Litigation, United Kingdom, RPC updates

What does 'market practice' entail? Court of Appeal rules on use of term in ISDA master agreement

• 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

• 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

• 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

• 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

• 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

• 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

• 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?

• 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.

It's good to talk: successful party declined portion of costs for refusal to mediate

• United Kingdom
• 14 July 2020

In a recent High Court decision, a successful party was declined some of its costs on the basis of its unreasonable refusal to engage in mediation. The court's approach is consistent with two other recent cases in which the courts awarded indemnity costs against litigants that had failed to follow directions or give serious consideration to the obligation to engage in alternative dispute resolution.

Waiving goodbye to privilege – reliance is key

• United Kingdom
• 30 June 2020

In what circumstances will a party waive privilege over legal advice by referring to it in evidence? Reference to the fact of the advice may not be sufficient but reliance on that advice is likely to be. Further, a limited waiver of privilege over certain documents does not mean that those documents are irrelevant from a privilege point of view thereafter and that their subsequent deployment could not result in collateral waiver.

Privileged but admissible? When can without prejudice material be pleaded in statements of case?

• United Kingdom
• 23 June 2020

In a recent decision the High Court considered the scope of the existing exceptions to the without prejudice rule. This well-known rule protects communications made in a genuine attempt to settle an existing dispute from later deployment in court. The High Court allowed passages from papers prepared for a mediation to be admitted into the proceedings under two exceptions to the without prejudice rule.

Freezing orders: risk of dissipation? Get real

• United Kingdom
• 16 June 2020

The High Court has issued an important reminder of the need for solid evidence of a real risk that a respondent will take steps to dissipate their assets to frustrate a judgment in applications to continue a worldwide freezing order. Evidence of dishonesty alone is not enough, and conduct falling short of dishonesty is less likely to suffice.

Commission omission? High Court balances text and context in contractual interpretation

• United Kingdom
• 26 May 2020

English law's flexible, rational, yet stable approach to contractual interpretation has been demonstrated again in a recent decision concerning commission payments. The decision is logical and sensible by reference both to the case's commercial context and the contract's wording and exemplifies the benefit of choosing English law as the forum for resolving contractual disputes.

To perform or not to perform? When tendering performance means actual performance

• United Kingdom
• 19 May 2020

A consultant was alleged to be in material breach of a consultancy contract for refusing to supply his services. He responded to a material breach notice by stating that he was willing to perform. However, the Court of Appeal held that this was insufficient to remedy the breach. According to the court, actual performance, rather than an indication of a willingness to perform, was required to remedy the material breach of contract.

When will referencing a document in a witness statement waive privilege?

• United Kingdom
• 12 May 2020

Parties should tread carefully when considering whether and how to reference privileged documents; deployment of a document may draw back the cloak of privilege but a mere reference may not. A Court of Appeal judgment has shown that the context will be key. The guidance given on the difference between references to a document's effect and a document's content is useful and demonstrates that in some scenarios it is possible to refer in limited detail to a document without waiving privilege.

What are good grounds for appeal in insolvency applications?

• United Kingdom
• 05 May 2020

Applying for permission to advance new evidence on appeal is a complex application which has had varying degrees of success in the courts. A recent decision is a useful example of the application of the criteria in the context of insolvency proceedings. This case clarifies that if unreliable evidence is put before the court, decisions based on that unreliable evidence can be challenged on appeal or by a new action being brought.

High Court provides reminder against 'over-lawyering' witness statements

• United Kingdom
• 28 April 2020

In a reminder not to 'over-lawyer' witness statements, a High Court judge has ordered that statements be revised to remove inappropriate content. The judge held that witness statements should not contain arguments or references to documents with which the witness had no personal dealing. Further, fraud allegations do not give parties an increased latitude concerning what witness statements should (and should not) contain.

High Court confirms that it has no power to compel testimony from non-parties to arbitration agreements

• United Kingdom
• 21 April 2020

Parental controls: when does standing consent put subsidiaries' documents within their parent's control?

• United Kingdom
• 07 April 2020

A parent company does not exercise control over the documents of, or held by, its subsidiaries merely by virtue of its shareholdings in those subsidiaries. The situation is different when there is standing consent. The High Court has provided useful guidance on the circumstances in which documents held by subsidiaries would be within the parent company's 'control' for the purposes of disclosure.

COVID-19 and the courts: a headlong journey into remoteness

• United Kingdom
• 31 March 2020

The English civil justice system has shown itself to be capable of rapid change as it adapts to the new reality caused by COVID-19. The clarion call from the English courts is that they are open for business, driven by the need to maintain the access to justice which is vital for the functioning of civil society. However, this will not be an easy task and it would be naive to think that there will not be teething problems during the move into a new era of conducting litigation in new ways.