i OVERVIEW

Owing to a combination of London's status as a global financial centre and the perceived advantages of its court system (including its specialist Commercial Court), the UK is a key jurisdiction for litigation involving banks and other financial institutions. This is reflected in a consistently high volume of cases being brought in the UK, covering a diverse range of issues. As discussed further below, there is no reason to think that Brexit (whenever it happens) will affect this, at least in the short term.

ii SIGNIFICANT RECENT CASES

i Contractual interpretation

The courts continue to provide important guidance to parties as to the correct interpretation of contractual documents.

In Astor Management v. Atalaya Mining,2 the Court of Appeal considered whether and when a condition precedent may become futile or unnecessary, such that the courts would not insist upon its performance.

In this case, the relevant defendant's obligation to pay the claimants for an interest in an inactive mine was deferred until the defendants obtained regulatory approval and a 'senior debt facility' to restart operations. In the event, the defendants were unable to obtain a senior debt facility and instead procured the sums necessary to restart the mining operations by means of intra-group loans. The defendants argued that the obligation to pay had not yet been triggered. The claimants argued that the senior debt facility trigger had been rendered unnecessary, either by operation of the 'futility principle' or because of the parties' presumed common intention, had they contemplated obtaining finance from a source other than a senior debt facility.

While the Court of Appeal considered the term 'futility principle' to be misleading, it held that it forms part of the usual rules of contractual interpretation so that, in certain circumstances (depending on the terms of the contract), a condition precedent might, as a matter of construction and in light of subsequent events, no longer apply or cease to have effect.

In the circumstances of the case, the Court of Appeal upheld the High Court's finding that the defendant's obligation to pay had not yet been triggered. There existed a 'clear commercial logic' to distinguishing between different forms of financing, and the contract drew an express distinction between the 'senior debt facility' and intra-group loans. As such, the court found that confining a trigger for payment to the provision of a senior debt facility alone was not unreasonable or nonsensical, that doing so was 'plainly' a deliberate choice and that the parties must have contemplated that an alternative source of finance might have to be used.

Issues as to the potential 'nonsensical' nature of particular contractual interpretations have also arisen as a result of the emergence of negative interest rates in recent years. In Netherlands v. Deutsche Bank,3 the Court of Appeal considered whether the standard form ISDA 1995 credit support annex provided for the payment of a negative rate of interest.

Under the terms of the annex, the Dutch State was required to pay interest to the bank at a rate equal to the Euro Over-Night Interest Average minus four basis points. From June 2014, this rate fell below zero for the first time and the Dutch State brought a claim against the bank requesting payment of the negative interest.

The Court of Appeal upheld the High Court's ruling4 that the annex did not provide for the payment of negative interest, but found that the High Court had 'adopted too simplistic an approach' in reaching that decision, as it had focused only on the absence of an express obligation to pay negative interest. The Court of Appeal found four further reasons for its construction of the annex: (1) the background materials to the standard form documents did not show that ISDA intended negative interest to be payable; (2) negative interest being payable would have created inexplicable asymmetries in the operation of the other terms of the annex; (3) one term of the annex indicated that zero was the lowest rate of interest possible; and (4) nothing in the annex indicated that negative interest was contemplated or intended by the parties.

Similarly, the approach to force majeure and exceptions clauses is likely to come under increasing scrutiny following the discontinuation of LIBOR as the benchmark rate for interest rate transactions and with Brexit on the horizon. A recent case dealing with such clauses is Classic Maritime v. Limbungan Makmur.5

In this case, the Court of Appeal had to decide whether a charterer was entitled to rely on an exceptions clause in a shipping contract that it was unable to perform due to a dam burst. The Court of Appeal rejected the argument that there is a general principle that there is no need for a party invoking a force majeure clause to show that 'but for' the supervening event, they would have been able to perform their obligations under the contract. Instead, the court emphasised that the key is the wording of the particular clause and, on the proper construction of the clause in this case, the charterer did have to show that 'but for' the dam burst it would have been able to perform its contractual obligations. At the time of writing, an application for permission to appeal is being made to the Supreme Court.

