After 256 days in court, the £850m misfeasance claim, brought by the liquidators of the Bank of Credit & Commerce International (BCCI) against the Bank of England, sensationally collapsed last Wednesday (2 November).
Essex Court Chambers’ Gordon Pollock QC appeared briefly to inform Mr Justice Tomlinson and the Bank of England’s legal team, including Freshfields Bruckhaus Deringer and six barristers, that the Chancellor of the High Court had ruled that the claim should be discontinued.
Although the timing came as a surprise, the Bank of England’s lead counsel, Fountain Court Chambers’ Nicholas Stadlen QC, told the court that the Bank of England had anticipated that the claim might collapse. He was therefore able to deliver a scripted statement slamming the way the case had been run by the claimants – although the only representatives of Deloitte in court to hear it were junior counsel Nathan Pillow and a Lovells lawyer.
“It is,” said Stadlen, “in my respectful submission, nothing short of a scandal that it has taken so very, very long for the claimants to bow to the inevitable.”
The liquidators’ legal team came under attack as Stadlen condemned Lovells partner Christopher Grierson for making comments about the case to the media, and Pollock for his “discourtesy and, indeed, downright rudeness” directed at the Bank of England and Tomlinson J.
He criticised Deloitte’s persistence in cross-examining key witnesses even while the discontinuance hearings were ongoing. He said: “Their inhumanity seemed to have no bounds dictated either by decency or compassion.” The collapse raises serious questions for claimant lawyers regarding the advice they should give to clients over pursuing similar large claims and the need to juggle responsibilities to shareholders or creditors with the likelihood of victory.
The news was described by Stadlen as a “bombshell”. Neither the defendants nor Tomlinson J knew the case had collapsed before Pollock’s announcement.
Later it came to light that the English Liquidation Committee of BCCI, which represents the views of the bank’s creditors, had passed a resolution on 23 September that the litigation should be discontinued. A three-day hearing held in private before the Chancellor, Sir Andrew Morritt, resulted in last week’s decision.
It may have been that Deloitte was hoping for a ruling in its favour from the Chancellor, despite the views of the Liquidation Committee. The liquidators’ statement, released last week, blames the bank for delays caused by the initial strike-out applications and arguments over disclosure, both of which went to the House of Lords. It also attacks the bank for not agreeing to settle out of court. Given the collapse of Deloitte’s claim, this is seen by many City litigators as unfair.
Last week’s events, coupled with the recent settlement of the Equitable Life case, raise questions about the way the legal system is working. One senior City litigator said that the end of both cases shows that defendants are now less willing to give in to claims of fraud, negligence and similar allegations.
Others agree with Stadlen that BCCI ought to have been dropped years ago and say that lawyers in the future are going to have to consider very carefully the advice given to potential claimants about pursuing such claims.