I SIGNIFICANT RECENT CASES
There have been a number of important decisions of general application in the law of contract in the past year.
i Contractual formation and variation
In Rock Advertising v. MWB Business Exchange Centre,2 the Supreme Court considered a ‘fundamental’ question: are ‘no oral variations’ clauses effective? The answer is yes.
The clause in question stated that: ‘All variations to this Licence must be agreed, set out in writing and signed on behalf of both parties before they take effect’. The licensee argued that there had been an oral variation to the payment obligations. The Supreme Court held (in agreement with the first instance judge, but overruling the Court of Appeal) that the oral variation was invalid. It gave effect to the contractual provision requiring specified formalities to be observed for a variation (subject to any subsequent estoppel) and reasoned that it would be contrary to ‘party autonomy’ if parties could not bind themselves as to the form of future variations. Full autonomy operates up to the point a contract is made, after which it is qualified in accordance with what the parties have agreed.
This is an important decision, and one that banks should find reassuring. The courts have promoted contractual certainty by giving effect to a common boilerplate clause.
ii Contractual interpretation – ‘reasonable endeavours’
Astor Management v. Atalaya Mining3 is another example of the courts’ willingness to uphold the parties’ bargain.
The defendants agreed to use ‘reasonable endeavours’ to obtain third-party debt funding, the attainment of which was a condition of their payment of the consideration for a copper mine. The funding was, in the event, obtained from the defendants’ parent company and the condition was not met, because it was not the particular type of funding required by the contract. While it might be difficult to prove breach of an endeavours clause (because the court will avoid second-guessing a party’s commercial judgement), that does not mean that no such obligation exists. The clause was given effect: the range of possible debt facilities that might satisfy the requirement did not render it uncertain, and there were objective criteria by which the reasonableness of the endeavours to obtain the facility could be assessed.
iii Contractual interpretation – consent and discretion
Banks commonly have the right to withhold their consent to the exercise of a contractual right by their counterparty, provided it is not ‘unreasonable’ to do so. What does this mean?
In Crowther v. Arbuthnot Latham,4 a secured lender refused consent for the sale of the property, in the absence of further security and a payment plan to cover a shortfall in the indebtedness that would be left following the sale. The lender’s refusal was held to be unreasonable. The purpose of the consent requirement was to preserve, rather than enhance, the lender’s original rights and it was known from the outset that the debt was not fully secured by the property. The refusal of consent, being aimed at seeking further security, was not based on the sale price and so was collateral to the purpose of the provision.
We also highlighted last year the courts’ approach to contractual discretions more generally. This issue arose again in BHL v. Leumi ABL Ltd.5 A discretion to set a fee of up to 15 per cent of the amounts collected by a bank for taking over a client’s collection of its receivables had to be exercised, given the wording of the contract, by reference to the cost the bank would incur in taking over the collections (and, following Braganza v. BP Shipping Ltd,6 not arbitrarily, capriciously or irrationally). It was not simply a licence to set a fee of 15 per cent if the bank so wished.
In PAG v. RBS,7 the Court of Appeal considered similar issues in the context of claims regarding its treatment by the bank’s restructuring group. This raised an issue as to the bank’s right to appoint a valuer that, at first instance, had been accepted as an ‘absolute right’ and thus not covered by authorities regarding the use of a discretion. The Court of Appeal disagreed with this categorisation and held that the power was one that needed to be exercised in pursuit of ‘legitimate commercial aims’, although on the facts it found these existed.
Where, however, the parties have specified a contractual standard of behaviour – as opposed to merely placing a discretion in one of their hands – English law will hold them to it. In Lehman Brothers SPF v. NPC,8 a decision in the derivatives context, the court considered the meaning of the requirement, under the 2002 ISDA Master Agreement, for a party, upon close-out, to use commercially reasonable procedures to determine the close-out amount with a view to reaching a commercially reasonable result. It held that these words required behaviour to meet objective standards set by the terms of contract, as opposed to ‘rationality’, and doubted whether this was a case of a ‘discretion’.
iv Contractual interpretation – terms
We noted in last year’s edition that in Cavendish v. Makdessi,9 the Supreme Court recrafted a more flexible, yet somewhat less certain, test for penalties. The lower courts appear to be applying the decision with some caution.
