UK Court of Appeal Archives - EURO LIT INSIGHTS

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,

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

by Campbell Herbert | Apr 22, 2024 | Arbitration, Procedural Legal Update, United Kingdom

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the English Court of Appeal ruled [1] that a reinsurance contract on a Market Uniform Reinsurance Agreement (MURA) form superseded a prior contract on a Market Reform Contract (MRC) form, giving effect to the New York arbitration clause in the MURA.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,

Damages Are Adequate – But Is It Sufficiently Serious?

by Sharon Lamb and Kimberley Smith | Mar 21, 2024 | Healthcare, United Kingdom

In a highly-anticipated judgment dated January 30, 2024, the Court of Appeal confirmed that in a procurement challenge under the Public Contract Regulations 2015 (PCR), a finding of a manifest error will not automatically mean that the error is ‘sufficiently serious’ to justify an award of damages.

This blog piece is a reduced version of our wider commentary on the case, which is available here.

Background

The procurement in question was for the provision of nationwide orthodontic services, although the challenge related to a contract for services in East Hampshire for a 7-year term worth £32.7 million (the Procurement). Braceurself was the incumbent, but its bid (one out of two) was unsuccessful, and the contract was awarded to a company known as PAL in these proceedings. The difference between the two bids was very close: PAL scored 82.5%, whereas Braceurself scored 80.25%.

Braceurself issued proceedings challenging the Procurement on a number of fronts, seeking to have the score corrected and the contract awarded to Braceurself. The issue of proceedings engaged the automatic suspension under the PCR. NHS England brought its application to lift the automatic suspension and was successful, primarily as Judge Bird found that “in this case damages

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

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

Damages Are Adequate – But Is It Sufficiently Serious?

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