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Russell Butland

Senior Associate

London

Butland Russell
Russell Butland

Senior Associate

London

News & insights

Publications: 25 JUNE 2019

Collective proceedings orders: certification threshold lowered

The Court of Appeal has held that, in refusing to certify a collective proceedings order (CPO), the Competition Appeal Tribunal (CAT) had applied too strict a standard of scrutiny. The test to be applied at the certification stage was whether the claim had a real prospect of success. The Court of Appeal also held that the distribution of an aggregate award of damages amongst the class did not need to be effected in accordance with compensatory principles: Merricks v Mastercard Incorporated & ors [2019] EWCA Civ 674.

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Publications: 06 MARCH 2019

Swaps close-out costs: auditor not responsible for financial consequences of decision to enter into swaps

Incorrect advice given by an auditor as to the accounting treatment of interest-rate swaps did not make it liable for the close-out costs of those swaps which became necessary, following the application of the correct accounting treatment. The Court of Appeal restated and applied the SAAMCO1 principles for determining the limits of the foreseeable losses recoverable from a negligent professional adviser. It emphasised the distinction, originally drawn in SAAMCO, between “advice” cases, where the adviser assumes responsibility for the entirety of a decision-making process and thus for the losses that flow from the decision taken, and “information” cases, where the adviser provides discrete advice or information and only assumes responsibility for the losses flowing from that advice or information being wrong. This ruling will be of interest to auditors, particularly in relation to advice as to how clients’ business activities can be treated in their accounts, as well as to other professional advisers who provide information to clients on the basis of which they will take other business decisions: Manchester Building Society v Grant Thornton UK LLP [2019] EWCA Civ 40.

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Publications: 21 JUNE 2018

Swap close-out costs - causation but no assumption of responsibility by auditors

A building society sued its auditors for the close-out costs of interest rate swaps entered into on reliance on advice that they could be accounted for as hedges. The High Court found negligence, which was the cause of the loss and that the close-out costs were reasonably foreseeable loss. However, applying the Supreme Court’s recent decision in Hughes-Holland v BPE Solicitors, the High Court found that there was no assumption of responsibility for losses of the type of the close-out costs, and so the auditors were not liable: Manchester Building Society v Grant Thornton UK LLP [2018] EWHC 963 (Comm), 2 May 2018.

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Publications: 27 FEBRUARY 2018

Non-assignment clauses: what they do (and don’t) restrict

A warranty in a receivables financing contract that BP was not prohibited from disposing of the receivable was not breached by a clause in the underlying oil sale contract prohibiting assignment without the other party’s consent. The decision usefully interprets common clauses found in commercial agreements and receivables financing contracts – namely non-assignment clauses and warranties concerning ability to dispose of a receivable. Non-assignment clauses are the subject of proposed law reform that would nullify their effect in business contracts. Allen & Overy’s Global Intelligence Unit report on the proposed regulations can be read here: First Abu Dhabi Bank PJSC (formerly National Bank of Abu Dhabi PJSC) v BP Oil International Ltd [2018] EWCA Civ 14, 18 January 2018

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Office

London

Allen & Overy LLP
One Bishops Square
London
E1 6AD

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Qualifications

Professional

Admitted as solicitor, England and Wales, 2010

Published work

“Brexit: Corporate Communications And UK Election Laws,” Law360 (Feb. 18, 2016), with Charles Borden and Samuel Brown