In ZCCM Investments Holdings,10 payment of instalments under a settlement agreement could be accelerated for breach, requiring the full amount to be paid within five business days, failing which, LIBOR plus 10 per cent interest would apply. This was not an unenforceable penalty as the agreement was effectively a loan, the claimant had a legitimate interest in ensuring strict compliance and the interest rate was not extravagant because the same rate had been agreed for non-compliance with the primary payment obligation.
Holyoake v. Candy11 is an illustration of the fact, should one be needed, that clauses that do not relate to a breach of contract – here a redemption sum on early repayment of a loan, extension fees and compounding interest – do not engage the rule on penalties.
v Damages for breach of contract
As an alternative to ‘ordinary’ compensatory damages, some claimants have been awarded ‘Wrotham Park’ damages.12 The measure of these is what – hypothetically – the defendant would have been able to negotiate as a payment for release from the relevant obligation. The Supreme Court has provided some much-needed certainty as to when such damages (now to be called ‘negotiating damages’) will be available: following the breach of a contractual obligation that creates, or protects, an asset equivalent to a property right, rather than (the more usual case) where a contractual obligation creates a ‘commercial’ interest, damages for breach of which is to be measured in the usual way.13 This means non-compete and non-solicitation covenants, as ‘commercial’ interests, are not likely to attract these damages, whereas rights controlling the use of land, IP or confidential information more likely are. This decision applies a more principled and restrictive approach to damages of this kind than has hitherto been the case. But by clarifying matters, it may well encourage more parties to bring claims seeking such damages in future.
II RECENT LEGISLATIVE DEVELOPMENTS
The two most important legislative developments in the past year are the Criminal Finances Act 2017 and the General Data Protection Regulation (GDPR), which has been in force in EU Member States since 25 May 2018. The Criminal Finances Act 2017 has extended existing UK money-laundering and proceeds of crime legislation by introducing two new and potentially wide-reaching corporate criminal offences of failing to prevent the facilitation of tax evasion in the UK and overseas. The implications of this are highly significant for banks, which will need to have appropriate ‘prevention procedures’ in place, though this is outside the scope of this chapter.
No one can have failed to be aware of the GDPR. It includes a right for individuals to claim damages for a breach of their personal data protection rights, so time will tell whether its introduction will result in significant new claims against banks, particularly where there are any systemic or wide-scale breaches.
III CHANGES TO COURT PROCEDURE
New ‘umbrella branding’ for specialist higher civil courts in England and Wales came into effect on 2 October 2017. The Chancery Division (including the Bankruptcy and Companies Court, Patents Court and Intellectual Property Enterprise Court), certain Queens Bench Division (QBD) courts (Commercial Court, Technology and Construction Court, Mercantile Court and Admiralty Court) and the Financial List (which straddles Chancery and QBD) are all now known under the collective name, ‘the Business and Property Courts’. While not altering the work each court previously dealt with, the new ‘branding’ is intended to facilitate more flexible cross-deployment of judges and promote greater understanding of the work each court does.
At the time of writing, a two-year disclosure pilot scheme is under consideration in response to concerns over the cost, scale and complexity of disclosure in High Court litigation. If followed, the pilot would bring in a completely new set of rules for most cases in the Business and Property Courts and aim to foster a more collaborative and bespoke approach to disclosure. All court users, banks being no exception, will welcome any sensible simplification of the disclosure process, particularly if it leads to the speedier resolution of cases and reduces costs.
