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.
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.
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 High Court recently considered the extent to which legal advice privilege could attach to documents which were not communications of legal advice between lawyer and client, but from which privileged legal advice could be inferred, and held that privilege could indeed apply to such documents. The test is whether there is a "definite and reasonable foundation" for such an inference to be made as opposed to material that would merely make the reader speculate what the legal advice was.
The Court of Appeal recently allowed an appeal of a first-instance decision not to order the deletion of a privileged email disclosed by the appellant to the respondent. In arriving at its decision, the court extended the principles around inadvertent disclosure identified in Al-Fayed v The Commissioner of Police for the Metropolis to cover situations where an inspecting solicitor does not identify that a document has been mistakenly disclosed, but another solicitor acting for the same party subsequently does.
The High Court recently found that a defendant bank owed and breached a duty to explain the financial implications of fixing the interest rate on the claimants' loans. This case is an as-yet rare example of the successful deployment of an argument that a bank owed a mezzanine duty to its customer of the form identified in Crestsign Limited v National Westminster Bank plc (falling somewhere between a full advisory duty and the standard duty not to make misrepresentations).
The Court of Appeal recently upheld the appeal of Anthony McGill, a licensed football agent, against a High Court decision which dismissed his claims against Sports and Entertainment Media Group (SEM) and others. McGill alleged that SEM had induced professional footballer Gavin McCann to breach an agency contract with him, which had deprived him of the fee that he would have earned for arranging a transfer for the player to football club Bolton Wanderers in 2007.
The High Court recently held that an email purporting to accept a settlement offer but attaching a consent order specifying a different payment date was not an acceptance but a counteroffer. In arriving at this conclusion, the court considered the relevance of the communications that took place subsequent to the purported acceptance. The decision provides an interesting case study in how even a "well-established" principle can be interpreted in different ways.
The Commercial Court recently rejected an application by the claimant for specific disclosure against the defendant bank. The court found that the documents sought, which related to other mis-selling allegations against the bank employees featuring in the claimant's case, would have little probative value and adducing them would place a disproportionate burden on the defendant.
In Portsmouth City Council v Ensign Highways Ltd the High Court implied a term imposing limits on a party's contractual discretion, holding that the party exercising the discretion was required to "act honestly and on proper grounds and not in a manner that is arbitrary, irrational or capricious". However, the court declined to construe an express good-faith clause as applying to the whole contract.
In a recent deceit claim the High Court rejected what it described as an ingenious argument by the defendant, which sought to rely on Gross v Lewis Hillman as establishing a general proposition that where a representation is made by a contracting party which is relied on by the other contracting party in entering the contract, it becomes 'spent' such that it cannot then be relied on by third parties.
The High Court recently dismissed claims brought by UBS AG against Kommunale Wasserwerke Leipzig to enforce its purported right to payments owed under complex derivatives contracts issued by the bank. In many respects, the facts of this case are extraordinary and, as the judge stated in his concluding remarks, "a case study in how not to conduct investment banking in a fair and honest way".
In Baturina v Chistyakov the claimant – reportedly Russia's richest female oligarch – challenged a ruling that her claim against the defendant should be stayed in favour of the Russian courts. The Court of Appeal considered whether the stay should be set aside. This case illustrates the complexities that can arise in making claims based on the reflective loss principle, which is a relatively unclear and developing area of English law.
In Starbev GP Ltd v Interbrew Central European Holding BV claimant Starbev and defendant Interbrew Central European Holding – a subsidiary of Anheuser Busch InBev – sought declaratory relief from the High Court for various issues relating primarily to points of contractual construction arising from the sale of the latter's business to the former. The court's judgment provides a masterclass on contractual interpretation.
A recent case illustrates the high threshold that claimants must overcome in order to resist an inquiry into damages following the discharge of a wrongly obtained injunction. The court had to consider whether the defendants' damages claim would fall within the rules on reflective loss – that is, where a loss claimed by a shareholder is merely reflective of a loss suffered by the company, which is not recoverable.
In a recent High Court case the claimant successfully challenged the defendant's claim to withhold inspection of two categories of document on the grounds of litigation privilege. The case is a useful articulation of the relevant principles governing litigation privilege and a helpful reminder of how difficult it is to protect pre-litigation fact-finding exercises from being disclosed during the course of litigation.
The court's discretion to stay proceedings in a recent case under Article 28(1) of the Brussels Regulation was triggered by the existence of prior proceedings in another EU member state, which the court concluded was a 'related action' under the regulation. The court refused to exercise this discretion, holding that the existence of an exclusive jurisdiction clause in favour of the English court was a significant factor against the grant of a stay.
A recent Court of Appeal decision has extended the guidelines set out in Halsey v Milton Keynes General NHS Trust concerning whether an unreasonable refusal to engage in alternative dispute resolution (ADR) justifies the imposition of a costs penalty. The court held that failure to respond to repeated invitations to participate in ADR is inherently unreasonable and should attract a costs penalty.