The decision exposes media outlets in the UK to liability if they identify suspects prior to charge, but carries lesser implications elsewhere.

By Stuart Alford QC, James Lloyd, Harriet Slater, and Georgie Blears

On 16 February 2022, the UK Supreme Court held that a suspect under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation.

The decision has important implications on the extent to which the UK media can report on criminal investigations into individuals prior to the point of charge. Nevertheless, the often international nature of criminal investigations means that the practical impact of this decision may be more limited in situations in which information may still be published in other jurisdictions.

The decision clarifies the role of the English courts and the UK executive branch in the recognition of foreign heads of state and the ability of English courts to adjudicate the lawfulness of executive and legislative acts of foreign states.

By Charles Claypoole, Isuru Devendra and Michelle Taylor

The UK Supreme Court (UKSC) recently issued its judgment in “Maduro Board” of the Central Bank of Venezuela v “Guaidó Board” of the Central Bank of Venezuela.[1] The case concerns who controls Venezuela’s gold reserves of approximately US$1.95 billion held by the Bank of England, and proceeds of a gold swap contract of approximately US$120 million held by court-appointed receivers in England: the board of the Central Bank of Venezuela (the BCV) appointed by Nicolás Maduro, who claims to be the President of Venezuela (the Maduro Board); or the BCV board appointed by Juan Guaidó, who claims to be the interim President of Venezuela following his appointment by the National Assembly of Venezuela (the Guaidó Board)?

Landmark decision holds that the SFO does not have the power to procure documents from foreign companies outside the jurisdiction.

By Stuart Alford QC and Callum Rodgers

On 5 February 2021, the UK Supreme Court handed down a highly significant judgment in R (on the application of KBR, Inc) v Director of the Serious Fraud Office [2021] UKSC 2. The Court unanimously ruled in favour of KBR, Inc in its appeal of a 2018 High Court judgment, which had permitted the Serious Fraud Office (SFO) to use its section 2(3) powers under the Criminal Justice Act 1987 (the 1987 Act) to require foreign companies that were sufficiently connected to the UK to provide documents and other information for the purposes of an SFO investigation.

This is the first case in which the UK courts have ruled on the extraterritorial reach of the SFO’s section 2 powers, which are its primary means of gathering evidence and factual information in support of its criminal investigations into bribery and corruption. 

The Court narrowly interprets dominant purpose to exempt general tax advice from legal privilege.

By Oliver E. Browne and Clare Nida

In Financial Reporting Council Ltd v Frasers Group Plc (formerly Sports Direct International Plc) [2020] EWHC 2607 (Ch), the High Court handed down the latest ruling in relation to the Financial Reporting Council’s (FRC) ongoing investigation into Grant Thornton’s audit of Sports Direct International. The Court’s previous ruling on this matter was discussed in this Latham.London blog post.

The Court narrowly interprets dominant purpose to exempt general tax advice from legal privilege.

By Oliver E. Browne and Clare Nida

In Financial Reporting Council Ltd v Frasers Group Plc (formerly Sports Direct International Plc) [2020] EWHC 2607 (Ch), the High Court handed down the latest ruling in relation to the Financial Reporting Council’s (FRC) ongoing investigation into Grant Thornton’s audit of Sports Direct International. The Court’s previous ruling on this matter was discussed in this Latham.London blog post.

The decision overturns a series of cases deemed to have over-expanded a principle preventing shareholders from claiming against third parties for falls in a company’s value.

By Oliver Middleton and Thomas F. Lane

On 15 July 2020, the UK Supreme Court unanimously overturned a Court of Appeal decision that had barred a creditor of companies owned and directed by an individual from bringing tort claims against him for allegedly asset-stripping the companies in order to prevent them paying a court-ordered debt to that creditor. In Sevilleja v. Marex Financial Ltd,[1] the Supreme Court ruled that the “reflective loss” principle — restricting third parties from suing persons alleged to have harmed a company in a manner that caused “reflective loss” — should be narrowed so as only to apply to situations involving shareholders claiming for diminutions in value.

The Court ruled on the “dominant purpose” test and offered guidance on the status of multiparty emails, and attachments.

By Oliver Browne and Clare Nida

Two recent Court of Appeal judgments have sought to clarify, and offer practical guidance relating to, legal professional privilege.

In Civil Aviation Authority v. R (on behalf of the application of Jet2.com Ltd) [2020] EWCA Civ 35, the Court considered first whether the “dominant purpose” test still applies in order for a communication to fall within the scope of legal advice privilege. Second, in light of its consideration of this issue, the Court examined the proper approach to determining the status of communications among multiple recipients, and whether emails and attachments hold the same status.

Soon after, in Sports Direct International plc v. The Financial Reporting Council [2020] EWCA Civ 177, the Court overturned a first instance decision that the production of the client’s privileged documents to the regulator would not infringe the legal professional privilege belonging to the client.

In a leading case, the Court examined the extent of the duty of care that a bank owes to its customers when executing their orders.

By Andrea Monks and Nell Perks

On 30 October 2019, the UK Supreme Court dismissed Daiwa’s appeal in the case of Singularis Holdings Ltd (In Official Liquidation) v Daiwa Capital Markets Europe Limited [2019] UKSC 50. The decision marks the first successful claim for breach of the Quincecare duty that banks owe to their customers. Latham & Watkins expects to see further examination of the duty as instances of fraud continue to rise and the courts consider the degree of responsibility that banks should bear for stopping financial crime.

The Quincecare duty, which Justice Steyn set out in 1992, refers to an implied term of the contract between a bank and its customer that the bank will use reasonable skill and care in and about executing the customer’s orders. A bank will be in breach of this duty if it executes an order that it knows to be dishonestly given, shuts its eyes to the obvious fact of the dishonesty, or acts recklessly in failing to make reasonable enquiries.

Judgment confirms the effectiveness of contractual provisions that prevent the parties from varying their contract orally.

By Oliver E. Browne and Robert Price

The Supreme Court of the United Kingdom recently held that an oral variation of a contract was invalid due to a No Oral Modification (NOM) clause contained in the contract. This clause required any variations to be provided in writing and signed on behalf of both parties. The judgment, which was handed down on 16 May 2018, cements the effectiveness and importance of NOM clauses for the foreseeable future.

Facts

MWB Business Exchange Centers Ltd (MWB) operated serviced offices in central London. Rock Advertising Ltd (Rock) entered into a contractual license with MWB to occupy office space. Their contract contained an NOM clause as follows: “All variations to this Licence must be agreed, set out in writing and signed on behalf of both parties before they take effect.”