RPC updates

Court of Appeal upholds wide exclusion clause
RPC
  • Litigation
  • United Kingdom
  • July 17 2018

The Court of Appeal has held that a remarkably broad exclusion clause was not unreasonable within the framework of the Unfair Contract Terms Act 1977. The judgment includes a discussion of various factors which the court will take into account when deciding such cases.

More dismissal of 'dormant' claims
RPC
  • Litigation
  • Hong Kong
  • July 10 2018

Defendants should welcome the recent judgment in Fiscalink International Ltd v Yiu Yu Sum Alex, in which the court struck out the plaintiffs' claims against a majority of the defendants on the basis that the lack of progress over many years was an abuse of process such that the entire action against those defendants should be dismissed. The court's judgment is another example at first instance of a pragmatic application of the relevant principles concerning dismissal for abuse of process.

Contractual fiction clauses, unfair contract terms, parliamentary sovereignty and limits of party autonomy
RPC
  • Litigation
  • United Kingdom
  • July 03 2018

In a recent decision, the Court of Appeal set down a significant marker that so-called 'contractual estoppel' has no special status and is to be treated as just another form of exclusion of liability. In particular, it was ruled for the first time that any reliance on a contractual estoppel to seek to defend a claim for pre-contractual misrepresentation is an attempt to exclude liability which falls to be assessed for reasonableness under the Unfair Contract Terms Act 1977.

Court of Appeal clarifies meaning of 'knowledge' for purposes of Limitation Act
RPC
  • Litigation
  • United Kingdom
  • June 26 2018

The Court of Appeal recently provided helpful clarification on what constitutes 'knowledge' for the purposes of Section 14A of the Limitation Act 1980. The judgment reiterates that it is not when the claimant first knew they might have a claim for damages against the defendant that is relevant; rather, it is when they knew enough to make it reasonable to investigate further and, if necessary, obtain professional advice.

Court clarifies admissibility of mainland court judgment
RPC
  • Litigation
  • Hong Kong
  • June 26 2018

The High Court recently analysed the rationale behind the common law principle in Hollington v F Hewthorn & Co Ltd when determining the admissibility of parts of an earlier judgment of a Beijing court arising out of criminal proceedings. The court clarified that under Hong Kong common law, the Hollington principle did not prevent the courts from admitting factual evidence referred to in an earlier judgment of another court or tribunal.

Guidance on factors to be considered in assessment of worldwide freezing orders
RPC
  • Litigation
  • United Kingdom
  • June 19 2018

Freezing orders are a valuable weapon in the arsenal of parties seeking enforcement in England and Wales. However, they come with a heavy responsibility on the part of the applicant. If one gets it wrong, a great deal of time, effort, costs and tactical initiative are likely to be lost. The High Court recently provided helpful guidance as to which factors may be relevant when determining whether a freezing order should be discharged.

Top court rules on protective costs orders
RPC
  • Litigation
  • Hong Kong
  • June 12 2018

A recent landmark judgment of the Court of Final Appeal confirms that in deciding whether it is fair and just to grant a protective costs order in public interest litigation, the courts should be apprised of an applicant's financial position. In the case of a corporate applicant, it is proper to inquire not only into the assets belonging to the company, but also other sources of funding to which it has access. The case is the first in Hong Kong in which the courts have extensively set out the relevant legal principles in this regard.

Court finds no contract without parties' signatures
RPC
  • Litigation
  • United Kingdom
  • June 12 2018

In a recent dispute about the existence of a contract, the High Court found that the parties intended to be bound only when all parties had signed. An open-ended duty to negotiate in good faith was void for uncertainty and the claim was struck out. This case is a useful reminder of several principles, including that an obligation to negotiate in good faith must be tightly drafted and time limited in order to be effective.

Supreme Court curtails negotiating damages
RPC
  • Litigation
  • United Kingdom
  • May 29 2018

A recent Supreme Court decision is now the leading case on negotiating damages. It has emphasised the compensatory basis of contractual damages and restricted negotiating damages to cases where the obligation breached by the defendant protected an asset with economic value. While the decision offers welcome clarity, it leaves some important questions unanswered.

Court upholds privacy rights in face of disciplinary proceedings
RPC
  • Litigation
  • Hong Kong
  • May 29 2018

The High Court recently dismissed proceedings seeking to compel the Hospital Authority to disclose confidential patient records in connection with professional disciplinary proceedings. The decision serves as a good reminder of the tension that exists between the competing interests of preserving client (or patient) privacy rights and the necessity and public interest in the proper administration of professional disciplinary proceedings.

Unlawful distribution of shareholding: application of Limitation Act clarified
RPC
  • Litigation
  • United Kingdom
  • May 22 2018

In a recent case, the Supreme Court considered the application of Section 21(1)(b) of the Limitation Act 1980 with respect to claims against the directors of a company for an unlawful distribution of the shareholding. The court acknowledged that Section 21 was primarily aimed at express trustees, and that it was found to be applicable to company directors "by what may fairly be described as a process of analogy".

Senior noteholder directions: another commercial approach by Financial List
RPC
  • Litigation
  • United Kingdom
  • May 15 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.

Production of company documents to liquidators
RPC
  • Litigation
  • Hong Kong
  • May 15 2018

A recent case involved a contested dispute over the liquidators' access to certain documents stated to be in the respondent's possession or control. At first instance, the court refused to order the respondent to give wide-ranging production of documents to the liquidators on the basis that the documents sought did not fall within Section 221(3) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance. This judgment was recently successfully appealed by the liquidators.

Guidance provided on freezing order undertaking
RPC
  • Litigation
  • United Kingdom
  • May 08 2018

The English courts can make draconian worldwide freezing orders. Such an order will usually contain an undertaking by the applicant to seek permission from the English court before enforcing the order outside England and Wales or seeking an order "of a similar nature". A recent commercial court decision provides welcome guidance on how it will approach the scope of this undertaking.

2002 ISDA close-out: reasonable calculation required first time
RPC
  • Litigation
  • United Kingdom
  • May 01 2018

In a recent case, the High Court considered whether, in the event of the early termination of a transaction under the 2002 International Swaps and Derivatives Association Master Agreement, a party could 'remake' its determination of the close-out amount and the nature of that party's discretion in calculating the close-out amount.

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.

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.

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).

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