The final issue of Disputes Magazine 2022 is here, and we are delighted to present a ‘Year in Review’. This edition covers a variety of topics that have affected disputes practitioners this year, including ESG, futuristic technology, the Voss Report and more. This issue also features a supplement from BRG who discuss their 2022 M&A Disputes Report.

Thank you to all of our authors, members, and community partners for their continued support. 2023 is set to be a busy year for the disputes community, including new events launching in Mumbai and Dubai. We look forward to seeing many of you next year!

Along with the rest of the world, we at Bond Solon watched the "Wagatha Christie" libel trial unfold with much intrigue. As the UK’s leading provider of Witness Familiarisation training, we were particularly interested in the media reporting during the trial, of Rebecca Vardy’s performance in the witness box, and the potentially detrimental impact it appeared to be having on her case.

The Honourable Mrs Justice Steyn DBE’s eagerly awaited judgment in Vardy v Rooney [2022] EWHC 2017 (QB) 7 WLUK 412 was publicly released on 29^th July.

It provides invaluable commentary on the conduct of both parties, particularly in their capacity as witnesses. It also highlights the impact that witness preparation training can have on witnesses who are due to give evidence at court.

We are delighted to present Issue 6 of Disputes Magazine, which discusses Financial Institutions Litigation ahead of the Financial Institutions Litigation Conference on 19^th January 2023. In this edition, our authors cover a variety of topics affecting the financial services sector including the recent Tecnimont v Natwest decision, the new FCA consumer duty, audit reform and more.

Thank you to our community partners, members and authors for their continued support. The Disputes community is loaded with events for the rest of 2022 and into 2023, and we hope to see you there.

Following the success of our Crypto in Disputes event which took place on the 29th June TL4 are proud to present our Crypto Insights Document 2022. In this new format of curated content, we look to partner with firms to provide in-depth Insights, Reports, Surveys, Journals and more. If you would like to work with us on a future insight or report please do get in touch.

We are delighted to present Issue 5 of Disputes Magazine, where we put Companies and Shareholders in the Spotlight. Our authors discuss a variety of topics including the new DIAC rules, Section 1140 of the Companies Act 2006, Digital Asset Fraud, and even more. We also find more out about our community with our continued series of 60 seconds with.

Thank you to the continued support from our contributors, members, and community partners. We look forward to seeing you all at more of our Disputes events throughout 2022.

In this International Women's Month we want to shine a spotlight on a few truly amazing women in our community as they discuss their journey's to leading positions, highlight the challenges they faced in their progression, share their advice with the next generation of female practitioners as well as further action steps to #breakthebias and forge a more inclusive legal world. The Thought Leaders 4 Women Who Inspire features a series of interviews that we will be publishing over the course of the month to celebrate women and champion change. 

In this International Women's Month we want to shine a spotlight on a few truly amazing women in our community as they discuss their journey's to leading positions, highlight the challenges they faced in their progression, share their advice with the next generation of female practitioners as well as further action steps to #breakthebias and forge a more inclusive legal world. The Thought Leaders 4 Women Who Inspire features a series of interviews that we will be publishing over the course of the month to celebrate women and champion change. 

We are delighted to present Issue 4 of Disputes Magazine, where our authors discuss International Cross-Border Disputes over a variety of jurisdictions, including India, Cayman Islands, Lebanon and more. We also hear more about our members with a series of 60 seconds with interviews, with special mentions to our women contributors in honour of International Women’s Day.

Thank you to all of our authors, members, and community partners for their continued support. The Disputes community is ready for a busy 2022 as we head into Q2, and we look forward to connecting with you all along the way.

In this International Women's Month we want to shine a spotlight on a few truly amazing women in our community as they discuss their journey's to leading positions, highlight the challenges they faced in their progression, share their advice with the next generation of female practitioners as well as further action steps to #breakthebias and forge a more inclusive legal world. Today we launch our ThoughtLadies that inspire campaign featuring a series of interviews that we will be publishing over the course of the month to celebrate women and champion change. 

For many businesses just surviving the pandemic could (and perhaps should) be hailed a huge achievement. However, as the bumpy economic climate looks set to continue for the foreseeable future, some fall outs between business owners and directors are inevitable and there is likely to be an upturn in allegations of unfair prejudice.

Here we give an overview of recent unfair prejudice cases – highlighting points of note, before outlining our predictions for the future and ways directors might avoid the pitfalls that lie ahead.

Marty McFly travelled from 1985 to 1955 in Back to the Future; English law is currently embarking on a similar journey in relation to jurisdiction.

A change arising from Brexit has heralded a return to prominence of the doctrine of forum non conveniens, allowing the English Court once again to decline jurisdiction over defendants domiciled in England.

