi-proprietary claims: use of disputed funds to pay legal costs
United Kingdom | 17 March 2020

In a recent case, the High Court considered to what extent a defendant should be permitted to use funds subject to a freezing injunction to fund its legal expenses where the claimant advances a quasi-proprietary claim over those funds. This decision provides helpful guidance on the analysis of quasi-proprietary claims and the circumstances in which claimants can insist that defendants meet a more onerous test before using disputed monies over which the claimant asserts ownership to fund their defence.

Litigation funder liable for uncapped adverse costs
United Kingdom | 10 March 2020

The Court of Appeal recently ordered a funder to pay the full amount of adverse costs. In a significant judgment for commercial litigation funders, the court found that the 'Arkin cap' (which can cap a litigation funder's liability for adverse costs at the amount of funding that was provided) is not a binding rule to be applied automatically in every case involving a litigation funder.

Beware: English jurisdiction clauses do not mean choice of English law
United Kingdom | 03 March 2020

Where parties have agreed in a contract that the English courts will have jurisdiction in the event of a dispute, it does not automatically follow that English law will be the governing law. A party recently found this out, to its cost, when a different governing law clause meant an expired limitation period. This case demonstrates that those entering into contractual agreements should carefully consider a choice of law clause in order to designate the laws of a country that suits them.

Equitable compensation for breach of fiduciary duty: a question of loss?
United Kingdom | 18 February 2020

A director who extracted money from a company by way of sham invoices may have a defence to an equitable compensation claim for misappropriation of the company's funds. The facts in this case may test the willingness of the trial court (due to hear the matter later in 2020) to develop the equitable remedies for breach of fiduciary duty.

Lenders face more allegations about their actions on restructuring
United Kingdom | 11 February 2020

Representatives of a lender on a board will not automatically impose directors' duties on the lender, but they may apply where a director's specific instructions have led directly to a breach of fiduciary duty. The High Court recently explored this issue in an appeal in the case of Standish v Royal Bank of Scotland.

Bitcoin is 'property' and can therefore be subject of proprietary injunction
United Kingdom | 04 February 2020

Following recent case law on the matter, the High Court has found that bitcoin can be 'property' and can therefore be the subject of a proprietary injunction. In reaching its conclusion, the court adopted the detailed analysis of the issue set out in the UK Jurisdictional Task Force's November 2019 Legal Statement on Crypto-Assets and Smart Contracts, thereby providing a far more detailed judicial basis for the finding than found in previous cases.

Covertly obtained information cannot be deployed until its legitimacy is resolved
United Kingdom | 28 January 2020

The Court of Appeal recently confirmed that where a party has covertly obtained confidential information, any dispute as to the information's confidentiality must be resolved before it can be deployed in civil proceedings. Taking this approach preserves the confidentiality of the material and upholds the broad equitable principle that a person who has received information in confidence should not be permitted to take unfair advantage of it.

Witness evidence reform: evolution not revolution?
United Kingdom | 21 January 2020

Concern that current practice in relation to factual witness evidence does not achieve the best evidence at proportionate cost prompted the creation of the Witness Evidence Working Group to consider how the current practice could be improved in the business and property courts. The group's recommendations focus on the more consistent enforcement of existing rules with some limited new measures.

Full and frank disclosure means more than just putting relevant matters in evidence – a new year warning
United Kingdom | 14 January 2020

New year, new reminder of the obligation to make full and frank disclosure in without notice applications, this time in the context of a falling out within the UK Independence Party. The obligation can be satisfied only by drawing the court's attention to legal or factual matters which could undermine the applicant's own application; it is not enough to simply put relevant matters in evidence before the court.

Freezing orders: when will past conduct show a real risk of dissipation?
United Kingdom | 07 January 2020

In Lakatamia Shipping Co Ltd v Morimoto, the Court of Appeal overturned a decision to discharge a worldwide freezing order. According to the court, evidence that the respondent had previously assisted her son to dissipate assets, while being aware of an earlier freezing order and judgment against him, demonstrated a real risk of dissipation if a second freezing order was not continued against her.

