Daniel Hemming
Updates
Litigation
Waiving goodbye to privilege – reliance is key
United Kingdom | 30 June 2020In 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.
Unfair prejudice saga – Court of Appeal tries to impose some order
United Kingdom | 03 December 2019The 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.
What expenditure falls within 'ordinary and proper course of business' exception in freezing orders?
United Kingdom | 25 June 2019The 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 considers nature and implication of obligation to pay loan interest
United Kingdom | 30 October 2018The 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.
2002 ISDA close-out: reasonable calculation required first time
United Kingdom | 01 May 2018In 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.
UBS, the municipal water company and "the moral standards of the vicarage"
United Kingdom | 07 November 2017The Court of Appeal recently heard an appeal relating to whether complex, loss-making financial transactions were enforceable against the respondent in circumstances where they had been entered into against the backdrop of a corrupt relationship between the appellant counterparty and the respondent's agent. The court's decision demonstrates that appellate courts are willing to apply equitable principles creatively in order to avoid what they perceive to be substantial injustice.
Goodbye Rainy Sky?
United Kingdom | 18 July 2017Lord Sumption, a UK Supreme Court justice, recently delivered a lecture on the development of the English law of contractual interpretation and its potential future direction. He described the shift in the late 20th century from a focus on the language used by the parties to using the "surrounding circumstances" and "commercial common sense" as tools to elucidate the meaning of contractual provisions, but suggested that the Supreme Court is now retreating from this wider and more flexible approach.
Essar v Norscot: landmark decision that third-party funding has been waiting for?
United Kingdom | 18 October 2016The Commercial Court recently rejected an application to set aside an arbitral award entitling the respondent to its costs of third-party litigation funding on the ground of serious irregularity. The court also held that the power under the Arbitration Act 1996 to award "legal and other costs" includes the costs of litigation funding.
High Court rejects interest rate swap mis-selling claim
United Kingdom | 22 December 2015In Thornbridge Limited v Barclays Bank PLC the High Court considered a claim for the mis-sale of an interest rate swap based on several different causes of action, all of which were unsuccessful. The decision includes a detailed analysis of the circumstances in which advisory and other duties will arise in the context of the sale of an interest rate hedging product.
Jurisdiction over non-EU defendants in proceedings including domestic defendants
United Kingdom | 20 January 2015In a recent case the High Court considered an application by the defendants to set aside permission to serve proceedings outside the jurisdiction on a defendant domiciled in Monaco, in proceedings where the two remaining defendants were domiciled in England. The decision serves as a useful reminder that the court will be guided by the substance, not the form, of proceedings when considering questions of jurisdiction.
Commercial Court considers whether liquidated damages clause is unenforceable penalty
United Kingdom | 07 October 2014In Unaoil Ltd v Leighton Offshore Pte Ltd the Commercial Court considered whether a liquidated damages clause was an unenforceable penalty following a reduction of the contract price by amendment. The case shows that where a contract is amended in a relevant respect, it is important that any liquidated damages clauses be revisited and, if appropriate, adjusted commensurately.
Repudiation: dentist's breach does not go to the root of the contract
United Kingdom | 01 July 2014The Court of Appeal recently considered whether a dentist's actual and threatened breach of a term in his contract with his practice principal, which required monthly payments for use of the practice, was a repudiation of the contract. The decision reinforces that a party claiming repudiation by the actual or threatened breach of an innominate term must adduce clear evidence of the actual and anticipated effects of the breach.
Supreme Court considers liability for pre-contractual misrepresentations
United Kingdom | 04 March 2014The Supreme Court recently considered whether a party could be liable for a negligent pre-contractual misrepresentation in circumstances where the party to which the representation was originally made was not the ultimate contracting party. The result followed from a proper appreciation of the continuing nature of representations and a careful analysis of the facts.
High Court confirms contractual construction principles apply to misnomer principle
United Kingdom | 01 October 2013The High Court recently considered the 'misnomer' principle and the circumstances in which a contract that on its express terms is made with one company can be construed as having instead been made with a different company. The case serves as a reminder that principles of construction can be invoked to remedy mistakes in contracts only where it is the language, and nothing more, that has gone wrong.