ii Rectification

The Court of Appeal has comprehensively reviewed the English law of rectification in FSHC Group Holdings v. GLAS Trust Corp.6

The case concerned the rectification of two deeds by which the claimant had acceded to pre-existing security agreements in a corporate acquisition, but had also acceded to additional, onerous obligations. The claimant sought rectification of the deeds to exclude these additional obligations. The Court of Appeal held that the deeds should be rectified, following a comprehensive analysis of the law of rectification (which had been left in a state of some uncertainty following Chartbrook v. Persimmon Homes).7

There was no dispute that, in order to rectify a bilateral document such as a contract, there must be a common intention that the document was intended to mean one thing, when its terms provided for another. However, Lord Hoffmann in Chartbrook had indicated (obiter) that the test for ascertaining the mistaken intention was purely objective rather than subjective. In FSHC, the Court of Appeal clarified that, in assessing the common intention, rectification of a written contract would be ordered where: (1) the document fails to give effect to a prior concluded agreement; or (2) the parties had a common intention in respect of a matter that, by mistake, the contract failed accurately to record (where the mistaken intention is the subjective, rather than objective, intention of the parties).

The Court of Appeal noted that the subjective standard, which had been the generally accepted test pre-Chartbrook, imposes a higher barrier to successfully claiming rectification than the objective standard, but held that this was merited as it promotes the 'certainty and security of commercial transactions'.

iii Implied duties

The courts have continued to explore the consequences of the Supreme Court's 2015 decision in Braganza v. BP Shipping8 that, in certain circumstances, a term may be implied into a contract imposing a duty on one party to act rationally when exercising a decision-making power.

In Lehman Brothers Finance (in liquidation) v. Klaus Tschira Stiftung,9 the High Court considered the determination of loss following an 'automatic early termination event' in the 1992 ISDA master agreement.

Under the ISDA, the non-defaulting party is entitled to select the methodology for calculating loss. However, the court held that it was clear that such selection on the part of the non-defaulting party is subject to an implied Braganza duty of rationality. The non-defaulting party in this case had sought to determine its loss following Lehman Brothers' bankruptcy by reference to the cost of uncollateralised replacement transactions. The court held that it was not rational for them to have done so, because the contracts that were governed by the ISDA had been collateralised and because the non-defaulting party would not have been able to enter into uncollateralised replacement transactions.

In UBS v. Rose Capital Ventures,10 however, the High Court refused to imply such a term into a mortgage deed pursuant to which receivers had been appointed by a lender over a property. The mortgagors argued that the lender was fettered by a duty to exercise its powers rationally. The High Court, however, emphasised that only decisions that give rise to a conflict of interest between the decision-maker and the other party to the agreement in relation to an ongoing relationship are amenable to the implication of a Braganza duty. Further, relational contracts, such as employment contracts, are more likely to have Braganza duties implied than arm's-length commercial agreements, such as mortgage documents.

Outside the realm of the Braganza duty, the courts have generally continued to show a reluctance to imply duties into financial contracts. In Standish v. Royal Bank of Scotland,11 the claimants sought to argue that there was an overarching implied 'Customer Agreement', which governed the loan agreements they had entered into with the bank and that this agreement contained implied duties of good faith that prevented the bank from enforcing its express rights under the loan agreements. The claimants also argued that, following Medforth v. Blake,12 the bank owed a further duty of good faith as a consequence of having security by way of a mortgage over land under the loan agreements. The High Court held that the claim was bound to fail and struck it out on the basis that there was no reason to imply the existence of the 'Customer Agreement' and that the duty implied in Medforth related to receivers in possession rather than mortgagees who had not exercised, or even threatened to exercise, their security.

iv Consideration

The recent case of Simantob v. Shavleyan13 illustrates that the courts are increasingly willing to find commercial agreements between parties to be based on good consideration and, therefore, valid.