Guaranteed to fail? Oral funding arrangements may be enforceable
United Kingdom | 24 December 2019

Funding arrangements should be in writing or at least impose a primary obligation on the funder to pay. So said the Court of Appeal when exploring whether an oral arrangement to fund a litigant was an unenforceable guarantee or an enforceable agreement to pay in any event. This case shows that as with all contracts, recording them in writing gives all parties certainty.

Oral contract does not prevent agent from being paid in circumstances not catered for in contract
United Kingdom | 10 December 2019

​In a recent case, the Court of Appeal held that an oral contract for a specified introduction fee payable to an agent if a property sold at a particular price did not prevent the agent from being remunerated when that property was sold for a lesser sum (despite the contract being silent on the matter). However, the sum awarded by the court was significantly lower than the introduction fee specified in the contract.

Unfair prejudice saga – Court of Appeal tries to impose some order
United Kingdom | 03 December 2019

The Court of Appeal recently sought to impose some order on an unfair prejudice petition which had been mired in wrangling over pleadings for six years. The decision shows that parties presenting an unfair prejudice petition should ensure that it sets out the grounds for relief as these cannot, in general, later be extended in the points of claim. Where points of claim lack particularity or disclose no basis for the relief sought, requests for further information or applications to strike out should be brought promptly.

Prevention principle – can parties sue for breach of contract occasioned by their own breach?
United Kingdom | 26 November 2019

In a recent High Court case, the defendants successfully resisted summary judgment for breach of contract on the basis of the prevention principle, which excuses a breach of contract where the other party's actions caused it. Following this decision, contracting parties may wish to consider whether to insert express wording into contracts containing no set-off clauses that would exclude this principle.

In-house lawyer prevented from relying on leaked email and overheard conversation
United Kingdom | 19 November 2019

An email containing legal advice leaked to a claimant in an employment dispute did not fall foul of the iniquity principle and therefore remained privileged. An overheard conversation, believed to be in relation to the claimant's dismissal, could not be relied on to aid the interpretation of the email as there was no evidence that the individuals engaged in the conversation had seen it.

Contribution to legal costs: natural love and affection or calculated self-interest?
United Kingdom | 12 November 2019

When will an order for costs be made against a family member who was not a party to the underlying proceedings but who contributed significantly to funding the losing party's defence? According to a recent case, the answer is when the funder has a personal interest in the litigation.

Risky business: the perils of taking over someone else's contract
United Kingdom | 05 November 2019

The High Court recently clarified that merely contracting with another party and thereby giving it the opportunity or means to breach another pre-existing contract is not itself sufficient to constitute inducing breach of contract. More practically, the case is a reminder of the perils of becoming involved as a third party in others' disputes.

Anchor defendants: Court of Appeal confirms that no 'sole object' test applies
United Kingdom | 29 October 2019

The Court of Appeal recently confirmed that Article 6(1) of the Lugano Convention is not subject to a 'sole object' test. Where claimants have a sustainable claim against an 'anchor defendant' that they intend to pursue to judgment, they can rely on Article 6(1) to bring a foreign co-defendant within the jurisdiction. This decision will be of significant assistance to claimants where one or more co-defendants are domiciled in their preferred jurisdiction.

When is opinion evidence admissible?
United Kingdom | 22 October 2019

In a recent case involving a man killed on a motorway, the High Court set out the difference between evidence which will be subject to Civil Procedure Rule (CPR) 35's restrictions and that which will not. Specifically, where relevant opinion evidence (even hearsay) is prepared by someone qualified to give expert evidence, it will generally be prima facie admissible. However, where evidence is produced by an expert instructed by the parties for the purposes of the proceedings, it will be subject to CPR 35.

World freezing orders: recent dissipations and reasonable delays
United Kingdom | 15 October 2019

The High Court has held that a delay in applying for a world freezing order was not fatal to its continuation at the return date, as the underlying transactions provided solid evidence of a risk of dissipation and the delay in seeking relief was not material and did not evidence the absence of a genuine belief in that risk. While the court may be reluctant to freeze assets on the basis of historic transactions, the ultimate question is whether solid evidence exists of a risk of dissipation even if the trail goes somewhat cold thereafter.

