Commercial disputes
Caveat Emptor: Buyer's inadequate notice precludes £3.5m warranty claim
In Teoco v Aircom (unreported), the High Court has held that a buyer gave inadequate notice of certain breach of warranty claims, thereby preventing it from pursuing those claims (worth c. £3.5m).
Read moreThe new 'notification injunction'
In Holyoake v Candy the High Court considered the court's power to grant a "notification injunction" requiring the Defendants to give written notice before disposing or dealing with their assets. The decision is of interest to applicants seeking an alternative to a freezing injunction where there is concern that a respondent may deal with their assets so as to frustrate the enforcement of any future judgment.
Read moreAnti-suit injunctions
In Sea Powerful II, the Court of Appeal in Hong Kong recently dismissed a plaintiff ship owner's appeal against a judge's refusal to grant an anti-suit injunction to restrain the holder of a bill of lading from continuing with court proceedings in mainland China in breach of a Hong Kong arbitration clause
Read moreSurge in wire transfer fraud leaves victims looking to banks for redress
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Financial List signposts tough road for contractual construction
A recent decision in the High Court (Hayfin v Windermere VII CMBS), one of the first from the Financial List, has demonstrated a strict approach to contractual construction and interpretation in relation to negotiated documentation for financial traded instruments. It also shows the potential of the Financial List to provide helpful and clear guidance on the application of existing case law in the context of financial markets.
Read moreNotice of termination provisions - not all they're cracked up to be
In Vinergy International (PVT) Limited v Richmond Mercantile Limited FZC the High Court held that the respondent had been entitled to accept the appellant's repudiatory breach and terminate their contract without complying with the notice requirements.
Read moreDisputes over bank's contractual right to freeze customer's account
As banks tighten-up their standard terms concerning due diligence on customers and their transactions, it is inevitable that disputes will arise and that some will make their way to court.
Read moreDon't gamble on a wager
In WW Property Investments v Natwest one of many interest rate swaps claims that have been made since the global financial crisis, the High Court confirmed, in line with previous decisions, that interest rate hedging agreements are not wagers in law where at least one party entered into the contract for a genuine commercial purpose and not to speculate.
Read moreRetainers and assumed responsibility for third parties – draw your parameters at the outset
In Caliendo v Mishcon de Reya the High Court recently found that there was no implied retainer between Mishcon de Reya (Mishcon) and the Claimant shareholders of a company for which Mishcon was acting in relation to a sale of shares.
Read moreThe Supreme Court "takes stock" of the law on vicarious liability
In two recent, and complementary, judgments the Supreme Court has considered and clarified the existing law relating to the doctrine of vicarious liability, paving the way for a "modern theory" of vicarious liability.
Read moreForex litigation – coming soon?
Banking litigation partner Simon Hart reflects on whether the English courts are likely to see a wave of litigation falling out of Forex manipulation.
Read moreLitigation to drive profit
Geraldine Elliott – Head of Commercial Litigation – considers how GCs can use litigation to turn the in-house legal team into a profit centre rather than a cost centre.
Read moreHigh Court holds tortious claim unsustainable in respect of interest rate hedging product redress scheme
In the recent case of CGL Group Ltd v (1) Royal Bank of Scotland plc (2) National Westminster Bank plc, the High Court was satisfied that a bank did not owe its customer a tortious duty of care in operating a redress scheme for alleged mis-selling of interest rate hedging products (IRHPs).
Read moreThe Recast Brussels Regulation – considering exclusions
The High Court has recently considered jurisdictional issues relating to a claim concerning the claimants' entitlement to certain shares held by the deceased businessman, Sami Shamoon.
Read moreAgreement to submit to a foreign jurisdiction: Can it be implied or inferred?
In Vizcaya Partners Ltd v Picard and another, the Privy Council recently held that an agreement to submit to the jurisdiction of a foreign court can arise through an implied term but there must be actual agreement (or consent).
Read moreTime lost may never be found again
The decision in Medhi Khosravi v British American Tobacco plc [2016] EWHC 123 (QB) provides a useful reminder that it can be a risky strategy to seek extensions of time for service of a claim which has already been issued. Such extensions should not be granted lightly, and might be set aside at a later date.
