<p>Filter Knowledge</p>

In this briefing we explore the risk that a lender might renege (voluntarily or involuntarily) on its funding commitments. We touch on the different types of lender entities in the market currently and examine why there are often different reasons behind such a failure to fund.

In this podcast Jonathan Gilmour, Peter Hughes, John Lee and Adam Schnider consider the implications of the recent collapse of cryptocurrency exchange FTX. They discuss some of the key issues that could arise from the insolvency of FTX or other crypto investment firms more generally, including priority of claims, proprietary rights in crypto-assets, tracing and recovery of crypto-assets, and cross-border insolvency issues.

The High Court held in Thomas & Ors v Metro Bank [2022] EWHC 2112 (Ch) that a trustee in bankruptcy had waived privilege in certain Russian law legal advice, and the underlying instructions, by summarising the advice in a witness statement written in support of a section 366 Insolvency Act inquiry.

Our regular round-up of recent and forthcoming developments in law and practice for in-house counsel.

In the recent decision of University of Dundee v Chakraborty [2022] EAT 150, the Employment Appeal Tribunal (EAT) considered whether a report, which had at an earlier stage of proceedings been non-privileged, could acquire privileged status following the incorporation of legal advice by solicitors. The case provides a helpful restatement of the rules relating to legal advice and litigation privilege.

Welcome to the eighth edition of our quarterly disputes newsletter, which covers key developments in the dispute resolution world over the last three months or so.

The High Court has ruled in favour of a spread betting firm that exercised its sole discretion in closing out a client's trading position during a period of significant market volatility.

The Government has published legislation giving it wide-ranging powers to revoke or reform retained EU law. Among other things, it includes a proposal for the majority of retained EU legislation to expire at the end of 2023, unless expressly preserved in some form.

On 27 September 2022, the English High Court granted summary judgment and declaratory relief in favour of the bank Dexia Crediop SpA ("Dexia") on a number of issues arising in its claim against the Italian province of Pesaro e Urbino ("Pesaro"). In bringing its claim, Dexia has sought declarations regarding the validity and enforceability of interest rate swaps executed between the parties in 2003 and 2005.

The Arbitration Act 1996 (the "Act") provides a framework for arbitration proceedings seated in England and Wales or Northern Ireland. It has played a key role in cementing London's status as a leading seat for commercial arbitrations.

In the recent decision in Pickett v Balkind [2022] EWHC 2226 (TCC), the High Court considered the circumstances in which injunctive relief can be obtained following the mistaken disclosure of privileged documents. The decision provides a useful restatement of the legal principles underpinning privilege in court proceedings.

Partner John Lee has been featured in the Butterworths Journal of International Banking and Financial Law for his article titled, 'The endgame: issues in enforcement against cryptoassets' which considers methods of enforcement against cryptoassets, including the possibility of recovering cryptoassets without the authorisation of the private key.

The Solicitors Regulation Authority ("SRA") is the latest organisation to indicate that it is looking to curb the use of so-called Strategic Lawsuits Against Public Participation ("SLAPPs") in England & Wales. This proposed intervention follows the recently proposed interventions by both the Ministry of Justice and, from a European perspective, the European Commission. 

In its judgment of 10 June 2022, the Court of Appeal upheld the High Court's decision that a €480 million claim against manufacturers of smart card chips ("SCCs") found to have infringed EU competition law was time-barred.[1]

In an application under the disclosure pilot scheme, the High Court has clarified the circumstances in which a document will be considered to have been "mentioned" in a witness statement and is therefore disclosable under paragraph 21 of Practice Direction 51U (PD51U).

The decision of the Court of Appeal in Barclay-Watt v Alpha Panareti Public Ltd [2022] EWCA Civ 1169 provides a clear articulation of the principles that the Court will apply in determining whether an individual is personally liable for having assisted a tortious act committed by the company of which they are a director.

On 8 July 2022, the Court of Appeal handed down its long-awaited judgment in the Municipio De Mariana group litigation claim, granting permission for some 200,000 Brazilian claimants to pursue in the UK their group action for damages caused by the collapse of the Fundão Dam in Brazil in 2015.

Whether it's the Northern Ireland Protocol or what to do about retained EU law, numerous Brexit-related issues continue to lurk in the new Prime Minister's in-tray. A key challenge will be how and where to strike the balance between the urgent need for measures to tackle the cost of living crisis and political pressure for action on Brexit-related issues raised during the leadership campaign. 

In a case involving an exclusive jurisdiction clause for the English courts and parallel criminal proceedings in the Vatican, the Court of Appeal has confirmed that there is a single correct test for granting a case management stay. The relevant question for the Court is "whether in the particular circumstances it is in the interests of justice for a case management stay to be granted".