Litigation: The Supersilks

As well as the famous ‘Treasury Devil’ James Eadie, a select few QCs form the Supreme Court’s star line-up

For many litigants the Supreme Court is the last roll of the dice. When it comes to instructing counsel only the best will do, and many instructing solicitors will, in effect, trade up to ensure they secure that all-important win.

In total, 34 cases were heard by the Supreme Court via the civil judicial route in England and Wales in 2013. Blackstone Chambers, home to the ‘Treasury Devil’ James Eadie QC, picked up most instructions, a reflection of its reach into the world of public law.

Aside from Eadie – the go-to lawyer for government departments – Blackstone is home to the prolific Dinah Rose QC, whose repertoire in the senior courts is unparalleled at the modern bar.

Rose was drafted in for three Supreme Court cases last year, a feat equalled only by Brick Court Chambers’ Mark Howard QC. Howard took one of the three, Benedetti v Sawiris, from Court of Appeal (CoA) to Supreme Court, but was added as a heavyweight in two other appeals (see page 20). Of the three instructions he won one, lost one and drew on the third.

Compare that with Rose, who was brought in at the top court on all three cases including an intervention for human rights campaign group Liberty, and notched up wins in all three (see below).

Rose’s expertise in public law means she is in demand when it comes to Supreme Court disputes. Equally, Howard is wanted for commercial law advocacy. 

Across the civil spectrum different sectors have their shining stars. South Square barristers, who have a deep-rooted focus on insolvency law, found themselves appearing on several appeals in 2013 as the fallout from the 2008 crash took its toll. Robin Dicker QC and Gabriel Moss QC both had two outings in the Supreme Court last year, appearing in the Nortel and Lehman Brothers pensions disputes, and in BNY Corporate Trustee Services Ltd & Ors (Respondents) v Neuberger Berman Europe Ltd (on behalf of Sealink Funding Ltd) & Ors (Appellants).

Many barristers and instructing solicitors believe the skillset needed for a Supreme Court silk differs from that of one who will regularly appear at the CoA. This perception may not always be proven, but some will discount themselves from the top court if they feel that they are not up to it.

Star value

There is also the star value of bringing in a big-name silk as a tactical manoeuvre – plus the fact that a fresh pair of eyes can take a losing case in a new direction.

In Bank Mellat v HM Treasury, in which Rose was instructed for Liberty, there was an overhaul of the Iranian bank’s legal team for the top court. Zaiwalla & Co took the case to the top court in place of Stephenson Harwood, which was instructed at the CoA.

Partner Sarosh Zaiwalla replaced Jonathan Crow QC of 4 Stone Buildings with Fountain Court Chambers’ Michael Brindle QC, while 11KBW’s Amy Rogers was maintained as junior alongside Great James Street Chambers’ Dr Gunnar Beck. This dispute was of such importance that it attracted several interveners, including the bank’s shareholders, with Zaiwalla instructing 4 Pump Court’s Nicholas Vineall QC. The outcome? By a majority of six to three the Supreme Court quashed the rulings of the CoA and High Court.

The turnaround was considered a major win for the bank, which has now instructed Zaiwalla to pursue a case against the Government for as much as $4bn (£2.4bn).

Here, we take a look at the cases that made their way to the Supreme Court via the Commercial Court, Admin Court, Queen’s Bench Division, Chancery and Family divisions. We look at the leading silks and the battles they have fought.

Eight appearances

James Eadie
Eadie QC

James Eadie QC, ‘the Treasury Devil’

Blackstone Chambers

R (on the application of Prudential plc & Anor) (Appellants) v Special Commissioner of Income Tax & Anor (Respondents)

For the respondent HMRC

WHA Ltd & Anor (Appellants) v HM Revenue and Customs (Respondent)

For the respondent HMRC

Smith & Ors (FC) (Appellants) v The Ministry of Defence (Respondent); Ellis (FC) (Respondent) v The Ministry of Defence (Appellant); Allbutt and others (FC) (Respondents) v The Ministry of Defence (Appellant)

For the respondent/appellant Ministry of Defence

R (on the application of Modaresi) (FC) (Appellant) v Secretary of State for Health (Respondent)