In this case, the appellant and respondent agreed to a variation to a settlement agreement by which the respondent would pay a lower sum than the total then owed. The Court of Appeal accepted that the consideration for the variation was that the respondent would forbear from claiming that a clause in the settlement agreement providing that the respondent would pay the appellant US$1,000 per day when in default was a penalty clause and so unenforceable. In fact, the court later found that the argument that the relevant clause was a penalty clause did not have a realistic prospect of success, but that was unknown and, therefore, irrelevant at the time the variation was agreed. Therefore, forbearance from bringing a claim that did not have a realistic prospect of success was enough to establish consideration, reinforcing the general proposition that consideration need not be objectively valuable so long as the parties believe at the time that it does have value.

v Guarantees

The courts have investigated unsuccessful attempts made by guarantors to escape liability under guarantees.

The guarantor in Barclays Bank v. Price14 argued that he had not received a valid notice of demand within the time set out in the guarantee because the only notice he had received over-stated the amount said to have been guaranteed (£55,500 rather than £55,000). The court was unimpressed by the argument, holding that the notice was sufficiently clear to a reasonable recipient and that the minor mistake in the amount demanded did not relieve the guarantor of liability to pay.

In General Mediterranean v. Qucomhaps Holdings Ltd,15 the Court of Appeal considered the scope of the equitable duty imposed on a creditor to protect security so that, if a guarantor were to be called upon, the guarantor could assume the creditor's rights to the security in turn.

In this case, the borrower and guarantor argued that the lender, who had security over the shares and assets of the borrower's subsidiary, had breached its duty to protect this security by not taking any steps in the subsidiary's administration, rendering the security worthless or unenforceable, or both.

The court held that, while the scope of the duty was broader than a mere duty to perfect the security, it was not an absolute duty to ensure that the guarantor could have recourse to the security. While the creditor may be required to go to some limited expense in protecting the security, it was not required to incur any sizeable expenditure or run any significant risk in so doing.

On the facts, the court dismissed the appeal on the grounds that it was unclear what steps the lender could have taken, nor how its failure to take such steps could have resulted in the negation of the security.

vi Third-party rights

In Chudley v. Clydesdale Bank,16 the Court of Appeal held that under the Contracts (Rights of Third Parties) Act 1999, individual investors could enforce a contract between the bank and an investment company for the holding of investors' money.

The investors had invested money in a fraudulent scheme. However, they subsequently discovered a letter of instruction to the bank from one of the vehicles of the fraud (which had been accepted by the bank) requiring that a segregated client account be opened and that the monies paid into that account were to be paid out only on receipt of a letter of undertaking. No such account had been opened nor had any letter of undertaking been received. The question was whether the investors could take the benefit of the letter of instruction and rely on the bank's breach of that letter.

The Court of Appeal held that they could do so, pursuant to the 1999 Act. The investors were clearly identified as being part of the class of those investing in the fraudulent scheme, and the purpose of the letter of instruction was to benefit those investors by ensuring their monies were held in a segregated account subject to conditions of payment. Therefore, the letter of instruction was enforceable by the investors against the bank even though the investors had not known of its existence at the time.

iii RECENT LEGISLATIVE DEVELOPMENTS

Brexit has been dominating the parliamentary agenda over the previous year, with the result that there have been few significant domestic legislative developments.

In terms of wider EU law, on 1 January 2019, the EU Securitisation Regulation came into effect, setting EU-wide rules aimed at significantly reforming the EU securitisation market. The Regulation, which in general applies only to securitisations issued on or after 1 January 2019, repeals the patchwork of existing legislation applicable to specific sectors (such as banks, insurers and fund managers) and consolidates these provisions into a new, harmonised securitisation regime applicable across all sectors. The Regulation also introduces the concept of 'simple, transparent and standardised' securitisation, which is subject to a lighter regulatory regime than other securitisations.

iv CHANGES TO COURT PROCEDURE

i Disclosure pilot scheme

In response to concerns over the cost, scale and complexity of disclosure in High Court litigation, for two years from 1 January 2019, a disclosure pilot scheme is running in the Business and Property Courts (including the Commercial Court) with the aim of encouraging a more proportionate approach. The pilot will give practitioners the opportunity to provide feedback on how the changes are working before they become permanent.