When deciding whether to pursue a legal claim, parties often ask - “do we have the budget for this?” This question is revisited even after dispute resolution proceedings have commenced, due to changes in a party’s financial circumstances, unknown strategies deployed in the legal proceedings, and the fluctuating economic climate (e.g. insolvency risks due to the COVID-19 pandemic).

While a return to some form of commercial normality is anticipated in a small number of wealthy nations, the economic impact of the COVID-19 pandemic will continue to be felt across the globe. The effect has been particularly acute for the debt profiles of many nation states, especially in the developing world. According to World Bank estimates, in 2020 government debt of emerging markets and developing economies reached 60.8% of GDP, an increase from 52.1% in 2019.

The Fundão Dam near Mariana, in Brazil was owned and operated by Samarco Mineração SA, and was designed to accommodate waste resulting from the extraction of iron ore. On 6 November 2015, the dam collapsed, triggering the release of more than 40 million cubic metres of mining waste. This slurry travelled 620 km downriver, destroying multiple villages and over 3000 acres of forest, decimating entire fish populations, and killing nineteen people. The polluting waste eventually found its way, through the Doce River, to the Atlantic Ocean over 400 miles away destroying, damaging or contaminating everything in its path. To date, it remains Brazil’s worst environmental disaster.

Virtual currencies have not only arrived but have become a major player in the global economy. The meteoric rise in their importance and the inherent material risks are not lost on the regulators. Cryptoassets by design facilitate the anonymous or pseudonymous conduct of international commercial transactions, making them the target of choice by sanctioned actors and cybercriminals to channel and hide the source of their financial transactions, evade sanctions and launder money. In the post-pandemic world, with the shift to remote working, ransomware attacks have exploded in volume and criminals have come to rely on digital currencies to force victims to pay millions of dollars to regain access to their own files and to prevent leaks of stolen data.

The UK incorporated its own version of GDPR into domestic law in 2018, with further modifications made following Brexit. The provisions dealing with the jurisdiction(s) in which data subjects may pursue judicial redress do not constitute a complete code and are not so clear-cut. This potentially allows for forum shopping by UK-based data subjects who wish to pursue claims against data controllers and processors. As there is still great uncertainty on whether class actions can be pursued in the English Courts for data breaches (particularly following the Supreme Court’s recent judgment in Lloyd v Google 1), some claimants may be bold enough to pursue their claims outside the UK.

Shareholder Disputes have been on the rise during the past year. Often this is due to the inadequate or misunderstood documents drawn up at the time of relationships being formed to demarcate the value and risks being shared. So this case is a timely reminder of the pitfalls of allocating risk and reward in an SPA whilst failing to grasp the commercial rationale in the way the valuation, consideration and asset portfolio are being redistributed.

International businesses incorporated in the Cayman Islands find themselves increasingly subject to shareholder disputes of different sorts in the Grand Court of the Cayman Islands.

Litigation practices are evolving fast in the UK and Europe. Neither group actions nor litigation funding are new, but they have both reached a tipping point and are now generating their own momentum. However, there is an increasing need to ensure that these commercially funded cases also have a clear and effective communication strategy attached to them. Crucially, this applies to defendants as much as claimants.

Following the exponential and global outbreak of Covid-19 in early 2020, more than 100 countries instituted either full or partial lockdowns which resulted in the majority of hearings and tribunals being held remotely.

Since then, a consensus has emerged that virtual hearings and tribunals are here to stay, at least in some form, for the foreseeable future. This was just one of the findings from a recent BRG study aimed at understanding better the experiences of remote hearings from the perspective of expert witnesses, lawyers and arbitrators from around the world, as well as to contemplate the possible psychological impact of different hearing environments.

On 21 December 2020, the Parliamentary Joint Committee on Corporations and Financial Services handed down their 454 page report “Litigation funding and the regulation of the class action industry” (the PJC Report)1. This followed an extensive consultative inquiry (the PJC Inquiry); comprising over 100 submissions from industry stakeholders and 5 public hearings conducted throughout July and August 2020. Central to the PJC Inquiry was the recent substantial growth in class action activity across Australia, particularly shareholder claims, and the evolution of the litigation funding market in Australia, which had seen a marked increase in participation of international players, and a trend towards increased profits. A key focus of the PJC Report was the need to increase the transparency of the litigation funding market.

When minority shareholders of Cayman Islands entities are being treated unfairly, they are able to take advantage of some strong tools under the Companies Act (As Revised) (the Act). One of those tools are the appraisal rights and fair value assessments available to a shareholder who has dissented from a merger or consolidation pursuant to section 238 of the Act. This type of litigation is experiencing a sharp increase in the Cayman Islands as a result of a number of factors including the delisting of Chinese companies in the United States due to legislative and policy changes there and in China.