For the respondent Secretary of State for Health

R (on the application of Chester) (Appellant) v Secretary of State for Justice (Respondent); McGeoch (AP) (Appellant) v The Lord President of the Council and another (Respondents) (Scotland)

For the respondent Secretary of State for Justice and The Lord President of the Council (Scotland)

R (on the application of Reilly & Anor) (Respondents) v Secretary of State for Work and Pensions (Appellant)

For the respondent The Lord President of the Council & Anor (Respondents) (Scotland)

R (on the application of Edwards & Anor (Appellant) v Environment Agency & Ors (Respondents) (No 2)

For the respondent Environment Agency & Ors

Eadie appeared in front of the Supreme Court justices more than any other barrister in 2013, batting off appeals and fighting cases for various government departments. He has held the title of ‘the Treasury Devil’ since 2009, when he was picked for the role to succeed Philip Sales QC of 11KBW.

He was instructed in seven Supreme Court cases in 2013, including a dual appearance for the justice secretary and the Lord President of the Council in a dispute over prisoner rights. The eyes of Westminster were on the case which, had it gone the other way, could have led to the collapse of the relationship between Britain and the European Court of Human Rights.

He was also instructed in two cases for HMRC. In R (on the application of Prudential plc & Anor) v Special Commissioner of Income Tax & Anor HMRC had gone to Devereux Chambers’ Timothy Brennan QC, while he was added as a second silk in WHA Ltd & Anor v HMRC as co-counsel alongside 11 New Square’s Jonathan Peacock QC who took the case to the CoA.

The MoD had turned to Eadie from High Court to Supreme Court, to strike out negligence claims from the families of servicemen injured in Iraq. The top court ruled the cases could proceed.

There was victory for Eadie when he was instructed for the health secretary to respond to a judicial review appeal by R (on the application of Modaresi) (FC). The case concerned the detention of a mental health patient.

The eyes of Westminster were on the case which, had it gone the other way, could have led to the collapse of the relationship between Britain and the European Court of Human Rights.

Eadie also picked up a mention in R (on the application of Edwards & Anor) v Environment Agency & Ors (No 2), which was returned to the court from Europe for further judgment. He acted for the Environment Agency in the case.

 

Three appearances

Mark Howard QC

Brick Court Chambers 

Benedetti (Appellant) v Sawiris & Ors (Respondents); Sawiris & Ors (Appellants) v Benedetti (Respondent)

For the appellant Sawiris

The Supreme Court dismissed this appeal brought by Howard for Alessandro Benedetti, an Italian national living in Switzerland. The Supreme Court upheld the ruling of the CoA in this dispute, which focused on unjust enrichment.

In the matter of “The Alexandros T”; In the matter of “The Alexandros T” (No 2); In the matter of “The Alexandros T” (No 3); In the matter of “The Alexandros T” (No 2)

For the appellant in the matter of “The Alexandros T” (No 2)

The Supreme Court overturned the CoA decision in this ruling. This huge case concerned whether the dispute should be stayed pending the outcome of a dispute battle in Greece. 

The litigation focused on insurance and damages claims in the aftermath of the sinking of the Alexandros T. The top court held that the English proceedings did not involve the same cause of action as the Greek proceedings and so did not need to be stayed.

Howard was drafted in at the Supreme Court to lead Michael Swainston QC and Tony Singla, both members of Brick Court. It was a wise move, Howard and his team won the case.

VTB Capital plc (Appellant) v (1) Nutritek International Corp; (2) Marshall Capital Holdings Ltd; Konstantin Malofeev (Respondents)

For the appellants VTB Bank

PCB Litigation turned to Howard for the Supreme Court appeal. At the CoA the Russian bank had instructed three silks on the case, including Littleton Chambers’ Clive Freedman QC and Erskine Chambers’ Richard Snowden QC, both of whom were not involved in the top court. The third silk, Paul McGrath QC of Essex Court Chambers, was co-counsel to Howard at the Supreme Court.

In a split ruling the Supreme Court clarified the circumstances in which the court can pierce the corporate veil as well as addressing the factors the courts should take into account when deciding jurisdiction to hear international disputes.

