Financial Services Disputes and Regulation
Herbert Smith Freehills Podcasts
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A series of thought leading podcasts ranging on topics and sectors by Herbert Smith Freehills. For more information please visit www.herbertsmithfreehills.com
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Sep 11, 2023
Banking Litigation Podcast EP41: Monthly update - July/August 2023
In this edition of our banking litigation podcast, we consider some recent cases that will be most relevant to in-house lawyers at banks and financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guest Scott Warin.
You can find links to our blogs on the cases covered in this podcast below:
* The Supreme Court’s judgment in Philipp v Barclays: key takeaways for financial institutions executing customer payments
* High Court confirms refusal of permission for ClientEarth derivative action against Shell directors
* High Court refuses permission to continue derivative claim against bank as an alleged shadow director
* Supreme Court decision today means most existing UK litigation funding agreements likely to be unenforceable
* UK government confirms plans for compulsory mediation in the County Court and decides against statutory regulation of the mediation sector
* English Commercial Court takes rare decision to refuse enforcement of arbitration award on public policy grounds in crypto case
Don't forget to subscribe to the banking litigation blog.
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Jul 3, 2023
Banking Litigation Episode 40: Monthly update - May/June 2023
In this edition of our banking litigation podcast, we consider some recent cases that will be most relevant to in-house lawyers at banks and financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guest Eleanor Dole Sheaf.
You can find links to our blogs on the cases covered in this podcast below:
* High Court considers impact of Russian sanctions regimes in UK, EU and US on payment obligations under standby letter of credit
* High Court dismisses claim to recover US investment bank’s success fee in connection with the public offer of shares in Indian bank
* High Court refuses permission for climate-change activist shareholder to bring derivative action on behalf of Shell plc against its directors
* Litigation privilege not restricted to parties to litigation, and other helpful points regarding privilege
* UK listing and prospectus regime reform: potential impact on securities litigation
* The end of the road for USD LIBOR?
* Retained EU Law: no sweeping sunset at the end of the year
* Biannual Banking Litigation Update (Spring 2023)
Don't forget to subscribe to the banking litigation blog.
Speakers: John Corrie (Partner), Ceri Morgan (Professional Support Consultant), Eleanor Dole Sheaf (Senior Associate).
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May 2, 2023
Banking Litigation Episode 39: Monthly Update – March/April 2023
In this edition of our banking litigation podcast, we consider some recent cases that will be most relevant to in-house lawyers at banks and financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guest Tom Wyer.
You can find links to our blogs on the cases covered in this podcast below:
* High Court considers reliance in s.90A FSMA claims in context of split trial application
* High Court allows claim in respect of secret commissions to proceed as “opt-out” representative action under CPR 19.6
* Hong Kong court provides novel and influential analysis of the Quincecare duty
* High Court finds UK sanctions do not preclude entry of judgments in favour of Russian sanctioned parties
* High Court underlines need to consider scope of agency in considering whether documents to which agent has access are in principal’s control
* Part 36 offer to settle “the whole of the claim” did not include claims set out in draft amended pleadings
Don't forget to subscribe to the banking litigation blog.
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Mar 2, 2023
Banking Litigation Episode 38: Monthly update – January/February 2023
In this edition of our banking litigation podcast, we consider some recent cases that will be most relevant to in-house lawyers at banks and financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guest Harriet Tolkien.
You can find links to our blogs on the cases covered in this podcast below:
* Is the decentralised governance of Bitcoin a myth? Court of Appeal finds real issue to be tried as to whether developers owe fiduciary duties to Bitcoin owners
* High Court finds lender’s exercise of absolute contractual right is not subject to implied Braganza duty
* Supreme Court strikes out Quincecare claim where no loss suffered by insolvent Ponzi scheme
* Court of Appeal finds disclosure to party’s US lawyers breached embargo on draft judgment, but no further steps taken
* Court orders contempt proceedings to be brought in respect of possible breaches of embargo on draft judgment
Don't forget to subscribe to the banking litigation blog.
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Dec 13, 2022
Banking Litigation Episode 37: Monthly Update - November/December 2022 (Christmas Special!)
In this Christmas Special edition of our banking litigation podcast, we consider some recent cases that will be most relevant to in-house lawyers at banks and financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guests Elena Kormosh, Scott Warin, Tom Wyer and Catherine Bagge.
You can find links to our blogs on the cases covered in this podcast below:
* High Court confirms interest rate swaps entered into with Italian municipal authority were valid, lawful and binding on the parties
* High Court finds that bank's notice of event of default under section 5(a)(i) of the 2002 ISDA Master Agreement is valid
* Court of Appeal finds party was required to accept non-contractual performance in exercising reasonable endeavours to "overcome" force majeure event
* High Court considers contractual construction of irrevocable letter of credit incorporating UCP 600
* Interpreting ICC standardised rules in trade finance disputes: courts take an international perspective
* No privilege for original version of document simply because comparison to final version would reveal legal advice
* Court of Appeal confirms identity of those instructing lawyers not generally protected by litigation privilege
Don't forget to subscribe to the banking litigation blog.
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Nov 3, 2022
Banking Litigation Episode 36: Monthly Update – September/October 2022
In this edition of our banking litigation podcast, we consider some recent cases that will be most relevant to in-house lawyers at banks and financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guest Elena Kormosh.