IV LEGAL PROFESSIONAL PRIVILEGE
Following last year’s decision in SFO v. ENRC,14 there remains considerable debate over the limits of litigation privilege in the context of internal and regulatory investigations and the application of legal advice privilege to lawyers’ notes of interviews with third parties (including employees). Banks will be watching keenly where this area of law goes next. Investigations remain a prominent feature of the regulatory environment, so the ability to rely on privilege where appropriate remains a key concern and requires careful thought in the planning of an investigation. Two recent cases suggest there is still (or is still a perception of) uncertainty in this area, but also illustrate that issues of privilege in this context will ultimately turn on the facts and the outcomes may not always be as strict as that in ENRC.
In Bilta (UK) Limited v. RBS,15 the issue was whether interview transcripts prepared during an internal investigation by a bank were created for the dominant purpose of litigation, and therefore protected by litigation privilege. The investigation followed a letter from HMRC indicating its view that an input tax could not be claimed and that penalties would potentially apply. It was conceded that at the time the transcripts were created, a claim in the First-tier Tribunal was reasonably in contemplation.
Relying on ENRC, the claimants argued that the investigation was merely aimed at persuading HMRC not to issue an assessment (i.e., that the transcripts were not created for the dominant purpose of litigation). The Court did not agree. Questions of dominant purpose turn on their facts so that conclusions reached in one case do not necessarily apply in another. The Court accepted that litigation was reasonably in contemplation because the HMRC letter was effectively a letter before claim and evidence of HMRC’s enforcement activities and the overall context showed the high likelihood of an assessment by HMRC. So, the transcripts were created for the dominant purpose of litigation (and it did not matter, on the authority of In re Highgrade Traders Ltd,16 that once a dominant litigation purpose was established, there might also have been other, non-litigation purposes in play).
Bilta reinforces the point that reasonable contemplation of litigation and dominant purpose will often be closely intertwined. More generally, it emphasises the importance of banks, and lawyers advising them, analysing very carefully the circumstances in which documents are created during an investigation to determine whether litigation privilege will be available – every case has its own facts and reported decisions are simply illustrations of the principles being applied to them.
R v. SFO and XYZ17 revisited the question of whether lawyers’ notes of third-party conversations during an investigation can be protected by legal advice privilege. The documents under consideration were detailed, but not verbatim, notes of interviews with XYZ’s executives, which led XYZ to self-report to the Serious Fraud Office (SFO). The judge considered the recent authorities, such as ENRC18 and RBS,19 in deciding whether privilege applied and criticised the SFO’s acceptance of the material as privileged. In doing so, he expressed the trenchant view that the case law on interview notes is clear. In reading this decision, however, some care is needed. The judge did not expressly refer to the fact that the case involved interview notes with third parties in the legal advice privilege context. If litigation privilege is available matters will be different.
Another part of the judgment of interest is the judge’s acceptance of a submission that parts of the notes containing advice or lawyers’ impressions could be redacted. By contrast, in ENRC, the court spoke of notes in toto being privileged to the extent that they betrayed the ‘trend’ of legal advice. Thus, to the extent that such notes evidence such material, the question of whether it is the whole or only part of the document that can be withheld ultimately will turn on the degree of ‘severability’ of any legal advice or ‘impressions’ in the note from the remainder of the document.
Another case of interest in the sphere of legal professional privilege is R v. Jukes.20 This concerned litigation privilege in the criminal context. In it, the Court of Appeal endorsed the view that, in that context, the relevant ‘litigation’ is the criminal prosecution itself – not the preceding investigation.
Often, a pragmatic approach has to be taken to the preservation of privilege in an investigation: the bank has choices and a balance has to be struck between gathering information and recording it in a way that makes it useful to the bank and its advisers and the preservation of privilege to the fullest extent possible with the practical limitations that this may put on the investigation.
V JURISDICTION AND CONFLICTS OF LAW
i Cross-border garnishment
Banks commonly operate in foreign jurisdictions through local ‘branches’ of a single legal entity registered in their home jurisdiction.