The court agreed with VTB that the CoA had erred in holding that Russian law as opposed to English law applied to VTB’s tort claims. Nevertheless the justices said
that the appellate court’s decision on forum conveniens was a judgment with which it should
not interfere.

Three appearances 

Dinah Rose
Rose QC

Dinah Rose QC 

Blackstone Chambers

R (on the application of ClientEarth) (Appellant) v The Secretary of State for the Environment, Food and Rural Affairs (Respondent)

For the appellant ClientEarth

Rose was instructed at the Supreme Court alongside Blackstone’s Emma Dixon to join the case, which Ben Jaffey, also of Blackstone Chambers, had taken through the CoA. The appeal court had refused ClientEarth’s application for judicial review of the Government’s plans to improve air quality, but the Supreme Court referred questions over EU air quality regulation to the Court of Justice of the EU.

The decision was considered a win for Rose and her counsel team.

The President of the Methodist Conference (Appellant) v Preston (Respondent)

For the appellant The President of the Methodist Conference

Rose joined Devereux Chambers’ Oliver Hyams on this case at the Supreme Court, where she was again joined by junior Emma Dixon.

The court reversed the decision of the CoA and the Employment Appeal Tribunal (EAT) to uphold the original ruling of the Employment Tribunal. It concluded that as Preston, as a Methodist minister, was not an employee of the church, she was unable to bring a constructive dismissal case against it.

It was a significant win for Rose.

Bank Mellat (Appellant) v HM Treasury (Respondent) (No 1)

For the intervener Liberty

Liberty was given permission to intervene in this case concerning Government sanctions against the Iranian bank, looking specifically at whether the case could be heard behind closed doors. Rose led Doughty Street Chambers’ Charlotte Kilroy.

The human rights organisation contended that the court did not have the power to hear an appeal behind closed doors.

The court rejected the Government bid. “A [closed hearing] should be resorted
to only where it has been convincingly demonstrated to
be genuinely necessary in the interests of justice,” Lord Neuberger said.

Two appearances 

Henry Carr QC 

11 South Square

Public Relations Consultants Association Ltd (Appellant) v The Newspaper Licensing Agency Ltd & Ors (Respondents)

For the appellant Public Relations Consultants Association

Baker & McKenzie partners Michael Hart and Ben Allgrove turned to Carr in place of Michael Silverleaf QC for this Supreme Court dispute. Junior counsel was unchanged, with Andrew Lykiardopoulos instructed at both the CoA and the senior court.

In what was one of the most significant copyright decisions for years, the five-strong judicial panel of the Supreme Court handed the victory to Bakers and Carr, quashing the decision of the CoA and the High Court. Further questions were sent to the European Court of Justice to be considered.

The court was asked to decide whether the appellants needed a licence to receive its media monitoring service to avoid breach of copyright. It was concluded unanimously that end-users who simply read or view copyright-protected web pages do not need the permission of the rights holders to read or view such webpages.

Virgin Atlantic Airways Ltd (Respondent) v Zodiac Seats UK Ltd (formerly known as Contour Aerospace Ltd) (Appellant)

For the appellant Zodiac Seats UK Ltd (formerly known as Contour Aerospace Ltd)

Carr was brought in at the Supreme Court to lead a whole new counsel team by Wragge & Co partner Gordon Harris. Carr appeared alongside setmates Iain Purvis QC and junior Brian Nicholson, replacing Mark Vanhegan QC and Kathryn Pickard, both members of 11 South Square.

The team scored a victory at the Supreme Court saving the company having to make a £49m payout to Virgin Atlantic Airways in this long-running IP dispute.

Two appearances

Jonathan Crow QC 

4 Stone Buildings

In the matter of Digital Satellite Warranty Cover Ltd and another (Appellants) v Financial Services Authority (Respondent)

For the respondent FSA

The FSA turned to Crow in place of Glen Davis QC of South Square for the Supreme Court outing. Junior Charlotte Cooke appeared at the CoA and the higher court.

Crow secured a victory.

