The must-read for litigators: last year was busy, but with plenty of loose ends to tie up and new battles on the horizon, 2008 should prove to be a knockout
TOP TRIALS OF 2007
Some may question whether lessons have been learnt in the aftermath of the collapse of BCCI and Equitable Life if The Lawyer’s top 10 cases for 2007 are anything to go by.
It could be some way into 2008 or even beyond before we learn the outcome of several of last year’s cases, with six still ongoing.
There is evidence of more major criminal court proceedings being launched, with two cases being stayed in the civil court until criminal trials.
One case is so sensitive it has been gagged while a criminal trial is undertaken. Two cases, however, did receive judgments and another was settled behind closed doors.
Rabobank V National Westminster Bank
Solicitors: Bob Goldspink, Morgan Lewis; Stephen Paget-Brown, Travers Smith
Counsel: Tony Temple QC, 4 Pump Court; Antony Zacaroli QC, 3-4 Southern Square
Judge:Mr Justice Colman
The long-running saga of Rabobank v National Westminster Bank began back in October 2006 when the New York bank accused the plaintiff of misrepresentation, fraud and breach of fiduciary duty over a loan made to the Yorkshire Food Company. It came to an end in February 2007 with the court dismissing Rabobank’s claims on the basis that no misrepresentations had been made by NatWest on which Rabobank had been entitled to rely. Rabobank has not given up and is now waiting to hear from the House of Lords about whether it will be able to appeal the decision.
The Attorney General of Zambia for and on behalf of the Republic of Zambia V Meer Care of Desai & Ors
Solicitors: Janet Legrand, DLA Piper; Alexander Ulm, Reynolds Porter Chamber-lain; Richard Harrison, Barlow Lyde & Gilbert; Adetokunbo Oyegoke, Howards
Counsel: H94William Blair QC and David Head, 3 Verulam Buildings; Ian Croxford QC, Wilberforce Chambers; Roger Stewart QC, Four New Square; Michael Sullivan and Hannah Brown, One Essex Court; Chima Umezuruike, 2 Gray’s Inn Square; Anothony Trace QC, Benjimin John and Ciaran Keller, Maitland Chambers
Judge: Mr Justice Peter Smith
The Zambian government won a major victory when the English High Court found in favour of its claims that Zambia’s former president Frederick Chiluba had misappropriated the country’s funds between 1996 and 2002. The court held that Chiluba and four senior aides conspired to rob the government of $46m (£23.08m) with the aid of two London firms, Meer Care & Desai and Cave Malik & Co.
Real Estate V Aberdeen Asset Management & UBS
David Allen and Iain McDonald, Mayer Brown; Graham Huntley, Lovells
Counsel: Jonathan Sumption QC and Mark Howard QC, Brick Court Chambers; Andrew Onslow QC, Michael Blair QC and Adrian Beltrami, 3 Verulam Buildings; Iain Milligan QC, 20 Essex Street
Trial date: May
Judge:Court of Appeal
Real Estate, a property-based split capital investment trust, claimed Aberdeen Asset Management and UBS failed to advise the board adequately on the risks of itself investing in other split capital investment trusts when it floated on the London Stock Exchange. Aberdeen was first to settle the case in April 2007, followed by UBS.
The Department of Health and Social Security and Public Safety for Northern Ireland & ORS V Norton Healthcare & ORS.
Craig Shuttleworth, Jones Day; Peter Scott, Norton Rose; David Rose, SJ Berwin; Roiter Zucker, Howrey
Counsel: David Pannick QC, Charles Flint QC, Tom de la Mare and Thomas Beazley QC, Blackstone Chambers; Nicholas Green QC, Brick Court Chambers; Bernard Eder QC, Essex Court Chambers
Trial dates: Various
Six pharmaceutical companies, including Norton Healthcare and Goldshield Group, are being sued for alleged price-fixing of antibiotics and anti-inflammatory drugs during 1996 and 2001 and conspiring to defraud the NHS of more than £100m. The case is expected to be heard following criminal court proceedings against the companies, set for September 2007.
