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Under the Trade Names Act, descriptive trade names can enjoy protection against the use of identical or similar trade names if such use is likely to confuse the public. However, case law suggested that this would be the case only where additional circumstances resulted in unlawfulness. A recent Supreme Court decision resolves the discrepancy between the legal framework and the case law.
The Grand Court has confirmed that shareholders of companies that effect a short-form merger pursuant to Section 233(7) of Part XVI of the Companies Act (2021 Revision) are entitled to be paid the fair value of their shares on dissenting from the merger under Section 238 of the act. The eagerly awaited judgment in Changyou.com clarifies an issue which was previously the subject of extensive debate and provides welcome certainty to minority shareholders of Cayman companies.
The Court of Appeal recently reviewed what appears to have been a novel point regarding which party in civil proceedings has the burden of proving that a witness is competent to give evidence at the time of giving evidence. The decision of the first-instance judge and Court of Appeal on the principal point in dispute accords with what is the commonly held understanding – namely, that it is for the party calling a witness to prove (if challenged) that their witness is competent.
The Court of Appeal was recently tasked with deciding whether a liquidator's decision to admit a proof of debt could be challenged. This decision clarifies the extent of judicial scrutiny regarding the exercise of liquidators' powers in admitting proofs of debt and at the same time provides welcome guidance for liquidators in this undertaking.
Traditionally, in order for persons involved in litigation in the Supreme Court to participate in such proceedings – whether as a claimant, a defendant or even a witness – they had to be present in the court. At times, this strict requirement of personal presence served as a barrier to the ultimate goal of resolving disputes through litigation where persons involved therein were unable to attend the trial in person. Notably, the Civil Procedure Rules introduced the option to give evidence through a video link.
The Grand Court recently considered the statutory moratorium against commencing proceedings against a Cayman company in liquidation. The court held that a plaintiff which launches originating proceedings against a company in liquidation, seeking adverse orders against that company, requires leave of the court to bring the proceedings. It also held that the plaintiffs in this case did not have "a case worth entertaining" in respect of either basis on which they had brought their applications.
Corporate law recognises a fundamental principle which is known as the 'organ theory' – that is, directors acting in their capacity as a company's corporate representative cannot be held personally liable for the corporate obligations arising from their position. However, there are exceptions to this principle with respect to tax law. The Administrative Court recently rendered a judgment which is a concrete example of the Luxembourg courts' approach in this regard.
When a contractor takes over its subcontractor's works, can the contractor make a claim in adjudication against the subcontractor? Scenarios such as this are not uncommon; however, contractors which find themselves in such circumstances and wish to make a claim against the subcontractor by way of adjudication under the Construction Industry Payment and Adjudication Act 2012 should be wary of a recent high court case.
The Supreme Court recently concluded that the res judicata effect of a final judgment precludes the claimant from starting new litigation on the same legal grounds for a part of the claim which was not sought in the preceding lawsuit. This judgment is a departure from not only the legal literature, but also case law. It remains to be seen how this judgment will affect party autonomy in civil litigation and test cases.
It is unsurprising that business relationships are facing unprecedented hurdles as a result of the COVID-19 pandemic. Since the declaration of the state of emergency in 2020, the government has enacted a series of restrictions, and issued different provisions, in relation to the COVID-19 pandemic. This article focuses on case law and the courts' approaches towards the force majeure and hardship principles in contract law within the context of the COVID-19 pandemic.
The Court of Appeal recently held that a recipient of information will be bound by a duty of confidentiality if it was reasonable for them to have made enquiries as to the confidential nature of the information and they failed to do so. The decision arguably imposes a greater burden on a recipient of potentially confidential information to make enquiries of the discloser as to the nature of the information where a reasonable person would do so.
The judiciary has frequently acknowledged the ill effects of lingering litigation. Accordingly, several mechanisms have been introduced to provide some respite to clogged judicial instruments. At the same time, the courts have professed the effective application of existing devices to reduce vexatious and frivolous claims. The awarding of actual realistic costs is one step towards better employment of the legal provisions to tame the ever-growing expanse of false, frivolous and vindictive claims.
Civil litigation procedure in Guernsey is governed by the Royal Court Civil Rules 2007. All commercial disputes with a value over £10,000 are heard in the Royal Court; disputes with a lower value are dealt with in the Magistrate's Court. This article outlines the procedure for civil proceedings in Guernsey, which differs depending on whether the defendant is in or outside Guernsey.
In a recent case, the Court of First Instance ordered a bank to disclose certain records that it held relating to two of the defendants. In this judgment, the court noted not only that there were cost efficiencies to be had by providing electronic disclosure, but also that banks should not in effect be making a profit from complying with disclosure orders. While, in this instance, the plaintiff had agreed to pay the bank's costs, the amount of those costs (per account and per page) appears to have raised judicial eyebrows.
A recent court judgment is the latest in a line of Cayman Islands court decisions which have considered the meaning and scope of the Cayman firewall provisions. The Grand Court has now provided important clarification about the effect of Section 90 of the Trusts Act 2020, confirming that it does not operate to bestow exclusive jurisdiction on the Cayman Islands courts (as previous cases have suggested) and that common law principles of forum non conveniens still have relevance and application.
In 2020 the Act on Redress of Mass Damages in Collective Action (WAMCA) entered into force. The WAMCA builds on the well-established Dutch collective redress mechanisms that have been in effect since 1994. This article discusses the numerous developments in various ongoing WAMCA proceedings, whether the WAMCA has (already) delivered on its promise to be the next step in the progressive class action climate of the Netherlands and the opportunities and challenges that could be expected.
A recent Supreme Court decision on jurisdiction provides helpful guidance on the circumstances in which a UK-domiciled parent company may owe a common law duty of care in respect of the actions of a foreign subsidiary. The decision highlights the importance of carefully considering the way in which parent companies exercise (or purport to exercise) control over the actions of their subsidiaries.
Switzerland is home to a globally unique life sciences cluster. In a country where 33% of export goods are chemical-pharmaceutical products, it is unsurprising that patents play an important role. However, a strong patent system also needs strong enforcement means. This article provides a brief overview of the Swiss patent litigation system and highlights some trends in life sciences patent litigation.
The long-running Carlyle case recently came to an end when the parties reached a non-confidential settlement. The case arose from the March 2008 collapse of Carlyle Capital Corporation Ltd, a Guernsey fund which invested mainly in residential mortgage-backed securities issued by US government-sponsored entities Fannie Mae and Freddie Mac. The case is of particular relevance now during the COVID-19 pandemic, which will likely lead to more fund collapses.