Tortious claims against third party may trigger anti-suit injunction
United Kingdom | 08 October 2019

A party's attempt to circumvent a jurisdiction clause by bringing tortious claims against a third party has been thwarted by the High Court. In granting an anti-suit injunction, the court explored the substance of the claims and found them to be vexatious and oppressive and designed to evade the exclusive jurisdiction clause. This case demonstrates the courts' willingness to look into the substance of an impugned foreign claim in order to assess whether it is a tactic designed to evade an exclusive jurisdiction clause.

One bad disclosure apple can spoil the whole full and frank barrel
United Kingdom | 01 October 2019

The High Court recently provided a further reminder of the perils of failing to comply with the duty of full and frank disclosure on ex parte applications. This case highlights the onerous burden on applications for worldwide freezing orders to carry out reasonable enquiries to comply with the duty of full and frank disclosure. The court expects applicants to properly investigate the factual basis of their own assertions and that of the likely defence.

Subjective expectation versus objective intention: when will terms be implied into contracts?
United Kingdom | 24 September 2019

The High Court recently implied a term into a contract for the sale of government global depositary notes by Lehman Brothers International (Europe) in order to make the contract workable. The decision is of interest because it considers how the courts should address a situation where the subjective expectation of the parties at the time is clear, but the objective intention apparent from their bargain is more difficult to determine, particularly where the objective interpretation may lead to a contract being incapable of being performed.

Pay heed to tiered dispute resolution clauses
United Kingdom | 17 September 2019

The High Court recently upheld a tiered dispute resolution clause in accordance with established principles of contractual interpretation. The court ordered a stay of proceedings for mediation and, in support of the mediation, also ordered pleadings to be served in advance to optimise the prospects of a settlement. This decision continues the post-Sureterm union between commercial common sense and the plain and ordinary meaning of words.

High Court waits for no lawyer
United Kingdom | 10 September 2019

An appeal was recently lost after an application for an oral hearing was made just two days late. The High Court's decision is a timely reminder of the strictness of court deadlines and of the importance of being upfront with the court which, on this occasion, was unwilling to forgive ambiguity as to whether the deadline had been met.

Notice givers take care – ignore contracts at your peril
United Kingdom | 27 August 2019

The Court of Appeal recently confirmed that an objective test will be applied when assessing whether a unilateral contractual notice has been validly given. This decision is a helpful reminder that the finer details of contractual notice provisions are not mere technicalities; parties must remain aware of the fact that failure to comply with the mechanics of the notice provisions set out in a contract may have serious consequences.

Clarity, clarity, clarity: more contract drafting lessons from High Court
United Kingdom | 13 August 2019

The High Court recently adopted an interesting approach to the well-known principles of contractual interpretation in a dispute concerning the financing of a wind farm development. The application of these principles remains tricky, particularly in cases where defined terms provide for flexibility. As a result, while parties should strive for clarity in drafting, they should also give particular consideration to possible options for terminating contracts when they are no longer needed.

What makes a Quistclose trust?
United Kingdom | 06 August 2019

The Court of Appeal recently set out the relevant circumstances in which a Quistclose trust can arise in the context of bank transfers. The decision reinforces the understandable reluctance on the part of the courts to erode the basic principle that a banker-customer relationship is no more than a contractual one of debtor and creditor.

Innocent party entitled to damages even though performance of contract was impossible
United Kingdom | 30 July 2019

A recent Court of Appeal case considered the proper interpretation of exceptions or force majeure clauses and provided guidance on the correct application of the compensatory principle of damages. This case provides yet another warning about the need for clarity in drafting contractual clauses and the implications of getting it wrong.

The art of the (settlement) deal
United Kingdom | 23 July 2019

According to the Court of Appeal, giving up a right which a debtor does not even know it has is sufficient consideration for settling a debt. However, the vexed question of what amounts to 'good' consideration remains uncertain enough for those entering into a contract to always consider whether good consideration has been given. Among other things, parties should consider whether good consideration has been provided and, if there is any doubt, pay the contractual counterparty a nominal amount.

Agent's failure to disclose relevant information: a 'Gauguin-tuan' error?
United Kingdom | 16 July 2019

In a recent decision concerning the sale of a Gauguin painting, the Court of Appeal confirmed that if an agent sells a principal's property and fails to disclose to the principal that it received a higher offer for the property, it will not lose its commission unless it acted dishonestly or in bad faith. As such, agents should be careful to pass relevant information to their principal, particularly if they are under a contractual obligation to do so.