Republic of Kazakhstan v. Bank of New York Mellon (London Branch)21 (BNYM) is a reminder that international banks caught up in their customers’ disputes can find themselves simultaneously exposed to the potentially conflicting effects of the laws of the different jurisdictions in which they operate. They may need to ensure their customer contracts are drafted to make abundantly clear who bears the risk of such conflict and consider operating in jurisdictions calculated to limit the risk of conflicts arising at all. Here, a third party was seeking enforcement of a US$500 million arbitral award against the global assets of the Republic of Kazakhstan. The bank, a Belgian-registered entity, was served with Belgian and Dutch orders garnishing assets comprising Kazakhstan’s sovereign wealth fund. BNYM held, in total, US$22 billion of the fund’s cash and securities as custodian for the National Bank of Kazakhstan (NBK) under a global custody agreement (GCA) and froze all of them, on the basis the effect of the Belgian order was (unlike the effect of equivalent orders under English and many other laws) expressed to apply to all assets BNYM held for the sovereign wealth fund, wherever they may be considered to be located, and notwithstanding that they greatly exceeded the value of the arbitral award. Non-compliance with the Belgian and Dutch orders could have led to criminal and civil liability for the bank.
Kazakhstan and NBK sought declarations in the English Court to the effect that BNYM was not entitled to freeze the assets under the GCA, principally because the assets were said to be located at the London branch and the Belgian and Dutch orders were not, as a matter of English conflicts law, recognisable in England.
The Court’s focus was on a force majeure clause in the GCA, which was expressed to excuse any non-performance (in this case, the failure to follow NBK’s instructions) caused by any order imposed by any judicial authority. The Court interpreted this broadly and held that it covered the Belgian and Dutch orders (provided the necessary causative link was established) and was not, as NBK argued, limited to orders recognised by the English Court. On that basis, the claim was dismissed.
The Court gave the contractual words their plain meaning, and the decision is encouraging for banks in relation to the effect that will be given to similar force majeure clauses in custody agreements.22
Taurus Petroleum Ltd v. State Oil Marketing Company23 also involved enforcement of a foreign arbitral award against an asset held by the local branch of a foreign bank, this time letters of credit (LoCs) issued by the London branch of a French bank. The Supreme Court had to decide where the situs of the debt owed under the LoC was in order to determine whether an English third-party debt order against the LoC could be made. On the basis of Article 3 of the Uniform Customs and Practice for Documentary Credits, the Court accepted that branches of banks in different countries are treated as separate banks for the purpose of LoCs and therefore that the sole residence of the debtor bank was London. Applying the general rule that debts are situated in the place of the debtor’s residence, it concluded that the situs of the LoC was England. In doing so, the Supreme Court overruled the Court of Appeal’s decision in Power Curber v. National Bank of Kuwait,24 which held that debts due under LoCs are located in the place of payment.
ii Immobilised securities
Most securities are held by custodians in ‘immobilised’ form with central depositories. Investors trade interests in the securities held through a chain of counterparties that are ultimately recorded as book entries in clearing systems. Questions that frequently arise are what rights investors have in respect of such securities and what law governs them.
In Secure Capital SA v. Credit Suisse,25 an investor’s claim against the issuer of notes was based on breach of a contractual term of the notes, which were governed by English law. The identity of the parties entitled to sue under a contract is, under English conflicts law, to be determined by the law of the contract. Therefore, under their terms, only the bearer (BNYM) could sue on the notes.
To avoid this conclusion, the investor argued that in the case of immobilised securities, the law of the clearing system should determine who could sue on the notes because there would otherwise be no one capable of claiming damages against the issuer. This was rejected.
iii Islamic finance
Major Islamic financing arrangements have become increasingly prominent in recent years. They can be constituted by several documents with different applicable laws. In re Dana Gas26 provides reassurance that the governing law of particular documents will in general be respected by the English courts, whatever the effect of other laws involved. The terms of a purchase undertaking governed by English law was said to be inconsistent with shariah law principles and therefore unlawful under UAE law. Under the Rome I Regulation,27 questions of the validity of a contract are determined by its governing law. The fact that it might be invalid under a foreign law is irrelevant (save to the extent that limited exceptions under that Regulation provide otherwise). Accordingly, the purchase undertaking was enforceable.
