Please join Cooley’s litigation team for the third session of our continuing legal education (CLE) webinar series where we explore trends and insights on the disputes landscape in the UK and mainland Europe, and the issues that drive them.
Court of Appeal Split on Scope of Exclusion Clause
In EE Ltd v. Virgin Mobile Telecoms Ltd[1], the Court of Appeal upheld the High Court’s decision that EE’s claim against Virgin was excluded under the terms of the parties’ telecommunications supply agreement.[2] While the decision ultimately confirmed the reasoning of the lower court, the decision is notable for being surprisingly close.
Law of Privilege: ‘Shareholder Rule’ Held to Be Unjustifiable
In its decision last year in Aabar Holdings SARL v. Glencore PLC & Others,[1] the High Court handed down a landmark ruling overturning the ‘shareholder rule’, which has been applied to the analysis of legal professional privilege as between a company and its shareholders since the 19th century. The court deemed this long-settled principle of the law of privilege to be ‘unjustifiable’ and held that it should not be applied.
Cap in Hand: Should Liability Caps Be Applied Before or After Set-Off?
In Topalsson GmbH v. Rolls-Royce Motor Cars Limited,[1] the Court of Appeal helpfully re-affirmed that the ‘commonsense’ approach to the application of liability caps is to apply them before any set-off calculation.
Gaming Industry Does Not Owe General Duty of Care to Customers
In a significant judgment for the gaming industry, the High Court of England and Wales held in Gibson v. TSE Malta LP (t/a Betfair)[1] that gambling operators do not owe a general duty of care to their customers to prevent gambling-related harm, and that licence conditions imposed on operators do not create implied terms in the contract between the consumer and the operator.
Consideration for Call Option Held Not To Be Turnover
In Aymes International Ltd v. Nutrition4U BV, the Court of Appeal held that the consideration paid by a purchaser for a call option should not be included in the calculation of the target company’s turnover on which the calculation of the purchase price was based.
Conflicts of Law: Norwich Pharmacal Orders in Liechtenstein
In Magomedov & Others v. Kuzovkov & Others,[1] the High Court handed down an interesting decision examining the conflict of foreign criminal law with the discretion of the Courts of England and Wales to grant a Norwich Pharmacal Order (NPO).
Freeze! Do You Have a ‘Good Arguable Case’?
In dos Santos v. Unitel S.A.,[1] the Court of Appeal helpfully cut through some conflicting authorities and restated a key requirement that applicants must satisfy to be granted freezing injunctions.
D’Aloia v. Persons Unknown & Others: Victim of Crypto-Fraud Fails in Claim Against Crypto Exchange
In D’Aloia v. Persons Unknown & Others,[1] the High Court of England and Wales dismissed a claim brought by the victim of a crypto-scam against Bitkub, one of the exchanges with whom the fraudsters were alleged to have held their accounts.
This is the first judgment following a full contested trial on some fundamental points regarding the status and treatment of cryptocurrency and the potential liability of exchanges to victims of crypto-frauds. The lengthy judgment traverses a number of complex issues, confirming the rights attaching to tether (USDT) as a cryptoasset, as well as the application of trust and tracing principles in crypto-disputes.
Court of Appeal Provides Comfort to Lenders on Default Interest Clauses
In Houssein & Others v. London Credit Ltd & Another[1], the Court of Appeal considered the proper application of the common law rules on penalties to a default interest clause in a loan agreement. Contrary to the conclusion of the High Court, the Court of Appeal found that in light of relevant case law, the lender ‘inevitably’ had a legitimate interest in the enforcement of the obligation to repay the loan, which would justify a default interest clause.