JP Morgan Chase Bank & three ORS V Springwell
Solicitors: David Warne, Richards Butler; Ian Moulding, Clifford Chance
Counsel: Mark Hapgood QC, Brick Court Chambers; Adrian Beltrami, Jonathan Davies-Jones and David Quest, 3 Verulam Buildings; Michael Brindle QC, Fountain Court Chambers; Andrew Baker QC, 20 Essex Street; Nick Lavender, Serle Court Chambers
Trial date: October
Judge:Mrs Justice Gloster
The action was started by Chase Manhattan back in 2001, seeking declarations of non-liability to Springwell, which is claiming in excess of $500m (£257m). Springwell alleges that, from 1987 to 1998, on the advice of Chase, it purchased very large quantities of debt instruments that were principally linked to emerging markets in South East Asia and Russia. The case was heard in October 2007 and counsel are awaiting Gloster J’s judgment.
HSBC Bank V 5th Avenue Partners, Michael Robert Alexander Brown & ORS
Solicitors: Robert Hunter and Mona Vaswani, Allen & Overy; Kendall Freeman; Craig Walker, Goodman Derrick; Jamil Ahmud, Ahmud & Co
Counsel: Ewan McQuatar QC and Louise Hutton, Maitland Chambers; Clare Mongomery QC, Mark Howard QC, Neil Calver and Alec Haydon, Brick Court Chambers; Christopher Carr QC, David Cavender and Derek Spitz, One Essex Court; Gregory Mitchell QC, Adam Kramer and Ian Wilson, 3 Verulam Buildings; Barbara Dohmann QC and Robert Anderson, Blackstone Chambers; Gavin Kealey QC, 7 King’s Bench Walk; Paul Mitchell, Hailsham Chambers
Trial date: October
Judge: Mr Justice Walker
HSBC is claiming negligence, dishonesty, misrepresentation and breach of contract against the defendants. The claim comes after the bank issued an investigation into the Liberal Democrats’ biggest-ever donor Michael Brown’s accounts after he was wanted for fraud in the US, while four investors in 5th Avenue Partners tried to sue the Liberal Democrats and Brown, claiming they had been defrauded out of £45m. A court order has postponed reporting on the judgment of the civil trial until Michael Brown has had his day in the criminal court.
Still ongoing (see 2008 case list):
•Cleveland Bridge UK V Multiplex Constructions (UK)
•CDC Ixis Capital Markets V WestLB AG & CIBC World Markets
•British Sky Broadcasting V Electronic Data Systems
•The president of Equatorial Guinea v First System Design & Ors
TOP TRIALS OF 2008
The next 12 months are going to be a testing time for the UK courts. More specifically, it is going to be a testing time for the new safeguards the BCCI working party has put in place to stop super-cases collapsing.
With six large litigations hanging over from last year and six more kick-starting this year, including the bank charges litigation and the Buncefield explosion case, all parties better have read the working party’s recommendations inside out.
In addition to these major disputes, litigators are going to find themselves busy with the fallout of Northern Rock’s run on the bank as well as possible class actions being filed in relation to the dairy price-fixing scandal.
But many, such as Maitland Chambers, are still going to be mopping up the end of BCCI, with many believing 2008 will be the year where the last of the BCCI liquidations are closed.
There is little doubt about it – the coming year is going to be a busy one.
British Sky Broadcasting V Electronic Data Systems
Solicitors: Matthew Saunders, DLA Piper; Ted Greeno, Herbert Smith
Counsel: Mark Barnes QC and Zoe O’Sullivan, One Essex Court; Mark Howard QC, Alec Haydon and Fionn Pilbrow, Brick Court Chambers; Alex Charlton and Matthew Lavy, 4 Pump Court
Trial date: Started October 2007; due to run until June 2008
Judge: Mr Justice Ramsey
BSkyB is claiming £400m of damages for deceit and fraudulent misrepresentation, negligent misrepresentation and breach of contract against computer software company Electronic Data Systems over the installation of a billing system.