Read moreA (bright) green light for predictive coding in English litigation
A recent interlocutory judgment in Pyrrho Investments Limited & Anr -v- MWB Property Limited & Ors [2016] EWHC 256 (Ch) endorses, for the first time, the use of predictive coding when conducting disclosure in English civil proceedings.
Read moreCourt of Appeal considers "agreements to agree"
The Court of Appeal has addressed a number of issues typically encountered in disputes relating to the sale of goods in Hughes v Pendragon.
Read moreOne man's loss is another man's gain: choice of law rules for unjust enrichment claims
In a recent case,[1] the English Commercial Court has determined that a claim in restitution based on unjust enrichment was governed by English law pursuant to EU Regulation 864/2007 (Rome II) and not the law of Geneva.
Read moreLet's call it quits: Cruise ships, capital losses and mitigation
In its recent judgment in Fulton Shipping Inc of Panama –v- Globalia Business Travel SAU the Court of Appeal considered a short, but important, point of law in relation to the calculation of damages in English law.
Read more'Disproportionate' disclosure application denied in swaps mis-selling claim
In Claverton Holdings Ltd v Barclays Bank plc, the Commercial Court rejected an application by the claimant for specific disclosure against the defendant bank.
Read moreSupreme Court clarifies law on implied terms: "business efficacy" test remains
The Supreme Court has clarified the law on implied terms: in order for a term to be implied it must be necessary for business efficacy or alternatively be so obvious as to go without saying. In practice, it will be a rare case where one of those conditions is satisfied but not the other.
Read moreVTech and Hong Kong’s cyber laws
VTech is a multi-billion-dollar global supplier of electronic toys and learning products for children, and reportedly the world’s biggest manufacturer of cordless telephones. In short, it is a giant company producing high-tech electronic goods – surely, you might think, capable of fending off a cyber-attack.
Read moreHigh Court holds deception undermines "dominant purpose" for claim to litigation privilege
In Property Alliance Group Ltd v Royal Bank of Scotland Plc the Court held that where a claimant had met the defendant's former employees to seek evidence for the claim, but had misled them as to the purpose of the meetings, the dominant purpose of those meetings could not be said to be the litigation.
Read moreCourt of Appeal permits early redemption of Lloyds Banking Group's Enhanced Capital Notes
In BNY Mellon Corporate Trustee Services Ltd v LBG Capital No.1 and No. 2 Plc, the Court of Appeal reversed the first instance decision of the High Court, by allowing early redemption of certain convertible securities (known as Enhanced Capital Notes, or ECNs).
Read moreHigh Court rejects interest rate swap misselling claim
In Thornbridge Limited v Barclays Bank PLC the High Court considered a claim for the missale of an interest rate swap based on several different causes of action, all of which were unsuccessful.
Read moreDelay not a bar to obtaining freezing injunction
The High Court has granted three insolvent Cayman companies (each in liquidation) a worldwide freezing order in support of proceedings against Mr Terrill, an individual who operated behind the companies' respective corporate directors as their sole director and shareholder.
Read moreFinancial Litigation roundup
Welcome to the latest edition of our Financial Litigation roundup. In this edition, we consider recent judgments and ongoing cases from the banking and financial world in the UK and Asia, as well as regulatory developments in those jurisdictions
Read moreFinancial Litigation roundup
Welcome to the latest edition of our Financial Litigation roundup. In this edition, we consider recent judgments and ongoing cases from the banking and financial world in the UK and Asia, as well as regulatory developments in those jurisdictions
Read moreThe Supreme Court restates the rule on penalties
The Supreme Court has recast the test for penalties to bring it into line with modern commercial practices. The new test is less formalistic and leaves the courts with greater discretion to look at the commercial rationale for a clause.
Read moreHigh Court clarifies scope of duties owed by directors to shareholders
The High Court has struck out a number of claims brought by shareholders in what was, in 2008, Lloyds TSB against its directors (Sharp & others v Blank & others).
