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Client Type: Individual

Norwich Pharmacal orders: an analysis of the “good arguable case” requirement

The recent case of Hickox v Dickinson & Anor [2020] EWHC 2520 (Ch) considers the requirements for obtaining a Norwich Pharmacal order (“NPO”). The ability of the court to make such an order remains an exceptional jurisdiction, and the courts are alive to the need to prevent mere “fishing expeditions”. The judge gave welcome guidance on the requirement of a “good arguable case” of wrongdoing.

The one with the Hong Kong fraudster

The claimant was a first-time purchaser of a property in London. He was also a cash buyer, using savings he had accumulated over a number of years. Despite these obvious vulnerabilities, his conveyancing solicitors (the defendant in this case) did not take the time to find out how much he knew about the conveyancing process or talk him through it. He never met his solicitor in person and had few phone calls; the majority of the transaction was conducted by email.

Unbeknown to the claimant, the defendant’s computer system had been hacked. A fraudster was intercepting emails and impersonating the defendant and its clients in communications with each other. The fraudster had set up email addresses which at first blush looked the same as the genuine email addresses of the claimant and the solicitor firm. However on closer inspection they were very slightly different with two letters having been swapped around.

The defendant was on notice that this had happened to two clients already, however they failed to alert their other clients and tell them to be vigilant. Instead, the defendant (having failed to double-check the recipient’s email address) sent an email about where the purchase money should be sent to the fraudster who was impersonating the claimant. The fraudster then emailed the claimant pretending to be the defendant and persuaded him to pay the purchase money of in excess of £400,000 to a bank account in Hong Kong which was controlled by the fraudster. This money was never recovered.

The claimant brought a claim for professional negligence, alleging that the defendant had failed to exercise reasonable vigilance for detecting fraud, failed to provide advice about the conveyancing process and where money should be paid to, failed to provide any advice about cyber fraud and how it might materialise in a property transaction, and failed to warn the claimant that there was a fraudster at large. The defendant similarly blamed the claimant for failing to exercise vigilance for fraud and also blamed its own IT contractors who had advised the defendant solicitor firm incorrectly that it was several of the defendants’ clients who had been hacked and not the defendant itself – a conclusion that the defendant should have challenged given the enormous coincidence.

We were confident that our client would succeed at trial, albeit it was likely that the court would make a deduction from his damages to reflect the extent to which he was the author of his own misfortune in not, for example, picking up the phone to the defendant before transferring the purchase money to Hong Kong. The claim was resolved in a confidential settlement with our client receiving a substantial amount of money.

Dishonesty: what is the standard of proof?

In a recent article, we considered the requirements for pleading dishonesty against a corporate body. The Court of Appeal has recently considered the standard of proof for dishonesty in the case of Bank St Petersburg PJSC v Arkhangelsky [2020] EWCA Civ 408 which resulted in the reversal of the High Court’s dismissal of a counterclaim, and a welcome clarification of the standard required to prove dishonesty.

Is the confidentiality of mediation impenetrable?

Confidentiality throughout the mediation process is key to enabling parties to discuss settlement options frankly and without fear of those matters disclosed at mediation being used against them in any continuing litigation. However, the recent case of Berkeley Square Holdings & Ors v Lancer Property Asset Management Ltd & Ors [2020] EWHC 1015 (Ch) serves as a reminder that the confidentiality of mediation is not completely impenetrable.

SIM-Swapping Fraud: How To Protect Yourself

With smartphones providing a gateway to our financial data they are becoming a prime target for fraudsters. SIM-swapping fraud occurs when someone takes control of your mobile phone number and uses it to gain access to your apps and banking.

The one where we helped a household name in rugby negotiate a better contract

We were instructed by a rugby star’s agent to help provide a strategy to obtain a more beneficial contract for his client. The star’s contract was due for renewal and negotiations between the club and the star were becoming exacerbated. We provided a breakdown of all available options to their client, including potential transfers. We helped review the stars current contract, provided commercial advice as to how certain “pressure points” could be utilised and “out of the box” thinking to ensure that their client obtained a better contract, whilst still ensuring all options were “on the table”.

By working with the agent, exploring all possible scenarios, explaining the issues that they faced and how they could be overcome, the agent was able to negotiate a market leading contract and secure the future of his client for what would be the rest of his career.

The one where we were an extension to our high-profile celebrity client’s team.

We were instructed by a high-profile individual who, as his previous trusted advisor, wanted us to help him navigate a commercial minefield to implement a business idea he had. The client wanted to draw on our commercial acumen, expertise in spotting and avoiding problems and our ability to introduce them to market leaders in a number of areas critical to their business idea.

We were entrusted to build a market leading team for our client to ensure that their dream could become a reality. By working collaboratively and having access to specialist teams in niche areas, we ensured our client received a seamless, efficient and cost-effective service.

The one relating to breach of confidentiality

We were instructed by an individual who had been accused of obtaining and threatening to disseminate highly confidential information. As the claimant believed the breach and associated risk to them was significant, they issued injunctive proceedings.

To protect the client’s position as much as possible, we investigated the matter thoroughly and robustly defended their position at a number of court hearings. The client’s legal team was also bolstered by instructing a one of the leading barristers in the field of breach of confidence.

Through robust representation, the parties reached an amicable settlement. This allowed our client to focus on other pressing interests in their life.

A Closer Inspection Of Legal Advice Privilege

The principle of legal advice privilege came under scrutiny by the Court of Appeal at the start of this year in Civil Aviation Authority v R (on the application of Jet2.com Limited) [2020] EWCA Civ 35. We look in detail at the principles established in this case and how these were applied by the court in the recent case of A v B and the FRC [2020] EWHC 1492.

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