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Banking & Financial Services

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.


High Court issues reminder of res judicata and abuse of process principles
United Kingdom | 01 June 2021

In a recent decision, the High Court acted to prevent a claim being re-litigated by parties not content with the earlier outcomes. This claim is the latest instalment in a series of claims between Elite Property Holdings Limited and Barclays Bank plc which relate to several interest rate hedging products that Elite entered into with Barclays. This judgment is reassuring for companies faced with duplicative claims involving the same cause of action or matter determined in previous proceedings.

Exceptions to without prejudice rule – another retrenchment?
United Kingdom | 18 May 2021

The Court of Appeal has resisted the temptation to provide clarity on the scope and application of the Muller exception to the without prejudice rule. In a recent case, the court indicated that recent first-instance decisions have strayed beyond the facts in Muller, a development that might widen the scope of the exception unjustifiably.

Hand in your notice – how to bring a successful warranty claim
United Kingdom | 11 May 2021

Buyers wishing to make a claim under contractual warranty provisions must comply with those provisions to the letter; sufficient and timely information is key. The case discussed in this article is a salutary reminder of the importance of complying with contractual warranty provisions and the difficulties of bringing a misrepresentation claim where warranties have superseded any pre-contractual discussions.

Forum conveniens – context is key
United Kingdom | 27 April 2021

The High Court has allowed conspiracy proceedings brought by two Russian banks against several Russian nationals to proceed in England. The court accepted that the case before it was "essentially a Russian dispute" but held that England was the forum in which the claims against a number of the defendants could be suitably tried in the interests of justice. This decision illustrates that even though key aspects of a dispute may favour another jurisdiction, the forum conveniens may still be England.

When can deliberate concealment postpone limitation periods?
United Kingdom | 20 April 2021

The Court of Appeal recently explored the meaning of 'deliberate concealment' and held that there need not be active steps of concealment for the start of a limitation period to be delayed under Section 32(1)(b) of the Limitation Act. In addition, the conduct giving rise to the cause of action need not be separate to the act of concealment.

Reasonable enquiries must be made upon receipt of potentially confidential information
United Kingdom | 23 March 2021

The Court of Appeal recently held that a recipient of information will be bound by a duty of confidentiality if it was reasonable for them to have made enquiries as to the confidential nature of the information and they failed to do so. The decision arguably imposes a greater burden on a recipient of potentially confidential information to make enquiries of the discloser as to the nature of the information where a reasonable person would do so.

When do UK-domiciled parent companies owe a duty of care to individuals affected by acts of their foreign subsidiaries?
United Kingdom | 16 March 2021

A recent Supreme Court decision on jurisdiction provides helpful guidance on the circumstances in which a UK-domiciled parent company may owe a common law duty of care in respect of the actions of a foreign subsidiary. The decision highlights the importance of carefully considering the way in which parent companies exercise (or purport to exercise) control over the actions of their subsidiaries.

Lack of list of issues for disclosure does not bar specific disclosure under DPS
United Kingdom | 23 February 2021

According to a recent case, the High Court can order specific disclosure under the Disclosure Pilot Scheme, even where there is no agreed or approved list of issues for disclosure. The decision provides clarification as to the court's jurisdiction to vary orders for extended disclosure. It also confirms that where parties have yet to agree a list of issues for disclosure, it will not prevent the court from making an order to vary a pre-existing order for extended disclosure.

Does an expert owe a fiduciary duty to its client?
United Kingdom | 16 February 2021

For the first time the Court of Appeal has considered the duties of an expert concurrently engaged in two potentially conflicting disputes. While the case involved an unusual set of circumstances, it provides an interesting review of the duties owed by expert witnesses to their clients and the court and highlights important considerations for those engaging expert witnesses and drafting engagement letters.

New cause of action must arise out of substantially same facts that remain in issue at time of amendment
United Kingdom | 09 February 2021

The Court of Appeal recently ruled that pleadings which have previously been struck out cannot be used to introduce a new, limitation-barred claim that arises out of substantially the same set of facts as the struck out claim. Parties looking to discontinue a claim or defend a strike-out application should carefully consider the implications that a strike out could have on any future claims which they may want to introduce by amendment.

The jurisdiction eagle has landed… in court
United Kingdom | 02 February 2021

Does the governing law for passing-off claims fall under Article 6 or 8 of the EU Rome II Regulation? The High Court recently explored this question in a case concerning two well-known clothing brands. The court's decision remains relevant to English law in light of Brexit as the United Kingdom has legislated to incorporate Rome I and II into English law following the end of the transition period.

When is an error a serious irregularity? Court demonstrates approach to correcting arbitration awards
United Kingdom | 26 January 2021

The High Court recently found that a tribunal's admission of a simple computational error, and its refusal to correct it, was a serious irregularity that caused substantial injustice. Based on this, the court remitted an arbitration award back to the tribunal for correction. This is an interesting case; it is rare for Section 68 challenges to be successful and even rarer for an English court judge to find that there has been a serious irregularity that caused or would cause substantial injustice in such a straightforward manner.

