Latest updates

Supreme Court rejects appeal against detention order in sexual assault case
Elias Neocleous & Co LLC
  • Cyprus
  • 20 August 2019

The Supreme Court recently rejected an appeal against a detention order issued by the Larnaca Permanent Assize Court in a sexual assault case. The appellant claimed that the evidence placed before the first-instance court had speculated on his guilt and the risk of him absconding. However, the Supreme Court found that the accused's detention until trial was at the discretion of the first-instance court and that, based on the circumstances of the case, the court had exercised this power correctly.

Recent developments: new database and res judicata effect
OBLIN Attorneys at Law
  • Austria
  • 20 August 2019

There have been a number of recent legislative developments in Austria, including amendments to the Austrian Enforcement Act, which have granted certain parties access to data about pending enforcement proceedings. Further, the Supreme Court has confirmed that the res judicata effect of a foreign judgment applies at all stages of proceedings conducted in Austria.

Z Trusts judgment: whose rights take priority when a trust is insolvent?
  • Jersey
  • 13 August 2019

The Jersey Court of Appeal recently handed down a long-awaited judgment in the Z Trusts case. The decision considers important questions regarding the equitable rights of former trustees and whether those rights have priority over the rights of other claimants to the assets of a trust (including successor trustees) whose liabilities exceed its assets. As such, trustees must consider the practical implications of this judgment and whether and how they should be mitigated.

Court examines validity of lawyer's sworn affidavit provided on behalf of clients as part of interim application
Elias Neocleous & Co LLC
  • Cyprus
  • 13 August 2019

The Larnaca District Court recently issued a decision on the validity of a sworn affidavit provided by a lawyer on behalf of his clients in the context of an interim application. Drawing on relevant case law, the court found that lawyers who are or will be witnesses in the relevant case or who represent clients in the relevant case cannot provide sworn affidavits as part of the court proceedings. As a result, the court rejected the claimant's objection for being invalid.

Court reviews issue of subpoenas
RPC
  • Hong Kong
  • 13 August 2019

The High Court recently considered a prospective witness's application to set aside a subpoena directed at him. The subpoena combined directions to the witness to give evidence at trial on behalf of the plaintiff and to produce the originals of certain transaction documents. The court set aside the part of the subpoena directed at giving evidence but not the part directed at producing documents. The decision provides useful guidance as to the general practice for issuing subpoenas.

Clarity, clarity, clarity: more contract drafting lessons from High Court
RPC
  • United Kingdom
  • 13 August 2019

The High Court recently adopted an interesting approach to the well-known principles of contractual interpretation in a dispute concerning the financing of a wind farm development. The application of these principles remains tricky, particularly in cases where defined terms provide for flexibility. As a result, while parties should strive for clarity in drafting, they should also give particular consideration to possible options for terminating contracts when they are no longer needed.

What makes a Quistclose trust?
RPC
  • United Kingdom
  • 06 August 2019

The Court of Appeal recently set out the relevant circumstances in which a Quistclose trust can arise in the context of bank transfers. The decision reinforces the understandable reluctance on the part of the courts to erode the basic principle that a banker-customer relationship is no more than a contractual one of debtor and creditor.

Objectivity versus practicality: adding a third party to an action
Elias Neocleous & Co LLC
  • Cyprus
  • 06 August 2019

A recent Supreme Court decision examined a first-instance court's interpretation of the Civil Procedure Rules and, in particular, who can be added as a third party to a process pending before the courts. The decision established that the courts should look only at the conditions imposed by the Civil Procedure Rules on a prima facie basis and not the merits of the claim.

Court costs when using employed lawyers – return to status quo ante
Wilson Harle
  • New Zealand
  • 06 August 2019

The Supreme Court recently overturned the position set out in Joint Action Funding (that lawyer-litigants are not entitled to costs). While the certainty created by the court will be a relief to lawyer-litigants and organisations that are regularly represented in court by employed lawyers alike, the intervening decisions indicate that the days of the status quo may be numbered – in particular, the differential treatment of lawyer-litigants and lay-litigants.

Jersey Royal Court rules on its powers to restrict parties that withdraw trust proceedings to start afresh
  • Jersey
  • 06 August 2019

The Jersey Royal Court recently ruled on the extent of its powers to restrict a party that withdraws proceedings to start afresh in a judgment that considered, for the first time, the implications of a 2014 English Court of Appeal decision on the public interest in there being finality in litigation. This is an important decision for maintaining the public interest in the finality of litigation and the efficient administration of justice.