VI SOURCES OF LITIGATION
i Loan repayment
The enforcement of loan and security agreements is a common source of banking litigation. A few recent cases show the courts’ preparedness to enforce such agreements on their terms in favour of banks and that various legal doctrines, such as implied terms and estoppel, are relied on, often unsuccessfully, by borrowers, to try to get around this.
A bank’s omission was relied on in General Mediterranean Holding SA v. Qucomhaps Holdings28 to resist repayment. The lender failed to preserve its security in foreign insolvency proceedings and as a result, fraudsters made off with the only assets available to the borrowers to repay the loan. The borrowers argued that the lender was under a duty to preserve the security and by not doing so, their repayment obligation was discharged. The judge made clear that the lender has to be under an express duty to take a step where the failure to do so is relied upon to discharge the repayment obligation. The default position is that creditors are under no duty to take any steps to preserve their security.29 In this case, no such duty could be implied as a matter of law or equity and (relying on Marks & Spencer30) it was not necessary to imply it as a matter of fact.
By contrast, there was no question that the bank had a right to be repaid in Clydesdale Bank plc v. Gough.31 Rather, the issue was whether the bank was estopped by an alleged promise to allow the defendant to sell his assets to reduce his indebtedness before it enforced the loan. On the evidence, there was no clear and unequivocal promise or common understanding that the bank would not enforce its strict rights at the time the loan was entered. The loan was governed by a written contract and the bank was entitled to repayment and possession.
ii LIBOR claims
In its high-profile decision in PAG v. RBS,32 the Court of Appeal dismissed a number of claims against the defendant bank arising from the sale of interest rate swaps to the claimant, and its alleged manipulation of LIBOR. In respect of specific LIBOR-related issues, the Court of Appeal’s judgment is perhaps most notable for its acceptance of the claimants’ position that the defendant’s proffering of the swaps could be conduct from which an implied representation as to its conduct in relation to LIBOR could be drawn – although the Court of Appeal agreed that there was no evidence of such manipulation.
iii Mis-selling, and duties of care
We noted in last year’s edition the prevalence of banks’ potential liability for mis-selling claims and the extent to which customers are seeking to invoke duties owed by banks in the context of advice they are alleged to have been given. This theme continues in relation to ‘mezzanine duties’. Claims under Section 138D of the Financial Services and Markets Act 2000 (FSMA) have also come before the courts.
In Marz v. Bank of Scotland,33 it was a condition of the claimant’s loan that it enter into an interest rate swap. The claimant alleged a contractual duty by the bank to ensure the swap was suitable and tortious duties to advise it correctly and explain its options to enable it to make an informed choice – the mezzanine or ‘intermediate’ duty.
The contractual duty was rejected on the basis of a no-reliance clause in an ISDA Master Agreement. The facts also did not support an advisory duty – the claimant had its own advisers and did not rely on the bank. As to the intermediate duty, the judge commented that this was effectively part of the wider question of whether there was an advisory relationship and associated duties. Therefore, it was also rejected on the basis of the finding that the bank was not acting as an adviser or alternatively, the no-reliance clause. The latter was also found not to be an exclusion clause and so was not subject to the reasonableness test in the Unfair Contract Terms Act 1977 (UCTA), but even if it was, it was reasonable.
In PAG v. RBS, discussed above, one of the claims against the bank involved similar allegations in relation to an interest rate swap. In this case, the Court of Appeal also steered away from talk of an intermediate or mezzanine duty. In its view it saw this expression as unhelpful, preferring to stress that the existence (or otherwise) of a duty of care, and its extent, is an assessment of whether, on the facts, responsibility has been assumed.
Claims for damages by private persons under Section 138D(2) of the FSMA for a firm’s breach of rules made by the Financial Conduct Authority (FCA) and the Prudential Regulation Authority are not common and do not often succeed. However, the claim in Abdullah v. Credit Suisse34 did.