You can find links to our blogs on the cases covered in this podcast below:
* High Court considers application of COBS and Braganza duty to close out of trading account
* High Court grants bank access to customer documentation relating to receivables in securitisation transaction
* Court of Appeal upholds summary judgment for rent accrued during Covid closures of commercial premises, rejecting arguments based on implied terms and “failure of basis”
* FCA confirms final rules for new Consumer Duty
* Indemnity costs awarded against party who dismissed complaints about witness statement non-compliance as “nit-picking”
* Russian sovereign debt defaults: a disputes perspective
Don't forget to subscribe to the banking litigation blog.
Speakers: John Corrie (Partner), Ceri Morgan (Professional Support Consultant), Elena Kormosh (Senior Associate)
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Sep 5, 2022
Regulation in Focus EP8: Whistleblowing update
The latest edition of our Regulation in Focus podcast series features Jenny Andrews, an Of Counsel in our Employment team and Charles McGrath, a Senior Associate in our contentious FSR practice in London. Jenny and Charles remind listeners about the statutory and regulatory whistleblowing framework in the UK before summarising some interesting recent case law developments and the key issues coming out of them that financial services firms need to be aware of. The discussion is moderated by Cat Dankos, the Regulatory Consultant in our London FSR practice.
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Aug 15, 2022
Banking Litigation Podcast Episode 35: Monthly Update – July/August 2022
In this edition of our banking litigation podcast, we consider some recent cases that will be most relevant to in-house lawyers at banks and financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guest Catherine Bagge.
You can find links to our blogs on the cases covered in this podcast below:
* High Court finds no unfairness in bank’s restructuring of loan arrangements
* High Court considers receiving bank’s liability in context of APP fraud
* High Court grants freezing injunction in relation to stolen non-fungible tokens (NFTs)
* High Court finds identity of those giving instructions to lawyers not protected by litigation privilege
* Party penalised in costs for disproportionate application to strike out witness evidence for non-compliance with PD 57AC
* English court judgment enforced in China for the first time following landmark policy announcement
* High Court considers when recast Brussels Regulation continues to apply in transitional cases
Don't forget to subscribe to the banking litigation blog.
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Jul 4, 2022
Banking Litigation Podcast Episode 34: Monthly Update – May/June 2022
In this edition of our banking litigation podcast, we consider some recent cases that will be most relevant to in-house lawyers at banks and financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guest Tom Wyer.
You can find links to our blogs on the cases covered in this podcast below:
* High Court dismisses Quincecare duty claim giving guidance on the scope and nature of the duty
* Privy Council confirms that Quincecare duty is limited to protecting customers and does not extend to protect third parties
* How to navigate the Autonomy judgment: guidance for corporate issuers defending Section 90A / Schedule 10A FSMA shareholder claims
* High Court clarifies meaning of “PDMR” in s.90A FSMA claims
* Freezing orders brought onto the blockchain and service of proceedings via NFTs
* High Court decision suggests party alleging witness statement fails to comply with PD 57AC must identify specific failures
* Article published – Expansion of jurisdiction gateways coming soon
Don't forget to subscribe to the banking litigation blog.
Speakers: John Corrie (Partner), Ceri Morgan (Professional Support Consultant), Tom Wyer (Associate)
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May 4, 2022
Banking Litigation Podcast Episode 33: Monthly Update – March/April 2022
In this edition of our banking litigation podcast, we consider some recent cases that will be most relevant to in-house lawyers at banks and financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guest Wilkie Hollens.
You can find links to our blogs on the cases covered in this podcast below:
* High Court finds developers did not owe duty to cryptoasset owners to enable access to lost cryptoassets
* Court of Appeal finds Quincecare duty is not limited to corporate customers and can (in principle) extend to protecting individuals
* Privy Council confirms that the so-called “reflective loss” principle applies to ex-shareholders
* High Court orders witness statements to be redrafted due to serious non-compliance with PD 57AC
* High Court orders banks to disclose documents under the Evidence (Proceedings in other Jurisdictions) Act 1975
* Privy Council restatement of the law on freezing and other interim injunctions
* UK: EAT orders party to disclose tribunal documents to the Press months after hearing
* Biannual Banking Litigation Update (Spring 2022)
Don't forget to subscribe to the banking litigation blog.
Please also find the Herbert Smith Freehills legal privilege web app.
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Mar 14, 2022
Banking Litigation Podcast Episode 32: Monthly update - January/February 2022
In this episode of our banking litigation podcast, we discuss and debate the key recent judgments likely to be of interest to financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guest Phoebe Fox.
You can find links to our blogs on the cases covered in this podcast below:
* Privy Council considers reformulated test for determining scope of duty of care owed by professional advisers
* High Court considers the requirement for “awareness” in implied misrepresentation claims
* High Court finds that a claimant’s “awareness” of a representation is an essential prerequisite to a claim for misrepresentation
* High Court decision in first s.90A FSMA claim to reach trial
* High Court upholds settlement agreement relating to earlier proceedings to bar counterclaim, confirming that “unknown” claims can be released
* A counterclaiming defendant can make a valid “claimant’s”…
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Feb 10, 2022
Regulation in Focus EP7: Operational Resilience – a discussion on implementation & practicalities for firms
The latest edition of our Regulation in Focus podcast series features two former regulators in conversation about operational resilience – Andrew Procter from Herbert Smith Freehills and Michael Sicsic from Sicsic Advisory. The discussion focuses on implementation of operational resilience requirements for the upcoming UK regulatory deadline of 31 March 2022.
