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English Court Finds Litigation Privilege In Documents Obtained By Deception

Posted in Dispute Resolution

The ruling clarifies that a litigant can withhold disclosure of communications even if the other person was unaware that the communication was for a privileged purpose.

By Daniel Smith and Mair Williams

In recent years, the English court has examined litigation privilege carefully. However, no aspect has been the subject of more scrutiny than the requirement that documents that a litigant seeks to withhold must have been prepared for the “dominant purpose” of preparing for litigation.

In Ahuja Investments Limited v. Victorygame Limited and Surjit Singh Pandher,[1] the court considered a situation in which one party to an exchange of correspondence withheld from the other their underlying dominant purpose, which was to prepare for litigation with a third party. The court permitted the assertion of litigation privilege, distinguishing previous authority that deception destroyed a claim to privilege. However, the decision raises some difficult questions about precisely whose intention matters if the document in question is correspondence involving multiple authors. Continue Reading

High Court Clarifies Appeal Procedures Following Remote Hand Downs of Judgments

Posted in Dispute Resolution

Mr Justice Hacon finds that procedures for applying for permission to appeal are not altered by the COVID-19 Protocol.

 By Oliver E. Browne

In Claydon v. Mzuri,[1] Mr Justice Hacon of the High Court has found that the COVID-19 Protocol does not alter the procedure for appeal applications if a decision is handed down remotely and the parties do not attend. Notably, the Judge clarified that the remote nature of the relevant hearings and the handing down of the trial judgment had no bearing on the proper approach to be followed in the context of seeking permission to appeal.

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FCA Issues New Rules on Insurance Pricing Practices

Posted in EU and Competition

The new rules follow coordinated regulatory and antitrust scrutiny of overcharging loyal customers.

By David Little, Victoria Sander, Gregory Bonné, and Anuj Ghai

On 28 May 2021, the FCA published a policy statement setting out new pricing practices rules for insurers and insurance distributors. The new rules follow a September 2020 consultation paper and final report. The FCA’s objective is to improve the way general insurance markets function, in particular by preventing firms from “price walking” customers (a pricing behaviour that the FCA considers anti-competitive) and ensuring that firms deliver fair value. The new rules also aim to increase transparency for customers who are renewing their insurance products.

Notably, the new rules:

  • Prescribe the information that firms must give to customers whose insurance products automatically renew
  • Include criteria that firms must take into account when determining whether a product offers value for money
  • Attempt to prohibit price walking

The FCA believes that price walking distorts competition and leads to higher overall prices for customers and that regular switching can help to bring prices down. Continue Reading

English Court Confirms Expansive Jurisdiction to Reverse Transactions to Defraud Creditors Even Outside Insolvencies

Posted in Dispute Resolution, M&A and Private Equity

The ruling confirmed that Section 423 of the Insolvency Act 1986 has extensive international reach, and does not require a transaction at an undervalue to leave the debtor with insufficient assets.

By Simon J. Baskerville, Oliver E. Browne, Jessica Walker, Daniel Smith, and Chris Attrill

The English High Court has held that a creditor pursuing a claim under Section 423 of the Insolvency Act 1986 (s. 423) does not need to prove that the debtor has insufficient assets to meet their claim following the disputed transaction. The ruling rejected a potential “gateway” condition that would have limited the scope of s. 423, and confirmed its broad international reach. S. 423 remains a powerful tool for creditors to challenge transactions at an undervalue, even outside insolvencies, and even in relation to assets outside the jurisdiction of the English court.

Although this case concerns individuals, the ruling provides a helpful reminder to creditors that s. 423 can be used in the English court to seek financial remedies and related relief if a debtor has an obligation to pay the claimant but enters into a “transaction at an undervalue” to put assets beyond their reach or to prejudice the creditor’s interests.

Read the full Client Alert

All Those in Favour, Say AI: UK IPO Publishes Response to Its Consultation on Artificial Intelligence and Intellectual Property

Posted in Emerging Companies and Technology

UK strives to “be a leader in AI technology” as it sets out its next steps for the regulation of artificial intelligence.

By Deborah J. Kirk, Laura Holden, and Victoria Wan

On 23 March 2021, the UK Intellectual Property Office (IPO) published the outcome of its consultation last year on artificial intelligence (AI) and intellectual property (IP) (the Response). The Response highlights the UK’s ambition to “be a leader in AI technology” by developing and adapting IP legislation in light of developments in AI technology, notwithstanding the fact that such developments may, post-Brexit, result in a divergence between the approach taken in the UK and the EU.

Since the UK’s withdrawal from the EU, the UK has clearly indicated that it will take its own path to encourage AI innovation while protecting IP rights to solidify its position as a leader in AI innovation. The UK has been active in its attempt to secure this position. The Response follows the AI Council’s publication of an AI Roadmap in January this year and the House of Lords Liaison Committee’s publication of AI in the UK: No Room for Complacency in December last year, two reports that recognise the importance of good governance and regulation for public trust while specifying that flexible regulation is critical. The Response is an example of one of the actions recommended by the House of Lords’ Liaison Committee for sector-specific regulators (such as the IPO) to identify gaps in regulation (such as IP legislation) to address issues raised by AI. Continue Reading

Where Are We Now? Digital Health in the UK in 2021

Posted in Finance and Capital Markets, Life Sciences, M&A and Private Equity

In Lexology’s Getting the Deal Through: Digital Health 2021 (UK) Latham & Watkins considers the key regulatory and transactional issues faced by market players and practitioners.

