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Commercial Court cracks down on crypto-fraudsters (if it can find them)

Date: 04/03/2021 Type: Articles Topic: Disputes |
Author: Dan Wyatt, Partner and Christopher Whitehouse, Senior Associate and Rebecca Baker

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...

Supreme Court places limits on SFO’s extraterritorial reach: R (on the application of KBR, Inc) (Appellant) v Director of the Serious Fraud Office (Respondent) [2021] UKSC 2

Date: 04/03/2021 Type: Articles Topic: Disputes |
Author: Priyanka Kapoor, Partner and Clara Browne, Associate - PCB Litigation LLP

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...

Misrepresentation requires ‘active appreciation’—assumption is not enough (Leeds City Council and others v Barclays)

Date: 03/03/2021 Type: Articles Topic: Disputes |
Author: Sue Millar, Partner and Harriet Campbell, Professional support lawyer - Stephenson Harwood

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...

Jurisdiction Jumble

Date: 03/03/2021 Type: Articles Topic: Disputes |
Author: Simon Bushell, Senior Partner, Gareth Keillor, Partner and Kevin Kilgour, Partner - Seladore Legal

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...

Use but not abuse – think laterally before using material collaterally

Date: 03/03/2021 Type: Articles Topic: Disputes |
Author: Jon Felce, Partner - PCB Litigation LLP

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...

Key issues for breach of warranty claims and the potential impact of Covid-19

Date: 02/03/2021 Type: Articles Topic: Disputes |
Author: Donna Newman, Partner - Stephenson Harwood

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...

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