In conversation with...
Michael is the Managing Director of Sicsic Advisory, a boutique consultancy focusing on financial services risk and regulation. He is a senior executive in the field of risk and regulation and former head of supervision for the UK general insurance retail sector at the FCA.
Andrew is a partner in the (contentious) financial services regulatory team in London. He advises multinational clients on their most important strategic regulatory and risk issues, bringing uniquely strategic judgement drawn from senior leadership roles at regulators, in-house and in private practice.
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Dec 13, 2021
Banking Litigation Podcast Episode 31: SPECIAL EDITION - Privilege
In this special edition of our banking litigation podcast, we consider some key issues on the topic of privilege that will be most relevant to in-house lawyers at banks and financial institutions. This episode is hosted by Ceri Morgan, a Professional Support Consultant in our banking litigation team, and guests Claire Nicholas and Benedicte Perowne.
You can find links to our blogs on the cases covered in this podcast below:
* High Court applies narrow interpretation of “client” for purposes of legal advice privilege
* Court of Appeal decision in ENRC: orthodoxy restored on litigation privilege, but narrow interpretation of “client” remains for now
* Information gathering by in-house lawyer in order to obtain external advice may not be protected by legal advice privilege
* Impact of Court of Appeal’s privilege decision in Sports Direct v FRC for the financial services sector
* High Court holds auditor must form its own view on client’s claim to privilege when res…
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Dec 8, 2021
Global Bank Review - ESG: Creating a purposeful future - Greenwashing Litigation
Join Jojo Fan in Hong Kong, Benjamin Rubinstein in New York, Mark Smyth in Sydney and Sousan Gorji in London as they discuss greenwashing in the banking sector.
Read more insights in our Global Bank Review here: https://www.herbertsmithfreehills.com/insight/2021-global-bank-review-%E2%80%93-esg-creating-a-purposeful-future
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Dec 6, 2021
Banking Litigation Podcast: Episode 30 – November/December 2021 (Christmas Special!)
In the CHRISTMAS SPECIAL edition of our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guest Scott Warin.*
*You can find links to our blog posts on the cases covered in this podcast below:* *
* Supreme Court finds claim for compensation under data protection legislation cannot proceed on “opt-out basis” in high profile Lloyd v Google case
* High Court upholds contractual terms setting out basis of relationship in dismissing breach of duty claim relating to introduction to third party investment schemes
* High Court considers whether onerous term in standard terms incorporated by reference
* High Court considers implied terms and “failure of basis” in context of COVID-19 pandemic
* COVID-19 market disclosures and managing the associated litigation risks
Don't forget to subscribe to th…
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Oct 26, 2021
Banking Litigation Podcast EP29: Monthly update - September/October 2021
In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guest Harriet Tolkien.*
*You can find links to our blog posts on the cases covered in this podcast below:
* Supreme Court clarifies requirements for tort of lawful act economic duress
* Court of Appeal confirms claims seeking remediation for damage to land allegedly caused by oil spill cannot proceed as representative action under CPR 19.6
* Banking Litigation Podcast Episode 20: Monthly Update - August 2020
* Privy Council confirms that the so-called “reflective loss” principle applies to ex-shareholders
* High Court finds accountants’ investigation report not protected by litigation privilege and considers requirements for obtaining disclosure under the Disclosure Pilot
* The Herbert Smith Freehills Legal Privilege Web App
* Dis…
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Sep 23, 2021
Regulation In Focus EP6: FCA's regulatory decision-making proposals
FCA's regulatory decision-making proposals - faster and less costly, but at what price?
The latest edition of our Regulation in Focus podcast series features Karen Anderson and Andrew Procter, both partners in our FSR practice and both former regulators, in conversation about the FCA's plans to streamline regulatory decision-making, which - if the FCA proceeds as proposed - will be a significant change to how authorisation, supervision and enforcement are delivered. Karen and Andrew review the arguments which led to the establishment of the Regulatory Decisions Committee to provide independent administrative decision-making. They then outline the FCA's plans for change and discuss whether the regulator has a strong case.
Speakers: Karen Anderson (Partner) and Andrew Procter (Partner)
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Aug 6, 2021
Banking Litigation Podcast Episode 28: Monthly update - July/August 2021
In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guest Amel Fenghour.*
*You can find links to our blog posts on the cases covered in this podcast below:
* Supreme Court clarifies proper approach to SAAMCO and to determining scope of duty of care owed by professional advisers
* Court of Appeal provides guidance on the “reflective loss” principle and its interaction with the Contracts (Rights of Third Parties) Act 1999
* Court of Appeal clarifies proper approach to assessing damages for fraudulent misrepresentation
* European Commission notice to Lugano Depositary states EU not in a position to consent to UK accession
* HMT reform of prospectus regime: the potential impact on securities litigation
Don't forget to subscribe to the banking litigation blog.
