Top judges to take centre stage in busy year for the Supreme Court

Keen observers of the court process are in for a treat this year, says Katy Dowell



As the High Court deals with a flood of cases spinning out of the global recession, senior judges in the Supreme Court can also expect their diaries to be hectic in 2011.

Here is The Lawyer’s pick of the trials to watch out for in the ­coming months.

1 Jivraj v Hashwani

Are UK anti-discrimination laws applicable to arbitration clauses? In June last year the Court of Appeal (CoA) held that an arbitration clause that enabled disputing ­parties to determine the religious characteristics of the appointed arbitrator breached the UK ­Equality Regulations (2003).

The ruling calls into question a large number of existing ­arbitration agreements and appointments, ­as well as affecting the drafting of arbitration clauses in the future.

Such is the importance of the case that it has attracted two ­intervenors: the International Chamber of Commerce (ICC) and the London Court of International Arbitration (LCIA).

Appellants:

  • Hill Dickinson partner Jonathan Berkson instructed One Essex Court’s Rhodri Davis QC to lead Cloisters ­Chambers’ Schona Jolly to act for Jivraj.

Respondents:

  • Zaiwalla & Co name partner Sarosh Zaiwalla instructed Fountain Court’s Michael Brindle QC to lead Essex Court’s Brian Dye for Hashwani.

Intervenors:

  • Allen & Overy partner Richard Smith instructed Essex Court Chambers’ Andrew Hochhauser QC to lead Paul
  • Key and David Craig of the same set for the ICC.
  • Linklaters’ Christopher Style QC instructed Blackstone Chambers’ David Pannick QC to lead Christopher McCrudden of the same set for the LCIA.

Hearing date: TBC

2 Shepperton Design Studios v Andrew Ainsworth

The battle for the right to reproduce the stormtrooper costumes used in the original Star Wars film rumbles on. It is alleged that defendant Andrew Ainsworth, who made the Imperial storm-trooper costumes used in the film, breached copyright laws when he started to produce replicas to be sold in 2004.

The case focuses on whether the helmets can be defined as sculptures, which have an extended copyright period, and whether US judgments can be enforced in the UK.

Appellants:

  • Harbottle & Lewis partner Mark Owen instructed Brick Court Chambers’ Jonathan Sumption QC and Wilberforce Chambers’ Michael Bloch QC to lead Alan Bryson, also of Wilberforce Chambers, for Lucasfilm.

Respondents:

  • SC Andrew name partner Seamus Andrew instructed Alistair Wilson QC of Hogarth Chambers to lead 8 New Square’s George Hamer for Ainsworth.

Hearing date: 7 March

3 Buncefield litigation: Shell UK Ltd v Total UK Ltd

In March 2010 the CoA overturned a first-instance decision and found French oil giant Total vicariously liable for losses resulting from of the 2005 Buncefield Oil Storage Depot explosion.

The ruling meant that Shell, which co-owned the site with Total, could pursue its ­former business partners for £100m compensation. Total is challenging the ruling.

Appellants:

  • Stephenson Harwood partner Paul Thwaite instructed 20 Essex Street’s Iain Milligan QC, Essex Court’s David Foxton QC and Crown Office Chambers’ Alexander Antelme for Total.

Respondents:

  • Simmons & Simmons partner Philip Vaughan instructed One Essex Court’s Laurence Rabinowitz QC, Maitland Chambers’ Edwin Johnson QC and ­Fountain Court’s Richard Handyside QC for Shell.
  • Pinsent Masons partner Simon ­Joyston-Bechal instructed 4 New Square’s Justin Fenwick QC to lead Paul Sutherland of the same set for United Kingdom Oil Pipelines Ltd and West London Oil and Pipeline Storage.

Hearing date: 5 April

4 Paul Wynne Jones v Dr Sue Kaney

The case centres on whether expert witnesses should be immune from lawsuits where an expert was deemed to be negligent. The appellant, Paul Wynne Jones, alleges that Dr Kaney provided negligent ­opinion evidence when she acted as his psychiatry expert in a previous personal injury claim arising out of a road traffic accident.
Kaney applied to have Jones’s claim struck out on the grounds that, as an expert witness, she enjoys immunity from suit in respect of such matters.

