Court Judgment Archives - EURO LIT INSIGHTS

The Potentially Damaging Effects of Non-Compliance with PD57AC

by Harry Denlegh-Maxwell and Daisy Daynes | Oct 22, 2024 | Investment, Court Judgment, Regulatory/Compliance, United Kingdom

On 14 August 2024, in the case of Timothy Fulstow and Robert Woods v Jeremy Francis [2024] EWHC 2122 (ChD) (Fulstow), the High Court dismissed a high value investment claim, partly because the claimants’ witness statements were in clear contravention of Practice Direction 57AC (PD 57AC).

This case acts as a cautionary tale for legal representatives and their clients. It not only highlights the importance of complying with the requirements of PD 57AC when preparing witness statements, but also draws attention to the personal, albeit professional, obligations of lawyers when signing declarations of compliance with PD 57AC.

In his judgment, Deputy High Court Judge David Stone made a point of criticising the solicitor representing the claimants for submitting a ‘false’ declaration that the witness statements were compliant with PD 57AC, when they were clearly not. He went as far as questioning the suitability of the representative, suggesting that “any solicitor properly practising in this court ought to have known [that the witness statements did not comply with PD 57AC]”.

The Key Provisions of PD 57AC

PD57AC was introduced in 2021 to prevent the perceived “over-lawyering” of witness statements, and to address long-held concerns that witness statements were often too

Court of Appeal Rules in Favour of the FCA in Significant Redress Decision for all Regulated Firms

by Harry Denlegh-Maxwell, William Merry and Rebecca Geers | Oct 22, 2024 | Court Judgment, Regulatory/Compliance, Private Equity, United Kingdom

Introduction

In a landmark ruling, the Court of Appeal recently confirmed that the FCA can impose a redress requirement on an FCA-regulated firm under section 55L Financial Services and Markets Act 2000 (FSMA) without needing to meet the pre-conditions for a statutory market-wide redress scheme under section 404F FSMA.

Background

BlueCrest Capital Management UK LLP (BlueCrest) was the subject of an FCA investigation in 2021. The conclusion of this investigation found that the hedge fund breached Principle 8 of the FCA’s Principles for Businesses by failing to properly mitigate conflicts of interests when acting as an investment manager. BlueCrest was accused of making decisions that ultimately benefited an internal fund, whose stakeholders included senior partners and key employees, to the detriment of an external fund with external investors. As recompense, the FCA ordered a £40,806,700 penalty against BlueCrest and required it to redress an estimated US$700 million to its investors under section 55L FSMA.

BlueCrest challenged this decision and took its case to the Upper Tribunal. BlueCrest argued that the FCA was not permitted to impose a redress on a single firm under section 55L FSMA without taking into account the four conditions under section 404F(7) FSMA, being loss, causation,

“Dominant motive…lies in the financial interests of its backers”: High Court Strikes Out a Representative Action under CPR 19.8 by Passengers in 116,000 Delayed or Cancelled Flights

by Jack Thorne and Briana Walley | Sep 12, 2024 | Court Judgment, Transportation & Logistics, United Kingdom

On 2 September 2024, the High Court struck out an application for a representative proceeding under CPR 19.8 that had been brought against certain airlines for cancelled and delayed flights: Smyth v British Airways Plc & Ors [2024] EWHC 2173 (KB). The Court considered that the “same interest” requirement under CPR 19.8 had not been met and that the claim was motivated by financial recovery for the litigation funder, and not the interests of the would-be class. The case highlights the importance of a well-defined class and a suitable representative claimant in order for representative proceedings to proceed.

