Latest updates

Bribery Act – when are prevention procedures adequate?
RPC
  • Litigation
  • United Kingdom
  • April 24 2018

In the first contested case of its kind since the Bribery Act 2010 came into force, a company was found guilty under Section 7 of the act for failing to prevent bribery after its defence of having adequate procedures in place to prevent bribery was unsuccessful. Given that there is no one-size-fits-all rule for what constitutes 'adequate procedures', it will be difficult for a company to assess whether it falls on the right side of the line.

Flawed claim against solicitors struck out
RPC
  • Litigation
  • Hong Kong
  • April 24 2018

In defending themselves against a claim for professional negligence brought by a former client, two law firms and the individual solicitor recently successfully applied to strike out the entire claim against them, with costs awarded on a more generous ('indemnity') basis. The two related judgments are a salutary reminder of the need for a plaintiff to plead all material particulars, failing which there is a real prospect that their claim could be struck out as plainly defective.

Belhaj v director of public prosecutions – court clarifies two issues relating to waiver of privilege
RPC
  • Litigation
  • United Kingdom
  • April 17 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.

Amendments that do more than 'relate back'
RPC
  • Litigation
  • Hong Kong
  • April 10 2018

The recent judgment in Tao Soh Ngun v HSBC International Trustee Ltd arose from an interesting piece of litigation. In this case, the plaintiff appears to have tried to amend her pleading to add new allegations of breach and loss based on matters that did not exist at the time when the proceedings commenced. To have allowed such amendments would not have sat comfortably with the 'relate back' principle (ie, that an amendment takes effect from the date of the original pleading).

Supreme Court clarifies test for liability in tort of conspiracy
RPC
  • Litigation
  • United Kingdom
  • April 10 2018

The Supreme Court recently held that the location of the incident from which damage arose in the context of a claim alleging the tort of conspiracy to injure by unlawful means was where a conspiratorial agreement was agreed. In this case, that location was England and the English courts therefore had jurisdiction.

Accountants' final appeal against disciplinary decision fails
RPC
  • Litigation
  • Hong Kong
  • April 03 2018

In Registrar of Hong Kong Institute of Certified Public Accountants v Wong & Anor, the accountants appealed a disciplinary committee's decision the substance of which was that they had failed to observe a professional standard in connection with an audited company's compliance with Hong Kong Accounting Standard 39 in respect of an available-for-sale financial asset, before issuing an unqualified audit opinion. That appeal failed. More recently, the accountants' final appeal to the Court of Final Appeal was also dismissed.

Preserving costs consequences of a settlement offer – a cautionary tale
RPC
  • Litigation
  • United Kingdom
  • April 03 2018

The High Court recently heard an appeal regarding the costs consequences of a withdrawn Part 36 offer where a second offer was made and neither was beaten at trial. In holding that costs flowed from the second offer only, the court provided useful guidance on how to structure multiple offers so that a party's original costs protection is preserved.

Court of Appeal clarifies reviews of taxed costs
RPC
  • Litigation
  • Hong Kong
  • March 20 2018

In a recent case, the Court of Appeal took the opportunity to clarify the lower courts' role when reviewing disputes over taxed costs. In doing so, the Court of Appeal appears to have come to a sensible compromise in allowing some costs that had been approved by the taxing master but disallowed by the judge on review.

Property Alliance Group Limited v The Royal Bank of Scotland plc – a pyrrhic victory?
RPC
  • Litigation
  • United Kingdom
  • March 20 2018

The Court of Appeal recently handed down its much-anticipated judgment on the mis-selling and London Inter-bank Offered Rate (Libor) manipulation test case earlier this month. While the appeal was dismissed in full, the Court of Appeal's decision has clarified a number of aspects of the law in this area – in particular, the circumstances in which an implied representation in respect of Libor would arise.

Litigation privilege: whose privilege?
RPC
  • Litigation
  • United Kingdom
  • March 13 2018

The claimants in a recent case applied to inspect certain documents created in foreign proceedings over which the defendants – companies belonging to the mining company Glencore – had asserted litigation privilege. Glencore controlled these proceedings but was not a party to them. It unsuccessfully argued that this was a permitted exception to the general principle that a party cannot claim litigation privilege out of proceedings to which it is not a party.

