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On the Record: On-Demand Events

Our On the Record Rapid-Fire Series provides insights and analysis on commercial and contractual disputes – and the issues that drive them. The series addresses a range of topics, including class actions, crypto, product litigation, and cross-border, life sciences and technology disputes. To keep up with all the changes in high-value and complex commercial and contractual disputes, subscribe to our updates below.

UK Supreme Court: Litigation Funding Agreements Are Damages-Based Agreements

On 26 July 2023, the UK Supreme Court handed down a judgment that will cause serious disruption (at least in the short term) to the litigation funding market. In R (on the application of PACCAR Inc and others) v. Competition Appeal Tribunal and others, the Supreme Court held by a majority that litigation funding agreements which entitled the funders to recover a percentage of the damages recovered were damages-based agreements and, as such, were unenforceable, as they did not meet the strict statutory conditions for such agreements.

High Court Endorses Seven Principles for Securing Precautionary Injunctions

Injunctions are typically sought by parties after wrongdoing has already taken place. However, the English courts may grant a ‘quia timet’ – or ‘precautionary’ – injunction to prevent an actionable wrong from being committed.

In University of Brighton v. Persons Unknown Occupying Land, the High Court of England and Wales granted a final injunction preventing protesters from occupying certain areas of the claimant’s executive administration office. This judgment provides a useful restatement of the principles applied by the courts when determining whether to award a precautionary injunction.

High Court Rules Arbitral Awards Don’t Deprive English Court of Jurisdiction in Crypto Consumer Claim

In Chechetkin v. Payward Ltd and Others[1], the High Court of England and Wales ruled that the existence of an arbitration clause in an agreement between the parties should not prevent the court from hearing the UK consumer’s claim for repayment of sums lost through his trading on the defendants’ cryptocurrency exchange.

Limitation of Liability: Court Considers Key Principles of Interpretation

In Drax Energy Solutions Limited v. Wipro Limited, the Technology and Construction Court considered the proper interpretation of a limitation of liability clause. The judgment provides a useful summary of the principles that apply to such an exercise. It is particularly notable that the court gave very little weight in the circumstances to the notion that in the absence of clear words, the court will assume that parties generally do not intend to derogate from the normal rights they would otherwise have.

A Taxing Question: Just When Does a Duty of Care Arise?

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.

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.