In its recent decision in Boonyaem v. Persons Unknown Category A, Persons Unknown Category B and INGFX Limited, the High Court of England and Wales addressed some of the key issues that have frequently arisen in cases of digital asset fraud. Notably, while the judge granted summary judgment against ‘persons unknown’ who were currently anonymous but identifiable, he refused to enter judgment against ‘persons unknown’ who were both anonymous and unidentifiable.
UK Supreme Court Confirms Requirements for Claims in ‘Knowing Receipt’
At the end of 2023, the UK Supreme Court handed down judgment in Byers and others v. Saudi National Bank[1]. Unanimously dismissing the appeal, the Supreme Court definitively determined that a claim in knowing receipt cannot be brought if the claimant’s equitable interest in the relevant property has been extinguished – regardless of the fact that the recipient of the property was aware that it was being transferred to it in breach of trust.
Court of Appeal Sets Out Correct Approach to Material Adverse Change in Respect of Prospects Warranties
In an update to our May 2023 blog on the case, the Court of Appeal has held in Decision Inc Holdings Proprietary Ltd & Another v. Stephen Garbett & Another that the High Court erred both in its interpretation of and approach to a material adverse change in prospects warranty in a share purchase agreement.
The court also determined that a notice provision requiring Decision to summarise the nature of a claim and the amount claimed required it to give an amount claimed in respect of each of the alleged breaches.
Time Is On My Side: When Can Limitation Periods Be Extended in the UK?
A fundamental issue that all litigants will be well served to consider when bringing, or defending, any legal proceeding is the question of whether the claim has been brought in time. The inadvertent failure to bring a claim in time has served to fatally undermine several disputes that otherwise may have been successful.
The Limitation Act 1980 sets out the relevant time limits (known as ‘limitation periods’) in which different kinds of legal claims must be brought – and the time from which those limitation periods begin to run. Many aspects of the act are uncontroversial, but there was some lingering uncertainty concerning the interpretation of Section 32, which extends the normally applicable limitation periods in circumstances where facts relevant to the claimant’s cause of action have been deliberately concealed by the defendant.
Commercial Court Leaves Room for Enforceability of Litigation Funding Agreements
In the first case to address the ramifications of the UK Supreme Court’s decision in R (on the application of PACCAR Inc and others) v. Competition Appeal Tribunal and others, the English Commercial Court granted an asset preservation/freezing order in favour of a litigation funder. In Therium Litigation Funding A IC v. Bugsby Property LLC, the court considered that there was a serious issue to be tried, and that the PACCAR decision did not render the whole of the litigation funding agreement unenforceable.
Commercial Court Refuses to Set Aside an Arbitration Award on Consumer Protection Grounds
In Eternity Sky Investments Ltd v. Zhang,[1] the Commercial Court refused an application to set aside an enforcement order in respect of an award made in a Hong Kong-seated arbitration on the grounds that enforcement would be contrary to English public policy – specifically, consumer protections enshrined in the Consumer Rights Act 2015. In reaching its conclusion, the Commercial Court held that the Consumer Rights Act did not apply, as although the applicant was a consumer and lived in the UK, the transaction was much more closely connected with Hong Kong. The Commercial Court also expressed the view (obiter) that inclusion of an arbitration clause in a contract with a consumer does not automatically entail that the clause will be deemed unfair and thus unenforceable.
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Phone War: ‘Charges Unlawfully Avoided’ Claim Held To Be Excluded Loss of Profits Claim
In EE Limited v. Virgin Mobile Telecoms Limited,[1] the High Court found that the claimant’s claim for ‘charges unlawfully avoided’ under a telecommunications supply agreement was in fact a claim for loss of profits, which were excluded by an exclusion clause in the agreement.
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.