Feature

Channel Islands and statutory fences: obtaining evidence for use overseas

The recent decision, Green v CT Group Holdings Limited , adds to existing case law on the point that Norwich Pharmacal  applications cannot be used to obtain evidence for use in proceedings overseas. The court again found that the route to obtaining that evidence is “fenced off” by statute, and a letter of request must be issued to the English court from overseas instead. That process is however unsuitable for an urgent asset-trace in response to a fraud. Although controversial, there is a similar but separate route to obtaining information about assets and their whereabouts for use overseas under another statute.

The dynamics of insurers as lenders in the NAV market

In this article, Angela Batterson of Cadwalader in New York, considers the factors attracting insurance companies to the NAV financing space and some typical deal terms.

Non-notification receivables financing: can the assignor sue without joining the assignee?

Generalised statements in recent cases appear to say that an assignor cannot sue the debtor without joining the assignee to the action. This article argues that this should not be the case where the debtor has not been notified of the assignment, and that the statements in the cases are weak, if any, authority in relation to non-notification receivables financing. 

This article is based on the full chapter published in Peel and Probert: Shaping the Law of Obligations: Essays in Honour of Professor Ewan McKendrick KC,  OUP 2023, ISBN: 9780198889762. 

The rule in Clayton’s Case: its application in non-banking relationships

The rule in Clayton’s Case  originated in banking relationships and its application is most often seen in that context. Recently there has been a trend to disapply the rule, in cases where multiple claimants seek to trace into a single fund. This article looks at a recent decision of the Court of Appeal which turned on the application of the rule in a non-banking context, and in particular on the timing of the appropriation of payments which is deemed to take place pursuant to the rule.

Going cashless: the treatment of cryptoassets in insolvency proceedings

The transaction volume of cryptoassets and associated products has witnessed rapid expansion, with recent reports indicating that the cumulative market value for cryptocurrencies alone has now exceeded $3trn. This growth has, in turn, increased the likelihood of both cryptoasset-related businesses (such as exchanges and custodian wallet providers) entering into formal insolvency processes, and cryptoassets featuring within insolvency proceedings. Accordingly, this article considers how cryptoassets are treated within English insolvency law, focusing on their classification as property, jurisdictional issues arising from their decentralised nature, the enforcement of security interests, and the challenges of valuation and distribution.

A mortgagee’s accountability for mortgage valuations following Shokrollah-Babaee v EFG Private Bank

This article considers the judgment of Miles J in Shokrollah-Babaee v EFG Private Bank Limited  [2023] EWHC 3270 (Ch), how it affects the relationship between mortgagees, valuers and mortgagors (to the extent that it can fairly be described as a relationship at all) and its wider impact.

Joining the dots: a wider use for AML e-verification tools?

Everything is electronic nowadays. Globalisation, technology and Covid have all played a significant part in driving legal changes that mean it is rare not to be able to sign documents, open bank accounts or indeed do most things using just a keyboard or a click. But can established processes help to mitigate the risks of more newly permitted e-signatures? This article looks at how anti-money laundering identity verification processes can help with verification of document signatories.

Does the restoration of Crown preference mean that guarantors can get off the hook?

When the economic landscape changes, people often look to wriggle out of their financial commitments. Just such a change occurred in 2020, when HMRC’s status as a preferential creditor of insolvent companies was restored.

Unravelling the Travel Rule: AML requirements for cryptoasset businesses

The Financial Action Task Force (FATF) recently updated its guidance for Virtual Assets and Virtual Asset Service Providers (VASPs) in October 2021 including on its Recommendation 16 that certain transfers of cryptoassets must be accompanied with identifiable originator and beneficiary information. The application of Recommendation 16 to VASPs has caused controversy, as it is regarded as being very difficult to comply with by the industry. This article explores whether the proposed implementation of the Travel Rule in the UK addresses any of the commonly cited practical difficulties with compliance (which are particularly pronounced for unregulated firms or start-ups that may be unaccustomed to being scrutinised in this way) in light of the most recent guidance.

Implementation of the remaining Basel III standards in the UK

The aim of this article is to provide an overview of the Prudential Regulation Authority’s rules (PRA Rules) implementing the remaining Basel III standards in the UK, to highlight any key deviations from the underlying Basel III standards and the equivalent EU CRR2 regime, and to discuss potential challenges that these deviations might create for banking groups. In addition, this article includes responses to frequently asked questions in relation to the above.