Finance litigation trends: Autumn 2025 update
In this banking and finance litigation update, we focus on key cases, developments and hot topics to help in-house counsel to stay up to date. In this issue, we cover the following:
2. Documents disclosed under a Norwich Pharmacal order may be used against the disclosing party
4. The death of the Shareholder Rule
5. The exclusivity of the non-exclusive jurisdiction clause in the 1992 ISDA Master Agreement
6. The Court of Appeal steps in to give guidance on the interpretation of asymmetric jurisdiction clauses
7. Commercial Court pilot to make more court documents publicly available
8. The Property (Digital Assets etc) Act 2025 comes into force
You can access more detailed briefings using the links; and if you would like further information on a topic then please contact us.
1. Developments in APP fraud
A sending bank may owe a ‘retrieval duty’ to the victim of Authorised Push Payment fraud
In Dawn Barclay-Ross v Starling Bank Limited [2025] EWHC 2158 (KB), the High Court allowed part of a claim by a litigant in person to proceed on the basis that, in instances of Authorised Push Payment (APP) fraud, a sending bank may owe a ‘retrieval duty’ to a victim. This duty might include seeking that victim’s instructions once the bank is aware of the fraud and attempting to retrieve a victim’s funds with due care and skill. As this decision was in response to an application to strike out the claim, the Court was only required to determine if such a claim was arguable. However, the Court’s recognition that such a duty might exist has potential implications for the legal obligations owed by sending banks to the victims of APP fraud and the operational procedures they may need to put in place to fulfil those obligations.
Our team has prepared a fuller summary of this case and its impacts available here: High Court allows claim based on retrieval duty of sending bank in instances of APP fraud | Inside Disputes
A derivative claim for a breach of the Quincecare duty may now provide a new route for claims against payment service providers
In Hamblin and another v Moorwand Ltd and another company [2025] EWHC 817 (Ch), the High Court found in favour of victims of an APP fraud. The victims brought a derivative claim against a payment services provider (PSP) for breaching its Quincecare duty to its corporate customer, and the High Court ordered the PSP to reinstate the funds it paid out from the corporate customer’s account. Banks and PSPs should take note of this decision as it opens up a new route for APP fraud victims to bring a claim against them for breaching their Quincecare duty, a novel development following the narrowing of the duty under Philipp v Barclays Bank UK PLC.
Our team has prepared a fuller summary of this case and its impacts available here: Triggering PSPs’ Quincecare duties in APP fraud cases: The ‘derivative claim’ | Inside Disputes
2. Documents disclosed under a Norwich Pharmacal order may be used against the disclosing party
Key takeaway: The High Court allowed a claimant to use documents received under a Norwich Pharmacal Order from the disclosing bank to bring a claim against that bank
In Babco Chemicals Inc v HSBC UK Bank Plc [2025] EWHC 1749 (Comm), the High Court allowed a potential claimant to use documents it received from a bank under a Norwich Pharmacal Order (NPO) to bring a claim against that same bank. This was in the context of an authorised push payment (APP) fraud which had resulted in monies being paid into an account held by the bank and is a further example of a claimant seeking to hold a receiving bank liable.
The High Court considered the circumstances in which it could exercise its discretion to vary undertakings attached to an NPO; these typically limit the use of any documents provided to bringing a claim against the third-party wrongdoer. The decision illustrates the balance a court will try to strike between upholding undertakings for their proper purpose and the interests of justice.
Whether receiving banks can be liable in an APP fraud scenario remains uncertain. However, this decision highlights another area of risk for receiving banks, where potential claimants use an NPO to seek information to fully plead their claim.
Our team has prepared a fuller summary of this case and its impacts available here: High Court grants variation of Norwich Pharmacal undertakings to allow use of documents against disclosing bank | Inside Disputes
3. The Court of Appeal considers the scope of a director’s duty to act in the best interests of the company
Key takeaway: The Court of Appeal has held that a director’s determination of what is in the best interests of a company is not just a question of that director’s subjective opinion
In Saxon Woods Investments Ltd v Costa (Re Spring Media Investments Ltd)[2025] EWCA Civ 708, the Court of Appeal considered whether a director who intentionally delayed the sale of a company, and deliberately concealed that from the board, caused unfair prejudice against a minority shareholder and breached a director’s duty to act in the best interests of a company under section 172 of the Companies Act 2006 (the Best Interest Duty).
The Court of Appeal held that there had been (i) unfair prejudice against a minority shareholder; and (ii) a breach of the Best Interest Duty in circumstances where a director had deliberately misled the board by concealing his strategy to delay a sale in the hope such a delay would result in a significant uplift in the purchase price for the company. The Court imposed limits on the extent to which a director can rely solely upon their subjective opinion of what is in the best interests of a company when defending a claim for breach of the Best Interest Duty.
The case raises several practical issues, particularly as to the scope of the Best Interest Duty and the interaction between directors’ duties and shareholders’ agreements.