Virgin Atlantic Airways Ltd (Respondent) v Zodiac Seats UK Ltd (formerly known as Contour Aerospace Ltd) (Appellant)

For the respondent Virgin Atlantic Airways Ltd

Crow was one of two silks brought in by DLA Piper consultant George Godar to respond to the appeal by Zodiac Seats, alongside Richard Meade QC of 8 New Square, who had led the case at the CoA. Henry Ward, also at 8 New Square, appeared at the CoA and Supreme Court. 

The two-silk team made little difference, the Supreme Court ruled against Virgin Atlantic Airways.

Two appearances

Robin Dicker QC 

South Square

BNY Corporate Trustee Services Ltd & Ors (Respondents) v Neuberger Berman Europe Ltd (on behalf of Sealink Funding Ltd) and others (Appellants); BNY Corporate Trustee Services Ltd and others (Respondents) v Eurosail-UK 2007-3BL PLC (Appellant)

For the 2nd respondent/cross-appellant Eurosail-UK 2007-3BL PLC

Dicker took the case from the High Court through to the Supreme Court having been instructed for Eurosail by Berwin Leighton Paisner partner Oliver Glynn-Jones. Handing a win to Eurosail, the Supreme Court unanimously confirmed the solvency of Eurosail 3BL, and in doing so provided important clarification on the relevant tests for insolvency.

In the matter of the Nortel Companies; In the matter of the Lehman Companies; In the matter of the Lehman Companies (No 2)

For the appellants, the Lehman administrators (2) Linklaters partner Euan Clarke turned to Dicker from High Court to Supreme Court in this mammoth pensions case. Linklaters snatched victory at the top court, overturning the rulings of both the CoA and High Court. The Supreme Court held that pension scheme deficits claimed under the powers of the Pensions Regulator do not qualify as an administration expense in the
case of an insolvency, but instead as a debt.

Two appearances 

Tim Eicke QC

Essex Court Chambers

WHA Ltd & Anor (Appellants) v HM Revenue and Customs (Respondent)

For the appellant WHA Ltd & Anor
Eicke was instructed as a second silk at the Supreme Court alongside Essex Court Chambers’ Roderick Cordara QC, who had led the case at the CoA. The case went in favour of HMRC, notching up a loss for Eicke, who was instructed by Forbes Hall.

Bank Mellat (Appellant) v HM Treasury (Respondent) (No 1)

For the respondent HMRC

Again, Eicke was brought in at the Supreme Court as a second counsel, leading the case along-side Jonathan Swift QC of 11KBW, who took the advocate role at
the CoA.

Such was the importance of this dispute that a nine-strong judicial panel was convened to hear the case.

The Iranian bank challenged an order made by the Treasury under the Counter-Terrorism Act 2008, which effectively shut down the operations of Bank Mellat.

The bank applied to set aside the order, and the Government argued that some of the evidence relied on to justify the order was of such confidentiality and sensitivity that it could not be shown to the bank or its representatives.

Overturning the decision of the High Court and CoA, the Supreme Court held by a majority of six to three (L Hope, L Kerr and L Reed dissenting) that courts should only hold closed hearings if it is in the interests of justice.

It also ruled that the bank should have been given time to make representations before the Treasury implemented the ban and ordered it to lift the sanctions against the bank.

It counted as a loss for Eicke.

Two appearances

Gabriel Moss QC 

South Square

BNY Corporate Trustee Services Ltd and others (Respondents) v Neuberger Berman Europe Ltd (on behalf of Sealink Funding Ltd) & Ors (Appellants); BNY Corporate Trustee Services Ltd and others (Respondents) v Eurosail-UK 2007-3BL PLC (Appellant)

For the appellant/cross respondent (2) Natixis; (3) Neuberger Berman Europe Ltd (On Behalf Of Sealink Funding Ltd); (4) Orpington Structured Finance I Ltd; (5) Municipality Finance plc; (6) Carrera Capital Finance Ltd
Sidley Austin took the case to the Supreme Court, bringing in South Square’s Gabriel Moss QC in place of Richard Sheldon QC, also of South Square, for the top court. Brown Rudnick, instructed for two respondents in the CoA, did not appear at the Supreme Court. Allen & Overy, meanwhile, had kick-started the case at the High Court and appeared in the CoA, but took a smaller role at the Supreme Court, instructing a junior only – South Square’s David Allison. At the CoA the firm had instructed South Square’s William Trower QC to lead Allison.

