Feature

Lost in the labyrinth: the Court of Appeal in KVB Consultants

The decision of the Court of Appeal in KVB Consultants Ltd & Ors v Jacob Hopkins McKenzie Ltd & Ors  [2024] EWCA Civ 765 has important implications for anyone who deals with, appoints or acts as an appointed representative (AR). It applied a number of principles from existing case law but reached a surprising conclusion regarding how a principal can limit the responsibility it takes for its AR.

Money laundering in the supply chain: the use of “adequate consideration” to “cleanse” criminal property

Section 329 (2)(c) of the Proceeds of Crime Act 2002 exempts a person from criminal liability where criminal property is acquired for adequate consideration. Previous authority appeared to suggest that the provision of adequate consideration had the effect of "cleansing" criminal property. Thus, anyone who subsequently dealt with the property would not commit a money laundering offence. 

In Rex (on the application of World Uyghur Congress) and National Crime Agency  [2024] EWCA Civ 715, 26 June 2024  the Court of Appeal rejected this interpretation. In a decision which will have significant implications for businesses and professional advisors, the court held that the “adequate consideration” exemption is no more than a personal exemption. It has no impact on the status of the property as criminal property or recoverable property. It does not therefore operate to cleanse tainted property. 

Leading the charge (pun intended): international security transactions in the Middle East

This article introduces the latest legislation adopted in the Dubai International Financial Centre (DIFC), one of the Middle East’s leading financial centres, in respect of secured transactions. It discusses the policy objectives underpinning this new legislation, as well as certain innovative legal concepts which were included in it, and which the DIFC Authority (DIFCA) hopes will push the DIFC to the “forefront of best practice” globally.

Judicial review in the financial services sector: a question of risk and reward

Successful judicial review challenges are rare – those in the financial services sector perhaps particularly so. Does the rarity of successful challenges explain why financial institutions may overlook their public law rights when engaging with regulators? This article explores recent examples of judicial review in the financial services sector, the risks involved for financial institutions in bringing such claims, and key considerations for those wishing to exercise their public law rights.

Fixed rate loans: tough break (costs) for borrowers

This article considers the recent decision in Farol Holdings Limited & ors v Clydesdale Bank PLC & National Australia Bank Limited  [2024] EWHC 593 (Ch) and its likely impact on the landscape of lender/borrower disputes for the recoverability of break costs and the establishment of an unfair relationship.

Turn the Unfair Terms Directive into a Regulation!

In this article, the authors set out the arguments for replacing the EU Directive on Unfair Terms in Consumer Contracts with a Regulation by identifying the problems with the current legislation and the advantages of a change.

Assignment or charge over warranty and indemnity insurance policies as security?

This article considers a difficulty which may arise for buyers in M&A transactions when lenders take security over warranty and indemnity insurance policies by way of assignment of the right to be paid the proceeds of a future claim. This article suggests a better option for buyers would be to take a charge over the contractual right to be paid, rather than by receiving an assignment of the right to, the proceeds of the policy.

Mandatory collateralisation of hedging transactions under senior secured facilities

This article considers the implications of mandatory collateralisation being applied to hedging transactions under senior secured facilities.

Anti-suit relief: Bourlakova and Magomedov and the non-contractual jurisdiction

The recent line of authority preceding Bourlakova ¹ and Magomedov²  had largely centred on the contractual jurisdiction for granting an anti-suit injunction (ASI) to restrain or prevent the commencement of foreign proceedings. However, the cases of Bourlakova  and Magomedov  respectively considered the non-contractual jurisdictions for granting ASI relief and anti-anti suit injunctive (AASI) relief. This article will examine the contractual and the non-contractual bases for the grant of ASI and AASI relief, before considering the Bourlakova  case and the court’s approach to single forum disputes, as well as the Magomedov   case and the court’s willingness to protect judicial process in England and Wales.

Tacking: what further advances since 2002?

In this article, the authors consider issues of interest to the syndicated loan market in the context of the “tacking of further advances” to existing lending secured by registered land, or mortgages of registered land, in light of s 49 of the Land Registration Act 2002, developments in jurisprudence on the topic, and the work of the Law Commission. The authors are indebted to Mr Trevor Moore, for his article in this journal entitled ‘Real Estate as Security following The Land Registration Act 2002’ (2004) 2 JIBFL 56, upon which this work builds. This work assesses developments since that date and addresses problems arising in the modern loan market where; syndicate lenders make further advances directly to the borrower under ancillary facilities/RCFs; where loan agreements state that the obligation to make a further advance does not apply for so long as there is an un-remedied breach of covenant; how the concept of the “agreed maximum amount” operates under facilities where there are incremental loans and up-tiering transactions; and how the absence of a robust intercreditor agreement with a subsequent chargee can expose the “senior” lenders to US-style “lender-on-lender” violence.