Background

Ms Claire Smyth had booked a flight with British Airways (BA) from London to Nice. A week before she was due to depart, the flight was cancelled. Under Article 7(1) of the EU Regulation 261/2004 (retained post-Brexit), Ms Smyth had the right to claim compensation against BA (who manages a portal through which passengers may claim compensation). However, Ms Smyth chose not to use the portal and instead brought a representative proceeding on behalf of her fellow travellers – not just on her flight, but anyone who had booked flights with BA or easyJet scheduled to depart from, or arrive at,

All Aboard the Omnibus Claim Form

by Jack Thorne and Jonathan Robb | Sep 10, 2024 | Court Judgment, United Kingdom

In Adams and others v Ministry of Defence,[1] the High Court has recently followed the Court of Appeal judgment in Morris and others v Williams & Co Solicitors (a firm)[2], in confirming that multiple claimants can bring proceedings via a single Claim Form, provided that the test of convenience is satisfied.

The English Courts have shown intent in recent years on embracing group and class action litigation, not least in seeking to maintain a position as a pre-eminent litigation forum. Under the Civil Procedure Rules (CPR), there are a number of procedural routes that potential groups/classes can use to bring actions, subject to the specific circumstances of the cases at hand. These include, in particular:

Use of a single Claim Form for multiple claimants in accordance with CPR 19.1 and CPR 7.3 (also referred to as omnibus claims).
Multiple claims (with sufficient degrees of commonality) that are issued separately (or through an omnibus Claim Form), which are case managed together but proceed through lead or sample claimants.
Multiple separate claims that are case managed under a group litigation order in accordance with CPR 19.21-19.26.
A representative action pursuant to CPR 19.8 or 19.9, which is

English High Court Enforces Asymmetric Jurisdiction Clause in a Syndicated Loan Facility Agreement

by Mark Fine and Harry Denlegh-Maxwell | Aug 28, 2024 | Court Judgment

On 24 May 2024, the English High Court granted final injunctive relief to Barclays Bank Plc (Barclays), both in the form of an anti-suit injunction and an anti-enforcement injunction, arising out of a syndicated loan agreement (the Facility) entered into between Barclays and PJSC Sovcombank (Sovcombank).1 In a judgment that will be of interest to financial institutions and investors involved in cross-border disputes and to the public loan market, the English Courts have demonstrated a willingness to enforce asymmetric jurisdiction clauses, which are commonly seen in the syndicated loans market.

Read the full article

Compensation Under GDPR Only For Damage Actually Incurred

by Tobias Meyer, Thomas Hauss and Matthias Distler | Aug 9, 2024 | Court Judgment, Regulatory/Compliance

On January 25, 2024 (Case C-687/21), the European Court of Justice ruled in a continuation of its previous data protection case law that a claim for damages based on Art. 82 GDPR does not have a punitive function, but merely a compensatory function. The ECJ thus concludes that a claim for damages always requires the claimant to have suffered concrete damage. A purely hypothetical risk of misuse of data is not sufficient.

Court of Appeal Interprets Released Claims in a Settlement Agreement

by Jack Thorne and Kimberley Smith | Jul 10, 2024 | Court Judgment, United Kingdom

In the case of Abdullah Nasser Bin Obaid and Ors v Khalid Abdullah Al-Hezaimi and Ors [2024] EWCA Civ 612,[1] the Court of Appeal handed down a judgment highlighting the importance of carefully drafting settlement agreements and, in particular, which claims are released.

Background

2017 Proceedings

In 2017, Mr Bin Obaid, a Saudi Arabian national and businessman, brought proceedings in the English High Court against Dr Al-Hezaimi (the 2017 Proceedings). His case was that he had orally agreed with Dr Al-Hezaimi to invest in the English property market using an offshore corporate vehicle of which Mr Bin Obaid would be the majority shareholder. Under the alleged oral agreement, Mr Bid Obaid would provide the funds and Dr Al-Hezaimi would manage the investments. Mr Bin Obaid listed 24 payments in his Particulars of Claim, which he (or an associated company) made to Dr Al-Hezaimi or a property developer.

