Insights & News

The regulator and the right of reply: two recent cases involving the Financial Reporting Council

Case Study

29 October 2018

The Financial Reporting Council (FRC) is the regulator for UK statutory audits. Its responsibilities include setting audit standards, as well as enforcing the quality of audit. It is the investigative and disciplinary body for UK accountants dealing with cases affecting the public interest. FRC investigations naturally focus on those under its jurisdiction, such as its member accountancy firms and individual auditors. Sometimes, however, the conduct of the audited company and its managers will also be relevant. Two recent cases have discussed the duties owed by the FRC to these entities. The cases will be relevant to other regulators.

SFO v ENRC landmark privilege case: no appeal but the story continues…

10 October 2018

The Serious Fraud Office (SFO) has confirmed that it will not appeal the Court of Appeal’s landmark ruling that documents created during an internal investigation by Eurasion Natural Resources Corporation (ENRC) were protected by litigation privilege and do not have to be disclosed to the SFO. However, the story does not end there because in a new twist, ENRC has applied for a judicial review of the SFO’s investigation into criminal allegations of corruption and financial wrongdoing by ENRC.

SFO V ENRC: Landmark privilege decision by Court of Appeal

10 September 2018

The Court of Appeal has handed down its much anticipated decision in the Serious Fraud Office (“SFO”) v Eurasian Natural Resources Corporation Limited (“ENRC”) appeal. In a judgment that will leave many lawyers breathing a heavy sigh of relief, the Court of Appeal overturned large parts of Mrs Justice Andrews’ first instance decision.

Clive Greenwood and Frances Simm write for Accountancy Age: Compulsory retirement: avoiding the partner pitfalls

Press

20 August 2018

In an article for Accountancy Age, Clive Greenwood and Frances Simm discuss the rules and processes involved when compelling an individual to retire from a business they co-own.

Supreme Court delivers key judgment on the availability of Wrotham Park “negotiating” damages

02 July 2018

The Supreme Court has considered an important question in relation to damages. In what circumstances can damages for breach of contract be assessed by reference to the sum the claimant could hypothetically have received, known as Wrotham Park damages, in return for releasing the defendant from the obligation he had failed to perform?

You’ve started – so you’ll finish

11 June 2018

Claimants commencing proceedings in the Courts of England and Wales may not be able to end those proceedings simply by serving a notice of discontinuance and can be required to take the matter to trial. In this case the claimants were not permitted to discontinue their claim for the recognition and enforcement of an arbitration award under the New York Convention.

Supreme Court upholds requirement to record variations in writing

24 May 2018

Rock Advertising Limited v MWB Business Exchange Centres Limited is an important case. In fact, the opening paragraph of Lord Sumption’s judgment describes it as an “exceptional” appeal, raising “truly fundamental issues” of contract law.

Liquidator loses protection of a freezing order following serious failings at earlier ex parte hearing

14 May 2018

In Banca Turco Romana S.A. (in liquidation) v Cortuk and Others, the Commercial Court in London has underlined the need for applicants to give full and frank disclosure when seeking relief at ex parte (without notice) hearings.

Service of a Claim Form by email – get it wrong at your peril

27 March 2018

Communicating by e-mail is common practice. However unless you adhere to the procedural steps required by the Civil Procedure Rules service of a claim form by email will be defective. The Supreme Court’s decision considered whether to grant relief from sanctions to an unrepresented party for failing to adhere to the procedural steps.

This is my advice. By the way, it might be wrong!

05 March 2018

When do solicitors have to warn their client that the advice they are giving may turn out to be incorrect? The Court of Appeal has recently considered this issue.

Early Specific Disclosure Applications – factors the court will consider

22 January 2018

A decision in the Technology and Construction Court (“TCC") sheds light on the applicable test for early specific disclosure and the relevant considerations in making a successful application. Applications for early specific disclosure are relatively rare so the judgment provides helpful guidance.

English courts and overseas defendants: jurisdiction challenges and the “two-fold test”

15 January 2018

When a dispute involves a foreign party or events that took place in another jurisdiction, questions often arise as to where the dispute should be determined.

Compulsory mediation?

11 January 2018

In October 2017 the Civil Justice Council (CJC) published its interim report on the future role of alternative approaches to dispute resolution (ADR). The report makes various recommendations as well as inviting responses. It follows input from a working group tasked in January 2017 to examine uptake of ADR in civil justice. The primary purpose of the report is to find ways to encourage its use.

Disclosure in English litigation: a sea change is coming

09 January 2018

English rules on disclosure (‘discovery’ in many jurisdictions) are set for a major overhaul. Draft rules were published in November 2017. Once approved by the Civil Procedure Rules Committee, the resulting draft is intended to be introduced as part of a pilot scheme lasting 2 years, potentially beginning in April 2018 and running in the Business and Property Courts. This will cover virtually all High Court litigation. It will not be optional.

Erosion of privilege – Law Society seeks to intervene

08 January 2018

The Law Society is applying to intervene in the upcoming appeal of the landmark privilege decision in Serious Fraud Office (“SFO”) v Eurasian Natural Resources Corporation Limited (“ENRC”).

Use of disclosed documents to threaten new proceedings was a breach of court rules and may amount to a contempt of court by the solicitor and client

12 December 2017

The Civil Procedure Rules (CPR) provide that using documents disclosed in existing proceedings (except for the specific purposes allowed) breach the rules. CPR 31.22 provides various exceptions to when a document disclosed in a set of proceedings may be used. Any use outside of the rules could also amount to a contempt of court. Both the client who relied on the solicitor’s advice and the solicitor may be equally vulnerable to the contempt proceedings where there is no evidence of deliberate or reckless misconduct by the solicitor.

Service of a claim form on an agent - was it valid?

22 June 2017

In a recent case the High Court considered as a preliminary issue whether a claimant had validly served a claim form on what they considered was the agent of the claimant. The rules of service require that the defendant must be served at the place within the jurisdiction where it conducts business, or where it carries on its activities and which has a real connection with the claim. Therefore the question here was whether the agent’s office was a place at which the defendant conducted its business, or where it carried on its activities?

Preparing to issue proceedings

Inbrief

26 April 2017

This note provides general guidance on the steps to consider prior to embarking on litigation. There are a number of practical considerations that should be taken into account. The civil justice system in England expects parties to take a certain number of steps before issuing proceedings. This guide runs through these matters in outline.

Marathon Asset misses the jackpot again

12 April 2017

After being awarded only £2 in nominal damages in its breach of confidence case, Marathon Asset has been heavily penalised on costs after failing to accept the defendants’ Part 36 offer.

Court considers service of a defendant’s notice to force claimant to serve proceedings or discontinue a claim

14 February 2017

A recent decision not only reminds practitioners of a defendant’s ability to force a claimant to either serve proceedings or discontinue a claim by using a CPR 7.7(1) notice, but also considers for the first time the date for compliance with such a notice.