SFC collective redress: reliance on misstatement in a real but not ideal world
RPC
  • Litigation
  • Hong Kong
  • March 06 2018

The Securities and Futures Commission (SFC) in Hong Kong has been very active in using civil proceedings pursuant to Section 213 of the Securities and Futures Ordinance to seek redress for investors. A recent judgment confirms that the SFC can seek restorative orders not only against parties to impugned transactions, but also against individuals who aid or abet or who are involved.

The approach to redaction – High Court guidance
RPC
  • Litigation
  • United Kingdom
  • March 06 2018

The English High Court recently considered the correct approach to the redaction of documents in civil proceedings. The court held that the right to redact irrelevant material applies both to standard disclosure and the right to inspect documents referenced in statements of case. In the short term, this case confirms a party's ability to redact documents in order to protect commercially sensitive information. In the long term, the practice of redacting such information will likely be confirmed by way of an express rule.

Bank liable for breach of Quincecare duty
RPC
  • Litigation
  • United Kingdom
  • February 27 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.

Intervener's proprietary claim to money in debtor's integrated account
RPC
  • Litigation
  • Hong Kong
  • February 20 2018

Integrated bank accounts are very common in financial hubs such as Hong Kong. In addition to sub-accounts categorised by different currencies, an integrated account may also have sub-accounts with other features (eg, credit cards, investments and insurance). A recent case shed light on the approach of the courts to such accounts in the context of enforcement proceedings and rival claims by different judgment creditors.

Beware of the risks when notifying warranty claims
RPC
  • Litigation
  • United Kingdom
  • February 13 2018

In a recent case, the Court of Appeal upheld the High Court's decision to strike out certain breach of warranty claims on the basis that the buyer had given the seller inadequate notice of those claims. The buyer's attempt to keep its options open by drafting its notices widely proved fatal to its claims, as it failed to identify the specific warranties to which its claims related as required by the share purchase agreement.

Liquidators' full and frank duty when 'going solo'
RPC
  • Litigation
  • Hong Kong
  • February 06 2018

In Bespark Technologies Engineering Ltd v JV Fitness Ltd the High Court recently took the opportunity to remind liquidators of their duty to give full and frank disclosure when making an ex parte (without notice) application to the court. A failure to do so could have serious consequences, including a refusal to approve the appointment of a liquidator or an order for his or her removal. The duty to be full and frank applies to all ex parte applications, so there are general lessons to be learned.

High Court confirms availability of Bankers Trust orders to trustee claimants seeking to recover misappropriated assets
RPC
  • Litigation
  • United Kingdom
  • February 06 2018

The High Court recently confirmed for the first time the availability of the commonly encountered Bankers Trust order to trustee claimants of stolen or misappropriated property, highlighting the flexibility of the court's equitable jurisdiction when presented with new situations. The decision also illustrates the court's willingness to grant Norwich Pharmacal relief to facilitate the recovery of unlawfully dissipated assets and the complimentary interim remedies available for that purpose.

Scope of auditor's duty to blow the whistle
RPC
  • Litigation
  • Hong Kong
  • January 23 2018

The Court of First Instance recently considered some of the legal principles surrounding the scope of an auditor's duty to detect alleged irregularities in a company's financial statements and, in appropriate circumstances, to report alleged wrongdoing to the relevant regulatory authorities. The judgment is an interesting review of some of the legal issues involved, including the applicability of the defence of illegality in the context of a claim brought by a liquidator on behalf of a company against its former auditor.

Guidance on proving significant and complex fraud
RPC
  • Litigation
  • United Kingdom
  • January 23 2018

A recent Commercial Court decision concerned a claim against three former directors of the claimant companies in respect of fraudulent schemes involving construction projects and land acquisitions in Kazakhstan. The decision provides guidance on what is required to prove a complex fraud and when foreign limitation periods will be disapplied because they cause the claimant undue hardship.

High Court considers retrospective costs amendments
RPC
  • Litigation
  • United Kingdom
  • January 16 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.

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