Collision of legal duties, family loyalties and unreliable truth
United Kingdom | 09 July 2019

In a case which has attracted public, press and legal attention, the High Court recently found that the directors of a family-run business should have ensured that the company's interests took precedence over any personal and private loyalties felt towards their family members where those competing interests came into conflict. The court's findings offer a number of helpful reminders of crucial considerations for both businesspeople and legal professionals.

Serving up the truth, the whole truth and nothing but the truth?
United Kingdom | 02 July 2019

The High Court has issued a reminder that the duty of full and frank disclosure applies to any application made without notice to the other party. Although this is most typically an issue in applications for injunctions, permission to serve a claim out of the jurisdiction was recently set aside on the grounds of the claimant's failure to disclose to the court a potential limitation defence to the claim.

What expenditure falls within 'ordinary and proper course of business' exception in freezing orders?
United Kingdom | 25 June 2019

The costs of pursuing related arbitration proceedings and fighting extradition proceedings could be costs incurred in the 'ordinary and proper course of business' according to a recent Court of Appeal decision. In terms of arbitration expenditure, the decision illustrates that where the proposed expenditure or transaction is complex, the court may not be in a position to make the factual findings necessary for it to authorise the expenditure in advance.

Court of Appeal makes rare order for rectification, with interesting consequences…
United Kingdom | 18 June 2019

The Court of Appeal has ordered rectification resulting in one party being in breach of warranty and liable to pay damages. It is rare for the court to order rectification as it is often difficult to satisfy the test to do so. This case serves as a welcome reminder that the court is willing to order rectification to prevent one party from seeking to take advantage of a situation when a mistake is discovered.

Court of Appeal upholds decision on importance of industry standard documents in conflicting jurisdiction clauses
United Kingdom | 11 June 2019

The Court of Appeal recently upheld a High Court decision highlighting the risk that English and Italian courts may reach different decisions on the underlying factual background of related disputes even where the disputes could be said to fall under different agreements. The decision clarifies that the English courts put the certainty of industry standard documentation first when determining the applicable jurisdiction.

How are foreign states' decisions on EU directives recognised in English courts?
United Kingdom | 04 June 2019

The High Court recently struck out a claim by the beneficial owner of certain notes that had sought a declaration that an event of default had occurred. The case illustrates how administrative decisions in a foreign state in relation to EU directives are recognised in the English courts and the reluctance of courts to make decisions based on the anticipated outcome of foreign proceedings.

Economic duress: when is a threat not an (illegitimate) threat?
United Kingdom | 28 May 2019

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.

Disclosure pilot scheme under spotlight: application and privilege
United Kingdom | 21 May 2019

The chancellor of the High Court recently clarified to which cases the disclosure pilot scheme applies. He also provided useful guidance on the extent to which the court should exercise its discretion to inspect allegedly privileged documents under the new regime and emphasised the change in behaviour and culture envisaged under the pilot.

Novel approach to measuring damages resulting from a breach of warranty
United Kingdom | 14 May 2019

The accepted approach of diminution in the value of a target company was recently challenged in the High Court of Justice. The case concerned the purchase of shares in a bank that had a $14.5 million exposure to Lehman Brothers' bankruptcy. The purchaser sued the seller for damages in that sum, alleging that its failure to provide for the Lehman exposure in the accounts amounted to a breach of warranty.

High Court seeks to clarify whether speculative investment by a private individual is a business or consumer activity
United Kingdom | 07 May 2019

The High Court recently dismissed a jurisdiction challenge against a private individual making speculative currency transactions on the basis that she could be considered a consumer under the recast EU Brussels Regulation. This judgment demonstrates that the question of whether a private investor is a consumer for the purposes of regulation remains unclear and will often turn on the facts. With a lack of clarity in the case law, it also demonstrates the need for the issue to be considered at a higher level.

No exceptions to exclusionary rule: Court of Appeal confirms established principle
United Kingdom | 30 April 2019

The Court of Appeal recently reiterated that, while evidence of pre-contractual negotiations can be adduced to demonstrate how a transaction came about or what its commercial aims were, it cannot be adduced to aid the interpretation of the contractual provisions themselves. The case also confirms that the English courts continue to take a doctrinal approach to contractual interpretation.