In the matter of the Nortel Companies; In the matter of the Lehman Companies; In the matter of the Lehman Companies (No 2)

For the respondents, the Lehman pension fund trustees and for the Board of the Pension Protection Fund

Moss took the case from the High Court to the Supreme Court having been instructed by Travers Smith partner Peter Esam.

The Supreme Court reversed the decision of the CoA, ruling that pension scheme deficits claimed under the powers of the Pensions Regulator did not qualify as an administration expense in the case of an insolvency.

The ruling was a loss for Moss and his setmate co-counsel, South Square silks Richard Sheldon QC, Felicity Toube QC, Gabriel Moss QC and Barry Isaacs QC, who were all on the losing side of this monumental battle.

Two appearances 

Southey
Southey QC

Hugh Southey QC

Matrix Chambers

R (on the application of Faulkner) (FC) (Appellant) v Secretary of State for Justice and another (Respondents); R (on the application of Faulkner) (FC) (Respondent) v Secretary of State for Justice (Respondent) and The Parole Board (Appellant); R (on the application of Sturnham) (Appellant) v The Parole Board of England and Wales & Anor (Respondents)

For the appellant/ respondent Daniel Faulkner, Sturnham

This appeal concerned whether prisoners who served life sentences or an indeterminate sentence for public protection should be awarded compensation if there is a delay in reviewing the need to extend the sentence.

The judicial review bid was unsuccessful at the High Court but successful at the CoA, which awarded Faulkner £10,000 in damages. The Supreme Court agreed with the Parole Board that the damages were excessive and reduced the award to £6,500, dismissing a cross-appeal from Faulkner.

R (on the application of Chester) (Appellant) v Secretary of State for Justice (Respondent); McGeoch (AP) (Appellant) v The Lord President of the Council & Anor (Respondents) (Scotland)

For the appellant Chester

This dispute raised a particularly thorny issue: whether convicted prisoners should be allowed the right to vote in an election. Southey took the case from the CoA to the Supreme Court for the appellant, convicted murderer Peter Chester. His case was joined with George McGeoch, who is serving a life sentence in Scotland.

The Supreme Court unanimously dismissed the appeal, adding that EU law did not provide an individual right to vote. Eligibility under EU law is a matter for national parliaments, it said.

Two appearances

Jonathan Swift QC 

11KBW

Bank Mellat (Appellant) v HM Treasury (Respondent) (No 1)

For the respondent HM Treasury

Swift took the Government’s case through from the High Court to the Supreme Court, with Essex Court Chambers’ Tim Eicke QC brought in as joint lead counsel at the Supreme Court.

R (on the application of New London College Ltd) (Appellant) v Secretary of State for the Home Department (Respondent); R (on the application of West London Vocational Training College) (Appellant) v Secretary of State for the Home Department (Respondent)

For the respondent Secretary of State for the Home Department

Swift secured victory in the Supreme Court after being drafted in to lead Temple Garden Chambers’ Cathryn McGahey at the top court. The court rejected a judicial review bid by two London colleges concerning the system for licensing educational institutions to sponsor students from outside the European Economic Area.

Two appearances

Nicholas Vineall QC

4 Pump Court

The Financial Services Authority (a company limited by guarantee) (Respondent) v Sinaloa Gold plc and others (Respondents) and Barclays Bank plc (Appellant)

For the respondent Financial Services Authority

Vineall persuaded the Supreme Court to dismiss the appeals brought by Barclays in this case, which was fought squarely in the realm of principle. The court upheld the CoA’s decision that there is no general rule that a public body such as the FSA should be required to give a cross-undertaking to the court in damages in respect of losses incurred by third parties when it is applying for injunctive relief.

Bank Mellat (Appellant) v HM Treasury (Respondent) (No 1)

Intervener for the shareholders of Bank Mellat

Vineall was brought in for the intervener by Zaiwalla and Co at the Supreme Court, which had picked up the case at the CoA. The firm represented the bank in its successful Supreme Court appeal.

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