Supreme Court rules on scope of mortgage liability
Pérez-Llorca
  • Spain
  • 06 August 2019

The Supreme Court recently confirmed that mortgage liability for interest claimed from third parties is limited to five years in accordance with the Mortgage Act. According to the court, this maximum mortgage coverage applies to all legal effects – regardless of whether these are favourable or adverse – and to agreements between mortgagees and mortgagors and between mortgagors and third-party acquirers.

Settlement offers and costs disputes
RPC
  • Hong Kong
  • 30 July 2019

The issue of liability for costs plays a big part in the settlement of protracted civil litigation in Hong Kong. In particular, where the parties refuse to bear their own costs, which party will pay the other's costs becomes an important consideration. As another recent case demonstrates, without prejudice settlement offers can (among other things) seek to protect a party's position as to costs. Such offers are a common feature of the local litigation landscape for good reason.

Interim injunctions: submission of recognisance by lawyer on client's behalf
Elias Neocleous & Co LLC
  • Cyprus
  • 30 July 2019

In a recent first-instance judgment, the Supreme Court of Cyprus examined the meaning of 'recognisance' under the Civil Procedure Law. The judgment indicates that the court has a tendency to follow both a more liberal approach reflecting the needs of modern commercial transactions and a teleological interpretation by focusing on the purpose of legislation instead of the ordinary meaning of the words.

Innocent party entitled to damages even though performance of contract was impossible
RPC
  • United Kingdom
  • 30 July 2019

A recent Court of Appeal case considered the proper interpretation of exceptions or force majeure clauses and provided guidance on the correct application of the compensatory principle of damages. This case provides yet another warning about the need for clarity in drafting contractual clauses and the implications of getting it wrong.

Proper construction of Section 93(3) of Bankruptcy Act and Rule 276 of Bankruptcy Rules
Gan Partnership
  • Malaysia
  • 30 July 2019

The Federal Court recently addressed the proper construction of Section 93(3) of the Bankruptcy Act 1967 and Rule 276 of the Bankruptcy Rules 1967. In this appeal, the Federal Court was requested to decide whether, in the case of a petition presented by multiple petitioners, the bankruptcy notice and creditor's petition could be amended and the deletion of one or more petitioners could be allowed.

Directors' liability in event of non-compliance with company tax obligations: case law reversal
Luther SA
  • Luxembourg
  • 30 July 2019

Under the General Tax Law, directors are held personally liable for the fulfilment of their company's tax obligations. Prior to a case law reversal, the Administrative Court took a strict approach towards directors and systematically held that they had breached their duties by failing to withhold, declare or pay company taxes. However, in 2017 the Administrative Court of Appeal held that the wrongful character of alleged tax breaches must be demonstrated by law and factually proved by the Tax Administration.

Dismissal of application due to delay in implementing enforcement measures
Elias Neocleous & Co LLC
  • Cyprus
  • 23 July 2019

The Supreme Court recently upheld a lower-court judgment to dismiss an application under the Civil Procedural Rules requesting enforcement measures 18-and-a-half years after an initial judgment had been handed down. However, the appeal was dismissed because the debt judgment's existence had not been established and because there had been such a long delay in applying for the adoption of the enforcement measures.

Justification of court decisions – an overview
Gün + Partners
  • Turkey
  • 23 July 2019

The justification of court decisions is regarded as a key element of the right to a fair trial. In Turkey, this right is protected by the European Convention on Human Rights, as well as the Turkish Constitution, the Code of Civil Procedure and Supreme Court precedents. However, in practice, judgments are sometimes made without providing any justification as to why the parties' claims and evidence were not taken into account.

The art of the (settlement) deal
RPC
  • United Kingdom
  • 23 July 2019

According to the Court of Appeal, giving up a right which a debtor does not even know it has is sufficient consideration for settling a debt. However, the vexed question of what amounts to 'good' consideration remains uncertain enough for those entering into a contract to always consider whether good consideration has been given. Among other things, parties should consider whether good consideration has been provided and, if there is any doubt, pay the contractual counterparty a nominal amount.

Agent's failure to disclose relevant information: a 'Gauguin-tuan' error?
RPC
  • United Kingdom
  • 16 July 2019

In a recent decision concerning the sale of a Gauguin painting, the Court of Appeal confirmed that if an agent sells a principal's property and fails to disclose to the principal that it received a higher offer for the property, it will not lose its commission unless it acted dishonestly or in bad faith. As such, agents should be careful to pass relevant information to their principal, particularly if they are under a contractual obligation to do so.

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