Duty of care can exist between parent company and third parties affected by subsidiaries' actions
United Kingdom | 23 April 2019

A recent Supreme Court decision concerned a mass tort claim and the potential liability of an English parent company for the actions of its foreign subsidiaries. The court found that a duty of care can exist between a parent company and third parties affected by the actions of its subsidiaries, but was reluctant to place limits on the types of case where a parent company might incur a duty of care.

Should fraud unravel all? The Supreme Court thinks so
United Kingdom | 16 April 2019

According to a recent Supreme Court decision, if a claimant applies to have a judgment set aside due to fraud, they need not attempt to uncover that fraud before the judgment, even where it is suspected. The case indicates that fraud should unravel judgments in order to safeguard against injustices. Further, the court has made clear that innocent parties should not be burdened with an obligation to constantly keep their eyes peeled for acts of forgery.

English court trumps FBI
United Kingdom | 02 April 2019

In a high-profile acquisition claim, the High Court held that the implied undertaking against collateral use of documents received in the course of litigation prevented disclosure of those documents to the Federal Bureau of Investigation. The court's comments show clearly the level of scrutiny which will be given to requests or demands made by third parties for the disclosure of documents obtained through ongoing proceedings, no matter the standing of the person or authority that makes it.

Defendants need not make reasonable enquiries of third parties where they cannot admit or deny allegations
United Kingdom | 26 March 2019

A recent case before the Court of Appeal provides clear guidance that a defendant may properly plead that it is unable to admit or deny an allegation in circumstances where the allegation's truthfulness or falsity is neither within the defendant's factual knowledge nor capable of being determined from documents or other information available to it.

Circumstances in which acting in breach of EU sanctions will kill claims
United Kingdom | 19 March 2019

A recent High Court case is an interesting example of the extent to which entities complicit in the breach of EU sanctions are still able to bring legal proceedings relating to matters arising out of those breaches. However, it is difficult to draw any broad principles from this case given its specific factual circumstances. Of particular interest is the judge's analysis that it was considered material that the relevant activity breaching the sanctions at the time was no longer prohibited.

Court of Appeal: agency is not always enough to engage law of bribery and secret commissions
United Kingdom | 12 March 2019

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.

Enforceable oral contracts – Supreme Court looks to conduct and context
United Kingdom | 05 March 2019

The Supreme Court recently showed that it is reluctant to find an agreement too vague or uncertain to be enforced where the parties intended to be contractually bound and acted on their agreement. In these proceedings, three courts came to differing conclusions, which highlights the difficulties inherent in assessing contract formation and implied terms, especially where there is no agreement in writing.

Is a 'good arguable case' good enough? Court of Appeal considers test for establishing jurisdiction
United Kingdom | 19 February 2019

A recent Court of Appeal decision has confirmed that the test for deciding whether a claimant has a good arguable case is relative. Where a court lacks the evidence to decide which party has the better argument, a more flexible approach should be adopted. In circumstances where the evidence is thin, it is not all relative and claimants are required only to demonstrate a plausible evidential basis that the gateway exists.

Time waits for know-ledge: but what does that mean for limitation?
United Kingdom | 12 February 2019

Section 14A of the Limitation Act sets out the position on latent damage in negligence claims. Litigation around the application of Section 14A has predominantly centred on when the claimant has the requisite knowledge to bring a claim and if a claim could, and should, have been brought earlier. This has been brought into sharp focus in a recent case relating to a claim brought against the Bank of Scotland.

Drafting a contract? Beware the well-intentioned but unenforceable agreement to agree
United Kingdom | 05 February 2019

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.

Football club loses return fixture as entire agreement clause lets in misrepresentation claim
United Kingdom | 29 January 2019

The High Court recently confirmed on appeal from a master's decision that although an entire agreement clause concerning the sale of Nottingham Forest Football Club purported to extinguish all previous representations, it did not in fact exclude liability for misrepresentation. That there were contractual indemnities covering effectively the same subject matter did not, without clear language, mean that liability had been excluded.

