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Litigation

18 September 2018
Phillip Kite Revisiting costs awards – BVI Court of Appeal varies costs order based on US appeal decision

British Virgin Islands - Harney Westwood & Riegels

In Fairfield Sentry Limited (In Liquidation) v Farnum Place LLC the BVI Court of Appeal varied a costs order based on a material change of circumstances – namely, a decision of the US Court of Appeals for the Second Circuit. The BVI court held that the US decision was a "material change of circumstances" which allowed it to vary the costs order by disallowing the costs of Farnum's expert.

Authors: Phillip Kite, Francesca Gibbons, Claire Goldstein
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Adrian Miedema Court finds lawyer's communications and conduct during harassment investigation were not privileged

Canada - Dentons

An Ontario court has permitted an employee to refer in her statement of claim for constructive dismissal and bad faith to the communications and conduct of the company's lawyer in respect of a sexual harassment investigation. The court held that the discussions and conduct of the lawyer with respect to the investigation did not relate to a litigious dispute, but rather to the company's statutory obligation to investigate claims of sexual harassment under the Occupational Health and Safety Act.

Author: Adrian Miedema
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Sotos Kasinos Foreclosure process amended to close appeal loopholes

Cyprus - Elias Neocleous & Co LLC

In 2014 the Transfer and Mortgage of Properties Law was amended to introduce a streamlined foreclosure process aimed at helping banks to address the persistently high levels of non-performing loans and so-called 'strategic defaulters'. Several of the amendments were ambiguously drafted and borrowers were quick to oppose them, leading to numerous court appeals to suspend foreclosures that had already begun. In order to address this issue, Parliament recently decided on additional reforms.

Author: Sotos Kasinos
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Tina Wong Extending Mareva relief against third parties

Hong Kong - RPC

In certain circumstances the courts in Hong Kong can extend Mareva relief against a defendant to third parties under the so-called 'Chabra' jurisdiction. In a recent case, the assets which the trustees sought to locate were not directly held by the bankrupt, but appear to have been indirectly held through a family trust and related companies. As before, the court demonstrated its willingness to extend Mareva relief under the Chabra jurisdiction in deserving cases.

Authors: Tina Wong, Gary Yin
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Mathieu Laurent Court of Appeal rules on loss of credit capacity in bankruptcy

Luxembourg - Luther SA

The Court of Appeal recently ruled on the loss of credit capacity in the context of bankruptcy. This was the first time that the availability of company funds in a third-party account was seen as a sufficient reason to avoid the loss of credit capacity. Thus, the court has finally clarified the notion of the loss of credit capacity referred to in Article 437 of the Code of Commerce in a way that is restrictive and favourable for debtors.

Authors: Mathieu Laurent, Maurice Goetschy
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Alan Williams Section 1782 order allowed

United Kingdom - RPC

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.

Authors: Alan Williams, Jonathan Cary
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Recent updates

Ian Mann Grand Court gives directions for dissenters' discovery in appraisal action

Cayman Islands - Harney Westwood & Riegels LLP

Authors: Ian Mann, James Granby, Vicky Lord, Nick Hoffman
Adrian Miedema Owner of electrical contracting firm held personally liable for its C$430,000 regulatory fine

Canada - Dentons

Author: Adrian Miedema
Nicolas Tsardellis Abuse of process and res judicata in asset freezing applications

Cyprus - Elias Neocleous & Co LLC

Author: Nicolas Tsardellis
Emma West Negligent misstatement and undisclosed principals – a gamble not worth taking

United Kingdom - RPC

Authors: Emma West, Parham Kouchikali
Pelin Baysal Supreme Court view on adapting contracts due to fluctuation in currency exchange rates

Turkey - Gün + Partners

Authors: Pelin Baysal, Beril Yayla Sapan, Ezgi Kut
Adrian Chang Mis-selling claim dismissed

Hong Kong - RPC

Authors: Adrian Chang, David Smyth
Chris Browne Contractual penalties again

New Zealand - Wilson Harle

Authors: Chris Browne, Chris Boswell
Taco van der Valk Supreme Court confirms right to limit liability

Netherlands - AKD NV

Authors: Taco van der Valk, Vivian van der Kuil

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