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Jun 14, 2021
Banking Litigation Podcast Episode 27: Monthly update - May/June 2021
In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guest Annabel Davis.*
*You can find links to our blog posts on the cases covered in this podcast below:
* Court of Appeal confirms that the Quincecare duty does not extend to protect creditors
* Banking Litigation Podcast Episode 25: Special Edition– The Quincecare Duty of Care
* High Court considers Quincecare and dishonest assistance claims against bank in context of Ponzi scheme
* High Court strikes out time-barred claims holding that banks did not deliberately conceal facts so as to extend the limitation period
* High Court considers doctrine of frustration in Covid context and confirms there is no such thing as “temporary frustration”
* Parent companies’ documents found to be in subsidiaries’ control for disclosure purposes…
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May 4, 2021
Banking Litigation Podcast Episode 26: Monthly Update - March/April 2021
In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guest Mannat Sabhikhi.*
*You can find links to our blog posts on the cases covered in this podcast below:
* High Court determines that reliance issues in context of a s.90A FSMA claim should be heard at first trial
* High Court strikes out s.90A FSMA claims for failure to comply with pre-service joinder rules following expiration of arguable limitation period
* Supreme Court allows appeal in jurisdictional challenge relating to parent company duty of care
* High Court considers principles relating to cut-off dates and the costs of advertising in group litigation
* High Court finds that a claimant’s “awareness” of a representation is an essential prerequisite to a claim for misrepresentation
Don't forget to subscribe to the banking l…
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Apr 29, 2021
Regulation In Focus EP5: Operational Resilience – an overview of the UK regulators’ final policies
The latest edition of our Regulation in Focus podcast series features Clive Cunningham and Andrew Procter, both partners in our FSR practice, in conversation about the milestone publication of the UK regulators’ final policies on operational resilience.
The discussion ranges from the challenges for senior managers to the nuances of setting impact tolerances in dual regulated firms to the wider global context.
Speakers: Clive Cunningham, Partner and Andrew Procter, Partner
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Apr 22, 2021
Banking Litigation Podcast Episode 25: SPECIAL EDITION – The Quincecare Duty of Care
In this special edition of our banking litigation podcast, we consider a key risk area for financial institutions handling client payments - the Quincecare duty of care. This episode is hosted by Ceri Morgan, a professional support consultant in our banking litigation team, who is joined by Mark Tanner and Scott Warin.* *
Quincecare duty claims typically arise where a bank or deposit holding financial institution has received a payment mandate from an authorised signatory of its customer, and executed the order, in circumstances where (allegedly) there were red flags to suggest that the order was an attempt to misappropriate the funds of the customer. The past few years have witnessed an uptick in such claims, with a proliferation of judgments being handed down in quick succession since the Supreme Court’s decision in Singularis Holdings Ltd v Daiwa Capital Markets Europe Ltd [2019] UKSC 50. In our podcast, we discuss how these judgments have defined both the scope of the duty, and…
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Mar 31, 2021
Regulation in Focus EP4: Treating vulnerable customers fairly: a deep dive into the FCA's guidance
This podcast is a deep dive into an issue that impacts you, and all FCA regulated firms – treating vulnerable customers fairly.
It features Karen Anderson, Cat Dankos and Ben Goodman from our contentious financial services regulatory practice in London, discussing the FCA’s aim of ensuring that vulnerable consumers experience outcomes as good as other consumers and receive consistently fair treatment across all FCA-regulated firms and sectors.
Speakers: Karen Anderson (Partner), Cat Dankos (Regulatory Consultant) and Ben Goodman (Of Counsel)
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Feb 25, 2021
Banking Litigation Podcast Episode 24: Monthly Update - January/February 2021
In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guest Harriet Tolkien.*
* You can find links to our blog posts on the cases covered in this podcast below:
* High Court considers First Tower judgment in the context of no-advice clauses and confirms UCTA does not apply
* High Court confirms current scope of Quincecare duty is limited to protecting corporate customers and does not extend to individuals
* High Court provides further insights on the risks of Quincecare claims against banks
* Supreme Court judgment in the KBR v SFO appeal – limits to extraterritorial impact of the SFO’s document compulsion powers
* Court of Appeal clarifies that cross-undertakings should rarely be required as a condition of security for costs
* Witness evidence reforms: final versions now published and w…
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Dec 7, 2020
Banking Litigation Podcast Episode 23: Monthly Update – December 2020 (Christmas Special!)
In the CHRISTMAS SPECIAL edition of our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions, combined with some festive cheer and a few surprises. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan, Mark Tanner and some very special guests.
You can find links to our blog posts on the cases covered in this podcast below:
* High Court tests newly narrowed scope of the “reflective loss” rule in first decision since the Supreme Court’s judgment in Marex
* Commercial Court considers impact of force majeure clause on repayment obligation in sale of goods contract
* High Court finds no breach of duty by bank in exercise of enforcement rights under finance agreements
* High Court strikes out group claims in light of parallel claims overseas: good news for parent company liability claims?
* Class action reform in France: Necessary, but debatable
* Capital Raisin…
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Nov 5, 2020
Banking Litigation Podcast Episode 22: Monthly Update – October/November 2020
In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guest Georgia Nickson.