By Frances Stocks Allen, Oliver Mobasser, Sara Patel, Mihail Krepchev, and Robbie McLaren

The UK has an active digital health market comprising both the private and public sectors. Venture capital funding in the digital health sector has increased significantly in recent years, with the majority of investment appearing to come from private investment firms. However, public financing through IPOs is also on the rise. The COVID-19 pandemic has further heightened the positive and dynamic investment climate for digital health technologies in the UK. In particular, the pandemic has highlighted the need for resilience in healthcare systems, including through digital health solutions. Consequently, the pandemic has significantly accelerated uptake of digital health solutions in the UK and related investment opportunities, as well as challenged structural barriers that previously slowed investment in digital health innovations. Continue Reading

UK Introduces New Global Anti-Corruption Sanctions Regime

Posted in Dispute Resolution

The regulations will enable the UK government to impose sanctions in response to serious corruption around the world.

By Charles Claypoole, Amaryllis Bernitsa, and Robert Price

On 26 April 2021, the United Kingdom implemented the Global Anti-Corruption Sanctions Regulations 2021 (the Regulations). The legislation sets out a new Global Anti-Corruption Sanctions Regime to combat serious corruption, pursuant to the Sanctions and Anti-Money Laundering Act 2018 (SAMLA).

The Regulations allow the UK government to designate as sanctions targets (i.e., the targets of asset-freeze sanctions and travel restrictions) persons who are or who have been involved in “serious corruption” around the world, defined as (i) “bribery” or (ii) “misappropriation of property”. These terms are defined broadly as follows:

  • Bribery includes both providing a financial or other advantage to a foreign public official and a foreign public official receiving a financial or other advantage.
  • Misappropriation of property includes if a foreign public official improperly diverts or allocates property (include anything of value, including contracts or licenses or concessions) entrusted to them in their official role (whether the property is intended to benefit them or a third person).

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What Rules Will Apply to Jurisdiction and the Enforcement of Judgments After Brexit? Part Five

Posted in Brexit, Dispute Resolution

Will the UK join the Lugano Convention 2007?

By Oliver Browne and Tom Watret

Introduction

Conflicting reports have emerged in recent days as to whether the EU will approve the UK’s application to join the Lugano Convention 2007, the UK’s preferred regime for governing jurisdiction and the enforcement of judgments with EU Member States after Brexit. This post briefly describes what the Lugano Convention 2007 is and why the UK wants to join it, and provides an update on the accession process.

Previous posts in this series consider the Lugano Convention 2007 in more detail (Part 1: here) and explain the rules that now apply to jurisdiction and enforcement of judgments in the UK following the end of the Brexit transition period on 31 December 2020 (Parts 2-4: here, here, and here). Continue Reading

VG Bild-Kunst: Practical implications of the CJEU’s latest decision on linking and framing

Posted in Brexit, Data Protection, EU and Competition

This recent CJEU decision raises a number of considerations for content rights holders and for those seeking to link to content online, across both the EU and the UK

By Deborah Kirk, Luke Vaz, and Amy Smyth

Under UK and European laws, the rights of copyright holders include the right to restrict or prohibit reproduction or communication of their original work. Broadly, this means that any such reproduction or communication of the content requires consent from the copyright holder.

In the digital age, it has become increasingly difficult to regulate for this right in practice, with internet users able to replicate and communicate works using a plethora of channels (for instance, re-posting social media content, framing and inline linking of visual and media content). The Court of Justice of the European Union (CJEU) and UK and EU member state national courts have grappled for a number of years with the particular question of whether hyperlinking constitutes communication of the underlying content that it links to (principally in the CJEU cases of Svensson (2014), GS Media (2016), and Filmspeler (2017), and the English courts TuneIn (2021) case) and whether therefore it could constitute an act of copyright infringement if the hyperlinking does not have the consent of the copyright owner.

In VG Bild-Kunst, the latest CJEU case on this topic, the court held that hyperlinking may constitute communication of the underlying content if the rights holder has implemented technical measures to restrict such linking and the linking circumvents those restrictions. The court also held that, for the purposes of restricting linking, a rights holder may impose contractual obligations on a licensee to implement technical measures to prevent such linking. The CJEU’s emphasis in this decision was on the need for effective technical measures to be implemented (or contractually required) to restrict linking, as evidence of the rights holder’s intention to limit its consent to the communication of its content.

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End of Enhanced Reporting Requirements for Italian Listed Issuers

Posted in EU and Competition, Finance and Capital Markets

Italian Securities Commission returns to ordinary reporting requirements for listed issuers.

By Antonio Coletti, Isabella Porchia, Guido Bartolomei, and Marta Negro

The Italian Securities Commission (CONSOB), by press release dated April 12, 2021, announced its decision to end the more stringent reporting requirements originally introduced on April 9, 2020, as a response to the impact of the COVID-19 pandemic on financial markets. While the more stringent requirements were renewed in three month increments, they will not be renewed after April 13, 2021. Starting April 14, investors will be required to comply with the pre-pandemic reporting requirements. Continue Reading

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