Mr Andy McGregor

Andy McGregor

Updates

Litigation

Court of Appeal upholds decision on importance of industry standard documents in conflicting jurisdiction clauses
United Kingdom | 11 June 2019

The Court of Appeal recently upheld a High Court decision highlighting the risk that English and Italian courts may reach different decisions on the underlying factual background of related disputes even where the disputes could be said to fall under different agreements. The decision clarifies that the English courts put the certainty of industry standard documentation first when determining the applicable jurisdiction.

Should fraud unravel all? The Supreme Court thinks so
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.

Circumstances in which acting in breach of EU sanctions will kill claims
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.

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

Challenging judgments allegedly obtained by fraud
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.

Importance of industry-standard documentation when considering competing jurisdiction clauses
United Kingdom | 14 August 2018

A recent case reiterates the significance that the courts will ascribe to the use of industry-standard documentation when considering 'competing' jurisdiction clauses in related contracts. The case also provides an important reminder of the necessity of seeking the court's direction before engaging expert evidence, particularly in the interim stages of litigation.

Senior noteholder directions: another commercial approach by Financial List
United Kingdom | 15 May 2018

In a recent case, the High Court confirmed the validity of a senior noteholder's directions under a note structure governed by the laws of multiple jurisdictions. In doing so, it highlighted the common ground between the London and New York markets with regard to the common law principles of contractual construction and demonstrated the efficiency of the speedy trial procedure in the Financial List.

Belhaj v director of public prosecutions – court clarifies two issues relating to waiver of privilege
United Kingdom | 17 April 2018

In a case concerning misconduct in public office, the claimants sought to challenge the decision not to prosecute by beginning judicial review proceedings against defendants that included the director of public prosecutions. The court recently held that a limited waiver of legal professional privilege prevented the use of the privileged materials in a related judicial review and that legal professional privilege could be reasserted over inadvertently disclosed privileged material.

Bank liable for breach of Quincecare duty
United Kingdom | 27 February 2018

In a recent case, the Court of Appeal upheld a decision that the appellant bank had breached the Quincecare duty of care which it owed to its corporate customer by making payments without proper enquiry, in circumstances in which a reasonable banker would have been on notice that the customer's director was perpetrating a fraud.

High Court considers retrospective costs amendments
United Kingdom | 16 January 2018

In Sharp v Blank the High Court considered the defendants' application for approval of their revised cost budget on the basis that there had been significant developments in the litigation. The judgment provides helpful clarification of the court's jurisdiction to approve costs that have already been incurred between the date of the original approved budget and the date of the application hearing.

High Court clarifies interplay of Civil Procedure Rules on valid service of claim form
United Kingdom | 26 September 2017

The High Court recently considered the "unfortunate tension" between Civil Procedure Rules (CPR) 6.14 and 7.5 regarding effective service of a claim. The judgment provides a helpful analysis of the purpose of CPR 6.14 in circumstances where there is uncertainty surrounding the validity of service of a claim form.

High Court rejects trustees' use of bankrupt's privileged documents
United Kingdom | 05 September 2017

The High Court recently considered and applied the principle that the right to waive privilege is not property of a bankrupt which is capable of being vested in the trustee in bankruptcy, thus confirming the Court of Appeal decision in Shlosberg v Avonwick Holdings Ltd and rejecting the application of the Crescent Farm principle in bankruptcy cases. The decision prevented the trustees in bankruptcy from using potentially privileged documents as evidence to support a claim.

High Court gives two thumbs up to 'all reasonable endeavours' clause
United Kingdom | 27 June 2017

In Astor Management AG v Atalaya Mining plc the High Court was once again confronted with the task of interpreting an 'all reasonable endeavours' clause. While the decision confirms that the court will use its best endeavours to give such clauses (and their many infamous variants) legal force, it is a reminder to parties that it is preferable to try to achieve legal certainty by defining the degree of effort required with as much precision as possible.

The meaning of third parties being 'identified' in FCA enforcement notices
United Kingdom | 09 May 2017

The Supreme Court recently overturned the decisions of the Upper Tribunal and the Court of Appeal in respect of what it means to be 'identified' in a Financial Conduct Authority enforcement notice. It held that a person is 'identified' if he or she is referred to in such a notice by name or by a synonym. This confirms a narrower interpretation as to whether a person is identified for the purposes of Section 393(1) of the Financial Services and Markets Act 2000.

Defective service and culpable delay: a warning to claimants
United Kingdom | 25 April 2017

The Commercial Court was recently faced with an application by the defendants to strike out claims against them on the basis that the claimant had failed to serve claim forms that it had issued several years earlier. The claimant made a cross-application for alternative service or alternatively for service to be dispensed with under the Civil Procedure Rules. The court refused the cross-application and struck out the claim forms. The judgment contains a useful distillation of the principles relevant in this area.