The dispute finance market is continuing to mature and grow at pace. When considering funding, one factor that clients and law firms may not recognise as a driver to both the availability and terms of funding is the underlying capital structure of the funder. Yes, case prospects, portfolio diversification and pricing are key drivers of the terms that a funder offers to a client, however as the market becomes more sophisticated, spreading single case investments across multiple pools of capital provides an opportunity for funders to provide more efficient terms across a greater number of claims.

A recent Supreme Court decision handed down on 16 July 2021 has brought welcome clarity to liquidated damages clauses and related damages caps.

Disinformation has become one of the most prominent challenges in navigating the online world. Government bodies, academic institutions, think tanks, and even private companies have researched and proposed innumerable approaches to curb its effects. In this context, defamation lawsuits have emerged as one of the most effective contenders in the struggle against the plague of deceptive information infecting public discourse.

When instituting proceedings, forum is one of the most important decisions to make as opting for the wrong forum could leave the claimant with a dismissed claim, in addition to bearing costs. In this article, we will discuss the attitude of the English, Singapore, and Hong Kong courts when faced with exclusive jurisdiction clauses, and the general rules applicable.

The tide is turning in the world of UK class actions. In the space of just the last three months, we have seen our first three collective actions being given the ‘green light’ to proceed in the Competition Appeal Tribunal – Merricks v Mastercard, Le Patourel v BT and Gutmann v First MTR South Western Trains & Others. These claims are all trailblazers in the mass claims arena and promote a new wave in the UK justice system. With this comes a renewed energy and enthusiasm for the prospects of collective redress in the UK, at least in the competition space for now.

The Courts of Jersey deal with some very complex, specialist and high value claims. Even the largest and most specialised litigation departments on the island find themselves unable to adequately recourse certain aspects of such claims and inevitably need to draw on the huge wealth of talented specialists at law firms (in London and elsewhere) and the English Bar to assist. This makes perfect sense, given that parts of Jersey’s legislative regime, for example certain aspects of company law, are similar to (or modelled on) equivalent UK laws. And because the UK judicial system is much larger than Jersey’s, the judgment library is vast, and therefore the practitioner experience is equivalently broad.

Q. What do you tell people when they ask you what you do?

A. I say I am an investigator, but not a cop or a law enforcement agent - and wait for eyes to roll. I then explain the kind of investigations I do and how, and the conversation carries on from there.

Q. What do you tell people when they ask you what you do?

A. I manage the PR and communication aspects of high profile disputes

Q. What do you tell people when they ask you what you do?

A. That I’m saving the world, one Russian oligarch at a time. The reality is that it is very difficult to explain exactly what it is that disputes lawyers do. I feel incredibly privileged to do a job that I enjoy so much and it is that enjoyment that I generally try to communicate. If anyone shows a genuine interest after my saving the world answer I tell them that people come to me with big problems that I try to solve for them.

With festive period fast approaching and the new year snapping at our heels we welcome our readers to bid adieu to 2021 with the 3rd Edition of the Disputes Community Magazine. By collaborating with the wide range of legal professionals, this publication delivers exclusive new insights and technical knowledge helping our readers stay ahead of the game.

We would like to express our sincere gratitude to contributing authors and our fantastic Communty Partners for their support of this edition and this year. 

Issue 2 of our ThoughtLeaders4 Disputes Magazine is out now and it is BIG! With 21 contributuions and featuring four "60 Seconds with" interviews introducing the diverse range of practitioners behind the Community, this issue, like our Disputes Community, is bigger and bolder that ever. 

We hope that by offering a multi-disciplinary blend of insights on the most pertinent topics ranging from ESG, SPACs to sanctions and sovereign enforcement, this second edition will serve as a helpful compendium of opinions, analyses and commentaries. 

We are delighted to bring you the first edition of the Disputes Community Quarterly Magazine dedicated to the “NEXT GENERATION IN DISPUTE RESOLUTION”.

Just like the Community’s next generation component, this issue is very special to us. By marking the first significant milestone in our development, this bumper publication offers a platform to the  diverse range of current and future leaders in commercial litigation, arbitration and investigations. 

Deliver Value through Virtual Visibility.

Understand what is unique about the ThoughtLeaders4 community approach and how you can add Value to our Communities and be Visible through our Virtual platform.

To find out more about our VVV packages DOWNLOAD OUR BROCHURE

The days of massive commercial disputes emanating from Russia and other FSU States are dead. That has been a constant concern of many leading practitioners in London, the epicentre of the largest, most high-profile of those disputes in the past 20 years.

