RPC updates
Duty of care can exist between parent company and third parties affected by subsidiaries' actions
RPC- Litigation
- 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.
Courts confirm basis for indemnity costs
RPC- Litigation
- Hong Kong
- 23 April 2019
A couple of recent first-instance decisions demonstrate the courts' wide discretion to award costs between parties based on a higher rate of recovery (referred to as an 'indemnity basis'). Such costs are not literally an indemnity – the receiving party does not recover all of their costs from the paying party. While indemnity costs are not the norm, many parties and their legal representatives often seek such costs without sufficient regard to whether this is actually justified.
Should fraud unravel all? The Supreme Court thinks so
RPC- Litigation
- 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.
Court ruling highlights importance of cross-examination
RPC- Litigation
- Hong Kong
- 09 April 2019
A recent High Court decision confirms that the normal practice for trial of proceedings commenced by writ is for a witness statement to stand as the witness's evidence-in-chief without them having to give such evidence verbally prior to cross-examination. Further, where a person gives a witness statement but is unable to attend the trial, the weight to be attached to that statement (if any) is a matter for the trial judge.
English court trumps FBI
RPC- Litigation
- 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.
Lawyers go where angels fear to tread
RPC- Litigation
- Hong Kong
- 26 March 2019
In a relatively close-knit community such as Hong Kong, it is not uncommon for parties to proceedings or their witnesses, lawyers or experts to be known to a judge or tribunal member, which could create a perception of potential bias. In these circumstances, applications might be made for the recusal of the judge or tribunal member and for the case to be reassigned. Two recent cases serve as a timely reminder of the inherent difficulties and sensitivities involved in an assessment of apparent bias.
Defendants need not make reasonable enquiries of third parties where they cannot admit or deny allegations
RPC- Litigation
- 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
RPC- Litigation
- 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
RPC- Litigation
- 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.
Waiver of privilege during court proceedings
RPC- Litigation
- Hong Kong
- 12 March 2019
In a recent case before the High Court, a novel issue arose as to whether a party's deployment of privileged documents for the purposes of the trial of a preliminary issue concerning limitation would result in privilege in the documents being waived (lost) for the purposes of the main trial, in the event that the court held that the claim was not time barred. The case is a useful reminder of the potential danger of trying to deploy privileged material for the purposes of only part of court proceedings.
Enforceable oral contracts – Supreme Court looks to conduct and context
RPC- Litigation
- 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.
Expert witness allowed to rely on appended reports
RPC- Litigation
- Hong Kong
- 26 February 2019
In a recent judgment of the Court of Appeal, an issue arose as to whether certain technical survey reports appended to one of the party's expert reports required the court's permission to be adduced as evidence for trial. Taken together, the decisions of the lower court and the appeal court are an interesting summary of what constitutes expert opinion. They are also a good example of the courts' increased scrutiny of the use of expert reports at trial in civil proceedings.
Is a 'good arguable case' good enough? Court of Appeal considers test for establishing jurisdiction
RPC- Litigation
- 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?
RPC- Litigation
- 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.
Something fishy about request for judicial assistance
RPC- Litigation
- Hong Kong
- 12 February 2019
A recent judgment concerning a rather bold request for judicial assistance by the Chapter 11 trustee of a company within the China Fisheries Group provides a useful reminder of the common law criteria to be applied for recognition of foreign office holders. However, a more interesting point, perhaps, is that the Hong Kong courts will not be afraid to defend the integrity of their orders if and when attempts are made to circumvent them.
Drafting a contract? Beware the well-intentioned but unenforceable agreement to agree
RPC- Litigation
- 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.
Update on reciprocal enforcement of mainland and Hong Kong civil judgments
RPC- Litigation
- Hong Kong
- 29 January 2019
The Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong Special Administrative Region (HKSAR) was recently signed by the Supreme People's Court and the HKSAR government. This is the sixth arrangement with the mainland on mutual legal assistance in civil and commercial matters and the third arrangement providing for recognition and enforcement of judgments in civil and commercial matters.
Football club loses return fixture as entire agreement clause lets in misrepresentation claim
RPC- Litigation
- 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?
RPC- Litigation
- 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.
Email scams and related recovery litigation
RPC- Litigation
- 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.
