UK financial watchdog, the Financial Conduct Authority ("FCA"), issued a "Dear CEO" letter to asset managers last month, setting out its Asset Management Supervision Strategy.

Welcome to the latest edition of our quarterly disputes newsletter, which covers key developments in the dispute resolution world over the last three months or so.

Welcome to the third episode of our Mitigating a Data Breach: Insider Threats podcast series. In this series of 3 podcasts, members of the Travers Smith Cybersecurity team, Technology & Commercial Transactions Partner, James Longster, Employment Partner, Adam Wyman and Dispute Resolution Senior Counsel, Rachel Wilson, take a look at what happens in the aftermath of a data breach.

In this recent decision on the interpretation of settlement agreements, the Court of Appeal has confirmed that, where the wording of a settlement agreement and its factual matrix indicate that it is objectively intended to cover claims in fraud and dishonesty, that agreement will be given effect, even where these is no express reference to such claims.

Welcome to the second episode of our Mitigating a Data Breach: Insider Threats podcast series. In this series of 3 podcasts, members of the Travers Smith Cybersecurity team, Technology & Commercial Transactions Partner James Longster, Employment Partner Adam Wyman and Dispute Resolution Senior Counsel Rachel Wilson, take a look at what happens in the aftermath of a data breach.

Key case on arbitration law and the separability principle.  

Welcome to the first episode of our Mitigating a Data Breach: Insider Threats podcast series. In this series of 3 podcasts, members of the Travers Smith Cybersecurity team, Technology & Commercial Transactions Partner James Longster, Employment Partner Adam Wyman and Dispute Resolution Senior Counsel Rachel Wilson, take a look at what happens in the aftermath of a data breach.

Welcome to our Mitigating a Data Breach: Insider Threats podcast series. In this series of 3 podcasts, members of the Travers Smith Cybersecurity team, Technology & Commercial Transactions Partner, James Longster, Employment Partner Adam Wyman and Dispute Resolution Senior Counsel Rachel Wilson, take a look at what happens in the aftermath of a data breach.

Travers Smith LLP is delighted to announce that Private Equity and Financial Sponsors Partner Genna Marten, and Dispute Resolution Partner, Toby Robinson, have been included in The Lawyer magazine's 2023, Hot 100. The Hot 100 is an annual publication which celebrates extraordinary lawyers based in the UK who have completed ground-breaking work in the last year.

In our Dispute Resolution 2022 Yearbook, we discussed the recent trend whereby minority shareholders rely on claims for breaches of a duty of good faith as the basis for an unfair prejudice petition. In this case, in the context of such a petition, the Court of Appeal construed an express duty of good faith in a shareholders' agreement, and provided some guidance as to the approach to interpreting such clauses.

A failure of trust?

Trust has been a key theme that has emerged in crypto in 2022. Going back to the original Bitcoin "White Paper"¹, the very stated purpose of crypto and blockchain technology was to transcend a "trust based model" of the traditional financial system to enable payments – and later, with the development of smart contract platforms such as Ethereum, more complex transactions – to be entered into and executed without reliance on trust in counterparties and intermediaries, those being replaced by code and distributed consensus.

The appeal concerned two issues. The first issue was the scope of litigation privilege – the respondent defendants ("the Bank") sought to know which individuals were authorised to give instructions in relation to the proceedings on behalf of the appellant claimant ("Loreley"). Loreley claimed that this information was privileged.

In a recent judgment given in the context of a case involving competition and intellectual property claims, Mr Justice Marcus Smith adopted a striking and unconventional approach to disclosure, placing the burden of a relevance review on the receiving party, not the disclosing party. Having originally ordered the parties to follow the "standard" PD51U (now PD57AD) disclosure model, the judge subsequently replaced this with a regime where the parties were required to conduct a disclosure review, targeted not at the identification and disclosure of relevant documents, but at the narrow exclusion of unequivocally irrelevant, and privileged, documents, with all other documents to be provided for inspection.

Last week the Government announced that it will be introducing legislation that enables judges to use procedural shortcuts to dismiss so-called Strategic Lawsuits Against Public Participation (or "SLAPPs") at an early stage. This follows a campaign by UK newspapers to prevent wealthy individuals from issuing SLAPPs with the intention of preventing legitimate public interest journalism.

In MUR Shipping BV v RTI Ltd, the Court of Appeal ruled that a force majeure clause did not apply because the party unable to comply with its obligations had offered suitable alternative performance (as envisaged by the clause, which included a reasonable endeavours obligation).  In doing so, it reversed the decision at first instance, where the court ruled that the shipowners were entitled to insist on being paid in US dollars, not euros, as required by the contract. The case highlights the difficulties in relying on force majeure clauses, even where (as here) the contract is affected by US sanctions.

In this article, first published in the November 2022 edition of Butterworth's Journal of International Banking and Financial Law, Partner John Lee considers a key potential value proposition of smart contracts and its limits.

Claimants are finding novel ways to advance collective proceedings, including the increasingly popular collective proceedings regime in the Competition Appeal Tribunal ("CAT").  While this regime was introduced to facilitate competition law claims, claimant law firms are finding creative ways to use it for matters that do not appear, at first blush, to be "competition" related matters at all. 

Travers Smith LLP is delighted to have received awards for Litigation and Dispute Resolution Team of the Year and ESG Initiative of the Year at Law.com's annual British Legal Awards. The Awards took place on 23 November.