Reflective Loss—Further Untangling of the Legal Japanese Knotweed

19 October 2021
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The scope of the rule against reflective loss has been the focus of two recent decisions by the Court of Appeal in Broadcasting Investment Group Ltd v Smith [2021] EWCA Civ 912 and the Judicial Committee of the Privy Council in Primeo Fund v Bank of Bermuda (Cayman) Ltd & Anor (Cayman Islands) [2021] UKPC 22. Taken together, these decisions have clarified the rule further by confirming, inter alia, that:
  • The reflective loss rule can apply to both direct and indirect shareholders in a company as well as to former shareholders of a company.
  • The rule is a substantive one, as opposed to a “procedural rule concerned only with the avoidance of double recovery”.
  • The relevant time to determine whether the reflective loss rule applies is when the claimant suffered the loss arising from the relevant breach of obligation by the relevant wrongdoer, not the time when proceedings are brought.