Bank Charges Litigations (OFT V Abbey National & ORS)
Solicitors: Wilson Thorburn, Ashurst; James Gardner, Linklaters; Michael Barnett, Addleshaw Goddard; Ewan Brown, Slaughter and May; Colin Passmore, Simmons & Simmons; Marc Florent, Allen & Overy; Simon Orton, Freshfields Bruckhaus Deringer; Jon Holland and Andrea Monks, Lovells
Counsel: Brian Doctor QC, Bankim Thanki QC, Richard Coleman, Andrew Mitchell, Simon Atrill, Tim Howe, James McClelland, Patrick Goodall, Richard Handyside and James Duffy, Fountain Court; Ali Malek QC, Richard Salter QC, John Odgers, Adam Kramer and Sonia Tolaney, 3 Verulam Buildings; Laurence Rabinowitz QC, One Essex Court; Ben Pilling, 4 Pump Court; Iain Milligan QC, 20 Essex Street; Robin Dicker QC, Jeremy Goldring, 3-4 South Square; Richard Snowden QC, Erskine Chambers; Daniel Toledano, One Essex Court; Mark Hoskins, Brick Court Chambers; Geoffrey Vos QC, 3 Stone Buildings; Malcolm Waters QC, Radcliffe Chambers; David Blayney, Serle Court
Trial date: 14 January
Judge:Mr Justice Andrew Smith
The Office of Fair Trading (OFT) initiated proceedings against eight banks, which provide 90 per cent of the UK’s current accounts, following a deluge of claims that bank overdraft charges are unfair. The banks – Abbey National, Barclays, Clydesdale, HBOS, HSBC, Lloyds TSB, Nationwide, Royal Bank of Scotland (RBS) – have agreed to take part in the test case and are expected to refute the OFT’s claim that the unfairness rules of the Unfair Terms in Consumer Contract Regulations apply.
Hammonds V Danilunas & ORS
Solicitors: Lucci Dammone, Hammonds; Pietro Marino, Addleshaw Goddard
Counsel: Alan Steinfeld QC and Richard Ritchie, XXIV Old Buildings; Charles Flint QC, Blackstone Chambers; Andrew Mold, Wilberforce Chambers; Jeremy Callman, 10 Old Square; James Aldridge, Maitland Chambers
Trial date: Various
This bitterly fought partnership dispute has already seen four former partners settle with Hammonds, but on 11 June 2007 the firm issued proceedings against 14 former partners for overpaid drawings for the period 2003-2005 – £3m in total. Nine of the 14 have also issued proceedings seeking sight of various partnership documents.
The Boxclever Litigation (CDC Ixis Capital Markets V West LB AG & CIBC World Markets
Solicitors: Kevin Lloyd, Herbert Smith; Jonathan Kelly, Simmons & Simmons; Graham Huntley, Lovells; Sunil Gadhia and Ed Davis, Stephenson Harwood
Counsel: Joe Smouha QC, Essex Court Chambers; Andrew Twigger and Oliver Hilton, 3 Stone Buildings; Thomas Ivory QC, David Wolfson, Michael Fealy and Conall Patton, One Essex Court; Michael Brindle QC, John Taylor, Tim Howe, Chloe Carpenter and Nik Yeo, Fountain Court Chambers; Mark Hapgood QC and Jonathan Dawid, Brick Court Chambers
Trial date: 21 January
Judge:Mr Justice Aikens
Ixis is claiming for co-purchase agreement and acquisition losses arising from the collapse of TV rentals company Boxclever. A preliminary procedural hearing last year saw a ‘standstill agreement’ being formulated to effectively keep at bay claims by WestLB alleging negligent misrepresentation of financial information in the course of the financing.
Calls to mobile Litigation (Orange and ORS V OFCOM & BT)
Solicitors: Polly Weitzman, Ofcom, Charlotte Mellor, BT Legal; Robyn Durie, T-Mobile; Claire Potter, Competition Commission; Nick Pimlott, Field Fisher Waterhouse; Tom Cassels, Baker & McKenzie; Elizabeth McKnight and Stephen Wisking, Herbert Smith
Counsel: Peter Roth QC, Josh Holmes, Ben Lask, Anneli Howard, Jon Turner QC, Meredith Pickford and Ben Rayment, Monckton Chambers; David Anderson QC, Marie Demetriou, Sarah Lee and Kelyn Bacon, Brick Court Chambers; Dinah Rose QC and Brian Kennelly, Blackstone Chambers
Trial date: 28 January
Judge:Competition Appeal Tribunal
Calls to mobile is the largest of several pieces of litigation relating to call charges taking place this year, including the European case on roaming charges. This particular case will decide whether consumers have been paying too much for their telephone calls. Ofcom believes this is the case and is looking for phone rates to be slashed.
