Articles

A Key to Unlock Many Doors? Norwich Pharmacal Relief: A Jurisdictional Comparison

Kit Smith of Keidan Harrison examines certain key jurisdictions’ approaches to Norwich Pharmacal relief and how, if at all, those disclosures can be deployed in aid of foreign proceedings.

Norwich Pharmacal Relief – The Perfect Ointment for Victims of Fraud?

Kit Smith and Nathan Tidd of Keidan Harrison consider the background to and the test for Norwich Pharmacal relief, the effect of the decisions in  Linda May Green v CT Group Holdings Limited [2023] EWHC 3168 (Comm) and Davidoff & Ors v Google LLC [2023] EWHC 1958 (KB) on the availability of relief under the jurisdiction and potential future implications.

Withdrawn from the Frontline – Banks excused from fight against APP Fraud by Supreme Court

In this article, Kit Smith of Keidan Harrison looks at the Supreme Court decision in Philipp v Barclays Bank UK PLC [2023] UKSC 25, the position for corporate claimants and individual claimants alike and statutory developments on the horizon.

The importance of being just before you are generous: Transactions defrauding creditors and Invest Bank

Claims under s. 423 of the Insolvency Act 1986 have long been part of the insolvency practitioner’s and fraud lawyers’ respective toolkits. The recent decision of the Court of Appeal in Invest Bank PSC v Ahmad Mohammad El-Husseini and Ors [2023] EWCA Civ 555 has strengthened the terms of the provision and provides an enhanced weapon against those debtors who use holding vehicles to house their assets behind a corporate veil, seemingly beyond the reach of creditors.

In this article, Kit Smith of Keidan Harrison considers the scope of s. 423, why it is so helpful to those claiming against fraudsters and how the decision in Invest Bank improves matters for claimants.

Crypto fraud and the bona fide purchaser for value defence

Helen Pugh of Outer Temple Chambers considers the bona fide purchaser for value defences at common law and in equity and their application to crypto transactions tainted by fraud.

This article was first published in Butterworths Journal of International Banking and Financial Law in January 2023.  It was subsequently cited by the Law Commission in its Digital Assets Final Report in July 2024.

Knowing receipt and the proprietary base

Helen Pugh of Outer Temple Chambers examines the first instance decision in Byers and Dickson (as joint official liquidators of Saad Investments Company Limited) and Saad Investments Company Limited (in liquidation) v Samba Financial Group [2021] EWHC 230 (Ch); a High Court decision in a knowing receipt claim against a Saudi Arabian bank which considered the vexed issue of whether a beneficiary must have a continuing equitable interest enduring upon receipt of the property by the recipient to establish a knowing receipt claim. 

The first instance decision was subsequently upheld by the Court of Appeal ([2022] EWCA Civ 43) and Supreme Court ([2023] UKSC 51).

This article was first published in Butterworths Journal of International Banking and Financial Law in May 2021.

Search Orders: Back to the Future

Steven Bird of PCB Litigation LLP considers the Court of Appeal’s judgment in TBD (Owen Holland) Limited v Simons & Ors [2020] EWCA Civ 1182 and considers whether it signifies a change of approach that might result in “imaging orders” largely replacing search orders.

A freeze on fraud?

Jon Felce of PCB Litigation LLP discusses the increase of fraud in economic crises and how the English legal system is well placed to tackle this.

Alert: yes we can. Remote Justice. The New Norm!

This article will (i) review the recent legislation, guidance and protocols as they applies to commercial litigation in the High Court (ii) identify some of the key practical challenges for court users and judges, and (iii) raise some (so far) unanswered questions, in particular, whether any or all of the measures that are now being introduced will continue once the pandemic subsides and the courts reopen fully.

Article by Jane Colston (Partner) and Ravinder Thukral (Partner) of Brown Rudnick LLP

When the Banks Must Say No – the Quincecare duty

Handout from talk given by Paul Downes QC, Stewart Chirnside and Simon Oakes of Quadrant Chambers on 3 December 2019.

Commercial Fraud Litigation – London pow-wow, June 2019

Commercial Fraud Litigation article discussing current trends.  Authors: Jane Colston, Gerald Byrne, Jessica Lee and Joanna Curtis of Brown Rudnick LLP

This article was first published in the IBA Litigation Committee newsletter in September 2019, and is reproduced by kind permission of the International Bar Association, London, UK. © International Bar Association.

Unlawful Means Conspiracy and Knowledge of Unlawfulness – Continued Chaos

Matthew Bradley of 4 New Square considers whether a claimant must prove knowledge of the fact of unlawfulness on a defendant’s part, in order to establish an unlawful means conspiracy.

This article discusses two divergent first instance decisions handed down in February and May 2019 (Stobart Group v Tinkler and The Racing Partnership Ltd v Done Brothers), each of which follows a different line of Court of Appeal authority on the point. It addresses how this set-to goes to the very heart of the tort of unlawful means conspiracy, and the potential implications for litigants seeking to bring claims in the economic torts.

APP Cyber Fraud Commercial Litigators Perspective

Shail Patel discusses the APP (“authorised push payment”) fraud and related cyber frauds and how they have featured heavily in the financial and mainstream press lately.