You can find links to our blog posts on the cases covered in this podcast below:
* Court of Appeal upholds High Court’s decision on the preferred contractual construction of a term in an exclusion clause
* Commercial Court grants declaratory relief to bank relating to its rights under the 1992 ISDA Master Agreement
* High Court strikes out two IRHP mis-selling claims on the grounds of abuse of process, limitation and underdeveloped allegations of fraud
* High Court refuses to strike out Quincecare duty claim against a PSP where its customer was hijacked by fraudsters
* Banking Litigation Podcast Episode 13: Monthly Update - November 2019 (in which we covered Singularis Holdings Ltd v Daiwa Capital Markets [2019] UKS…
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Oct 5, 2020
Banking Litigation Podcast Episode 21: Monthly Update - September 2020
In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guest Scott Warin.
You can find links to our blog posts on the cases covered in this podcast below:
* Court of Appeal upholds High Court decision to grant summary judgment in FX de-pegging case
* High Court says bank need not comply with numerous and repetitive DSARs which were being used for a collateral purpose
* The Tesco Litigation: lessons learned from split trial orders in the context of securities class actions
* High Court strikes out claimants’ representative action due to failure to meet “same interest” requirement under CPR 19.6
* Judgment handed down in FCA’s COVID-19 business interruption insurance test case
* Singapore Convention on Mediated Settlement Agreements comes into force tomorrow, 12 September 2020
* Webin…
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Sep 22, 2020
Corporate Crime and Investigations EP3: Recent Activity in Deferred Prosecution Agreements
In our Corporate Crime & Investigations podcast we look to bring you timely and incisive commentary on key developments in the CC&I space.
In this third episode we discuss recent activity regarding Deferred Prosecution Agreements (DPAs). We focus specifically on three DPAs secured by the Serious Fraud Office (SFO) involving Guralp Systems, Airbus and G4S Care and Justice Services.
Speakers: Kate Meakin, Partner and Stephen Thomson, Senior Associate (Australia and New Zealand)
Further information:
-CC&I Podcast Episode 1 on DPAs, including the DPA between the SFO and a company from the Serco Group
-Our blog post on the Guralp Systems DPA
-Our blog post on the Airbus DPA
-Our blog post on the G4S DPA
-Our webinar on DPAs, anti-bribery and corruption from UK, US, French and South African perspectives
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Aug 12, 2020
Banking Litigation Podcast Episode 20: Monthly Update - August 2020
In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guest Ajay Malhotra.
You can find links to our blog posts on the cases covered in this podcast below:
* Untangling, but not killing off, the Japanese knotweed: Supreme Court confirms existence and scope of “reflective loss” rule
* High Court requires claimant investors to disclose their investment history to show their level of sophistication and appetite for risk
* High Court finds no duty of care owed for late execution of orders due to unforeseen market turbulence
* Default judgment set aside where claim served at closed offices during COVID-19 lockdown
* Part 36 offer to accept 0.3% less than total amount claimed constituted genuine offer to settle
Don't forget to subscribe to the banking litigation blog
Speakers: John Corrie (Par…
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Jul 27, 2020
Banking Litigation Podcast Episode 19: Monthly Update - July 2020
In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guest Catherine Bagge.
You can find links to our blog posts on the cases covered in this podcast below:
* High Court takes robust approach to personal guarantees: potential impact for accredited lenders under the Coronavirus Business Interruption Loan Schemes
* Court of Appeal confirms borrower’s right to withhold payment under English law Tier 2 Capital facility agreement where risk of US secondary sanctions
* Privilege in the context of regulatory investigations: latest guidance from the High Court
* High Court takes expansive view of when reference to legal advice may result in broader waiver
* Untangling, but not killing off, the Japanese knotweed: Supreme Court confirms existence and scope of “reflective loss” rule
* UK Governme…
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Jun 30, 2020
Banking Litigation Podcast Episode 18: Monthly update - June 2020
In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guest Alice Whyte.
You can find links to our blog posts on the cases covered in this podcast below:
* High Court rejects indemnity claim under SPA due to a failure to notify the claim “as soon as possible”
* High Court finds claim for lost profits arising from damage caused by London riots not prevented by force majeure or exclusion for indirect or consequential loss
* Litigation funder fails in attempt to obtain trading data from the London Stock Exchange
* Proposed insolvency reforms: impact on secured and unsecured bank debt
Don't forget to subscribe to the banking litigation blog
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May 26, 2020
Banking Litigation Podcast Episode 17: Monthly Update - May 2020
In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guest Nic Patmore.
You can find links to our blog posts on the cases covered in this podcast below:
* Court of Appeal upholds High Court contractual construction of CLO transaction
* High Court finds in favour of novel duty of care on employers (or quasi-employers) to protect against economic loss by providing an "ethically safe" work environment
* High Court declines to adjourn five-week trial due to COVID-19 pressures
* High Court refuses to set aside or vary disclosure order despite risk of foreign criminal or regulatory sanctions
* Competing class actions in the Competition Appeal Tribunal: no preliminary ruling on carriage issue
Don't forget to subscribe to the banking litigation blog
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May 4, 2020
Banking Litigation Podcast Episode 16: Monthly Update – March / April 2020
In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guest Mannat Sabhikhi.