In January last year Mr Justice Blake ruled in favour of the defendant, but the judge, who considered himself constrained by current law in this area, said arguments put forward by the appellant’s legal team merited further discussion by a senior court.

“I conclude that there’s a ­substantial likelihood that, on re-examination by a superior court with the power to do so, it will emerge that the public policy ­justification for the [witness immunity] rule cannot support it,” Blake J said at the time.

It is the first time that the scope of the immunity of expert ­witnesses has been tested.

Appellants:

  • Hill Dickinson partner Paul Walton instructed Crown Office Row’s Roger ter Haar QC to lead Daniel Schapiro of the same set.

Respondents:

  • Berrymans Lace Mawer partner Jason Nash instructed Four New Square’s Patrick Lawrence QC to lead Four New Square’s Charles Phipps.

Hearing date: 11 January

5 Trigger litigation: Municipal Mutual Insurance v Zurich Insurance & Ors

This case has its roots in the ­public liability trial Bolton v MMI (2006), which held that for insurance ­purposes a person with the asbestos-related disease mesothelioma suffered an injury for the first time when their tumour ­started to develop rather than when they were exposed to the material.

Consequently, insurers began applying the same reasoning to employers’ liability mesothelioma claims and declined cover, leaving their policyholder clients facing a massive bill for potential claims going back decades. The policyholders attempted to overturn this through the courts.

In October the CoA was divided in its decision. Its complex ruling meant that insurers would be liable for some cases at the point of exposure rather than manifestation of the disease but not others. It is hoped that the Supreme Court will clarify the ­ruling.

Lead case 1 Durham v BAI (run-off) (in scheme of arrangement)

  • Devereux Chambers’ Colin Wynter QC and Outer Temple’s Alison McCormick instructed by Irwin Mitchell partner Helen Ashton for the claimant.
  • 4 New Square’s Roger Stewart QC and 3-4 South Square’s Stephen Robins instructed by DLA Piper for
  • the defendant.

Lead case 2 Fleming & Eddleston v Independent Insurance Company (in provisional liquidation)

  • Devereux Chambers’ Colin Wynter QC instructed by John Pickering & Partners partner Carolann Hepworth for the claimant.
  • 4 New Square’s Roger Stewart QC and 3-4 South Square’s Stephen Robins instructed by DLA Piper for
  • the defendant.

Lead case 3 Edwards v Excess Insurance Company Ltd

  • Devereux Chambers’ Colin Wynter QC and Andrew Burns instructed by Thompsons partner Joanne Candlish for the claimant.
  • Devereux Chambers’ Colin Edelman QC and Crown Office Chambers’ David Platt and Peter Houghton instructed by Plexus Law partner Stephen Phillips for the defendant.

Lead case 4 Thomas Bates & Son Ltd v BAI (run-off) (in scheme of arrangement)

  • Exchange Chambers’ Edward Bartley Jones QC and Dr Digby Jess instructed by Burd Ward for the claimant.
  • 4 New Square’s Roger Stewart QC and 3-4 South Square’s Stephen Robins instructed by DLA Piper for
  • the defendant.

Lead case 5 Akzo Nobel UK Ltd & Amec v Excess Insurance Company Ltd

  • Blackstone Chambers’ Michael Beloff and Devereux Chambers’ Richard Harrison instructed by Berrymans Lace Mawer for the claimant.
  • Devereux Chambers’ Colin Edelman QC, David Platt and Peter Houghton instructed by Plexus Law for the ­defendant.

Lead case 6 Municipal Mutual Insurance v Zurich Insurance Company & Ors

  • Two Temple Gardens’ Howard Palmer QC, Andrew Miller and Sonia Nolten instructed by Watmores for the claimant.
  • 4 New Square’s Jeremy Stuart-Smith QC, Leigh-Ann Mulcahy and Clare Dixon instructed by Buller Jeffries for the defendant.

Hearing date: December