Key aspects include:

  1. the codification of the parties' duties to preserve documents, including a requirement to send hold notices to relevant employees (both current and former), agents and other relevant third parties;
  2. the introduction of an ongoing duty to disclose known adverse documents (unless they are privileged) regardless of any disclosure order made;
  3. the requirement that, at the same time as serving their statements of case, parties provide an 'initial disclosure' of the key documents they have relied on and key documents that are necessary for the other party to understand the case they have to meet (though this is not required if the 'initial disclosure' passes a threshold number of pages or documents, which is likely to be the case in most large or complex claims);
  4. the requirement for the parties to identify a list of 'issues for disclosure', against each of which the parties and the court are to consider one of five models of 'extended disclosure' (replacing the previous default position of the courts generally ordering 'standard disclosure');
  5. the introduction of an express duty to consider the use of technology to conduct cost-effective disclosure; and
  6. the introduction of an express duty to avoid providing documents that have no relevance to proceedings (i.e., 'document dumping').

ii Witness Evidence Working Group

As with disclosure, concerns have been raised in relation to oral evidence at trials, with the judiciary increasingly questioning whether, in commercial disputes, the benefits are proportionate to the time and cost incurred. Witness statements have become in many cases lengthy recitations of the documents, prepared by the legal team rather than concise statements of a witness's oral evidence in their own words; similarly, cross-examination frequently consists of a series of closed questions focusing more on the credibility of the witnesses than on the development of the factual story. In circumstances where the facts are increasingly available from the documentary evidence and research shows that the evidence of even truthful witnesses may still be fallible, certain members of the judiciary have recommended placing little reliance on witness evidence.

In light of this, the Business and Property Courts have established a Witness Evidence Working Group to review the current rules. In late 2018, the Working Group circulated a survey to court users seeking views on proposals to abolish witness statements and return to oral examination-in-chief, to abandon the process of witness evidence altogether in favour of pre-trial US-style depositions, to limit witness evidence to those allegations that cannot be proven by documentary evidence, or, most controversially, to lift privilege in the production of witness statements. The Working Group is yet to publish a response to the survey.

v INTERIM MEASURES

i Freezing orders and cyber fraud

In CMOC v. Persons Unknown,17 the High Court agreed for the first time to grant worldwide freezing orders against 'persons unknown' in a cyber fraud case where unknown hackers accessed a company's emails and misdirected its monies.

In a judgment18 given following the trial of the fraud claims, the same judge confirmed that the court's general power to grant injunctions against 'persons unknown' extends to freezing injunctions, especially where the goals of such injunctions are to: (1) notify banks of the fraud so that they will freeze accounts; (2) obtain information from those banks to support the claims being advanced; and (3) increase the possibility of the claimant eventually recovering the sums of which it has been defrauded.

Given the increasing complexity of cyber fraud and the difficulties involved in identifying the perpetrators, these freezing orders against 'persons unknown' may be expected to become increasingly common.

ii Without notice applications and the duty of full and frank disclosure

A series of cases have shown the importance when seeking freezing injunctions or permission to serve out of the jurisdiction of carefully fulfilling the duty of full and frank disclosure at the 'without notice' stage, failing which the courts are ready to set aside the orders.

In PJSC Commercial Bank Privatbank v. Kolomoisky,19 the High Court set aside a worldwide freezing order on the basis that the claimant had failed to explain material facts to the judge at the without notice hearing, particularly the fact that a very substantial proportion of the sums paid away by the bank had been repaid, and the fact that the English companies against which the claims were advanced and which were being used as 'anchor defendants' had a much less central role in the alleged fraud than appeared from the material presented to the judge at the without notice stage. At the time of writing this case is on appeal to the Court of Appeal.