Beware: High Court refuses permission to rely on new witness statement prepared part way through trial
United Kingdom | 22 December 2020

The High Court of England and Wales recently refused a claimant permission to rely on a witness statement of one its in-house lawyers, prepared during an ongoing trial, and call that witness to give oral evidence during the trial. The new witness's evidence produced during trial could not be relied on due to its inherent unreliability and the risk that it would be tailored to the state of the party's current case. Parties should always consider what evidence is required to support their case at an early stage.

Late service of evidence requires relief from sanctions
United Kingdom | 15 December 2020

The High Court recently determined that an application to admit witness evidence outside the directions timetable should be treated like an application for relief from sanctions under Civil Procedure Rule 3.9. The decision suggests that the court may imply a sanction for policy reasons, even where there was no intention on the part of the rulemaker or judge to impose a sanction for a breach.

Court of Appeal provides useful reminder of 'subject to contract' label meaning in settlement negotiations
United Kingdom | 08 December 2020

A recent Court of Appeal decision determined that a Part 36 offer does not alter the status of 'subject to contract' protection in solicitors' correspondence when settling a dispute. This decision reassures lawyers that they can continue to conduct subject to contract negotiations on behalf of their clients without any undue risk of being bound by what is discussed. It is also a useful reminder of the consent order's significance in conclusively settling negotiations which are expressed to be subject to contract.

Largest 'white elephant' in history of group actions
United Kingdom | 01 December 2020

BHP has successfully applied to strike out 200,000 claims as an abuse of process. Had the judge not struck out the claims, he would have stayed proceedings on jurisdictional grounds under Article 34 of the EU Recast Brussels Regulation and the doctrine of forum non conveniens. While the significant nature of the proceedings would have raised England's profile as a forum for group litigation, this was ultimately not a case which fell within the parameters under which the court can accept jurisdiction.

Can an appeal court order repayment after it has reversed the relevant order?
United Kingdom | 24 November 2020

An appellate court has an inherent power to restore money paid or property transferred under an order which it has reversed, and not all contractual provisions are susceptible to being waived by election. These are the two key takeaways from a recent Privy Council judgment.

More is more when giving notice of claims under SPAs
United Kingdom | 17 November 2020

Failure to comply with a contractual requirement to give notice of a claim under a sale and purchase agreement can cause a buyer's claim to fail, even if the seller is already aware of the matters that give rise to the claim. The High Court recently provided a timely reminder that buyers should consider carefully the terms of the notice requirements and follow these rigorously.

When is an application to court an abuse of process?
United Kingdom | 10 November 2020

While hearing the appeal of an application to discharge an interim order, the Court of Appeal clarified its approach to deciding when conduct is permissible and when it may amount to an abuse of process. This decision shows that parties should not assume that they will be immune to a finding of abuse of process purely because they have not done anything unlawful or dishonest. Exploring the context of such actions is key.

To MAE or not to MAE? Court delivers preliminary issues judgment in first COVID-19 MAE case
United Kingdom | 27 October 2020

In a recent decision, the head of the Commercial Court provided topical guidance on the construction and application of material adverse effect clauses in the context of the COVID-19 pandemic. The judgment highlights the significance of the precise words used and the importance of ensuring, insofar as possible, that they properly reflect the intended allocation of risk between the parties.

Hidden owners, ostensible authority and Duomatic principle
United Kingdom | 20 October 2020

According to a recent Privy Council decision, the Duomatic principle can apply to ostensible authority as well as actual authority. The council found that a company's director and registered agent were not in breach of their tortious duties of care to the company where they were acting on the instructions of an agent who had ostensible authority. This case provides insight into circumstances where arrangements cloaking the beneficial owners of, in particular, offshore companies are relatively common.

Fishing expedition or genuine application? Norwich Pharmacal relief when wrongdoing is still unknown
United Kingdom | 13 October 2020

The High Court of England and Wales has recently taken a flexible approach to the conditions which a victim of wrongdoing must satisfy in order to obtain information from third parties potentially mixed up in that wrongdoing. In a recent decision in which it granted a Norwich Pharmacal order, the court held that it was sufficient to establish a good arguable case for essential elements of the cause of action, even if there were significant questions over important case aspects, such as limitation.

Overseas in-house lawyers' advice covered by legal advice privilege
United Kingdom | 06 October 2020

There is no additional requirement for in-house foreign lawyers to be appropriately qualified or recognised or regulated as professional lawyers for legal advice privilege to extend to communications between them and company employees. The requirement for legal advice privilege to attach to communications is that the adviser was acting in their capacity as a lawyer. A recent decision by the High Court has confirmed these tenets of English legal advice privilege.

Quincecare duty bowls out HSBC
United Kingdom | 29 September 2020

The High Court has held that banks may be liable for breaches of the Quincecare duty even where the customer's net assets have not been reduced by the breach. This judgment provides a useful review of the application of the duty and introduces the interesting suggestion that damages may be assessed differently where an individual or company is "hopelessly and irredeemably insolvent". This may give liquidators an additional avenue to pursue lost monies beyond the realm of Quincecare claims.