The claimants, a wealthy Kuwaiti family, had entered into various structured capital-at-risk products at the bank’s recommendation. Following a restructuring of their portfolio recommended by the bank, they subsequently decided not to meet a margin call, which resulted in them losing their investment. It was claimed that the bank had breached various aspects of the Conduct of Business (COBS) Rules. That claim succeeded on the basis that the claimants’ willingness to invest in the structured products was predicated on the bank’s assessment that it was unlikely that there would be a margin call and so the products matched their risk appetite.
Another Section 138D claim for breach of various COBS rules in connection with the sale of swaps was rejected in Parmar v. Barclays Bank.35 Interestingly, the judge commented that, had breaches been established, the bank would not have been entitled to rely on clauses in the customer’s contract, stating the basis of the parties’ relationship (known as ‘basis clauses’). This was because COBS Rule 2.1.2 was engaged in this case, preventing any exclusion or restriction of the bank’s Section 138D(2) liability.
It is likely that there are fewer Section 138D claims because of the FCA’s requirement in recent years that banks institute review and redress schemes in relation to their selling of interest rate hedging products prior to the financial crisis. This is usually done by the appointment of an independent ‘skilled person’ under Section 166 of the FSMA. Claimants disappointed by the outcomes of such schemes have brought claims impugning the way in which they have been conducted, to try to obtain redress a different way.
While there have been conflicting decisions in this area, welcome clarification has now come in CGL Group Ltd v. Royal Bank of Scotland.36 The Court of Appeal concluded that banks do not owe a duty of care to claimants to conduct reviews with due skill and care. It would be unusual for the common law to impose a common law duty on a statutory framework; the reviews are not, in truth, voluntary; it would be surprising for the bank to owe a duty where the independent reviewer does not, and it would allow time-barred claims to be litigated via the ‘back door’.
Another duty of care case that has garnered much attention, this time in an Islamic finance context, is Golden Belt 1 Sukuk v. BNP Paribas.37 The question was whether a bank, as arranger of shariah-compliant certificates, owed investors a duty of care in relation to the execution of Saudi law-governed promissory notes (which required handwritten signatures). A duty was owed, and breached, by the bank’s failure to follow legal advice as to the steps required to execute shariah documents.
iv Facilitating fraud
The Court of Appeal has upheld the decision in the Singularis case.38 As mentioned in last year’s edition, at first instance, a bank was found negligent and in breach of contract for failing to make proper enquiry and stop payments that it knew or ought to have known were being effected fraudulently (based on the duty in Barclays Bank plc v. Quincecare Ltd 39). The appeal was dismissed effectively on two grounds: an illegality defence was unsuccessful because despite being a director of the account holder, the fraudster’s conduct could not be attributed to it and it did not matter that only creditors of the account holder (which was in liquidation) would benefit in practice from the application of the Quincecare duty. The issues on appeal confirm that the case turns on its unusual facts.
Any principle of broader application that would require banks to monitor closely for fraud and stop payments on all of their customer accounts would place a heavy burden on them indeed.
This is demonstrated to some extent by Chudley v. Clydesdale Bank.40 Investors paid money to a fraudulent company that held an account with the bank from which the bank had (wrongly) permitted payments to be made. The bank also signed letters used by the fraudsters to induce the investments. However, there was insufficient proximity between the bank and the investors to support a duty of care, the relevant bank employee was foolish, but not a dishonest assistant, and there was no restitutionary claim because the statements had not been relied on and the bank was not enriched because it owed a corresponding liability to its customer.
VII EXCLUSION OF LIABILITY
We discussed in last year’s edition the importance for banks of exclusion clauses and the distinction between them and basis clauses. Two recent banking cases continue to highlight this.
A party relying on an exclusion clause in its standard terms of business needs to satisfy the reasonableness test in the UCTA. In a decision of some significance,41 the Court of Appeal has shed light on what it means for commonly used sets of terms to be ‘standard’. It held that an industry-wide set of terms (in this case, a Loan Market Association (LMA) syndicated facility) are not the party’s standard terms if they are not used by that party habitually. Even if they are, they are unlikely to be ‘standard’ in a particular case if more than insubstantial variations are negotiated. The Court left for another day the question of whether habitually used LMA terms on which a party refuses to negotiate any amendments are its standard terms (although it hinted they may well be).
