Leeds Commercial Update: Two Key Supreme Court Decisions Awaited

Members of Quadrant Chambers will host this event in Leeds to examine two of the most important commercial cases of the last year: Sevilleja v. Marex Financial Ltd [2018] EWCA Civ 1468 and Singularis Holdings Ltd v. Daiwa Capital Markets Ltd [2018] EWCA Civ 84.  Both are presently under appeal to the Supreme Court, with argument having been heard in the spring and summer respectively, and with the judgments anticipated by the end of the year.  In addition to examining the important issues arising in, and commercial consequences of, each case, we will also anticipate the fate of the appeals and consider the wider implications of the decisions to date.

Singularis Holdings Ltd v. Daiwa Capital Markets Ltd

In the ordinary course of events, a banker is required to honour its customer's instructions and will be strictly liable for any failure to do so.  However there has been a longstanding exception to this principle, established in Barclays Bank Ltd v. Quincecare Ltd [1992] 4 All ER 363: namely where a bank suspects that the payment instructions are themselves fraudulent, even if the person giving the instructions is acting within the four corners of the bank mandate and potentially where the person giving the instructions is themselves acting honestly.  If a bank is on enquiry as to a potential fraud, then it is under a duty to decline those payments and may be liable for failing to stop fraudulent payments that are duly authorised by a director.

The precise scope of that duty was centre-stage in this case, in which the Court of Appeal held that the defendant bank was liable to the Claimant for US$152 million for failing to stop fraudulent payments authorised by a director.   However, this was not the only issue of importance that fell for consideration.  The case also gives rise to difficult questions of attribution and the proper application of the principles recently considered by the Supreme Court in Bilta (UK) Ltd (In Liquidation) v. Nazir (No. 2) [2016] AC 1, because the defendant bank argued that it had an ex turpi causa defence, as the claimant was a “one-person” company, so the director’s dishonesty should be attributed to the claimant. 

The issue of whether and in what circumstances a banker is required not to honour its customer's mandate where fraud is suspected is a matter of increasing importance given the growth of phishing and banker impersonator confidence frauds.  Equally important, given the explosion in the number of “one person” companies is the question of attribution of dishonesty.  Knowledge of Singularis is therefore a must for anybody advising the victims of fraud, or banks facing claims from victims of fraud.

Sevilleja v. Marex Financial Limited

This is another key commercial law case, in which the Supreme Court’s judgment (following a hearing on 8th May 2019) is keenly anticipated.  Its importance is made clear by the fact that the All-Parliamentary Group on Fair Business Banking appeared before the Supreme Court as an intervener.  The appeal lies against the decision of the Court of Appeal that a claim by a company’s creditor against an asset-stripping director was precluded by the rule against reflective loss.  Ever since the House of Lords re-stated that rule in Johnson v. Gore-Wood [2002] 2 AC 1, its precise scope has been the subject of keenly-fought judicial debate, with a number of cases being decided in an inconsistent manner.  This is the first opportunity in many years for the Supreme Court to re-consider the extent and application of the rule. 

The case itself concerns allegations by Marex that Mr Sevilleja asset-stripped two companies, by transferring money from their bank accounts in this jurisdiction into accounts in his personal control.  The effect of those transfers was that the companies were not able to pay a judgment debt to Marex.  Marex says that, by his actions, Mr Sevilleja (who is not resident in this jurisdiction) committed a tort.  Mr Sevilleja challenged jurisdiction, on the basis that the rule against reflective loss – which bars a party who has suffered a loss through a reduction in the value of their interest in a company from claiming directly against the person who caused the loss to the company – precluded Marex from showing a completed cause of action in tort.   The Court of Appeal held that a claim by creditors was barred by the rule.  The question for the Supreme Court – which carries potentially enormous consequences – is whether it was right to do so.

Timings: 5:15pm - registration, 5:30pm seminar, 6:30pm networking reception

Venue: Met 2, The Met Hotel, King Street, Leeds, LS1 2HQ

Turlough Stone

Turlough has a broad commercial practice, encompassing banking and finance, civil fraud, professional negligence, insolvency, insurance and credit and surety disputes (particularly in the field of asset finance).  Many of Turlough’s cases have an international and cross-border element, and involve the obtaining of interim relief, including freezing, search and asset preservation orders. 

On the banking and financial services side, Turlough has considerable experience in disputes involving loan transactions, personal and corporate surety arrangements (including guarantees), letters of comfort and performance bonds), mortgages, structured finance products, letters of credit and bills of exchange, as well as mis-selling claims and claims under FSMA 2000. 

In terms of general commercial litigation, his practice embraces contractual interpretation, complex fraud (including dishonest assistance, fraudulent trading and tracing remedies), and claims against solicitors, surveyors and financial professionals.

As well as acting as a member of larger counsel teams in long-running commercial proceedings, he has extensive experience as a sole advocate, appearing primarily in the Business and Property Courts in the UK, but also in the Court of Appeal and the Privy Council.  Recent or notable cases include:

Bilta (UK) Ltd (In Liquidation) & Others v. SVS Securities & Others (BPC, Financial List) Acting as junior counsel for the defendants in a claim valued at £70 million against SVS (a regulated broker) and its principals arising out of an alleged VAT carousel/missing trader fraud in the market for European Union carbon credits, involving allegations of dishonest assistance and fraudulent trading.  The claim is presently listed for a 40-day trial in the spring of 2020. 

CIAC Corporation & CCUK Ltd v. Barclays Bank plc (BPC, Commercial Court) Acted for a US credit card company and its UK subsidiary in a claim valued in excess of £1.5 billion against Barclays, from whom they acquired a major credit card portfolio in 2007. The claim, which settled recently, gave rise to issues of regulatory breaches by Barclays, indemnities, fraudulent misrepresentation and mis-selling.

Reveille Independent LLC v. Anotech International (UK) Ltd [2015] EWHC 726 (Comm).  Acted for the claimant television production company, both at first instance and on appeal, in its successful claim against a cookware manufacturer for payment of sums due for the integration of the defendant’s products in the television series “MasterChef US” and the use of the claimant’s IP in the marketing and production of branded cookware.

 

To view Turlough Stone full website profile, please click here.

 

Emily Saunderson

Emily is a general commercial practitioner specialising in commercial fraud, and banking and finance. She has broad experience in obtaining urgent injunctive relief including freezing orders, search orders, asset preservation orders and delivery up orders. Emily’s banking and finance practice has a particular emphasis on financial derivatives instruments, and she is familiar with standard form contracts including the ISDA Master Agreement.

Emily is ranked in the latest edition of Chambers & Partners in commercial dispute resolution and she is recommended as a leading junior in banking and finance and financial services by the Legal 500, where she is described as “technically outstanding, with a very sound grasp of copious quantities of fine detail.”

She has experience in cases involving contractual interpretation and rectification; dishonest assistance; fraud; bribery; fraudulent trading; rights of set-off; contractual estoppel; rights under contracts of indemnity; and guarantees.

Before embarking on a career in law, Emily was a financial journalist covering the global derivatives markets. She brings a strong understanding and useful insider’s perspective on financial markets to her legal practice.

 

To view Emily Saunderson full website profile, please click here.