What does 'market practice' entail? Court of Appeal rules on use of term in ISDA master agreement
United Kingdom | 22 September 2020

The Court of Appeal recently held that 'market practice' is too wide a term to be implied into an International Swaps and Derivatives Association (ISDA) master agreement covering currency trading transactions by dismissing a claim arising from the 'de-pegging' of the Swiss franc from the euro. The desire to maintain the certainty and stability of the relationship between those contracting based on the ISDA master agreement underpinned the court's decision.

Security for costs not ordered despite looming economic downturn caused by COVID-19
United Kingdom | 15 September 2020

Evidence of the adverse impact of the COVID-19 pandemic on the claimant's financial position was not enough to show an inability to pay adverse costs in a recent application for security for costs in the High Court. Although this decision demonstrates the court's willingness to consider the impact of the pandemic and the looming economic downturn in considering a party's financial viability for the purposes of a security for costs application, general evidence of the pandemic's economic impact will not suffice.

Stick to the process: further reminder of how useful process agent clauses can be, especially following Brexit
United Kingdom | 08 September 2020

In a recent case, a court explored whether a borrower had been validly served when the borrower had failed to comply with its contractual obligation to ensure that a process agent remained in place at all times. The court's decision shows that it will adopt a commercial approach to the interpretation of process agent clauses and, where possible, it will give effect to such clauses' primary purpose of allowing a speedy and certain means of service.

No interim injunction over bitcoin account where damages would be adequate
United Kingdom | 01 September 2020

In a recent case, the court declined to continue interim injunctions granted in respect of a 'coin depot account' holding bitcoin over which the claimants asserted a proprietary right. On this occasion, the balance of convenience in respect of continuing the injunctions did not lie with the claimants, including because damages would be an adequate remedy.

Privy Council rules on remoteness of damage in contract law in judgment on damages for breach of separate but related contracts
United Kingdom | 25 August 2020

Where parties have entered into separate but related contracts, a breach of one contract does not necessarily preclude the recovery of damages under another. In a recent ruling, the Privy Council summarised the law in respect of remoteness of damage for breach of contract. In principle, the purpose of damages for breach of contract is to put the party whose rights have been breached in the same position, so far as money can do so, as if their rights had been observed.

Disputes, disputed: courts' approach to competing dispute resolution clauses in successive agreements
United Kingdom | 18 August 2020

How are contradictory dispute resolution clauses resolved where the agreements are entered into at different times? Intention and purpose are key, as set out in the test in BNP Paribas v Trattamento. In a recent case, the parties intended two agreements to perform separate roles as part of one transaction (even though the second was not contemplated at the time of the first) and the court found that the Trattamento guide is to be followed.

High Court reaches decision on test for jurisdiction over co-defendants
United Kingdom | 28 July 2020

The High Court recently clarified the rules applicable to defendants domiciled in states that are party to the EU Recast Brussels Regulation (1215/2012). Following the decision, the court has jurisdiction to hear a claim against a non-UK defendant under Article 8(1) of the regulation only if the claim against the UK-domiciled anchor defendant is sustainable.

Orders for pre-action disclosure – exceptional in commercial context?
United Kingdom | 21 July 2020

Although parties are expected to exchange key documents before starting proceedings in the English courts, a recent Commercial Court decision highlights the limited nature of those obligations, particularly in a commercial context. Even though the judge was prepared to accept, albeit with some hesitation, that the jurisdictional threshold for making an order had been met, the application was unsuccessful.

It's good to talk: successful party declined portion of costs for refusal to mediate
United Kingdom | 14 July 2020

In a recent High Court decision, a successful party was declined some of its costs on the basis of its unreasonable refusal to engage in mediation. The court's approach is consistent with two other recent cases in which the courts awarded indemnity costs against litigants that had failed to follow directions or give serious consideration to the obligation to engage in alternative dispute resolution.

Waiving goodbye to privilege – reliance is key
United Kingdom | 30 June 2020

In what circumstances will a party waive privilege over legal advice by referring to it in evidence? Reference to the fact of the advice may not be sufficient but reliance on that advice is likely to be. Further, a limited waiver of privilege over certain documents does not mean that those documents are irrelevant from a privilege point of view thereafter and that their subsequent deployment could not result in collateral waiver.

Privileged but admissible? When can without prejudice material be pleaded in statements of case?
United Kingdom | 23 June 2020

In a recent decision the High Court considered the scope of the existing exceptions to the without prejudice rule. This well-known rule protects communications made in a genuine attempt to settle an existing dispute from later deployment in court. The High Court allowed passages from papers prepared for a mediation to be admitted into the proceedings under two exceptions to the without prejudice rule.

Freezing orders: risk of dissipation? Get real
United Kingdom | 16 June 2020

The High Court has issued an important reminder of the need for solid evidence of a real risk that a respondent will take steps to dissipate their assets to frustrate a judgment in applications to continue a worldwide freezing order. Evidence of dishonesty alone is not enough, and conduct falling short of dishonesty is less likely to suffice.

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.

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.