The important decision of First Tower Trustees v. CDS Ltd 42 concerned a claim for misrepresentation in the context of a lease of warehouse premises. The landlord had made a misrepresentation in its replies to pre-contractual enquiries but the lease contained a provision to the effect that the tenant acknowledged that it had not relied on any statements or representations by the landlord in entering into the lease. The Court of Appeal held, contrary to the approach adopted in previous cases, that a clause of this nature – which on the fact of it raised a contractual estoppel against an argument of misrepresentation – could be regarded as an exclusion of liability and so subject to Section 3 of the Misrepresentation Act 1967 (which subjects exclusions of liability for misrepresentation to a reasonableness test). This was because the effect of such a clause was to negative liability, which, if the clause had not been there, would have existed.
An important part of the Court of Appeal’s judgment was its examination of the distinction between provisions that, correctly interpreted, (1) raise a contractual estoppel against arguments of liability arising within the parties’ relationship, and (2) truly define the primary scope of the relationship to begin with. The Court of Appeal observed that past cases on contractual estoppel tended to conflate clauses within the first category with those in the second. However, the issues need to be kept distinct because, if within the first, a clause could properly be seen as exclusionary and so subject to any relevant controls, such as Section 3 of the Misrepresentation Act. By contrast, provisions within the second category determine what the scope of the primary obligations are to begin with, which is a question of construction.
VIII LOOKING AHEAD
Last year, we discussed two issues concerning the impact of Brexit on litigation:
- a What will the differences on jurisdiction and applicable law be in a post-Brexit world?
- b Are there issues that arise from the transitional period?
Unfortunately, uncertainty surrounding these issues continues. Under negotiation at the time of writing is the draft agreement for the withdrawal of the UK from the EU. It was hoped that this may mitigate some uncertainty, in particular, in the field of jurisdiction, and recognition and enforcement of judgments, by providing for transitional provisions. In June 2018, the UK and EU27 negotiators unveiled, in a joint statement, their agreed position on this point. In short, the position they reached was that, in situations involving the UK, the Brussels I Recast would continue to apply where proceedings had been commenced before the end of the general transition period contemplated by the draft withdrawal agreement (anticipated to be 31 December 2020).
Of course, whether the withdrawal agreement is actually agreed and implemented is, at the time of writing, itself uncertain but, putting that to one side, there are some positive aspects to this proposal. It makes sense that the status quo is preserved indefinitely for proceedings commenced before the end of the transition period. However, the lack of any specific provision for cases involving a jurisdiction clause in favour of the English courts entered into prior to the end of the transition period was a missed opportunity. That omission means that, even if the withdrawal agreement is implemented, parties will likely need to continue, for the foreseeable future, to make more rounded assessments of their use of English jurisdiction clauses (in particular, in circumstances where enforcement of a resultant judgment is likely to be required in territories where enforcement of an English judgment currently enjoys the benefit of EU legislation).
Any further agreements with the EU regarding English jurisdiction clauses and judgments would appear to have to await an agreement, if any, that the UK manages to conclude in this sphere as part of its future relationship with the EU (which, at the time of writing, has not been progressed). Given the proposed terms of the withdrawal agreement, it is clear that such an agreement would also, assuming that the withdrawal agreement is implemented, be important to avoid a wave of pre-emptive litigation before the run-off period in any withdrawal agreement ends.
ii Cases to watch
The pending appeal in SFO v. ENRC43 is one for all litigators to watch out for. It is hoped the decision will provide much-needed clarity as to the ability to rely on regulatory investigations for the purpose of litigation privilege and the status of documents created during them, and the extent to which interview notes are protected.
An attempt by the defendant to apply for summary judgment in Andric v. Credit Suisse (UK) Ltd44 has been dismissed in the High Court. The trial will touch upon the obligations of banks and their employees to avoid false representations to customers.