Back to first principles: contractual intention
United Kingdom | 07 March 2017

The High Court recently rejected a €13.5 million claim for breach of contract, for the main reason that the parties had not manifested an intention to create legal relations, but also due to the absence of certainty in relation to other fundamental terms. The decision serves as a useful reminder of first principles in relation to contract formation and highlights the risks of taking a relaxed approach to documenting contractual arrangements.

Letters of credit: fraud conquers all – if it is fraud
United Kingdom | 07 February 2017

A recent Court of Appeal decision provides a useful reminder of the difficulty in establishing the high threshold of fraud and that the fraud exception to the principle of autonomy is likely to be relevant in only very few circumstances. The decision provides comfort that the courts should not second guess honest representations of law. In the absence of clear evidence that the signatory acted fraudulently, the autonomy principle should be upheld.

When does a bank have a duty to advise on onerous contractual terms?
United Kingdom | 16 August 2016

The High Court recently considered whether a lender owes a duty, in contract or in tort, to a borrower to advise it of onerous terms within a loan agreement. Significantly, the court observed that there is no general duty in tort for banks to advise customers, and that a bank will be found to have this advisory duty only in exceptional circumstances.

Acceptance by conduct: Court of Appeal serves up a classic recipe
United Kingdom | 24 May 2016

The Court of Appeal recently upheld a judgment of the Commercial Court that a party had accepted a contract by its conduct, notwithstanding the contract's stipulation that it needed to be signed by both parties in order to be binding. The case highlights the importance of ensuring that any pre-contractual performance does not inadvertently bring into existence a contract on terms that have not yet been finalised.

Supreme Court restates rule on penalties
United Kingdom | 08 December 2015

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. The decision also emphasises the freedom of sophisticated parties to agree default provisions and will thus give parties greater confidence that such provisions are less likely to be deemed unenforceable.

High Court confirms: the bank does not always win
United Kingdom | 08 September 2015

Barnett Waddington Trustees (1980) Ltd v The Royal Bank of Scotland Plc is an important borrower-friendly High Court decision, arising from a bank's attempt to force a borrower to pay costs allegedly arising from the termination of an internal interest rate swap on early redemption of a £9,237,000 facility which had been taken out to finance the acquisition, development and letting of a property.

Court of Appeal rules on limitation and concealment in competition damages claim
United Kingdom | 25 August 2015

In Arcadia Group Brands Ltd v Visa Inc the Court of Appeal held that a group of well-known high-street retailers could not plead their claims in relation to alleged inflated multilateral interchange fees between 1977 and 2007 on the basis that they were time barred. The decision is a major setback for claimants bringing actions in this field, in particular since the claims struck out in this case were valued at around £500 million.

Good Russian service
United Kingdom | 31 March 2015

Following a recent English High Court decision, it should now be more difficult for parties to evade the effective service of English court documents in Russia. Given the continuing prevalence and importance of proceedings involving Russian litigants before the English High Court, this case provides a useful guide as to what constitutes good service of English proceedings in Russia.

Jurisdiction over non-EU defendants in proceedings including domestic defendants
United Kingdom | 20 January 2015

In a recent case the High Court considered an application by the defendants to set aside permission to serve proceedings outside the jurisdiction on a defendant domiciled in Monaco, in proceedings where the two remaining defendants were domiciled in England. The decision serves as a useful reminder that the court will be guided by the substance, not the form, of proceedings when considering questions of jurisdiction.

Commercial Court assesses power and limitations of Chabra jurisdiction
United Kingdom | 02 December 2014

In Cruz City 1 Mauritius Holdings v Unitech Ltd the Commercial Court recently considered whether it had jurisdiction to grant a freezing order to assist in the enforcement of an arbitration award against subsidiaries of the first defendant, which were incorporated outside the jurisdiction and had no assets or other presence in England.

Commercial Court considers whether liquidated damages clause is unenforceable penalty
United Kingdom | 07 October 2014

In Unaoil Ltd v Leighton Offshore Pte Ltd the Commercial Court considered whether a liquidated damages clause was an unenforceable penalty following a reduction of the contract price by amendment. The case shows that where a contract is amended in a relevant respect, it is important that any liquidated damages clauses be revisited and, if appropriate, adjusted commensurately.

Court of Appeal considers commercial background in contractual construction
United Kingdom | 16 September 2014

Following recent Supreme Court decisions, the principles governing contractual interpretation under English law are reasonably well established. As a recent Court of Appeal case demonstrates, the difficulty comes in applying them to particular factual situations. The court's decision clarifies that commercial considerations should infuse any discussion of contractual interpretation.

Supreme Court clarifies limitation period for damages claim under Competition Act
United Kingdom | 20 May 2014

The Supreme Court – reversing the Court of Appeal's decision – recently upheld the Competition Appeals Tribunal's finding that the limitation period for bringing a follow-on damages claim under Section 47A of the Competition Act cannot be extended against a non-appealing addressee by virtue of appeals by other addressees of a European Commission decision.