Can expert evidence be used to determine dishonesty?
United Kingdom | 22 January 2019

A recent High Court of Justice case reinforced the courts' desire to remain the guardians of honest behaviour in relation to financial market practices; the objective standards of dishonesty are to be set by the courts rather than the market. Parties must therefore rely on contemporaneous documents when trying to prove claims for dishonest assistance, as the court will not permit them to adduce expert evidence of wider market practice.

An excessive demand is still a demand – Barclays Bank plc v Price
United Kingdom | 15 January 2019

The recent decision in Barclays Bank plc v Price extends the established test that a demand made under a guarantee for an excessive amount may nevertheless be effective as a demand for what is due in circumstances where the amount that has been demanded exceeds an express liability cap. This judgment will surely be a welcome extension of the authorities relating to the operation of guarantees (and the demands made thereunder) for the creditors that benefit from such arrangements.

Watch out! Internal settlement negotiations may not always remain internal – West Ham v E20
United Kingdom | 08 January 2019

The Court of Appeal recently found that communications discussing a commercial proposal to settle an existing dispute are not privileged and are therefore subject to scrutiny by the court. Those engaged in litigation should take care not to commit to writing their commercial discussions on settlement and to frame their settlement discussions in terms of the legal advice that they have received on the litigation risks.

When will courts grant retrospective permission for disclosed documents to be used outside main litigation?
United Kingdom | 11 December 2018

The High Court recently considered applications for retrospective permission to make collateral use of documents disclosed under a pre-action disclosure order where there had been a breach of the implied undertaking as to the use of disclosed documents. Although retrospective permission may be given, an application for permission should not be used to circumvent the usual procedure for obtaining consent to collateral use of documents.

Challenging judgments allegedly obtained by fraud
United Kingdom | 04 December 2018

The Court of Appeal has dismissed an application to strike out a claim for abuse of process on the basis of Summers v Fairclough in circumstances where final judgment had already been handed down. There are already established methods of challenging judgments allegedly obtained by fraud, and these should be utilised instead.

Some lessons in drafting for privilege claims
United Kingdom | 27 November 2018

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.

Letter of contract versus business common sense – latest from Court of Appeal
United Kingdom | 20 November 2018

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. The decision confirms that parties are more likely to be able to work contractual machinery according to the black letter terms in which it is set out on the face of the contract.

Lowering bar for inducement test in cases of fraudulent misrepresentation
United Kingdom | 13 November 2018

The test for inducement in cases of fraudulent misrepresentation is whether 'but for' the misrepresentation, the claimant 'might' have acted differently. The lower hurdle was clarified by the High Court in Nederlandse Industrie Van Eiprodukten v Rembrandt Enterprises and represents a departure from previous authorities, in which the test had been said to be whether but for the misrepresentation the claimant would have entered into the contract anyway.

Five ways civil courts are fighting back against cybercrime
United Kingdom | 06 November 2018

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.

Court of Appeal considers nature and implication of obligation to pay loan interest
United Kingdom | 30 October 2018

The Court of Appeal recently considered whether claims for loan principal and interest were separate claims for the purpose of an application for permission to serve a claim form out of the jurisdiction and whether an obligation to pay interest could be implied into an oral loan agreement. The decision provides a helpful clarification of the nature of claims for interest and the application of the modern test for implication of contractual terms to a claim for an implied term for payment of interest.

Oil or nothing: Court of Appeal considers damages in continuing misrepresentation claim
United Kingdom | 16 October 2018

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.

Force majeure – specificity is vital – Seadrill v Tullow
United Kingdom | 02 October 2018

To render a force majeure clause watertight, time should be taken to consider all of the potential risks that may prevent parties from fulfilling their obligations under the contract and spell these out in the clause. Also, where an event has occurred, parties must be able to demonstrate that the force majeure event was the sole cause of any failure to fulfil their contractual obligations. This was recently upheld by the High Court.

High Court warns directors to get match fit for new reporting regulations
United Kingdom | 25 September 2018

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.

Section 1782 order allowed
United Kingdom | 18 September 2018

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.

Negligent misstatement and undisclosed principals – a gamble not worth taking
United Kingdom | 11 September 2018

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.

ISDA agreement wins jurisdiction clause battle in Court of Appeal
United Kingdom | 04 September 2018

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.