Misselling of leveraged notes: not a marginal call
United Kingdom | 16 April 2013The Commercial Court recently considered a claim for breach of duty in recommending investments on which substantial losses were incurred following the claimant's failure to meet a margin call, and the distressed sale of the investments, in the wake of the collapse of Lehman Brothers. The decision confirms the focus in claims on the suitability of the recommended product and whether adequate explanations of the risks were provided.
Damages for non-delivery under Sale of Goods Act
United Kingdom | 04 December 2012The High Court recently considered the operation of Section 51 of the Sale of Goods Act 1979, which prescribes the measure of damages for wrongful non-delivery of goods and the circumstances in which an "available market" for the goods exists for the purposes of that section.
Statutory corporations' capacity to enter into oil derivative contracts
United Kingdom | 04 September 2012In Standard Chartered Bank v Ceylon Petroleum Corporation the Court of Appeal considered the capacity of a statutory corporation to enter into derivative contracts linked to the market price of oil, and whether the distinction between 'speculative' and 'hedging' or 'risk management' transactions was relevant in this context.
High Court sets out formula for breach of confidence claims
United Kingdom | 01 May 2012In a case brought by the motorsport racing team Force India, the High Court has provided a comprehensive review of the law on breach of confidence and the correct approach to quantification of damages in such claims. It confirmed that the extent of the breach significantly affects the likely level of damages; a party that brings a claim for breach of confidence must take appropriate care when framing its case on liability.
When is a document within a litigant's control?
United Kingdom | 07 February 2012The Court of Appeal recently considered when a document is within a litigant's or judgment debtor's control and therefore potentially disclosable. The court also considered whether trust documents are within the control of the trust's beneficiary. A document can be within a party's control even if it has never been in the party's possession and the party has never had a strict legal right to possess, copy or inspect it.
Common sense counts when construing commercial contracts
United Kingdom | 15 November 2011The Supreme Court has provided useful guidance on the role of business common sense in construing a clause in a commercial contract, particularly in circumstances where there are competing plausible constructions, neither of which is clearly preferable on the language used alone.
Part 36: tips and traps
United Kingdom | 06 September 2011Part 36 of the Civil Procedure Rules introduced a procedural regime for settlement offers in disputes and prescribed the costs consequences for offers made in accordance with its terms, designed to encourage parties to make and accept reasonable offers. Although the basic formal requirements of a Part 36 offer are straightforward, case law has revealed a number of pitfalls to avoid.
First-tier Tribunal on partnership residence: encouragement for taxpayers
United Kingdom | 05 July 2011The First-tier Tribunal has released a significant decision on whether a partnership with connections to the Isle of Man was an artificial structure motivated by tax-planning concerns. The taxpayers' success appears to have been due to careful preparation of the evidence, and the fact that the partnership included a solicitor who considered the partnership's tax position from its inception.
Court of Appeal on related actions provisions of Judgments Regulation
United Kingdom | 21 June 2011The Court of Appeal recently considered the interpretation of Articles 28 and 30 of the EU Judgments Regulation, which govern the circumstances in which a court of one EU member state may stay an action before it in favour of a pending related action in a court of another member state.
Conditional fee agreement success fees recoverable by insured claimants
United Kingdom | 26 April 2011The Court of Appeal recently considered whether a claimant was entitled to recover from a defendant the success fee payable to his solicitors under a conditional fee agreement in circumstances where the claim was brought by the claimant's insurers, exercising their right of subrogation. The court also considered the recent decision of the European Court of Human Rights in MGN v United Kingdom.
Part 36: effect of conditional fee agreements and after-the-event insurance
United Kingdom | 08 February 2011The Court of Appeal recently considered the consequences of a defendant failing to better a claimant's Part 36 offer in circumstances where the claimant had entered into a conditional fee agreement with his solicitors and had purchased after-the-event insurance. The leading judgment was given by Lord Justice Jackson, the key figure in the reform of litigation funding and costs in England and Wales.