You can find links to our blog posts on the cases covered in this podcast below:
* High Court finds no implied contractual duties in connection with past business review
* Morrisons wins Supreme Court appeal against finding of vicarious liability in data breach class action
* Court of Appeal confirms funders’ adverse costs liability not limited to amount of funding provided: Arkin “cap” not a binding rule
* Class actions against financial institutions: impact of High Court decision to order security for costs against a litigation funder
* Impact of Court of Appeal’s privilege decision in Sports Direct v FRC for the financial services sector
* COVID-19 Hub
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Feb 25, 2020
Banking Litigation Podcast Episode 15: Monthly Update – February 2020
In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guest Daniel May.
You can find links to our blog posts on the cases covered in this podcast below:
* *High Court grants proprietary injunction against Bitcoin exchange holding proceeds of ransomware attack*
* *High Court upholds financial institution restructuring unit’s exercise of its powers under facility agreement following borrower default, finding there was no “relational contract” and rejecting claims for intimidation and economic duress*
* *High Court strikes out claim against banks in their capacity as lenders to investors of a tax deferral scheme*
* *Joint Operating agreement arguably a "relational contract" but Commercial Court declines to imply duty of good faith or Braganza duty*
* *Court of Appeal finds legal advice privi…
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Jan 22, 2020
Banking Litigation Podcast Episode 14: Monthly Update – December 2019 / January 2020
In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guest Harriet Tolkien.
You can find links to our blog posts on the cases covered in this podcast below:
* High Court upholds strike out of claim based on allegation a financial institution breached fiduciary duties as a shadow director of its customer
* High Court finds privilege not lost despite document being referred to in open court
* High Court orders claimants to provide disclosure to prove investment decisions were made in reliance on defective publications in the Tesco section 90A FSMA group litigation
* Court of Appeal confirms Part 36 offer cannot be made exclusive of interest
*Don't forget to **subscribe to the banking litigation blog**.*
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Jan 20, 2020
Regulation in Focus EP3: Equivalence – a Brexit market access solution?
The third episode of Regulation in Focus, our podcast series of short, sharp insights into regulatory issues that matter to you, features Katherine Dillon and Emma Reid from our non-contentious financial services regulatory practice in London, discussing the role that equivalence might play in accessing EU markets post-Brexit.
Katherine and Emma are experts in regulatory matters across a wide range of sectors, and have regularly been advising on Brexit-related implications for financial services firms.
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Dec 19, 2019
Regulation in Focus EP2: Top 5 tips for dealing with employee misconduct investigations in a regulated context
The second episode of *Regulation in Focus*, our podcast series of short, sharp insights into regulatory issues that matter to you, features London partners Hywel Jenkins and Christine Young discussing our top 5 tips for dealing with employee misconduct investigations in a regulated context.
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Nov 28, 2019
Banking Litigation Podcast Episode 13: Monthly Update - November 2019
In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guest Emma Deas.
You can find links to our blog posts on the cases covered in this podcast below:
* The Lloyds/HBOS litigation: The first shareholder class action judgment in England & Wales
* First securities class action judgment in Australia
* High Court refuses Tesco’s strike out application in s.90A FSMA group shareholder action
* Supreme Court upholds first successful claim for breach of the so-called “Quincecare” duty of care
* The Financial Services Duty of Care Bill
*Don't forget to **subscribe to the banking litigation blog**.*
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Nov 28, 2019
Banking Litigation Podcast Episode 12: SPECIAL EDITION – The Lloyds/HBOS Litigation: the outcome, implications and litigation top tips
In this special edition of our banking litigation podcast, we consider the first judgment in a shareholder class action in England & Wales in Sharp v Blank [2019] EWHC 3078 (Ch) (also known as The Lloyds/HBOS Litigation).
In rejecting the claim brought by a group of shareholders against Lloyds relating to its acquisition of HBOS in 2008, the decision of the High Court provides clarity on some of the most important battlegrounds which arise in shareholder class actions as well as guidance for listed companies and their directors on various key aspects of capital markets and M&A transactions.
This significant decision will have ramifications for listed companies, and their advisers, in the UK. A briefing paper setting out our observations and insights is available here.
Herbert Smith Freehills acted for Lloyds in the litigation, and in this podcast we summarise the outcome, implications for banks (as both issuers and as advisers in an investment banking capacity) and share our litigat…
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Nov 19, 2019
Regulation in Focus EP1: Information flows in cross-border regulatory investigations
We are pleased to announce the release of the first episode of Regulation in Focus, our podcast series of short, sharp insights into regulatory issues that matter to you.
Our first episode, a bumper cross-border edition featuring partners Hannah Cassidy (Hong Kong), Natalie Curtis (Singapore) and Chris Ninan (London), focuses on information flows in cross-border regulatory investigations.
We've recently published the fourth edition of The Long Arm of Regulation: Responding to Cross-Border Financial Services Investigations, which gives an overview of how to approach multiple proceedings in different jurisdictions, and aims to assist firms in navigating the differing regimes across 15 key jurisdictions. Our guide covers a range of important topics, including the regulators' breadth of powers, mechanisms for obtaining – and withholding – information, consequences for failing to comply, and the management of competing confidentiality and reporting obligations. You can download a prev…
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Oct 30, 2019
Banking Litigation Podcast Episode 11: Monthly Update – October 2019
In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions.
