Latest updates

Reasonable notice damages for wrongful dismissal cannot be determined via summary judgment
Dentons
  • Canada
  • 15 January 2019

A recent Court of Queen's Bench of Alberta decision provides clarity amidst the conflicting jurisprudential landscape regarding whether the assessment of damages for a termination without cause is appropriate for summary judgment. The court supported a master's finding that an assessment of damages for pay in lieu of reasonable notice for wrongful dismissal is inappropriate for summary judgment.

An excessive demand is still a demand – Barclays Bank plc v Price
RPC
  • 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.

Email scams and related recovery litigation
RPC
  • Hong Kong
  • 15 January 2019

In a series of recent judgments, the first-instance courts in Hong Kong have demonstrated an increasing flexibility in assisting victims of internet and email fraud, including granting declaratory relief without trial. The courts' increasing willingness to grant declaratory relief without trial in these circumstances is a significant step in the right direction, as it has simplified the civil action to be taken by those affected by email fraud and similar scams.

Watch out! Internal settlement negotiations may not always remain internal – West Ham v E20
RPC
  • 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.

Apportionment of liability under workers' compensation scheme
Dentons
  • Canada
  • 08 January 2019

A recent case examined the apportionment of liability for damages between multiple defendants where at least one of them is statutorily immune from liability. The court considered whether an employer can be held vicariously liable for damages caused by its employee's negligence when the injured party, the employee and the employer are subject to the Workers' Compensation Act.

Court upholds owner's discretion to select contractor based on overall cost, schedule and experience
Dentons
  • Canada
  • 18 December 2018

The Alberta Court of Appeal recently ruled on the tendering of a contract that will be of interest to owners and contractors alike. The court upheld an owner's right to rely on privilege and discretion clauses and a description of the relevant evaluation criteria in the tender documents, as well as its right to take a nuanced view of the costs to choose the contractor that it considered best suited to the project.

Former employees gain head start?
RPC
  • Hong Kong
  • 18 December 2018

The High Court recently considered the general legal principles for the grant of injunctive relief to protect an employer's confidential information alleged to have been taken by one or more former employees for the benefit of their new company. The outcome in the case (to date) illustrates the balance that the courts must often strike between recognising the legitimate interests of an employer and a former employee's entitlement to use their own skills and knowledge without obtaining an unfair advantage.

Amsterdam Court of Appeal declares Fortis settlement binding under WCAM
AKD NV
  • Netherlands
  • 18 December 2018

The Amsterdam Court of Appeal recently declared the settlement between Fortis (since renamed Ageas) and multiple claimant organisations binding. The €1.3 billion settlement is the largest of its kind to have been entered into in Europe. It emphasises the usefulness of the Act on Collective Settlement of Mass Claims when resolving cross-border disputes before the Dutch courts, irrespective of whether proceedings on the merits on behalf of the whole class can be litigated on in the Netherlands.

Bombay High Court upholds constitutionality of Maharashtra's right to tax lottery schemes
  • India
  • 18 December 2018

The Bombay High Court recently upheld the constitutionality of the Maharashtra Tax on Lotteries Act 2006. The legality and taxation of lottery schemes in Maharashtra has been at the centre of a catena of judgments, including State of Bombay v RMD Chamarbaugwala and Writ Petition 854/2007. The latest judgment clarifies that the taxation of lotteries falls within the ambit of the term 'betting and gambling' under Entry 62 of the State List of the Constitution.

IP High Court sets precedent regarding liability for inline linking
Anderson Mori & Tomotsune
  • Japan
  • 18 December 2018

The IP High Court recently addressed the issue of inline linking in retweets with regard to a claim brought under the Act on Provider's Liability. This decision sets a precedent in Japan, as it demonstrates that Twitter users may be liable for the infringement of a party's copyright or moral right when inline-linked images are contained in retweets.

Qualifying shareholders' access to company records
RPC
  • Hong Kong
  • 11 December 2018

The recent decision of the High Court in Ninotre Investment Ltd v L & A International Holdings Ltd is a further example of the court's statutory power to grant a qualifying shareholder access to and inspection of company records. Section 740 of the Companies Ordinance (Cap 622) has become an established mechanism for aggrieved shareholders, with legitimate complaints in their capacity as shareholders, to obtain access to and inspection of company records.

Onus on party seeking to limit liability to provide all information at early stage
AKD NV
  • Netherlands
  • 11 December 2018

A recent decision by the Rotterdam Court regarding a major oil spill in the port of Rotterdam emphasises the importance of assessing at an early stage which liability regime applies when a party seeks to limit its exposure to claims in the event of an oil spill at sea. The court held that in procedures concerning limitation of liability, it is the responsibility of the party seeking to rely on limitation to provide all of the information available at an early stage.

When will courts grant retrospective permission for disclosed documents to be used outside main litigation?
RPC
  • 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.

British Columbia court looks past unregistered trading in ordering payment to investment finder
Dentons
  • Canada
  • 11 December 2018

For many junior resource company executives, deciding whether to engage investment finders can be like considering whether to breathe air. Such companies tend to have early-stage projects that do not warrant debt financing and therefore need equity injections, but lack the profile needed to attract traditional investment dealers. However, working with finders entails navigating the 'exempt' market, which can be hazardous to the ill-informed.

Supreme Court judgment on appointment of IT experts
Elias Neocleous & Co LLC
  • Cyprus
  • 04 December 2018

The Supreme Court recently issued an innovative judgment relating to Norwich Pharmacal orders which demonstrates the Cyprus courts' readiness to stay abreast of technological developments. The claimant alleged that he was the victim of fraud and conspiracy in connection with online foreign currency trading. The Supreme Court upheld the first-instance decision to appoint an independent computer expert who would provide the technical expertise required to implement the order for disclosure of the information.

Reverse engineering: Court of Appeal in rare reversal of findings of fact
  • British Virgin Islands
  • 04 December 2018

The BVI Court of Appeal recently considered the scope of its jurisdiction to interfere with findings of fact made at first instance. This is the second time in 2018 that the court has addressed this issue. While the threshold for intervention is high, the court will intervene on appropriate occasions. The thoroughness of the evaluation of evidence and the credibility of the judge's conclusions at first instance are likely to be pivotal to that determination.

Court of appeal decides WSIB fraud requires wilful act
Dentons
  • Canada
  • 04 December 2018

The Workplace Safety and Insurance Board (WSIB) recently prosecuted three workers who were receiving WSIB benefits for failing to report a material change with respect to their benefit entitlement. The WSIB argued that it was not required to prove that the workers had intended to defraud the board. However, the Ontario Court of Appeal disagreed and held that to obtain a conviction for failing to report a material change, prosecutors must prove something akin to tax evasion or fraud.

Challenging judgments allegedly obtained by fraud
RPC
  • 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.

Blockchain evidence accepted in judicial proceedings for first time
AnJie Law Firm
  • China
  • 27 November 2018

The Hangzhou Internet Court recently confirmed, for the first time, the effectiveness of evidence recorded via blockchain. Shortly after, the Supreme People's Court cemented the lower court's view by implementing the Provisions on the Trial of Cases by the Internet Courts. This is the first time that blockchain technology has been officially accepted in a judicial interpretation as a valid technical means for preserving and presenting evidence.

Some lessons in drafting for privilege claims
RPC
  • 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.

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