A similar outcome occurred in The Libyan Investment Authority v. JP Morgan Markets,20 where the claimant sovereign wealth fund had obtained permission to serve out of the jurisdiction on parties alleged to have been instrumental in a fraudulent and corrupt scheme to procure a high value trade between the sovereign wealth fund and Bear Stearns (now JP Morgan Markets). The defendants alleged that the claimant had failed to comply with its duty of full and frank disclosure at the without notice stage. The judge agreed, considering that the claimant had failed to draw the court's attention to the fact that the defendants had more than credible arguments that the claim was time-barred.

vi PRIVILEGE AND PROFESSIONAL SECRECY

It is well-established in English law that litigation privilege protects not just communications between lawyers and clients, but also communications between clients or lawyers and third parties created for the dominant purpose of litigation that is reasonably in contemplation. On that basis, in internal investigations, litigation privilege has been relied on to protect communications with employees (including notes of interviews) who would themselves fall outside the strict definition of the 'client' for the purposes of asserting legal advice privilege.

As noted in the second edition of this publication, following the 2017 decision of the High Court in SFO v. ENRC,21 there had been considerable debate over the limits of litigation privilege in the investigations context. In particular, the High Court had suggested that in the context of potential criminal proceedings, litigation might not be 'in reasonable contemplation' until the time of a decision to prosecute (which usually occurs late in the process once an investigation is largely complete). The effect, therefore, was that a significant body of communications created during an investigation that had previously been assumed to be covered by litigation privilege may now have been disclosable.

The Court of Appeal has now overturned that decision.22 The court held that the whole subtext of the relationship between the SFO and ENRC was the possibility, if not the likelihood, of criminal prosecution if the self-reporting process did not result in a civil settlement. In those circumstances, the distinction between civil and criminal proceedings was illusory. Further, the documents brought into existence by ENRC's lawyers and accountants, as well as the interviews of ENRC's employees conducted by its lawyers, were created for the purposes of investigating the allegations and so were brought into existence for the dominant purpose of litigation. As such, these materials were properly covered by litigation privilege.

There remain, however, complexities in this area. In Byers v. Samba Financial Group,23 the High Court assessed whether, in the context of disclosure, correspondence between the defendant bank and its Saudi Arabian regulator was covered by litigation privilege. The question was whether the correspondence was created with the dominant purpose of information or advice in conduct of the litigation. The court found that where such correspondence was simply a request for approval or to update the regulator, the correspondence was not subject to litigation privilege. Where, however, its purpose was to seek advice from the regulator on how the company was to defend itself in the proceedings, it would be covered by litigation privilege. The decision is subject to an appeal at the time of writing.

vii JURISDICTION AND CONFLICTS OF LAW

Two cases have recently examined the English courts' stance on competing jurisdiction clauses where transactions are governed by ISDA master agreements.

In Deutsche Bank v. Comune di Savona,24 the bank and an Italian local authority entered into a wide-ranging advisory agreement expressly subject to the exclusive jurisdiction of the Italian courts, and then entered into two swaps agreements under an ISDA master agreement expressly subject to the exclusive jurisdiction of the English courts. The Court of Appeal held that the swaps agreements were self-contained contracts to be interpreted on their own regardless of the prior advisory relationship, and so disputes arising in connection with those swaps, including whether the local authority had relied on advice from the bank when entering into them, fell to be determined by the English courts.

A similar fact-pattern was reviewed by the Court of Appeal in BNP Paribas v. Trattamento Rifiuti Metropolitani.25 Here, the bank and the Italian company entered into a syndicated financing agreement, with the bank as lead bank, containing an exclusive Italian jurisdiction clause. The bank and the company then entered a swaps agreement, incorporating an ISDA master agreement containing an exclusive English jurisdiction clause. Even though the ISDA master agreement contained a clause stating that, in the event of conflict, the financing agreement should prevail, the court held that the relevant jurisdiction for claims of declaratory relief in relation to the swaps agreement was England since the financing agreement envisaged the parties entering into hedging agreements subject to ISDA master agreements with English (or New York) jurisdiction clauses, and so, taking a broad commercial view of the parties' relationship, where the dispute naturally arose from the swaps agreement, the English court would accept jurisdiction.