You can find links to our blog posts on some of the cases covered in this podcast below:
* Court of Appeal confirms "once privileged, always privileged" unless privilege is waived – even if there is no longer anyone who can assert the privilege
* Court of Appeal finds claim for damages for loss of control of data can proceed as representative action under CPR 19.6
* High Court finds terms of English law Facility Agreement allowed borrower to withhold interest payments given risk of US “secondary” sanctions
* Court of Appeal judgment on scope and exclusion of "Quincecare" duty of care
* Damages-based agreements (DBAs): promising proposals for reform
*Don't forget to **subscribe to the banking litigation blog**.*
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Oct 7, 2019
Corporate Crime and Investigations EP2: Suspicious Activity Reports
In this episode we take a look at the Law Commission's recent report on the Suspicious Activity Reporting (SAR) regime under the Proceeds of Crime Act 2002 (POCA).
Read our FSR and CC&I blog here:
https://hsfnotes.com/fsrandcorpcrime/
Consultation Paper on the SARs Regime:
https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2018/07/Anti-Money-Laundering-the-SARs-Regime-Consultation-paper.pdf
Law Commission's Report on the SARs Regime:
https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2019/06/6.5569_LC_Anti-Money-Laundering_Report_FINAL_WEB_120619.pdf
Economic Crime Plan 2019-22:
https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2019/06/6.5569_LC_Anti-Money-Laundering_Report_FINAL_WEB_120619.pdf
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Oct 1, 2019
Banking Litigation Podcast Episode 10: Monthly Update – September 2019
In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions. This episode is hosted by John Corrie, a partner in our banking litigation team, who is joined by Ceri Morgan and special guest Sousan Gorji.
You can find links to our blog posts on some of the cases covered in this podcast below:
* High Court finds in favour of Lehman administrator in respect of US $7 million trade error and implies term into otherwise “unworkable” debt security trade agreement
* High Court endorses use of CPR Part 86 interpleader application by financial services firm seeking court guidance
* Privilege: A reminder of the dangers of cherry picking
* 46 countries sign the new Singapore Convention on mediated settlements
*Don't forget to **subscribe to the banking litigation blog**.*
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Sep 16, 2019
Banking Litigation Podcast Episode 9: Monthly Update - August 2019
In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions. This episode is hosted by David Barr, who is joined by Ceri Morgan and special guest Dan Eziefula.
You can find links to our blog posts on some of the cases covered in this podcast below:
* Court of Appeal clarifies test for rectifying terms of written contract for common mistake
* Commercial Court considers contractual discretion of bank to close customer account without notice where there is suspicion of money laundering
* Supreme Court clarifies broad scope of court’s discretion to grant non-party access to court documents
* High Court finds there is no power to stay English proceedings to give effect to exclusive jurisdiction clause in favour of non-EU court unless proceedings were commenced first in the foreign court
* What securities litigators need to know about the new Prospectus Regulation
*Don't forget to **subscribe to the banking litigation blog*…
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Aug 5, 2019
Corporate Crime & Investigations EP1: Deferred Prosecution Agreements
In our Corporate Crime & Investigations podcast we look to bring you timely and incisive commentary on key developments in the CC&I space. In this inaugural episode we take a look at the Deferred Prosecution Agreements landscape. In particular we set in context the latest DPA agreed between the SFO and a subsidiary in the Serco Group of companies.
Read our FSR and CC&I blog post here:
https://hsfnotes.com/fsrandcorpcrime/2019/07/10/approval-of-uks-fifth-dpa-concludes-sfo-investigation-into-serco-companies/
The judgment approving the DPA can be found here:
https://www.judiciary.uk/wp-content/uploads/2019/07/serco-dpa-4.07.19-2.pdf
The DPA and Undertaking by Serco Group can be found here:
https://www.sfo.gov.uk/download/deferred-prosecution-agreement-serco-geografix-ltd-sfo/
The SFO press release can be found here
https://www.sfo.gov.uk/download/deferred-prosecution-agreement-serco-geografix-ltd-sfo/
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Jul 23, 2019
Banking Litigation Podcast Episode 8: Monthly Update – July 2019
In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions. This episode is hosted by David Barr, who is joined by Ceri Morgan and special guest John Corrie, a partner in our banking litigation team.
You can find links to our blog posts on some of the cases covered in this podcast below:
* Court of Appeal clarifies test for rectifying terms of written contract for common mistake
* Commercial Court considers contractual discretion of bank to close customer account without notice where there is suspicion of money laundering
* Supreme Court clarifies broad scope of court’s discretion to grant non-party access to court documents
* High Court finds there is no power to stay English proceedings to give effect to exclusive jurisdiction clause in favour of non-EU court unless proceedings were commenced first in the foreign court
* What securities litigators need to know about the new Prospectus Regulation
*
Don't forget to *…
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Jul 22, 2019
Enforcing arbitration awards in EMEA EP2: Middle East
Nicholas Peacock (Partner, London) and Stuart Paterson (Partner, Dubai) discuss recent trends in the enforcement of arbitration awards in the Middle East, in particular on the United Arab Emirates, Saudi Arabia and Qatar.
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Jul 8, 2019
Enforcing arbitration awards in EMEA Ep 1: Russia
International arbitration experts Nicholas Peacock (Partner) and Alexander Khretinin (Senior Associate) discuss recent trends in the enforcement of arbitration awards in Russia with key takeaways for banks, financial institutions and others doing business with Russian parties.