Court confirms position on inadvertent disclosure of privileged documents
United Kingdom | 13 May 2014

A recent interim decision in the Serious Fraud Office's (SFO) continuing battle with the Tchenguiz brothers has confirmed the court's position in relation to the use in legal proceedings of privileged documents that were mistakenly disclosed during the course of the proceedings. More broadly, the case illustrates the difficulty for the SFO to pursue its stated objective – investigating fraud, bribery and corruption – with limited resources.

Costs consequences of accepting a claimant's Part 36 offer
United Kingdom | 01 April 2014

The High Court has allowed an appeal of a decision on a defendant's liability for costs following its acceptance of the claimant's offer under Part 36 of the Civil Procedure Rules. The High Court's ruling confirms that in cases involving multiple defendants, an individual defendant may, on acceptance of a Part 36 offer, be liable for non-specific common costs in addition to the costs attributable to the proceedings against it.

Litigation privilege – a cautionary tale
United Kingdom | 21 January 2014

In a recent High Court case the claimant successfully challenged the defendant's claim to withhold inspection of two categories of document on the grounds of litigation privilege. The case is a useful articulation of the relevant principles governing litigation privilege and a helpful reminder of how difficult it is to protect pre-litigation fact-finding exercises from being disclosed during the course of litigation.

From 'rascals' to 'zombies': transfer of beneficial title within banking groups
United Kingdom | 24 January 2012

A Court of Appeal case highlights the complex legal issues that may arise on the collapse of an investment banking group and the unwinding of intra-group structures that were established with the aim of benefiting the group in terms of efficiency and economy. Banks and creditors alike must understand the potential difficulty of establishing which entity within the bank holds the legal and beneficial title to various securities.

Personal recommendations and suitability under Conduct of Business Rules
United Kingdom | 01 November 2011

A High Court decision, which will be welcomed by private banking clients, highlights the stark difference in approach between the issue of when a bank is liable for advice or recommendations under the Conduct of Business Rules, and the question of whether the same sort of advice or recommendation gives rise to liabilities at common law.

High Court rules on oil derivatives misselling case
United Kingdom | 13 September 2011

In uncertain financial times, with a further wave of litigation likely, financial institutions will take comfort from the fact that the English courts continue to take a robust approach to the distinction between advisory relationships and investment advice that is given as part of the sales process.

High Court rules on credit ratings arbitrage case
United Kingdom | 31 May 2011

The High Court recently ruled on a misselling claim brought against Barclays Bank Ltd in relation to the portfolio composition of a complex financial product. Many investors in this area will be surprised by the judge's conclusions on the basis of the collateralised debt obligations business.

Guidance on role of trustee in disputes over complex financial products
United Kingdom | 22 March 2011

A recent Court of Appeal judgment provides useful guidance on the extent to which trustees should participate in disputes arising from complex financial products. Where the trustee's stance on the issues is neutral, it was considered that it should be unnecessary for representations to be made on the trustee's behalf or for it to be represented at a hearing.

High Court criticises bank for sham CDO sale process
United Kingdom | 18 January 2011

As a result of the financial crash, financial institutions have frequently been compelled to liquidate loans associated with financial products such as collateralised debt obligations. A lack of appetite to purchase such loans made valuing such loans particularly difficult. However, a recent case reminds financial institutions that pricing exercises must comply with any contractual obligations of transparency and fairness.

Court of Appeal guidance on 'loss of a chance' damages
United Kingdom | 23 November 2010

A recent Court of Appeal case provides helpful guidance for parties that are considering a claim for 'loss of a chance' damages, shedding light on the circumstances in which it is appropriate for such damages to be awarded where the court must assess what a third party would be likely to have done.

Freezing orders and disclosure obligations
United Kingdom | 12 October 2010

The High Court recently considered the circumstances in which it was appropriate for an 'unless' order to be made, debarring the respondents from defending and entitling the claimant to default judgment unless certain information and documents were provided.

Freezing orders and fortification of cross-undertakings
United Kingdom | 03 August 2010

A recent case confirms that the overriding consideration in applying for fortification of cross-undertakings is the balance of justice. Where a defendant is at risk of significant harm if a freezing order proves to have been wrongly granted, it is material to enquire whether the claimant would suffer corresponding harm if a fortification is ordered, and to consider which course is least likely to lead to an ultimate injustice.

Court of Appeal rules on recovery of pure economic loss in negligence
United Kingdom | 06 April 2010

The Court of Appeal's decision in Shell UK Limited v Total UK Limited provides authority for equitable owners being entitled to bring claims in negligence for pure economic loss, provided that the legal owner has been joined. It is difficult to reconcile this decision with the leading case on the exclusionary rule and further guidance from the Supreme Court is expected.

Court of Appeal rules on without-prejudice communications
United Kingdom | 09 March 2010

The Court of Appeal has shed light on the question of whether evidence of without-prejudice communications and discussions can be relied on in a subsequent dispute about the interpretation of a written settlement agreement. Its decision provides firm judicial support for open settlement negotiations at the expense of the courts having all relevant documentation before them wherever possible.