These cases reflect an established chain of authority that holds that, in complex transactions with competing jurisdiction clauses, the presumption is that the parties must have intended that the jurisdiction clause closest to the 'commercial centre of the transaction' would apply.26

viii SOURCES OF LITIGATION

i Mis-selling claims

While mis-selling claims against banks in relation to complex transactions or financial instruments will continue to generate litigation, the scope of such litigation has been much reduced since the Court of Appeal's 2018 decision in PAG v. RBS27 that, in the absence of an advisory relationship, a financial institution will owe no duty to explain the effect of a proposed transaction. The Supreme Court has now refused permission for a further appeal.

A key example of the court's unwillingness to find that a bank's customer was misled by the bank in respect of alleged manipulation of inter-bank offered rates is Marme Inversiones 2007 v. Natwest Markets.28 There, the High Court applied the test for implied misrepresentation set down in PAG v. RBS in the course of examining alleged misrepresentations in respect of EURIBOR. The court found that the representations relied upon by the claimant were too vague and imprecise. Further, even if the representations had been made, the claimant had given no real thought to how EURIBOR was set and would have been unware of the representations themselves, so would not have relied on them and would not have altered its conduct, meaning that no loss had been suffered in any event.

ii Multilateral Interchange Fee claims

Claims arising from historical Multilateral Interchange Fee (MIF)s charged by Mastercard and Visa continue to be a significant source of litigation. The largest potential claim is an application issued in 2016 for permission to bring an opt-out consumer class action against Mastercard under the UK's new competition collective proceedings regime. The proposed class covers all UK-resident individuals over 16 who purchased goods or services from UK businesses that accepted Mastercard between 1992 and 2008 (estimated to be 46.2 million individuals); the applicant is seeking damages of approximately £14 billion including interest.

In 2017, the Competition Appeal Tribunal had refused the application on the basis that the applicant had not established an effective methodology (nor the availability of data) for the calculation of pass-on of the overcharge to the class-members, nor had they established a plausible means of distributing an aggregate damages award so as to reflect the loss suffered by individual claimants.29 On appeal, however, the Court of Appeal found that the Competition Appeal Tribunal required too high a standard in relation to the evidence required and erred in requiring that the distribution be carried out by some means that corresponds to individual loss, finding that the application should instead be remitted back to the Competition Appeal Tribunal for re-hearing.30

Mastercard has subsequently been granted permission to appeal to the Supreme Court. Practitioners are awaiting the outcome of this case with interest. It is expected to play a key role not only in clarifying the operation of the new collective proceedings regime, but also in energising or curtailing the growth of competition class actions in the UK.

iii Foreign exchange claims

Similarly, the European Commission investigation into manipulation of the foreign exchange (FX) market, culminating in an infringement finding against five banks in May 2019, looks likely to be the source of significant litigation. To date, claims have been filed against a number of banks in respect of losses suffered by specific institutional investors and, as with the MIF claims above, an application for an opt-out follow-on collective proceedings order has been filed with the Competition Appeal Tribunal with a proposed class covering investors participating in institutional foreign exchange trading. The claim is estimated to be worth more than £1 billion.

ix EXCLUSION OF LIABILITY

It is well established that a bank will be liable to its customer in negligence if it makes a payment in circumstances where it has reasonable grounds for believing that the request is an attempt to misappropriate the funds of its customer – referred to as a Quincecare duty.31

In Nigeria v. JP Morgan Chase Bank,32 the High Court considered whether this Quincecare duty may be defeated by entire agreement, exclusion and indemnity clauses in the bank mandate. The court held that as the Quincecare duty was a valuable and important duty, it required particularly clear wording to be excluded, which was not satisfied by the standard-form wording in the bank mandate. Shortly before publication, the Court of Appeal affirmed this decision.33

The question of the impact of the Quincecare duty is likely to come under increased scrutiny by the courts following the 2017 case of Singularis Holdings v. Daiwa Capital Markets Europe34 where, as discussed more fully in the First and Second Editions of this Review, the court for the first time found a bank liable for breach of the duty. At the time of writing, the case is on appeal to the Supreme Court (though the appeal, as argued, relates to defences raised by the bank, rather than the existence of the duty).

x OUTLOOK AND CONCLUSIONS

i Brexit

At the time of writing, the negotiation of the UK's withdrawal from the EU remains ongoing, with the default position being exit without a deal on 31 October 2019. This has caused significant uncertainty in the UK legal community, with key concerns remaining as to choice of jurisdiction, recognition and enforcement of judgments, and the potential absence of any transitional period to implement new domestic legislation.

