What Can We Learn From The First Half Of 2017?

COURT DECISIONS

Whilst a number of cases in the first six months of 2017 dealt with issues of particular interest to litigators (e.g. LBI EHF v. Raiffeisen on default provisions and service by fax, BPE Solicitors v. Hughes-Holland on loss flowing from negligence), the recent case with perhaps the widest implications for lawyers and investigators is SFO v. ENRC. Like the RBS Rights Issue decision at the end of 2016, this takes a restrictive approach to privilege and is likely to encourage the SFO and FCA still further in following their approach of recent years of scrutinising and challenging privilege claims.

With regard to the obligations banks have to their customers, there is sometimes a tension between the approach of the courts – which tend to emphasise the contractual position – and that of regulators – which tend to have regard to broad principles of fairness. In Thomas v. Triodos the High Court interpreted the bank's statement that it would comply with a