Legal and Financial Risk Newsletter – May 2018

Legal and Financial Risk newsletter on legal developments impacting corporates and financial institutions. The May 2018 edition includes articles on recent court decisions and case reports.

JSC BTA Bank v (1) Mukhtar Ablyazov (2) Ilyas Khrapunov [2018] UKSC 19

On 21 March 2018, the Supreme Court handed down judgment in an appeal brought by Ilyas Khrapunov against JSC BTA Bank ("BTA"), by which it held that: (1) contempt of court constitutes unlawful means for the purposes of the tort of unlawful means conspiracy; and (2) where a conspiracy is hatched in England, the English courts have jurisdiction to hear a claim founded on that conspiracy.

Can litigation privilege be claimed by a non-party?

In a recent case (Minera Las Bambas and MMG Swiss Finance AG v Glencore Queensland Limited, Glencore South America Limited and Glencore International AG (2018)), the Commercial Court found that the Defendants were not entitled to claim litigation privilege arising from proceedings to which they were not a party. This was the case even though they were controlling those proceedings by virtue of a conduct of claims clause in a share purchase agreement.

No limitation defence for directors misappropriating company property

In the recent case of Burnden Holdings (UK) v Fielding and another (2018), the Supreme Court held that a director who misappropriates assets from the company via other corporate vehicles cannot rely on a limitation period to defeat a claim for breach of trust.

(Not) strictly privileged and confidential

In Kerman v Akhmedova (2018), the Court of Appeal took a strict approach to the scope of legal advice privilege, holding that a solicitor's communications with a third party regarding his client's business affairs were not privileged.

Of Markets and MasterCards: What is the applicable law in competition damages claims?

In Deutsche Bahn v MasterCard (2018), the High Court considered for the first time the law applicable to claims brought by claimants following a finding by the European Commission that a defendant had breached competition law. In short, the Court determined that the applicable law of the claims was the law of the place where the restriction of competition occurred; in other words, the location of the market that had been affected by the anti-competitive conduct. As the first ruling focusing on this issue, it could have significant consequences for current and future private damages actions brought in the courts of England and Wales.

Going Dutch: When can a parent company be liable for the actions of a subsidiary?

In Okpabi v Royal Dutch Shell (2018), the Court of Appeal clarified when a parent company may be liable for the actions of its subsidiaries. The Court distinguished between a parent company which controls, or shares control of, the material operations of a subsidiary, and a parent company which simply issues mandatory policies as group-wide operating guidelines for its subsidiaries. It held, by majority, that the Claimants had failed to demonstrate a properly arguable case that the parent company owed a duty of care to those affected by leaks from pipelines in part operated by its subsidiary. As such, the English courts did not have jurisdiction to hear the claim against the subsidiary.

The impact of Brexit on the enforcement of judgments between the UK and EU Member States post-Brexit

On 19 March 2018, the European Commission and UK Government published a revised draft of the Withdrawal Agreement outlining where the UK and EU are in agreement and what remains subject to discussion in the Brexit negotiations. How Brexit will impact the enforcement of judgments between the UK and EU Member States, an issue at the forefront of businesses' minds, is still unclear.  This article describes how the current system of reciprocal enforcement of judgments operates throughout the EU and considers what may happen post-Brexit.

Read the full Legal & Financial Risk Newsletter here.


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