The President of the State of Equatorial Guinea V First System Design Ltd & ORS
Solicitors: Robert Wilson, Penningtons; Andrew Kerman, Kerman & Co (for the first, second and fourth defendants); Joanna Kennedy, Collyer-Bristow (for the fifth defendant)
Counsel: Sir Sydney Kentridge QC, Brick Court Chambers; Philip Shepherd QC, XXIV Old Buildings; Michael McLaren QC, Fountain Court Chambers
Trial date: February
Judge:House of Lords (seven-judge panel)
The president and state of Equatorial Guinea is appealing against a September 2005 judgment of Mr Justice Davis. The claimants say that Simon Mann, Sir Mark Thatcher and others were involved in an attempted coup. Much of the claim has been struck out, prompting the appeal. Meanwhile, Mann is being held in a Zimbabwean jail while his lawyers fight to have him extradited.
The Wembley Stadium Dispute (Multiplex Constructions (UK)V Cleveland Bridge)
Solicitors: Yuri Botiuk, Reid Minty; Emerson Holmes, Clifford Chance
Counsel: Adrian Williamson QC, Simon Hargreaves, Lucy Garrett, Simon Hughes and Paul Buckingham, Keating Chambers; Roger Stewart QC, 4 New Square
Trial date: March
Judge: Mr Justice Jackson in the Technology and Construction Court
Multiplex, the much-criticised main contractor in the £760m Wembley Stadium development, and Cleveland Bridge, the former supplier of the steel used in the construction, including the new stadium’s iconic arch, have counter-sued each other in a £15m breach of contract case. More than 11 preliminary hearings were heard through 2007 and now the parties are ready to take the battle to full trial.
The Accident Group Litigation
Solicitors: Simon Gibson, Kennedys; Erik Salomonson, Bond Pearce; Charlotte Capstick, Berrymans Lace Mawer; Clive Brett, Henmans; Richard Spafford and Alex Burton, Reed Smith Richards Butler
Counsel: Justin Fenwick QC, Sue Carr QC, Jeremy Stuart-Smith QC, Ben Hubble, Helen Evans, Jamie Smith, Benjamin Wood, Charles Phipps and Ben Patten, 4 New Square; George Leggatt QC, Brick Court Chambers
Trial date: April
Judge:Mr Justice David Steel
In 2003 claims management company The Accident Group (TAG) collapsed, leaving several insurers out of pocket for tens of millions of pounds and the likes of Winterthur are seeking to recoup their losses from more than 500 law firms that took work from TAG on grounds of negligence. The law firms are also facing litigation to recover referral fees – money allegedly paid to TAG in return for personal injury work.
Trigger Litigation (Municipal Mutual Insurance V Zurich Insurance & ORS)
Solicitors: Derek Adamsonm Buller Jeffries, Ivan Moody and John Grunewald, Watmores
Counsel: Jeremy Stuart-Smith QC, Roger Stewart QC and Leigh-Ann Mulchay QC, 4 New Square; Howard Palmer QC, 2 Temple Gardens
Trial Date: June
Judge: Mr Justice Burton
In this test case the insurers are looking to determine which employers’ liability policy the aggrieved party can claim against. If the ruling finds that it is the current policy it could result in thousands of people without any companies to claim against.
The Buncefield Litigation (Colour Quest V Total Downstream & ORS)
Solicitors: Ronnie King, Ashurst; Nick Young, Davis Arnold Cooper; Kevin Perry, Edwards Angell Palmer & Dodge; Nick Thomas, Kennedys; Simon Joyston-Bechal, Pinsent Masons; Ted Greeno, Herbert Smith; Patrick Boylan, Linklaters; Phillip Vaughan, Simmons & Simmons
Counsel: Jeremy Stuart Smith QC, Justin Fenwick QC, David Turner, Paul Sutherland and Ben Elkington, 4 New Square; Gordon Pollock QC, Richard Jacobs QC, Claire Blanchard and Vernon Flynn, Essex Court Chambers; Lord Grabiner QC, Laurence Rabinowitz QC and Ian Glick QC, One Essex Court; Jonathan Sumption QC, Andrew Popplewell QC and Michael Bools, Brick Court Chambers; Richard Handyside, Fountain Court
Trial date: October
Judge: Mr Justice David Steel
The civil proceedings that have arisen out of the explosion at the Buncefield oil depot on 11 December 2005. The claims have been brought by around 4,000 claims from businesses and individuals for damage suffered during the explosion, which was the largest post-war blast in Europe. The claims are in the region of £1bn in total.