Commercial Court Orders Disclosure in Wake of Fraud Summary Judgment

In the case of Lowry Trading Limited and anor v Musicalize and ors [2024] EWHC 773 (Comm),[1] the Commercial Court demonstrated its willingness to use the various tools at its disposal to compel disclosure and/or the provision of information, particularly where there is a subtext of fraud.

Background

The Claimants operate investment businesses. They claim that Mr and Mrs Anderson (the Second and Third Defendants), acting through various limited companies (the other Defendants), made various false representations as purported concert promoters in order to obtain investment from them. In pursuing recovery of their investments, the Claimants allege claims in: deceit; unlawful means conspiracy; breach of contract; inducement of breach of contract; and breach of trust, as well as claims pursuant to certain guarantees.

On 21 October 2021, the Court granted freezing injunctions against the First, Fourth and Fifth Defendants preventing them from dealing with or disposing of assets outside of the ordinary and proper course of business (the Injunctions). The Injunctions further required the Defendants to notify the Claimants before dealing with or disposing of assets purportedly inside the ordinary and proper course of business, which notice requirements form the basis of the Claim      ants’ present application.

On


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Collateral Waiver: When Voluntary Disclosure Has Unintended Consequences

In Alexander Gorbachev v Andrey Grigoryevich Guriev [2024] EWHC 622,[1] the Commercial Court held that the claimant’s voluntary disclosure of a privileged chronology originally produced by its barrister gave rise to a collateral waiver of: (i) an updated draft of that chronology; as well as (ii) all documents containing, recording or otherwise evidencing the claimant’s instructions in respect of the chronology.

Background

The underlying proceedings concern a long-running £1 billion dispute between Mr Gorbachev (the Claimant) and Mr Guriev (the Defendant) concerning their interests in a Russia-based fertiliser company, PJSC PhosAgro.

Back in October 2012, the Claimant instructed a barrister (Mr Fitzgerald), who prepared a chronology of events (the Original Chronology) based on information given to him by the Claimant at meetings and over the telephone. Later, on 21 January 2013, the Claimant instructed solicitors, around which time Mr Fitzgerald provided the solicitors with the Original Chronology, which he then subsequently revised on 5 February 2013 (the Revised Chronology). It appears not to have been disputed in the present application that both the Original Chronology and the Revised Chronology attracted legal professional privilege.

Some almost 10 years later, the Claimant voluntarily disclosed the Original Chronology to the


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Climate Change Litigation in Italy: The First Judgment From the Court of Rome

The total number of climate change court cases has more than doubled since 2017 and is growing worldwide, according to the UN Environment Program (UNEP) and the Sabin Center for Climate Change Law at Columbia University. Most of the cases are pending in the US, however the EU and (even more significantly) developing countries are facing an increasing number of disputes, related to the purported inaction of the States in the fight against climate change. The Court of Rome recently decided the first climate change litigation brought in Italy, dismissing the case for lack of jurisdiction.

By writ of summons served on June 4, 2021, seventy nine private citizens and twenty four associations (the Plaintiffs) sued the Italian State for breach of its “climate obligations”. In particular, the Plaintiffs asked the Court of Rome to force the Italian State to implement appropriate regulatory measures to reduce greenhouse gas emissions (by 92%) and namely to review the current climate action enacted by the Italian State and to amend the National Integrated Energy and Climate Plan (the national energy and climate policy plan, issued in the compliance with EU Regulation 2018/1999 and providing for the goals set for 2030 in order to,


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English High Court Unravels National Iranian Oil Company’s Attempt to Shield £100M London Property from Enforcement of Arbitral Award

The English High Court has ordered the National Iranian Oil Company (NIOC) to transfer a high-value London property to Crescent Gas Corporation Limited (CGC) in satisfaction of a US$2.4 billion arbitral award in favour of CGC against NIOC. The Court found that NIOC’s eleventh-hour transfer of the property to its closely linked Iranian pension fund (the Fund) was a ploy to shield it from enforcement action by CGC.

The judgment, which is the most recent development in the ongoing, long-running dispute between CGC and NIOC, is likely to be of interest to practitioners and clients seeking to enforce arbitral awards in England, as well as those establishing or litigating trusts of land in England and Wales

McDermott acted for CGC in the proceedings, as well as the underlying arbitration and award challenge proceedings described below.

Background

In 2009, CGC, a subsidiary of UAE-based Crescent Petroleum, commenced arbitration seated in London against NIOC for breach of a 2001 long-term gas supply agreement. In September 2021, the tribunal rendered a Partial Award on Remedies in favour of CGC in which it ordered NIOC to pay more than US$2.4 billion in damages plus interest.

Having successfully defended two challenges to the award, brought


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A Tale of Two Contracts: Reinsurance Dispute Ends in a New York State of Mind

In a battle of conflicting contracts, Tyson found itself on the losing end of a reinsurance dispute with Partner Re when the English Court of Appeal ruled[1] that a reinsurance contract on a Market Uniform Reinsurance Agreement (MURA) form superseded a prior contract on a Market Reform Contract (MRC) form, giving effect to the New York arbitration clause in the MURA.

The Duelling Documents

The saga began when Tyson International Company Limited (Tyson), captive insurer of poultry-giant Tyson Foods and the reinsured, and Partner Reinsurance Europe SE (Partner Re), a reinsurer, entered into a reinsurance contract on the MRC form, governed by English law and with an exclusive jurisdiction provision in favour of the English court. However, eight days later, at Tyson’s request, Partner Re issued another reinsurance contract on the MURA form, governed by New York law and containing a dispute resolution clause providing for arbitration in New York.

Flames and Feathers Fly

Following a fire at a poultry rendering facility in Alabama, Tyson sought to claim under the reinsurance. Partner Re purported to avoid the contract, citing misrepresentations in relation to the value of the insured properties. A dispute arose.

Tyson commenced proceedings in England,


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