1 Christa Band is a partner and Jonathan Swil is a senior managing associate at Linklaters LLP.
2  UKSC 24;  2 WLR 1603.
3 Astor Management AG v. Atalaya Mining Plc  EWHC 425 (Comm);  1 All ER (Comm).
4  EWHC 504 (Comm).
5  EWHC 1871 (QB);  1 All ER (Comm) 965.
6  UKSC 17;  1 WLR 1661.
7 Property Alliance Group Ltd v. Royal Bank of Scotland Plc  EWCA Civ 355.
8 Lehman Bros Special Financing Inc v. National Power Corp  EWHC 487 (Comm).
9 Cavendish Square Holding BV v. Talal El Makdessi  UKSC 67;  AC 1172.
10 ZCCM Investments Holdings PLC v. Konkola Copper Mines Plc  EWHC 3288 (Comm).
11 Holyoake v. Candy  EWHC 3397 (Ch).
12 Named after the case in which they were first elucidated, Wrotham Park Estate Co Ltd v. Parkside Homes Ltd  1 WLR 789.
13 Morris-Garner v. One Step Ltd  UKSC 20;  2 WLR 1353.
14 Director of the Serious Fraud Office v. Eurasian Natural Resources Corporation Ltd  EWHC 1017 (QB);  1 WLR 4205. An appeal to the Court of Appeal is pending.
15 Bilta (UK) Limited (In liquidation) v. RBS  EWHC 3535 (Ch).
16  BCLC 151.
17  EWHC 856.
18 Director of the Serious Fraud Office v. Eurasian Natural Resources Corporation Ltd  EWHC 1017 (QB).
19 Property Alliance Group Ltd v. Royal Bank of Scotland Plc  EWHC 3187 (Ch);  1 WLR 992.
20  EWCA Crim 176.
21 National Bank of Kazakhstan and The Republic of Kazakhstan v. The Bank of New York Mellon  EWHC 3512 (Comm).
22 The decision and the Court’s reasoning were upheld on appeal: National Bank of Kazakhstan v. The Bank of New York Mellon SA/NV London Branch  EWCA Civ 1390.
23 Taurus Petroleum Limited v. State Oil Marketing Company of the Ministry of Oil, Iraq  UKSC 64;  2 WLR 1170.
24 Power Curber International Ltd v. National Bank of Kuwait SAK  1 WLR 1233.
25  EWCA Civ 1486.
26  EWHC 2928 (Comm).
27 Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).
28 General Mediterranean Holding SA SPF v. Qucomhaps Holdings Ltd  EWHC 1409 (QB).
29 China & South Seas Bank v. Tan  1 AC 536;  2 WLR 56.
30 Marks & Spencer Plc v. BNP Paribas Securities Services Trust Co (Jersey) Ltd  AC 742.
31  EWHC 2230 (Ch).
32  EWCA Civ 355.
33  EWHC 3618 (Ch).
34 Abdullah v. Credit Suisse (UK) Ltd  EWHC 3016 (Comm).
35  EWHC 1027 (Ch).
36 CGL Group Limited v. The Royal Bank of Scotland Plc & National Westminster Bank plc  EWCA Civ 1073;  1 WLR 2137.
37 Golden Belt 1 Sukuk Company BSC (C) v. BNP Paribas; FCOF II UB Securities LLC v. BNP Paribas  EWHC 3182 (Comm);  1 All ER (Comm) 1126.
38 Singularis Holdings Ltd (in official liquidation) v. Daiwa Capital Markets Europe Ltd  EWCA Civ 84;  1 WLR 2777.
39  4 All ER 363.
40  EWHC 2177 (Comm).
41 African Export-Import Bank v. Shebah Exploration & Production Company Limited  EWCA Civ 845;  1 WLR 487.
42  EWCA Civ 1396.
43 Director of the Serious Fraud Office v. Eurasian Natural Resources Corporation Ltd  EWHC 1017 (QB);  1 WLR 4205.
44  EWHC 1724 (Comm).