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Former BHS directors in breach of duties and personally liable despite taking professional advice on insolvency. Where does this leave directors of distressed companies?
02 July 2024The High Court has handed down a 533-page judgment in proceedings brought by the liquidators of BHS against its former directors for wrongful trading and misfeasance trading, finding them personally liable for at least £18 million. The case is of great significance to directors of distressed companies. We analyse some key points arising.
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Contract Interpretation Guide
29 May 2024The meaning of words used in contracts is of key importance. The choice of certain words or phrases can significantly impact upon the obligations of one party to another and using them in contracts without thought to their meaning and implications can result in uncertainty, unintended consequences, a mismatch of expectations and, ultimately, legal disputes.
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Unsigned contracts prior to performance
29 May 2024Though not best practice, it is not uncommon for parties to begin to perform duties under a contract before it is signed. When this situation arises, the question is what terms, if any, are the parties bound by?
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Contractual good faith
29 May 2024The concept of good faith is something of a problem child in contract law. English law has no general doctrine of good faith in contracts. The law has traditionally prized party autonomy in contract formation. That being the case, contracting parties are free to agree to include duties and obligations of good faith in their agreements. This is frequently done, and so despite the absence of a good faith doctrine, the English courts have nevertheless grappled with the question of what is meant by a duty of good faith when interpreting contracts containing such provisions.
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Interpretation of exemption clauses
29 May 2024Parties often include provisions in their contracts that seek to exclude (in its entirety) or limit (to a particular level) a contracting party’s liability in respect of certain types of liability or loss. These clauses can serve the useful purpose of allocating risk between the parties and thereby giving the parties certainty as to what their potential exposure is under the contract.
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What type of breach?
29 May 2024Contractual breaches can come in many forms. Some are serious, giving the wronged party the right to terminate the contract. Others will be more minor, and might be easily remediable. It can be useful to think of contractual breaches as a sliding scale, with repudiatory breaches at one end, and minor, remediable breaches at the other.
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When is consent unreasonably withheld?
29 May 2024The phrase ‘consent not to be unreasonably withheld’ is often seen in commercial contracts. However when is withholding consent actually unreasonable and how can this be determined?
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Contract termination checklist May 2024
15 May 2024We have produced a contract termination checklist exploring issues to consider when terminating contracts, common pitfalls and how to avoid getting it wrong.
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Hong Kong Asset Tracing: Letter of No Consent ≠ Freezing Order 香港资产追踪: 不同意书 ≠ 冻结令
17 April 2024A recent Court of Final Appeal decision upholds the constitutionality of the letters of no consent regime as operated by the Hong Kong Police Force. 终审法院最近的一项判决维持了香港警方实施不同意书制度的合宪性。
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HK SFC Enforcement Action - CFOs of listed companies beware 香港证监执法行动 - 上市公司首席财务官要小心
09 April 2024A recent High Court decision confirmed that directors of listed companies may be disqualified and / or ordered to personally compensate the company for the misappropriation of company funds by other officers, even in the absence of any financial gain by the director.
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Auditors may owe duty to buyer of shares despite disclaimer
21 March 2024The High Court found that there would be a real prospect at trial of the buyers of shares of a company succeeding with a claim that auditors would be liable to them for failures when preparing the company’s accounts, despite a contractual disclaimer.
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Unfair prejudice petitions - statutory limitation periods do apply
21 March 2024The Court of Appeal ("COA") has recently confirmed that statutory limitation periods under the Limitation Act 1980 ("LA 1980") do in fact apply to unfair prejudice petitions under the Companies Act 2006 ("CA 2006"), despite it having been understood for over 40 years that they did not.
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Varying a worldwide freezing order: timely collaboration and transparency is key – Lewis Silkin advises successful respondent
07 March 2024An attempt to vary a £88m worldwide freezing order to permit the sale of a significant London property was successfully resisted recently by the Claimant, represented by Lewis Silkin. We explore the issues arising in the recent High Court judgment, which confirmed the importance of timely collaboration and transparency when considering the variation of a freezing order.
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Guidance on key concepts of privilege from Court of Appeal
15 February 2024The Court of Appeal ("COA") has handed down a judgment dealing with a number of important points regarding the scope of legal professional privilege and the iniquity exception.
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Court backs decisions regarding cancellation of nickel trades
06 February 2024Towards the end of 2023, the Administrative Court handed down a judgment in R (on the application of Elliott Associates LP and others) v The London Metal Exchange and LME Clear Limited [2023] EWHC 2969 (Admin), rejecting a challenge to decisions made regarding the cancellation of nickel trades in a “disorderly market” in March 2022 and associated claims for damages. We consider key aspects of the decision and implications for the market.
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Litigation trends
11 January 2024Our Dispute Resolution team has compiled an overview of some of the key themes we are seeing in the litigation landscape of England and Wales.
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Commercial dispute resolution: navigating the economic downturn
06 February 2023After-shocks of the COVID-19 pandemic, the war in Ukraine, sky-high inflation, “mini-budget” fiascos and the revolving door of number 10: as we settle into 2023, many of the political, humanitarian and economic events of 2022 and beyond continue to have a huge impact on businesses grappling with uncertainty and financial instability.
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Dealing with a counterparty who is facing insolvency
03 February 2023There’s been widespread coverage of the impending economic downturn. The pressures of the war in Ukraine, the consequential energy crisis, high inflation and labour shortages have combined to create forceful economic headwinds.
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How to mitigate the impact of inflation and supply chain disruptions on commercial contracts
03 February 2023These are undoubtedly difficult times for businesses. Supply chain disruptions that emerged following the pandemic have contributed to a burst of global inflation which has led to record increases in costs such as energy, wages and transportation as well as higher interest rates.
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The importance of pro-active contract management in an economic downturn
03 February 2023Efficient contract management is an essential part of running any business. This is never more important than during times of economic uncertainty when businesses need to keep a close eye on contract performance, regularly review and monitor whether contracts still meet the business’ changing requirements and remain vigilant to the key indicators of potential failings or breaches.