Litigation, United Kingdom, RPC updates

Beware: High Court refuses permission to rely on new witness statement prepared part way through trial
RPC
  • United Kingdom
  • 22 December 2020

The High Court of England and Wales recently refused a claimant permission to rely on a witness statement of one its in-house lawyers, prepared during an ongoing trial, and call that witness to give oral evidence during the trial. The new witness's evidence produced during trial could not be relied on due to its inherent unreliability and the risk that it would be tailored to the state of the party's current case. Parties should always consider what evidence is required to support their case at an early stage.

Late service of evidence requires relief from sanctions
RPC
  • United Kingdom
  • 15 December 2020

The High Court recently determined that an application to admit witness evidence outside the directions timetable should be treated like an application for relief from sanctions under Civil Procedure Rule 3.9. The decision suggests that the court may imply a sanction for policy reasons, even where there was no intention on the part of the rulemaker or judge to impose a sanction for a breach.

Court of Appeal provides useful reminder of 'subject to contract' label meaning in settlement negotiations
RPC
  • United Kingdom
  • 08 December 2020

A recent Court of Appeal decision determined that a Part 36 offer does not alter the status of 'subject to contract' protection in solicitors' correspondence when settling a dispute. This decision reassures lawyers that they can continue to conduct subject to contract negotiations on behalf of their clients without any undue risk of being bound by what is discussed. It is also a useful reminder of the consent order's significance in conclusively settling negotiations which are expressed to be subject to contract.

Largest 'white elephant' in history of group actions
RPC
  • United Kingdom
  • 01 December 2020

BHP has successfully applied to strike out 200,000 claims as an abuse of process. Had the judge not struck out the claims, he would have stayed proceedings on jurisdictional grounds under Article 34 of the EU Recast Brussels Regulation and the doctrine of forum non conveniens. While the significant nature of the proceedings would have raised England's profile as a forum for group litigation, this was ultimately not a case which fell within the parameters under which the court can accept jurisdiction.

Can an appeal court order repayment after it has reversed the relevant order?
RPC
  • United Kingdom
  • 24 November 2020

An appellate court has an inherent power to restore money paid or property transferred under an order which it has reversed, and not all contractual provisions are susceptible to being waived by election. These are the two key takeaways from a recent Privy Council judgment.

More is more when giving notice of claims under SPAs
RPC
  • United Kingdom
  • 17 November 2020

Failure to comply with a contractual requirement to give notice of a claim under a sale and purchase agreement can cause a buyer's claim to fail, even if the seller is already aware of the matters that give rise to the claim. The High Court recently provided a timely reminder that buyers should consider carefully the terms of the notice requirements and follow these rigorously.

When is an application to court an abuse of process?
RPC
  • United Kingdom
  • 10 November 2020

While hearing the appeal of an application to discharge an interim order, the Court of Appeal clarified its approach to deciding when conduct is permissible and when it may amount to an abuse of process. This decision shows that parties should not assume that they will be immune to a finding of abuse of process purely because they have not done anything unlawful or dishonest. Exploring the context of such actions is key.

To MAE or not to MAE? Court delivers preliminary issues judgment in first COVID-19 MAE case
RPC
  • United Kingdom
  • 27 October 2020

In a recent decision, the head of the Commercial Court provided topical guidance on the construction and application of material adverse effect clauses in the context of the COVID-19 pandemic. The judgment highlights the significance of the precise words used and the importance of ensuring, insofar as possible, that they properly reflect the intended allocation of risk between the parties.

Hidden owners, ostensible authority and Duomatic principle
RPC
  • United Kingdom
  • 20 October 2020

According to a recent Privy Council decision, the Duomatic principle can apply to ostensible authority as well as actual authority. The council found that a company's director and registered agent were not in breach of their tortious duties of care to the company where they were acting on the instructions of an agent who had ostensible authority. This case provides insight into circumstances where arrangements cloaking the beneficial owners of, in particular, offshore companies are relatively common.

Fishing expedition or genuine application? Norwich Pharmacal relief when wrongdoing is still unknown
RPC
  • United Kingdom
  • 13 October 2020

The High Court of England and Wales has recently taken a flexible approach to the conditions which a victim of wrongdoing must satisfy in order to obtain information from third parties potentially mixed up in that wrongdoing. In a recent decision in which it granted a Norwich Pharmacal order, the court held that it was sufficient to establish a good arguable case for essential elements of the cause of action, even if there were significant questions over important case aspects, such as limitation.

