Feature

This article summarises some of the key points arising out of the newly published Digital Dispute Resolution Rules (Digital DR Rules). The advantages of adopting the Digital DR Rules are explored as well as considering how the rules might be incorporated into new and existing agreements.

In this article Jonathan Dawid considers how victims of abusive short selling can seek legal redress against those responsible for their loss.

In this article, Timothy Sherwin considers the provisions concerning the return and stewardship of “relevant funds” under the new Payment and Electronic Money Institution Insolvency Regulations 2021. The article was written before the High Court’s judgment in In the matter of ipagoo LLP (in administration) [2021] EWHC 2163, which, in contrast to In Re Supercapital [2020] EWHC 1685 (Ch), determined that no statutory trust exists over safeguarded funds held under the Electronic Money Regulations 2011. The Ipagoo decision does not overrule Supercapital and relates to different legislation but the inconsistency in approach means that the existence of a statutory trust may not now be the correct legal position. (A case analysis on the ipagoo decision will follow in the October edition).

Clive Wolman explains why there may no longer be a valid legal basis for a company to be able to restrain the presentation, advertisement or pursuit of a winding-up petition against it merely by showing that it is genuinely and substantially disputing the petition debt. Changes in UK insolvency and company legislation, reinforced by changes in accounting standards and by judicial rulings, have led to a broader definition of a “contingent” debt or liability. It now includes the contingency of a court finding that the disputed debt or liability does exist.

Traditionally, in a financial product mis-selling context, claims against financial institutions involving allegations of fraud, LIBOR manipulation and unlawful means conspiracy have not been amenable to strike out or summary determination. However, the English courts are increasingly demonstrating a willingness to deal with opportunistic claims against banks (and other third parties) involving allegations of fraud without the need for a full trial, in “appropriate” cases. Two recent High Court judgments provide guidance on when the court will consider it appropriate to do so: Boyse (International) Limited v Natwest Markets plc & Anor³ and Elite Properties and Ors v BDO LLP.⁴

The impact on the aviation sector of the COVID-19 pandemic and governmental restrictions on air travel and other movement controls has been severe and has resulted in a number of airline restructurings. This article examines the use by an airline of a scheme of arrangement under Pt 26 of the Companies Act 2006 (2006 Act), as a mechanism for effecting a compromise with certain of its creditors, and the interplay between a scheme and those creditors’ rights under the Cape Town Convention and associated Aircraft Protocol (CTC), as implemented in the UK by The International Interests in Aircraft Equipment (Cape Town Convention) Regulations 2015 (Regulations). These considerations arose in the decisions of the English court in MAB Leasing Limited.¹

This article compares the reliance requirement for the common law claim of misrepresentation with the statutory action of s 90A of the Financial Services and Markets Act 2000 (FSMA). The authors focus on recent authority regarding reliance upon implied statements at common law and the uncertainties that remain under s 90A FSMA.

Loss of a chance principles apply to claims for lost transactional opportunities when the counterfactual case depends on the actions of a third party. This article discusses the relevant principles, their application to transactional cases, and the impact of any wrongdoing by the claimant on the lost opportunity claim.

In this article Zahra Al-Rikabi considers the juridical basis for the doctrine of frustration following Canary Wharf v EMA and in light of the renewed interest in the doctrine following the global COVID-19 pandemic.