Our team has produced an overview of the decision: Director’s duty to act in the best interests of a company: Honesty really is the best policy | Inside Disputes
4. The death of the Shareholder Rule
Key takeaway: Shareholders do not have the automatic right to access a company’s privileged legal advice
In Jardine Strategic Ltd v Oasis Investments II Master Fund Ltd & Ors No 2 (Bermuda)[2025] UKPC 34, the Privy Council has abolished the Shareholder Rule, which had prevented a company in litigation with its shareholders from withholding documents from inspection on the basis that the documents were subject to legal advice privilege. The Board directed that its decision, which was made in the context of an appeal from the Bermudian Court of Appeal, should be regarded as abolishing the rule in England and Wales. In future shareholder disputes in the English courts, shareholders will be unable to access privileged legal advice upon which company directors have based contentious decisions.
Our team has prepared a fuller summary of this case and its impacts available here: The emperor's new clothes: The death of the Shareholder Rule | Inside Disputes
5. The exclusivity of the non-exclusive jurisdiction clause in the 1992 ISDA Master Agreement
Key takeaway: The 1992 ISDA Master Agreement’s non-exclusive jurisdiction clause is exclusive against certain jurisdictions
In Dexia SA v Comune Di Torino[2025] EWHC 1903 (Comm), the High Court held that the ‘non-exclusive’ jurisdiction clause in the English law 1992 ISDA Master Agreement (the ISDA MA), properly interpreted, was exclusive against certain jurisdictions. On the facts, this meant that disputes concerning interest rate hedging swaps were subject to the exclusive jurisdiction of the English courts and proceedings brought by the defendant swap party in Italy were in breach of the ISDA MA’s jurisdiction clause.
In its judgment, the Court has provided clarity on the construction of the ISDA MA jurisdiction clause following Brexit and shown commitment to holding parties to their jurisdictional bargain, particularly in the sphere of international finance.
As well as providing clarity, the judgment also demonstrates the English courts’ commitment to upholding a contractual choice of English jurisdiction and a willingness to provide practical assistance in support of this, particularly in the context of international financial contracts such as the ISDA MA where market certainty is important.
Our team has prepared a fuller summary of this case and its impacts available here: High Court confirms exclusive jurisdiction of English courts under ISDA Master Agreement | Inside Disputes
6. The Court of Appeal steps in to give guidance on the interpretation of asymmetric jurisdiction clauses
Key takeaway: Asymmetric jurisdiction clauses do not create multiple ‘floating’ jurisdictions which are retrospectively extinguished upon a claim being brought in a particular jurisdiction
In Hipgnosis SFH 1 Ltd v Manilow & Anor [2025] EWCA Civ 486, the Court of Appeal has unanimously allowed an appeal against a “heretical” High Court decision which posed significant questions as to how asymmetric jurisdiction clauses operate, including in Loan Market Association (LMA) standard facility agreements.
Crucially, the Court of Appeal firmly rejected the notion that the English courts’ jurisdiction could be “floating”, describing the concept as “heretical and contrary to authority”. Sir Julian Flaux C concluded that there was no legal basis for jurisdiction to exist at the time proceedings were issued by the Claimant, only to be retrospectively extinguished because the Defendants later exercised their option to litigate in a different forum.
As well as a helpful insight into the effect of an asymmetric jurisdiction clause and the role of its constituent parts, the case also serves as a reminder that if the parties intend for one party’s choice of forum to override or revoke proceedings issued by the other, that intention should be stated expressly.
Our team has produced an overview of the decision: I right the wrongs: Asymmetric jurisdiction clauses | Inside Disputes
7. Commercial Court pilot to make more court documents publicly available
Key takeaway: A new Commercial Court pilot will designate certain documents ‘Public Domain Documents’ and add additional filing obligations for parties to litigation
From 1 January 2026, a two-year pilot scheme providing for public access to key court documents will operate in the Commercial Court, the London Circuit Commercial Court, and the Financial List (the Pilot). The Pilot aims to improve public access to documents used in civil proceedings by requiring parties to litigation to make more court documents, such as witness statements and expert reports, accessible to non-parties.
The Pilot introduces additional filing obligations for parties to litigation, as detailed in our team’s article on how the Pilot operates and the key takeaways: Commercial Court pilot make more court documents publicly available | Inside Disputes
8. The Property (Digital Assets etc) Act 2025 comes into force
Key takeaway: On 2 December 2025, the Property (Digital Assets etc) Act 2025 became law – this is a significant step towards cementing the UK as the leading legal jurisdiction to underpin the digital asset economy.
The Act is the culmination of an extensive law reform project. The Act itself contains only a single technical change to the law: it provides that digital assets are not prevented from being treated as property merely because they do not fall within the two existing legal categories of property (‘choses in possession’ and ‘choses in action’).
The importance of this change is that it allows the courts to create rules that suit the unique characteristics of digital assets even within the framework of the normally incremental development of the English common law.
Attention for reform may now shift to cross-border rules for digital assets, though there is less agreement as to the right way to proceed.
Our team has produced a summary of the Act coming into force and its impact, available here: The UK Property (Digital Assets etc) Act 2025 is now in force | Inside Disputes