Overseas in-house lawyers' advice covered by legal advice privilege
RPC
  • United Kingdom
  • 06 October 2020

There is no additional requirement for in-house foreign lawyers to be appropriately qualified or recognised or regulated as professional lawyers for legal advice privilege to extend to communications between them and company employees. The requirement for legal advice privilege to attach to communications is that the adviser was acting in their capacity as a lawyer. A recent decision by the High Court has confirmed these tenets of English legal advice privilege.

Quincecare duty bowls out HSBC
RPC
  • United Kingdom
  • 29 September 2020

The High Court has held that banks may be liable for breaches of the Quincecare duty even where the customer's net assets have not been reduced by the breach. This judgment provides a useful review of the application of the duty and introduces the interesting suggestion that damages may be assessed differently where an individual or company is "hopelessly and irredeemably insolvent". This may give liquidators an additional avenue to pursue lost monies beyond the realm of Quincecare claims.

What does 'market practice' entail? Court of Appeal rules on use of term in ISDA master agreement
RPC
  • United Kingdom
  • 22 September 2020

The Court of Appeal recently held that 'market practice' is too wide a term to be implied into an International Swaps and Derivatives Association (ISDA) master agreement covering currency trading transactions by dismissing a claim arising from the 'de-pegging' of the Swiss franc from the euro. The desire to maintain the certainty and stability of the relationship between those contracting based on the ISDA master agreement underpinned the court's decision.

Security for costs not ordered despite looming economic downturn caused by COVID-19
RPC
  • United Kingdom
  • 15 September 2020

Evidence of the adverse impact of the COVID-19 pandemic on the claimant's financial position was not enough to show an inability to pay adverse costs in a recent application for security for costs in the High Court. Although this decision demonstrates the court's willingness to consider the impact of the pandemic and the looming economic downturn in considering a party's financial viability for the purposes of a security for costs application, general evidence of the pandemic's economic impact will not suffice.

Stick to the process: further reminder of how useful process agent clauses can be, especially following Brexit
RPC
  • United Kingdom
  • 08 September 2020

In a recent case, a court explored whether a borrower had been validly served when the borrower had failed to comply with its contractual obligation to ensure that a process agent remained in place at all times. The court's decision shows that it will adopt a commercial approach to the interpretation of process agent clauses and, where possible, it will give effect to such clauses' primary purpose of allowing a speedy and certain means of service.

No interim injunction over bitcoin account where damages would be adequate
RPC
  • United Kingdom
  • 01 September 2020

In a recent case, the court declined to continue interim injunctions granted in respect of a 'coin depot account' holding bitcoin over which the claimants asserted a proprietary right. On this occasion, the balance of convenience in respect of continuing the injunctions did not lie with the claimants, including because damages would be an adequate remedy.

Privy Council rules on remoteness of damage in contract law in judgment on damages for breach of separate but related contracts
RPC
  • United Kingdom
  • 25 August 2020

Where parties have entered into separate but related contracts, a breach of one contract does not necessarily preclude the recovery of damages under another. In a recent ruling, the Privy Council summarised the law in respect of remoteness of damage for breach of contract. In principle, the purpose of damages for breach of contract is to put the party whose rights have been breached in the same position, so far as money can do so, as if their rights had been observed.

Disputes, disputed: courts' approach to competing dispute resolution clauses in successive agreements
RPC
  • United Kingdom
  • 18 August 2020

How are contradictory dispute resolution clauses resolved where the agreements are entered into at different times? Intention and purpose are key, as set out in the test in BNP Paribas v Trattamento. In a recent case, the parties intended two agreements to perform separate roles as part of one transaction (even though the second was not contemplated at the time of the first) and the court found that the Trattamento guide is to be followed.

High Court reaches decision on test for jurisdiction over co-defendants
RPC
  • United Kingdom
  • 28 July 2020

The High Court recently clarified the rules applicable to defendants domiciled in states that are party to the EU Recast Brussels Regulation (1215/2012). Following the decision, the court has jurisdiction to hear a claim against a non-UK defendant under Article 8(1) of the regulation only if the claim against the UK-domiciled anchor defendant is sustainable.

Orders for pre-action disclosure – exceptional in commercial context?
RPC
  • United Kingdom
  • 21 July 2020

Although parties are expected to exchange key documents before starting proceedings in the English courts, a recent Commercial Court decision highlights the limited nature of those obligations, particularly in a commercial context. Even though the judge was prepared to accept, albeit with some hesitation, that the jurisdictional threshold for making an order had been met, the application was unsuccessful.

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