The decision of the Court of Appeal in the closely watched case of David McClean & Ors v. Andrew Thornhill KC[1]helpfully rearticulates the established principles governing when a duty of care may arise and the scope of such a duty. It is widely understood that any professional advice needs to be given with sufficient confidence as to allow the recipient to act upon it, but in addition, that the risks associated with that advice also need to be clearly outlined, so that the recipient is not blind to potentially adverse consequences. How this balance is navigated is difficult and only becomes more so when the recipient of the advice wants to share it with third parties to give them comfort on the issues at hand.
Latest Articles
Unlocking Cryptocurrency: Commercial Court Facilitates Recovery From Outside Jurisdiction
The London Circuit Commercial Court has handed down a significant judgment regarding the recovery of crypto-assets held on cryptocurrency exchanges and the practicalities of the enforcement of judgments against ‘persons unknown’ located outside the jurisdiction of England and Wales.
The court’s decision in Law v. Persons Unknown and Huobi Global Limited paves the way for future claimants to recover crypto-assets that have ended up outside of the jurisdiction with greater ease and highlights the English courts’ practical approach to the resolution of crypto-asset disputes.
Warranties: Know Their Limits
In its judgment in Decision Inc Holdings Proprietary Limited v. Garbett and El-Mariesh, the High Court of England and Wales provided guidance on the interpretation of two types of warranties commonly found in sale and purchase agreements (SPAs): warranties as to the accuracy of a company’s records and warranties as to no material adverse change in respect of turnover and/or prospects.
The claimant in the case was ultimately successful. However, buyers should take note that, despite being provided with misleading information about the company’s financial performance, the claimant was not able to make out its claims for breach of warranty as to the accuracy of the company’s records or as to no material adverse change in respect of turnover. The sometimes surprisingly narrow interpretation of the scope of warranties must be appreciated, so that buyers can ensure they actually have the recourse they think they will.
Under the Cover of an Umbrella (Agreement)?
Last summer, the High Court handed down its judgment in Mackie Motors (Brechin) Limited v. RCI Financial Services Limited,[1]in a case that had far-reaching consequences – not only for automotive dealers across the UK, but also for any company that considers itself to be operating under the terms of an implied umbrella agreement.
The Million Pound Question: Is My Contract Unfair?
The decision of the High Court of England and Wales in Parker-Grennan v. Camelot UK Lotteries Limited is a helpful case study in how to host a consumer-facing website. It is surprising, given how much care and attention is afforded to the content of terms and conditions, how the presentation of those same terms and conditions to consumers can often be an afterthought. If companies do not get this right, there is a real risk that they may be providing consumers with the ammunition they need to argue that any relevant terms and conditions are unenforceable against them. Accordingly, companies would be well served to revisit their practices to ensure they are not creating unnecessary hurdles for themselves to overcome when seeking to rely on their terms and conditions in any dispute.
1996 Arbitration Act Review Continues: Law Commission Publishes Second Consultation Paper
The Law Commission has published a second consultation paper as part of its ongoing review of the Arbitration Act 1996. An initial consultation paper containing proposals for reform was published in September 2022 (see our October 2022 On the Record blog post on this paper).
UK Government Gets Tough on Sanctions Evasion, Fraud and Money Laundering in Newly Published Economic Crime Plan
On 30 March 2023, HM Treasury and the Home Office published the Economic Crime Plan 2 for 2023 to 2026. The three-year plan builds on the first Economic Crime Plan published in 2019
Failing to Prepare is Preparing to Fail
Economic crime has risen to such a level that UK Finance, a trade association for the UK banking and financial services sector, considers financial fraud to be a “national security threat”. Over £750,000,000 was stolen from banking customers by fraudsters in the first half of 2021 alone, which represents almost a 30% increase from the same period in 2020. In response to this fraud epidemic, the UK Government promises that the Economic Crime and Corporate Transparency Bill (the ‘Bill’), which is currently being ushered through parliament, will implement key reforms necessary to support regulators with their fight against fraud.
Right to Repair
The European Commission recently published proposals for rules promoting the repair of goods. It is likely that there will be class actions in relation to right to repair. The EC has proposed that the legislation would be added into scope of the new Representative Actions Directive that would enable class action style claims where the new obligations have not been complied with.
Implied terms: Commercial Court defers to arbitral tribunal
In Pan Ocean Co Ltd v Daelim Corporation, the Commercial Court decided that an arbitral tribunal had correctly implied a term requiring inspection of a vessel’s holds without delay into a charterparty. The court decided that although the arbitral award suggested that it was reasonable to imply the term, which is not a sufficient basis to do so, the award was valid if read in a reasonable and commercial manner.