Football club's entire agreement clause performs impressive save against negligent misrepresentation claim
United Kingdom | 28 August 2018

A recent case serves as a lesson that context is key to a watertight entire agreement clause. The purchasers of Nottingham Forest Football Club brought a negligent misrepresentation claim against the club's sellers. The sellers denied the claim and argued that the share purchase agreement provided a contractual procedure for dealing with any misrepresentations of the club's liabilities, and that the relevant entire agreement clause should therefore be read in that context.

Non-party access to documents on court file: normal service resumes
United Kingdom | 21 August 2018

A master's decision to allow a non-party to proceedings to access a wide range of documents in the proceedings was recently reviewed by the Court of Appeal. As well as providing useful guidance on how the court should deal with applications by non-parties for access to documents, this case is a reminder to parties to proceedings that they should be aware of the potential loss of confidentiality.

Importance of industry-standard documentation when considering competing jurisdiction clauses
United Kingdom | 14 August 2018

A recent case reiterates the significance that the courts will ascribe to the use of industry-standard documentation when considering 'competing' jurisdiction clauses in related contracts. The case also provides an important reminder of the necessity of seeking the court's direction before engaging expert evidence, particularly in the interim stages of litigation.

Important issues relating to effect and interpretation of non-assignment clauses
United Kingdom | 07 August 2018

A recent case considered the interaction between a warranty in a receivables financing contract which specified that one of the parties was not prohibited from disposing of the receivable and a clause expressly prohibiting assignment without the other party's consent in an underlying sale and purchase agreement. The case raises important issues relating to the effect and interpretation of non-assignment clauses and suggests that this is an area ripe for further consideration by the Supreme Court.

Court of Appeal clarifies correct approach to interpretation of dependent obligations
United Kingdom | 31 July 2018

The Court of Appeal recently held that agreements for the transfer and purchase of shares give rise to dependent obligations and that one party does not therefore become a debtor to the counterparty immediately as a result of their failure to pay. This judgment has implications for the forms of redress available to the wronged party in analogous situations and makes clear the commercial approach to contractual disputes encouraged by the courts.

Court of Appeal upholds wide exclusion clause
United Kingdom | 17 July 2018

The Court of Appeal has held that a remarkably broad exclusion clause was not unreasonable within the framework of the Unfair Contract Terms Act 1977. The judgment includes a discussion of various factors which the court will take into account when deciding such cases.

Contractual fiction clauses, unfair contract terms, parliamentary sovereignty and limits of party autonomy
United Kingdom | 03 July 2018

In a recent decision, the Court of Appeal set down a significant marker that so-called 'contractual estoppel' has no special status and is to be treated as just another form of exclusion of liability. In particular, it was ruled for the first time that any reliance on a contractual estoppel to seek to defend a claim for pre-contractual misrepresentation is an attempt to exclude liability which falls to be assessed for reasonableness under the Unfair Contract Terms Act 1977.

Court of Appeal clarifies meaning of 'knowledge' for purposes of Limitation Act
United Kingdom | 26 June 2018

The Court of Appeal recently provided helpful clarification on what constitutes 'knowledge' for the purposes of Section 14A of the Limitation Act 1980. The judgment reiterates that it is not when the claimant first knew they might have a claim for damages against the defendant that is relevant; rather, it is when they knew enough to make it reasonable to investigate further and, if necessary, obtain professional advice.

Guidance on factors to be considered in assessment of worldwide freezing orders
United Kingdom | 19 June 2018

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.

Court finds no contract without parties' signatures
United Kingdom | 12 June 2018

In a recent dispute about the existence of a contract, the High Court found that the parties intended to be bound only when all parties had signed. An open-ended duty to negotiate in good faith was void for uncertainty and the claim was struck out. This case is a useful reminder of several principles, including that an obligation to negotiate in good faith must be tightly drafted and time limited in order to be effective.

Supreme Court curtails negotiating damages
United Kingdom | 29 May 2018

A recent Supreme Court decision is now the leading case on negotiating damages. It has emphasised the compensatory basis of contractual damages and restricted negotiating damages to cases where the obligation breached by the defendant protected an asset with economic value. While the decision offers welcome clarity, it leaves some important questions unanswered.

Unlawful distribution of shareholding: application of Limitation Act clarified
United Kingdom | 22 May 2018

In a recent case, 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. The court acknowledged that Section 21 was primarily aimed at express trustees, and that it was found to be applicable to company directors "by what may fairly be described as a process of analogy".

