UK: Commercial Dispute Resolution Newsletter - June 2017

Overview

Against the backdrop of recent world events, the English courts and arbitral institutions have remained busy. Parties whose ongoing business relations could be potentially affected by Brexit should review relevant agreements and take appropriate action. The Supreme Court recently confirmed the correct approach to contractual interpretation involves considering the text and the context though not negotiations leading to the agreement. The Court of Appeal has repeatedly shown greater flexibility to the variation of agreements even for contracts which contain anti-variation clauses.  The English courts have also clearly set out the guidelines for banks in dealings with sophisticated commercial investors and what constitutes an unconscionable bargain. A number of disputes in relation to settlements have served as a useful reminder that parties must take as much care in identifying parties and claims when concluding proceedings as when commencing them. Some recent decisions have clarified when parties may be ordered to disclose without prejudice or legally privileged communications.  Certain key pointers in relation to costs issues can also be distilled from recent case law.  The English courts are increasingly accepting of the use of technology in litigation.  In response to a backlog of work in the Court of Appeal, the CPR has been amended to provide for the increased use of paper applications and the test for second appeals has also been clarified.

Brexit

The effect of Brexit on foreign currency exchange rates is already being felt in costs calculations in the English courts. In Elkamet Kunststofftechnik GmnH v Saint-Gobain Glass France SA [2016] EWHC 3421 (Pat), the High Court ordered an additional payment of costs be made to reflect the loss caused by the decline in the exchange rate between the pound and the euro since the EU referendum in June 2016...

Third party funding

Third party funding is gaining in popularity.  Usually the cost of financing legal fees is not recoverable because any uplift payable to a funder is neither a "cost" nor a reflection of "damage" suffered; it is instead the result of a contractual bargain between the funder and litigant.  However, in Essar Oilfied Services Ltd v Norscot Rig Management Pvt Ltd [2016] EWHC (Comm) 2361, it was held that those potentially substantial costs may be recoverable in arbitrations... 

Supreme Court guidance on contractual interpretation

Wood (Respondent) v Capita Insurance Services Limited (Appellant) [2017] UKSC 24

Referring to existing authorities - the Court held that it is appropriate to consider both the text and context when interpreting a contract...

Duties owed by banks when advising commercial investors

The Libyan Investment Authority v Goldman Sachs International [2016] EWHC 2530 (Ch)

The High Court has given detailed guidance as to when bankers advising commercial investors to enter into transactions which have since gone sour may be found to have "crossed the line"...

The Court of Appeal's first ruling on whether a claim under the Misrepresentation Act 1967 against an issuer as a result of material placed on a website is available to secondary market purchasers

Taberna Europe CDO II Plc v Selskabet (formerly Roskilde Bank A/S) (In Bankruptcy) [2016] EWCA Civ 1262

The Court of Appeal decided that statements contained in an investor presentation published on an issuer's website are theoretically capable of amounting to representations to potential secondary market purchasers... 

Competing proceedings, stay applications and jurisdiction strategy

AMT Futures Ltd V Marzillier, Dr Meier & Dr Guntner Rechtsanwaltsgesellschaft Mbh [2017] UKSC 13

The Supreme Court held that a UK company, AMT, was not entitled to bring an action in England against a German firm alleging that it had induced the company's former clients to bring proceedings in Germany in breach of an English exclusive jurisdiction clause... 

PPF Capital Source v Singh & Anor [2016] EWHC 3097 (Ch)

The High Court decided that a pending arbitration in Hong Kong of the same dispute covered by English proceedings commenced by a company controlled by one of the defendants was not a compelling reason to stay prior English proceedings, because inter alia it appeared to be a tactical manoeuvre on the part of the defendant...  

Barclays Bank v Ente Nazionale [2016] EWCA Civ 1261

The Court of Appeal upheld the granting of summary judgment on an application by one contracting party for a declaration that the other had breached an English jurisdiction clause by bringing proceedings against it in Italy, and refused to stay the English proceedings under Regulation 44/2001 Article 27 or Article 28...

Asymmetric jurisdiction clause found to confer exclusive jurisdiction

Commerzbank v Liquimar [2017] EWHC 161 (Comm)

The court held that the clause in this case conferred exclusive jurisdiction on the English court, meaning  it could hear the case even though it was not the court first seised...

The English courts broaden the scope for the oral variation of contracts

In three cases this year, the English courts have held that terms in contracts - providing that no variation shall be binding unless made in writing and signed by both parties - do not necessarily prevent an informal variation.

Costs

The following points arising from recent judegements will be of interest to those considering making or defending an application for security for costs...

Costs budgeting: what will constitute "good reason" to exceed an approved costs budget?...

Privilege

When will the court order disclosure of without prejudice communications?

Legal advice privilege is a hugely valuable right but two recent decisions serve as a timley reminder of the limitations on legal advice priviledge and that the court retains ultimate discretation to delve behind the self-certified cloak to satisfy itself that priviledge is being properly claimed....

Settlements

Recent decisions highlight the risk of inadvertently settling more claims or releasing more parties than was actually intended...

Greater use of technology in English litigation

From 25 April 2017, the use of electronic filing has been compulsory in the Chancery Division of the High Court, the Commercial Court, the Financial List, the Technology and Construction Court and the Admiralty, Mercantile, Patents, Intellectual Property Enterprise, Bankruptcy and Companies Courts.  Although key documents in most court proceedings are already public, having the documents available online may mean that they are in practice more readily accessible by interested parties and journalists....

Recent changes to the rules applicable to appeals

In recent years, the workload of the Court of Appeal has increased considerably resulting in a backlog of cases waiting to be heard: the current waiting time is reported to be up to 19 months for full appeals. In October 2016, Part 52 of the CPR was restructured following years of piecemeal amendment. The key changes are..

Commercial Dispute Resolution Newsletter - June 2017

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