EURO LIT INSIGHTS

The Potentially Damaging Effects of Non-Compliance with PD57AC

by Harry Denlegh-Maxwell and Daisy Daynes | Oct 22, 2024 | Investment, Court Judgment, Regulatory/Compliance, United Kingdom

On 14 August 2024, in the case of Timothy Fulstow and Robert Woods v Jeremy Francis [2024] EWHC 2122 (ChD) (Fulstow), the High Court dismissed a high value investment claim, partly because the claimants’ witness statements were in clear contravention of Practice Direction 57AC (PD 57AC).

This case acts as a cautionary tale for legal representatives and their clients. It not only highlights the importance of complying with the requirements of PD 57AC when preparing witness statements, but also draws attention to the personal, albeit professional, obligations of lawyers when signing declarations of compliance with PD 57AC.

In his judgment, Deputy High Court Judge David Stone made a point of criticising the solicitor representing the claimants for submitting a ‘false’ declaration that the witness statements were compliant with PD 57AC, when they were clearly not. He went as far as questioning the suitability of the representative, suggesting that “any solicitor properly practising in this court ought to have known [that the witness statements did not comply with PD 57AC]”.

The Key Provisions of PD 57AC

PD57AC was introduced in 2021 to prevent the perceived “over-lawyering” of witness statements, and to address long-held concerns that witness statements were often too

Court of Appeal Rules in Favour of the FCA in Significant Redress Decision for all Regulated Firms

by Harry Denlegh-Maxwell, William Merry and Rebecca Geers | Oct 22, 2024 | Court Judgment, Regulatory/Compliance, Private Equity, United Kingdom

Introduction

In a landmark ruling, the Court of Appeal recently confirmed that the FCA can impose a redress requirement on an FCA-regulated firm under section 55L Financial Services and Markets Act 2000 (FSMA) without needing to meet the pre-conditions for a statutory market-wide redress scheme under section 404F FSMA.

Background

BlueCrest Capital Management UK LLP (BlueCrest) was the subject of an FCA investigation in 2021. The conclusion of this investigation found that the hedge fund breached Principle 8 of the FCA’s Principles for Businesses by failing to properly mitigate conflicts of interests when acting as an investment manager. BlueCrest was accused of making decisions that ultimately benefited an internal fund, whose stakeholders included senior partners and key employees, to the detriment of an external fund with external investors. As recompense, the FCA ordered a £40,806,700 penalty against BlueCrest and required it to redress an estimated US$700 million to its investors under section 55L FSMA.

BlueCrest challenged this decision and took its case to the Upper Tribunal. BlueCrest argued that the FCA was not permitted to impose a redress on a single firm under section 55L FSMA without taking into account the four conditions under section 404F(7) FSMA, being loss, causation,

“Dominant motive…lies in the financial interests of its backers”: High Court Strikes Out a Representative Action under CPR 19.8 by Passengers in 116,000 Delayed or Cancelled Flights

by Jack Thorne and Briana Walley | Sep 12, 2024 | Court Judgment, Transportation & Logistics, United Kingdom

On 2 September 2024, the High Court struck out an application for a representative proceeding under CPR 19.8 that had been brought against certain airlines for cancelled and delayed flights: Smyth v British Airways Plc & Ors [2024] EWHC 2173 (KB). The Court considered that the “same interest” requirement under CPR 19.8 had not been met and that the claim was motivated by financial recovery for the litigation funder, and not the interests of the would-be class. The case highlights the importance of a well-defined class and a suitable representative claimant in order for representative proceedings to proceed.

Background

Ms Claire Smyth had booked a flight with British Airways (BA) from London to Nice. A week before she was due to depart, the flight was cancelled. Under Article 7(1) of the EU Regulation 261/2004 (retained post-Brexit), Ms Smyth had the right to claim compensation against BA (who manages a portal through which passengers may claim compensation). However, Ms Smyth chose not to use the portal and instead brought a representative proceeding on behalf of her fellow travellers – not just on her flight, but anyone who had booked flights with BA or easyJet scheduled to depart from, or arrive at,

All Aboard the Omnibus Claim Form

by Jack Thorne and Jonathan Robb | Sep 10, 2024 | Court Judgment, United Kingdom

In Adams and others v Ministry of Defence,[1] the High Court has recently followed the Court of Appeal judgment in Morris and others v Williams & Co Solicitors (a firm)[2], in confirming that multiple claimants can bring proceedings via a single Claim Form, provided that the test of convenience is satisfied.

The English Courts have shown intent in recent years on embracing group and class action litigation, not least in seeking to maintain a position as a pre-eminent litigation forum. Under the Civil Procedure Rules (CPR), there are a number of procedural routes that potential groups/classes can use to bring actions, subject to the specific circumstances of the cases at hand. These include, in particular:

Use of a single Claim Form for multiple claimants in accordance with CPR 19.1 and CPR 7.3 (also referred to as omnibus claims).
Multiple claims (with sufficient degrees of commonality) that are issued separately (or through an omnibus Claim Form), which are case managed together but proceed through lead or sample claimants.
Multiple separate claims that are case managed under a group litigation order in accordance with CPR 19.21-19.26.
A representative action pursuant to CPR 19.8 or 19.9, which is

English High Court Enforces Asymmetric Jurisdiction Clause in a Syndicated Loan Facility Agreement

by Mark Fine and Harry Denlegh-Maxwell | Aug 28, 2024 | Court Judgment

On 24 May 2024, the English High Court granted final injunctive relief to Barclays Bank Plc (Barclays), both in the form of an anti-suit injunction and an anti-enforcement injunction, arising out of a syndicated loan agreement (the Facility) entered into between Barclays and PJSC Sovcombank (Sovcombank).1 In a judgment that will be of interest to financial institutions and investors involved in cross-border disputes and to the public loan market, the English Courts have demonstrated a willingness to enforce asymmetric jurisdiction clauses, which are commonly seen in the syndicated loans market.

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