On the basis of these allegations, Mr Bin Obaid and his companies started the 2017 Proceedings by bringing a without notice application against Dr Al-Hezaimi and his companies for both a proprietary injunction and a worldwide freezing order, which was duly granted by Barling J (the Barling J Order).

Dr Al-Hezaimi’s

Arbitration Agreements No Longer a Get-Out-of-Jail-Free Card for Insolvent Debtors: A Farewell to Salford Estates

by Campbell Herbert | Jul 2, 2024 | Arbitration, Court Judgment, Banking & Finance, United Kingdom

The Judicial Committee of the Privy Council has decisively redrawn the boundaries between arbitration agreements and insolvency proceedings in the case of Sian Participation Corp (In Liquidation) v Halimeda International Ltd.[1]

At its core, this case represents a clash between the long-established public policy of insolvency law, which aims to efficiently wind-up insolvent companies for the benefit of all creditors, and the now firmly entrenched policy that those who agree to arbitrate their disputes should be held to that bargain. For years, these two heavyweights have fought, neither quite landing a knockout blow. Now, the Privy Council has stepped in to declare a winner.

Prequel: The Rise and Fall of Salford Estates

In 2014’s Salford Estates (No 2) Ltd v Altomart Ltd,[2] the English Court of Appeal determined winding-up petitions generally should not be granted where the underlying debt was subject to an arbitration agreement, even where that debt wasn’t genuinely disputed. This handed debtors a powerful shield against liquidation.

While adopted in many common law jurisdictions, the Salford Estates approach was not followed in the British Virgin Islands, where Sian Participation v Halimeda International arose. Fast-forward to 2024, and the Privy Council has now carefully

Claim for Damages Against Directors of a Foreign Company: Do Italian Courts Have Jurisdiction?

by Fabio Cozzi and Giulio Marconcin | Jun 3, 2024 | Court Judgment, Italy

Corporate disputes often have a transnational dimension, including in connection with directors liability for wrongdoing. Italian courts are frequently called to decide claims against corporate directors with links with other legal systems, such as the company being incorporated under the laws of a foreign State. This poses relevant procedural issues.

The Court of Milan (decision no 4789/2023) provided valuable insights on the application of the criteria to determine jurisdiction and applicable law in case of a claim brought by a shareholder of a company incorporated outside Italy against the sole director (having his domicile in Italy).

The Dispute

The dispute originates from a complaint brought by the minority shareholder of a limited liability company incorporated under the laws of the United Republic of Tanzania, against the other shareholder and sole director of the company (an Italian resident), allegedly responsible for misappropriation of company’s funds. On these grounds the minority shareholder (assuming that Italian substantive law was applicable to the dispute) brought two actions against the sole director:

a derivative claim under Article 2393-bis of the Italian Civil Code (ICC), according to which the minority shareholder is entitled to act against directors on behalf and in the interest of the

Supreme Court Clears the Air on ‘Force Majeure’ Clauses

by Jack Thorne and Sadaat Cheema | May 28, 2024 | Court Judgment, Transportation & Logistics, United Kingdom

The UK’s Supreme Court has issued an important judgment clarifying the extent to which parties are required to use reasonable endeavours to avoid force majeure. Force majeure, or in layman’s terms ‘act of god’, is a specified, and generally unforeseen and disruptive, event which may mean that one or both parties to a contract are relieved from having to fulfil their obligations under it. In the present case, the underlying contract contained a force majeure clause, which included a provision requiring the party which was affected by the force majeure event to exercise reasonable endeavours to overcome it.

The relevant force majeure event took the form of US sanctions which effectively prevented payment by the charterer under an affreightment contract being made to a shipowner using US dollars. The charterer instead offered to make payments in euros and to cover any losses arising to the shipowner through the conversion of those payments into US dollars. However, in what seems a somewhat counterintuitive decision, the Supreme Court unanimously found against the charterer, on the basis that the requirement on the shipowner to exercise reasonable endeavours to overcome the force majeure event did not mean that it had to accept performance that

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