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Jun 26, 2019
Banking Litigation Podcast Episode 7: Monthly Update – June 2019
In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions. This episode is hosted by David Barr, who is joined by Ceri Morgan and special guest Maryam Oghanna.
You can find links to our blog posts on some of the cases covered in this podcast below:
* Court of Appeal upholds decision rectifying share purchase agreement and disclosure letter
* Commercial Court gives guidance on definition of ‘consumer’ under Recast Brussels Regulation in cryptocurrency futures trading case
* Court of Appeal finds ISDA jurisdiction clause trumps competing clause in related contract
* Disclosure Pilot: High Court clarifies transitional operation and considers privilege claims
* Court of Appeal finds offer relating to unpleaded counterclaim was valid under Part 36
* LIBOR discontinuation – FCA thematic feedback on responses to Dear CEO letter
*
Don't forget to **subscribe to the banking litigation blog**.*
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May 13, 2019
Banking Litigation Podcast Episode 6: Monthly Update – May 2019
In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions. This episode is hosted by David Barr, who is joined by Ceri Morgan and special guest Scott Warin.
You can find links to our blog posts on some of the cases covered in this podcast below:
* Court of Appeal confirms no claim for third party’s loss unless common intention to benefit the third party at the time of contracting
* Court of Appeal confirms ISDA 1995 Credit Support Annex does not provide for payment of ‘negative’ interest
* High Court declines to apply so-called Arkin cap to restrict funder’s liability for adverse costs
* High Court finds parties agreed to vary application of “without prejudice” rule in subsequent “without prejudice save as to costs” correspondence
*
Don't forget to **subscribe to the banking litigation blog**.*
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Apr 17, 2019
Banking Litigation Podcast Episode 5: Monthly Update – April 2019
In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions. This episode is hosted by David Barr, who is joined by Ceri Morgan and special guest Sarah Penfold.
You can find links to our blog posts on some of the cases covered in this podcast below:
* High Court refuses permission for collateral use of disclosed documents and witness statements to respond to US grand jury subpoena
* Court of Appeal emphasises the need to plead conspiracy claims in full
* High Court applies contractual interpretation principles in collateralised loan obligation transaction
* High Court provides guidance on relational contracts and implied duties of good faith
* Letters of Instruction: Banks’ liability to third parties clarified by Court Of Appeal
* Important High Court guidance on the limits of determining party’s discretion when calculating Loss under the 1992 ISDA Master Agreement
*Don't forget to **subscribe to the banking litig…
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Apr 9, 2019
Banking Litigation Podcast Episode 4: SPECIAL EDITION – LIBOR discontinuation litigation risks
In this *SPECIAL EDITION* of the banking litigation podcast, we look at the types of litigation which may arise following the discontinuation of LIBOR in 2021. This episode is hosted by David Barr, who is joined by Harry Edwards (partner) and Ceri Morgan (professional support lawyer) in our banking litigation team.
See our banking litigation e-bulletin here.
See our article in the Journal of International Banking Law and Regulation here: LIBOR is being overtaken: Will it be a car crash? (2019) 34 J.I.B.L.R..
*Don't forget to **subscribe to the banking litigation blog**.*
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Mar 11, 2019
Banking Litigation Podcast Episode 3: Monthly Update - March 2019
In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions. This episode is hosted by David Barr, who is joined by Ceri Morgan and special guest Ajay Malhotra.
You can find links to our blog posts on some of the cases covered in this podcast below:
* Court of Appeal gives guidance on scope of fiduciary duty in “secret commissions” case
* Commercial Court rejects EURIBOR implied representations
* Supreme Court considers loss of a chance in professional negligence claim
*
Don't forget to **subscribe to the banking litigation blog**.*
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Feb 28, 2019
Banking Litigation Podcast Episode 2: Monthly Update - February 2019
In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions. This episode is hosted by David Barr, who is joined by Ceri Morgan and special guest Frances Furnivall.
You can find links to our blog posts on some of the cases covered in this podcast below:
* High Court orders Tesco to disclose SFO documents in s.90A FSMA shareholder class action
* Court of Appeal gives guidance on how to apply jurisdiction test laid down by Supreme Court
* Court of Appeal confirms defendants not obliged to make enquiries of third parties before pleading non-admissions
* Court of Appeal decision in Manchester Building Society v Grant Thornton: clarification of “advice” vs “information” distinction when applying the SAAMCO principle
*Don't forget to **subscribe to the banking litigation blog**.*
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Jan 14, 2019
Banking Litigation Podcast Episode 1: Monthly Update - January 2019
In our monthly update podcast, we look at key recent judgments likely to be of interest to financial institutions. This episode is hosted by David Barr, who is joined by the head of our banking litigation team, Rupert Lewis, together with Ceri Morgan and special guest Nic Patmore.
You can find links to our blog posts on some of the cases covered in this podcast below:
* High Court refuses declarations sought by trustee of unsecured notes as to amounts due and payable by issuer
* Court of Appeal finds litigation privilege is restricted to the purpose of obtaining advice or information, not the conduct of litigation more broadly
* High Court finds entire agreement clause did not exclude liability for misrepresentation
*
Don't forget to **subscribe to the banking litigation blog**.*
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