These scams involve the victim being tricked into making an instant electronic payment to fraudsters instead of the intended recipient.

Financier Worldwide – Corporate Fraud Roundtable

Corporate Fraud roundtable discussion reprinted from November 2018 issue of Financier Worldwide magazine.

‘Hodl’, ‘Hit the moon’, ‘Lambo’, ‘Miners’

Brown Rudnick’s Jane Colston considers asset tracing and enforcement across the blockchain in a new article published by Legal Business.

Property Alliance Group v RBS (2018) EWCA Civ 355

Shail Patel discusses the Court of Appeal’s decision in Property Alliance Group v RBS (2018) EWCA Civ 355. The outcome is a decisive victory for RBS over PAG. However, the door has undoubtedly been opened for other potential claimants.

While the CA also made some significant findings on the bank’s advisory duties and implied contractual terms, this article focuses on LIBOR and benchmarks. Many negligence and contract claims arising out of swaps mis-selling are likely to be statute barred under the Limitation Act 1980.

Legal update – Bilta Ors v RBS Anor

Alan Sheeley discusses the law regarding the privileged status of investigations has been in flux since Serious Fraud Office (SFO) v Eurasian Natural Resources Corporation Ltd (2017) EWHC 1017 (QB) (“ENRC”) was handed down in May 2017.

The recent decision of Bilta & Ors v RBS & Anor (2017) EWHC 3535 (Ch) (“Bilta”), in which Pinsent Masons acted on behalf of RBS, is therefore an important decision as it confirms that ENRC is not a determinative statement of principle as privilege can apply to investigations on the right set of facts.

Artificial Intelligence: Change before you have to

Jane Colston and Louise Verrill of Brown Rudnick LLP report on the use of Artificial Intelligence in the insolvency profession. This article was originally published by Eurofenix

First ever search order against a third party granted: the Chabra moment for search orders

Trevor Mascarenhas and Jon Felce of PCB Litigation LLP consider Abela and others v Baadarani (Third Party: Fakih) [2017] EWHC 269 (Ch), where a search order was granted against a third party.

Notification Injunction: Belgravia, Boats and Bootstraps

Jane Colston and Roger Kennell of Brown Rudnick LLP consider Holyoake v Candy [2016] EWHC 970 (Ch) in which the Chancery Division granted a “notification injunction” requiring subsequent disclosure of the disposal of property assets rather than a full freezing order preventing their disposal in the first place.

The decision raises interesting questions about what must be shown by a claimant to get such an injunction, whether risk of dissipation should be proven to a lower standard for the lesser remedy, and whether fortification of the undertaking in damages by the claimant is required.

A big step forwards for backwards tracing

Alan Sheeley and Craig Connal QC of Pinsent Masons LLP review a recent Privy Council ruling that relaxes the restrictions on recovering fraudulent payments through backwards tracing. This article was first published in the Trust Quarterly Review, Volume 13, Issue 4 2015.

Fraud and Related Bars to Enforcement of Foreign Judgments

Clive Freedman QC of 7 King’s Bench Walk examines various bars to the enforcement or recognition of judgments based upon fraud, public policy, breaches of natural justice, and judgments amounting to penalties.

Fraud and Related Bars to Enforcement of Foreign Judgments

Clive Freedman QC of 7 King’s Bench Walk examines various bars to the enforcement or recognition of judgments based upon fraud, public policy, breaches of natural justice, and judgments amounting to penalties.

Fraudulent Directors and the Impact on Companies: Victims or Wrongdoers?

Alan Sheeley and Mehmet Karagoz of Pinsent Masons LLP analyse the recent UK Supreme Court decision in Jetivia SA and another v. Bilta (UK) Ltd (in liquidation) and Others [2015] UKSC 23, in which it was decided that a company can pursue a claim against its directors for a breach of duty and that it will not be prevented from doing so by the illegality defence on the basis that the knowledge of the directors is not attributed to the company.

Does Lord Make a Difference

Anthony Edwards and Matthew Hardcastle of TV Edwards consider the practical impact of the judgment in R (Lord) v SFO [2015] EWHC 865 (Admin), which concerned the legality of the Serious Fraud Office’s decision to deny the attendance of a specific firm of solicitors to a compulsory interview held under s. 2 Criminal Justice Act 1987 in circumstances where the interviewees chose to be represented by the same firm of solicitors acting for their corporate employer.

Interviews Under Caution

Anthony Edwards and Matthew Hardcastle of TV Edwards examine the impact of developments in the Codes of Practice made under the Police and Criminal Evidence Act 1984 on interviews under caution, pre-interview disclosure of information, search warrants and adverse inference/pre-interview disclosure.

Keeping a Cool Head

Jane Colston of Stewarts Law considers the position of a defendant faced with a freezing injunction and the need to keep a ‘cool-headed’ approach.

Search and seizure orders, and the key role of supervising solicitors

Jane Colston and Andrew Hill of Stewarts Law examine the process of obtaining a search and seizure order and the duties and obligations of the supervising solicitor.