Nevertheless, as recently emphasised by the Chancellor of the High Court in a speech to European colleagues, the fundamental strengths of the English legal system remain, including legal certainty, well-established procedure, the flexibility of the common law to adapt rapidly, and the presence of a highly skilled judiciary. In a reflection of this, the available data does not suggest that the volume of cases being brought in the UK courts has yet been affected by Brexit.

ii Continued reform of court procedure

In any event, the economic and legal uncertainty fostered by Brexit may be expected to act as an incentive for continued reform of court procedure in the UK. As discussed in Section IV, initiatives such as the disclosure pilot scheme and Witness Evidence Working Group are already focusing on finding ways to reduce the cost and complexity, and increase the efficiency, of court proceedings in the UK. Further, the specialist Financial List, which was introduced in 2015 in the Business and Property Courts, continues to provide a useful forum for particularly valuable, technical or significant disputes related to financial markets, ensuring that they are heard by judges with relevant experience or expertise.

This trend towards procedural flexibility may be expected to continue in line with the judiciary's focus on ensuring that the UK remains an attractive jurisdiction for resolving international commercial disputes.

iii Cases to watch

As set out in Section VIII, significant attention will be focused on the outcome of Mastercard's appeal to the Supreme Court in relation to the application for the collective proceedings order against it. If the Supreme Court affirms the Court of Appeal's claimant-friendly approach, the burden for bringing collective proceedings will have been significantly lowered with a consequential increase in the potential exposure for banks, financial institutions and other parties at risk of competition infringement findings.


Footnotes

1 Deborah Finkler is a partner at Slaughter and May. The author would like to thank Timothy Sherwin, a barrister at XXIV Old Buildings on secondment to Slaughter and May, and James Dobias, a former associate at Slaughter and May and currently an investment officer at Therium, for their input on the chapter.

2 [2018] EWCA Civ 2407.

3 [2019] EWCA Civ 771.

4 [2018] EWHC 1935 (Comm).

5 [2019] EWCA Civ 1102.

6 [2019] EWCA Civ 1361.

7 [2009] UKHL 38.

8 [2015] UKSC 17.

9 [2019] EWHC 379 (Ch).

10 [2018] EWHC 3137 (Ch).

11 [2018] EWHC 1829 (Ch).

12 [2000] Ch 86 (CA).

13 [2019] EWCA Civ 1105.

14 [2018] EWHC 2719 (Comm).

15 [2018] EWCA Civ 2416.

16 [2019] EWCA Civ 344.

17 [2017] EWHC 3599 (Comm).

18 [2018] EWHC 2230 (Comm).

19 [2018] EWHC 3308 (Ch).

20 [2019] EWHC 1452 (Comm).

21 [2017] EWHC 1017 (QB).

22 [2018] EWCA Civ 2006.

23 [2019] EWHC 951 (Ch).

24 [2018] EWCA Civ 1740.

25 [2019] EWCA Civ 768.

26 See, for instance, UBS v. HSH Nordbank [2009] EWCA Civ 585.

27 [2018] EWCA Civ 355.

28 [2019] EWHC 366 (Comm).

29 [2017] CAT 16.

30 [2019] EWCA Civ 674.

31 Derived from Barclays Bank plc v. Quincecare Ltd [1992] 4 All ER 363 (Comm).

32 [2019] EWHC 347 (Comm).

33 [2019] EWCA Civ 1641.

34 [2017] EWHC 257 (Ch).