Q. What do you tell people when they ask you what you do?

A. I say I’m a lawyer. My days of claiming to be a matador are long gone.

Any big corporates considering entering into a David vs Goliath legal battle over something, really ought to consider the strength of the legal case in conjunction with the potential reputational risks to avoid a possible catastrophe. 

The Court of Appeal in CFL Finance Limited v Laser Trust & Gertner [2021] EWCA Civ 228  has ruled that a settlement agreement providing for an undisputed debt to be paid by instalments may be subject to the provisions of the Consumer Credit Act 1974 (the “CCA”). 

Just after midnight in 2018, Mr Green played an online game called “Frankie Dettori’s Magic Seven Blackjack”. He played well. When he finished, the screenshot on his mobile phone showed betting chips to the value of £1,722,500. However, when he tried to follow the instructions to cash in his chips, it didn’t work. He contacted Betfred who informed him that there had been a glitch in the game and that they could not make payment. After further exchanges with Betfred, Mr Green issued these proceedings. Awarding summary judgment to Mr Green on his claim, Mrs Justice Foster DBE found that Betfred had no realistic prospect of successfully defending to the claim.

On Friday, 14th of May 2021, ThoughtLeaders4 Disputes Community co-hosted the “Sanctions and Disputes“ virtual session with our Community Partner and fellow LIDW21 Corporate Member Radcliffe Chambers.

The event has generated a great deal of interest with 160+ practitioners from 23 countries tuning in.

Here is a copy of the presentation on current issues in the world of economic sanctions with particular emphasis on the effect of sanctions on legal rights and proceedings to enforce them.  

In the first initial coin offering 'ICO' fraud case before the Commercial Court, Ion Science Limited & Duncan Johns v Persons Unknown & Ors, the court granted permission to serve disclosure orders on two cryptocurrency exchanges through which the claimants' stolen bitcoin had been traced, granted a world-wide freezing order against persons unknown, and gave ground-breaking guidance on the lex situs of crypto-assets...

On 5 February 2021, the Supreme Court, in a unanimous decision, held that section 2(3) of the Criminal Justice Act 1987 (“the 1987 Act”) does not confer a unilateral power on the Serious Fraud Office (“the SFO”) to demand documents from overseas entities under the threat of criminal sanction, and the request for evidence should have been handled through international mutual legal assistance channels. The Supreme Court confirmed that in applying the rules of statutory interpretation, the UK Parliament could not have intended for the SFO to use Section 2(3) notices extraterritorially and a test based on "sufficient connection" had no basis in the 1987 Act...

The court has struck out fraudulent misrepresentation claims brought by Leeds City Council and others against Barclays in connection with the ‘LIBOR rigging affair of 2012’.

In Leeds City Council and others v Barclays Bank plc and another [2021] EWHC 363 (Comm), the court held that the lack of awareness (in the sense of ‘active appreciation’) of any representation regarding LIBOR was fatal to the claim. In a decision likely to be of significant comfort to banks, the court concluded that ‘to say that the key people assumed that LIBOR would be set in a straightforward and proper manner’ is simply not enough. The court also briefly considered (although the claims had already been found to have no prospect of success) Barclays’ alternative ground for strike out on affirmation. It held that the disputed questions of fact regarding the councils’ knowledge of their rights would have had to be resolved at trial. The case on affirmation would not have been suitable for summary determination...

This bulletin is of interest to those clients currently considering the commencement of English High Court proceedings, or who have recently had such proceedings served on them. In this context the UK’s EU withdrawal agreement gives rise to some significant uncertainty, including both opportunities and threats, during what should be an interim jurisdictional regime pending the EU’s decision whether to allow the UK to accede to the Lugano Convention...

In disputes, information is often the key to success. However, if the key is used in the wrong door, then that very same information can lead to problems for the litigant and its lawyers. This has been reflected by an increasing number of cases addressing the restrictions on how information and documentation can be used, and how these restrictions can be navigated. This article explores a number of recent scenarios that have arisen in this regard...

In the early part of 2020, Covid-19 entered all of our personal and professional lives and substantially changed the world (hopefully temporarily) in almost every respect. In the business world, it caused significant and almost unprecedented disruption to the way that businesses operate and to their turnover and profitability. At that time, some businesses were in the position where they had either recently completed the purchase of another business (whether by share or asset purchase) or were shortly due to complete such a purchase. Those share or asset purchases may have been based on assumptions, forecasts and/or valuations over which there may now be a question mark...

ThoughtLeaders4 is delighted to announce that Anita Arthur has joined as Director for our new DISPUTES community that will be launching shortly.

Anita brings huge experience within the industry and a strong track record of launching and growing market leading events over the last 15 years within disputes, sanctions, anti-corruption, fraud & asset recovery and private equity, among others.