Senior noteholder directions: another commercial approach by Financial List
United Kingdom | 15 May 2018

In a recent case, the High Court confirmed the validity of a senior noteholder's directions under a note structure governed by the laws of multiple jurisdictions. In doing so, it highlighted the common ground between the London and New York markets with regard to the common law principles of contractual construction and demonstrated the efficiency of the speedy trial procedure in the Financial List.

Guidance provided on freezing order undertaking
United Kingdom | 08 May 2018

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.

2002 ISDA close-out: reasonable calculation required first time
United Kingdom | 01 May 2018

In a recent case, the High Court considered whether, in the event of the early termination of a transaction under the 2002 International Swaps and Derivatives Association Master Agreement, a party could 'remake' its determination of the close-out amount and the nature of that party's discretion in calculating the close-out amount.

Bribery Act – when are prevention procedures adequate?
United Kingdom | 24 April 2018

In the first contested case of its kind since the Bribery Act 2010 came into force, a company was found guilty under Section 7 of the act for failing to prevent bribery after its defence of having adequate procedures in place to prevent bribery was unsuccessful. Given that there is no one-size-fits-all rule for what constitutes 'adequate procedures', it will be difficult for a company to assess whether it falls on the right side of the line.

Belhaj v director of public prosecutions – court clarifies two issues relating to waiver of privilege
United Kingdom | 17 April 2018

In a case concerning misconduct in public office, the claimants sought to challenge the decision not to prosecute by beginning judicial review proceedings against defendants that included the director of public prosecutions. The court recently held that a limited waiver of legal professional privilege prevented the use of the privileged materials in a related judicial review and that legal professional privilege could be reasserted over inadvertently disclosed privileged material.

Supreme Court clarifies test for liability in tort of conspiracy
United Kingdom | 10 April 2018

The Supreme Court recently held that the location of the incident from which damage arose in the context of a claim alleging the tort of conspiracy to injure by unlawful means was where a conspiratorial agreement was agreed. In this case, that location was England and the English courts therefore had jurisdiction.

Preserving costs consequences of a settlement offer – a cautionary tale
United Kingdom | 03 April 2018

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.

Property Alliance Group Limited v The Royal Bank of Scotland plc – a pyrrhic victory?
United Kingdom | 20 March 2018

The Court of Appeal recently handed down its much-anticipated judgment on the mis-selling and London Inter-bank Offered Rate (Libor) manipulation test case earlier this month. While the appeal was dismissed in full, the Court of Appeal's decision has clarified a number of aspects of the law in this area – in particular, the circumstances in which an implied representation in respect of Libor would arise.

Litigation privilege: whose privilege?
United Kingdom | 13 March 2018

The claimants in a recent case applied to inspect certain documents created in foreign proceedings over which the defendants – companies belonging to the mining company Glencore – had asserted litigation privilege. Glencore controlled these proceedings but was not a party to them. It unsuccessfully argued that this was a permitted exception to the general principle that a party cannot claim litigation privilege out of proceedings to which it is not a party.

The approach to redaction – High Court guidance
United Kingdom | 06 March 2018

The English High Court recently considered the correct approach to the redaction of documents in civil proceedings. The court held that the right to redact irrelevant material applies both to standard disclosure and the right to inspect documents referenced in statements of case. In the short term, this case confirms a party's ability to redact documents in order to protect commercially sensitive information. In the long term, the practice of redacting such information will likely be confirmed by way of an express rule.

Bank liable for breach of Quincecare duty
United Kingdom | 27 February 2018

In a recent case, the Court of Appeal upheld a decision that the appellant bank had 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.

Tech, Data, Telecoms & Media

Bitcoin is 'property' and can therefore be subject of proprietary injunction
United Kingdom | 31 January 2020

Following recent case law on the matter, the High Court has found that bitcoin can be 'property' and can therefore be the subject of a proprietary injunction. In reaching its conclusion, the court adopted the detailed analysis of the issue set out in the UK Jurisdictional Task Force's November 2019 Legal Statement on Crypto-Assets and Smart Contracts, thereby providing a far more detailed judicial basis for the finding than found in previous cases.