Read moreSupreme Court broadens scope of freezing order wording
A recent decision[1] of the Supreme Court has clarified the scope of the standard form Commercial Court freezing order, holding that the right to draw down monies under a loan agreement can be an "asset" where the extended form freezing order is granted.
Read moreCourt of Appeal upholds estoppel by convention for forgetfulness
In Dixon and another v Blindley Health Investments Ltd[1] the Court of Appeal held that a shareholder was estopped by convention from relying on a pre-emption agreement for the sale of shares which had been agreed by members informally through correspondence some 8 years previously and had since allegedly been forgotten.
Read moreWhen can a company assert legal advice privilege against its shareholders?
A High Court judge recently confirmed the general principle that a company cannot assert legal advice privilege against its shareholders, subject to one exception:
Read moreCourt refuses stay in favour of Italian proceedings under 2001 Brussels Regulation
The Commercial Court has declined to stay an English action[1] in favour of prior proceedings in Italy, notwithstanding the fact that the dispute pre-dated the application of the Recast Regulation.
Read moreExclusive (jurisdiction), read all about it!
In Global Maritime Investments Cyprus Limited v OW Supply & Trading A/S (under konkurs),[1] a jurisdiction clause prevented the defendant from pursuing issues in the Danish courts, even though jurisdiction was not stated to be "exclusive".
Read moreBreach of SFO disclosure requirements and damages that can follow
In July 2015 the Securities and Futures Commission (SFC) commenced its first set of proceedings in the Market Misconduct Tribunal against a listed company for allegedly failing to disclose price-sensitive inside information to the public as soon as reasonably practicable, contrary to Section 307B(1) of the Securities and Futures Ordinance.
Read moreThe effectiveness of a US exclusive jurisdiction clause in light of the (Recast) Brussels Regulation
The Court of Appeal ruled that a company which provides benefits to employees of associated group companies may be regarded as an employer if it provides those benefits to reward and encourage the employees for the benefit of their employer and the group as a whole.
Read moreHigh Court guidance on the admissibility of expert evidence
British Airways has succeeded in partly overturning the decision of a Deputy Master who refused BA permission to adduce expert evidence in litigation against the trustees of one of its defined benefit pension schemes.
Read moreRepudiatory breach implicitly excluded in multi-party LLP agreements
In the recent decision of Flanagan v Liontrust Investment Partners LLP and others[1] the High Court held that the doctrine of repudiatory breach is excluded in multi-party limited liability partnership agreements ...
Read moreTracing Mr Maluf's millions
The recent Privy Council decision in Federal Republic of Brazil and another v Durant International Corporation and another upholding a Jersey Court of Appeal judgment provides guidance on the approach the English Courts may now take to backwards tracing.
Read moreCommercial disputes and regulatory – Hong Kong
Faceless fraud – scams in an online world
Read moreFinal appeal serves up sushi
In the past decade or so sushi has become increasingly popular – both in Hong Kong and globally.
Read moreOtkritie and the "Aldi requirement"
The judgment in Otkritie –v- Threadneedle examined the interplay between the "Aldi requirement" ...
Read moreCourt of Appeal rules on limitation and concealment in competition damages claim
In the recent decision of Arcadia Group Brands Ltd & Ors v Visa Inc & Ors[1] ...
Read moreCourt confirms its wide discretionary power to extend time in consent orders
In Safin (Fursecroft) Limited v The Estate of Dr Said Ahmed Said Badrig (Deceased)[1], the Court of Appeal considered the principles that apply to an application for extension of time for compliance with obligations set out in a consent order.
Read moreThe risk of a pyrrhic victory for claimants relying on damages clauses for the calculation of compensation in the absence of actual loss
The Supreme Court has handed down a unanimous decision which confirms that clauses which provide a contractual mechanism for the calculation of damages remain subject to standard rules of construction.
Read moreThe better part of discretion is – an implied term?
In Portsmouth City Council v Ensign Highways Ltd [2015] EWHC 1969 (TCC), the High Court implied a term imposing limits on a party's contractual discretion, ...
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