Clifford Chance client Excalibur defeated in $1.6bn High Court battle

The High Court has dismissed a $1.6bn claim from Clifford Chance client Excalibur Ventures, bringing to an end one of the longest running trials of 2012/13.

Mr Justice Christopher Clarke today (10 September) threw out a raft of claims against Texas Keystone and Gulf Keystone, which concerned the interest in rights to exploit and develop petroleum fields in Iraqi Kurdistan.

These rights were granted to Texas and one of the Gulf defendants by the Kurdistan regional government pursuant to a production sharing contract.

Excalibur claimed that it had introduced management of Gulf Keystone Petroleum to opportunities for oil exploration in Iraqi Kurdistan and together they had agreed to share any plans to develop the region. The defendants denied any agreement ever existed.

Today the court dismissed all claims against Texas Keystone and Gulf Keystone, handing a win to Memery Crystal and Jones Day.

Fountain Court’s Michael Crane QC was instructed by Jones Day partner Stephen Pearson for Texas Keystone while 7KBW’s Jonathan Gaisman QC was instructed by Memery Crystal partners Harvey Rands and Nicholas Scott for Gulf Keystone.

The court said that the ‘collaboration agreement’ that at the heart of the dispute did not create, give rise to, or recognise any entitlement of Excalibur to an indirect interest in the fields.

The result will be a major blow to Clifford Chance, with partner Alex Panayides helping to secure around £50m of litigation funding to get the case off the ground. In the run up to the trial Excalibur was ordered to surrender £18m to the courts by way of security for costs.

Excalibur founder Rex Wempen revealed last November that his company had received funding to help it pay for the court case from New York hedge fund Platinum and New York litigation funding specialist BlackRobe, as well as Andonis and Filippos Lemos, two brothers involved in the shipping business.

Wempen told the trial that it was Clifford Chance that had introduced the company to Andonis Lemos. It has since emerged that Panayides’ brother is an employee of that company.

The case has been through a number of hurdles. In July 2011 Mrs Justice Gloster halted Excalibur from launching arbitration proceedings against the defendants in New York by granting an anti-arbitration injunction in London (6 July 2011).

In June 2012, the defendants successfully applied for specific disclosure from Excalibur of documents primarily bearing upon the claimant’s ability to raise funds for both the concession rights and to pursue the case. This included detail of its financial capability to participate in the oil concession and third party funding arrangements for the litigation.

The defendants followed this in January with an application for additional security for their costs of the Commercial Court proceedings.

Sources close to the case put the legal cost of the claim at £30m, adding that the defendants were likely to apply for indemnity costs against the claimants.

A full judgment is not expected for another two weeks, while consequential questions of any kind, such as costs and permission to appeal, will be answered by the court at a later date.

For the claimant Excalibur Ventures

7KBW’s Simon Picken QC, Timothy Kenefick, Jessica Sutherland and Keir Howie, all of the same set, for Excalibur Ventures, instructed by Clifford Chance partner Alex Panayides

For the first defendant Texas Keystone

Fountain Court’s Michael Crane QC leading Tamara Oppenheimer and Richard Power, also of Fountain Court, instructed by Jones Day partner Stephen Pearson

For the second defendant for Gulf Keystone Petroleum Ltd

7KBW’s Jonathan Gaisman QC leading Richard Waller QC also of 7KBW, instructed by Memery Crystal partners Harvey Rands and Nicholas Scott

For the third defendant Gulf Keystone Petroleum International

Brick Court’s Harry Matovu QC leading Richard Eschwege of the same set instructed by Memery Crystal partners Harvey Rands and Nicholas Scott

For the fourth defendant Gulf Keystone Petroleum (UK) Ltd

4 Stone Buildings’ Nicola Timmins instructed by Memery Crystal partners Harvey Rands and Nicholas Scott