United Kingdom Archives - Page 3 of 4

Redactions and Waiver of Privilege: High Court Provides Guidance

by Harry Denlegh-Maxwell | Oct 9, 2023 | Court Judgment, United Kingdom

The long-running battle between the Serious Fraud Office (SFO) and Eurasian Natural Resources Corporation (ENRC) has hit the headlines again. The most recent Judgment (which can be found here) concerns ENRC’s challenge to certain redactions to a report disclosed by the SFO.

The report in question (the Byrne Report) set out the SFO’s findings following an investigation into allegations that employees of the SFO improperly leaked sensitive information acquired in the course of its investigation into ENRC to journalists and other third parties. The SFO disclosed the Byrne Report to ENRC, but with redactions made to it on the basis of three distinct grounds:

Privilege;
Irrelevance and confidentiality; and
Public interest immunity (PII), as certified by the then director of the SFO.

ENRC made an application to challenge the redactions on each of these grounds, and the High Court considered these in turn.

Privilege

ENRC made two substantive arguments regarding the redactions made on the basis of privilege. ENRC argued that either the High Court should inspect the redacted material to determine whether privilege had been properly claimed, or, alternatively, the SFO should be ordered to provide an additional explanation for the basis on which it asserted

Landmark UK Supreme Court Ruling Strikes a Blow to Litigation Funding

by Harry Denlegh-Maxwell | Jul 26, 2023 | Court Judgment, United Kingdom

On July 26, 2023, the UK Supreme Court gave judgment in R (on the application of PACCAR Inc and others) v Competition Appeal Tribunal and others[1].

By a majority of four to one, the Supreme Court held that litigation funding agreements (LFAs) (which entitle funders to be paid a proportion of any damages recovered) are “damages-based agreements” (DBAs), within the meaning of section 58AA of the Courts and Legal Services Act 1990 (the 1990 Act). As a result, LFAs are unenforceable unless they comply with the relevant regulatory regime for DBAs and cannot be used at all to fund opt-out collective proceedings before the Competition Appeal Tribunal (the CAT).

This ruling will have significant ramifications for litigation funders in the United Kingdom as well as claimants and claimant law firms that rely heavily on third-party funding. This impact was acknowledged by the Supreme Court, with Lord Sales noting (in the leading judgment) that the Court had been informed that “most third-party litigation funding agreements would…be unenforceable as the law currently stands”[2].

The Supreme Court’s Decision

This issue arose in the context of the well-known “Trucks” litigation before the CAT.

In 2016, the European Commission found that

The Quincecare Duty: A Victory for the Banks?

by Harry Denlegh-Maxwell | Jul 12, 2023 | Court Judgment, Banking & Finance, United Kingdom

On July 12, 2023, the UK Supreme Court delivered a landmark decision on the so-called “Quincecare duty” owed by banks to their customers.

In a unanimous judgment in favour of Barclays Bank, the UK’s highest Court held that banks did not owe customers a duty of care in fraud cases where transactions were authorised by the customers directly. As Lord Leggatt said in his judgment: “It is not for the bank to concern itself with the wisdom or risks of its customer’s payment decisions”.

This important clarification will be welcomed by financial institutions, particularly as the level of online fraud continues to soar. However, there are a number of other claims that are currently before the courts that will still be watched with interest, as will this present case as it is remitted to the High Court to decide arguments about the scope of any duty to attempt to claw back payments once a fraud has come to light.

The Supreme Court’s decision also follows the recent passing of the Financial Services and Markets Act 2023, which provides for a mandatory reimbursement scheme, albeit limited to certain payment types within the United Kingdom. In practical terms, therefore, claimants may look