Gordon Pollock QC, the defeated claimants’ counsel in the mammoth Noboa litigation, and his team were heavily criticised by trial judge Mr Justice Langley for using no restraint in their conduct of the case, which ended last week. The judge also singled out Pollock for criticism over the nature of his cross-examination.
In his judgment, Judge Langley rebuked the head of Essex Court Chambers, saying the effect of his cross-examination demonstrated the improbability and untruthfulness of the claimants’ case.
The judge concluded: “The claim against Alvaro was brought and pursued dishonestly. It was unjustifiably conducted to cause maximum damage to Alvaro’s reputation. The readings of the claimants’ opening and closing submissions and the transcripts of Alvaro’s cross-examination made that clear. There was no restraint shown.”
The case will be one that Pollock – one of the most respected barristers of his generation – will want quickly to forget. Not least as he was attacked by his great rival Lord Grabiner QC for accusing a senior judge of making a “stupid” comment.
The case is reminiscent of the infamous Thyssen litigation, as it concerned a family dispute over Fruit Shippers Ltd (FSL), a vast corporation worth some $1bn (£635m) and run by an offshore company.
Alvara Noboa, the brother of the claimants, Maria-Elena and Isabel, and Ecuador’s possible next president, was accused of deceiving the claimants to gain a 50 per cent stake in FSL. This, the second part of the dispute, settled last week in Alvaro’s favour after the claims of the sisters, represented by Pollock, were described as “dishonest… untruthful… and improbable”.
The claimants’ costs for phase two will now have to be paid on an indemnity basis, suggesting there was unreasonableness in the way the case was handled. Costs are usually paid on a standard basis, where the onus is on the winning party to justify its costs. The winner usually recovers around two-thirds of their fees in such a case.
Costs paid on an indemnity basis place the burden on the payer to prove that the winner’s costs were unreasonable, and the winner usually recovers 90 per cent.
The respondent law firm Cadwalader Wickersham & Taft and three barristers, including One Essex Court head Grabiner, are due around £5m for their work in phase two. This includes an immediate payment of £3.75m, the amount the claimants were ordered to pay into the High Court at the beginning of the trial as security for costs.
Alvaro, in direct contrast to the claimants, was “an impressive and attractive witness”. Crucially, Judge Langley accepted Alvaro’s concerns about the length and nature of Pollock’s cross-examination, saying they were “both genuine and very largely justified”. He added: “[It] would have been so even if [Alvaro] had not been concerned to get on with his election campaign.” (Alvaro was electioneering in Ecuador’s presidential elections and gave evidence by video link.)
Pollock’s witnesses were also heavily criticised. Maria-Elena was a “wholly unimpressive witness” who was “caught in a lie time and time again” and who was motivated by money. Dr Oswaldo Zavala, husband of Maria-Elena and a former senior provincial judge in Ecuador, “conspicuously failed” to support his wife during the trial, his recollection of events was “vague sometimes to the point of nonexistence”, and his reference to Alvaro’s alleged representations were vague as to their “timing and content”.
Isabel was described as “not an impressive witness” who “sided with whoever she saw at the time as being best placed to further her own interests”.
Grabiner concluded that the claimants’ witness statements were “not small fibs” but “barefaced lies, deliberately fashioned to support their dishonest claim”. Judge Langley did not dispute this in his judgment.
Pollock’s levelled criticism against Alvaro for not calling six witnesses was also found to have been “misplaced”. The judge added: “The quality of the claimants’ evidence was such that a decision to limit the defence response was entirely understandable.”
Pollock also lost phase one when the sisters tried to wrest control of FSL. After just a few days of trial, Pollock wrote to the defendant’s firm Herbert Smith admitting the sisters’ claim was unworkable. Some £7m is owed to FSL’s lawyers (The Lawyer, 21 October) for this arm of the litigation.
This cave-in followed a spat between Pollock and the judge. Pollock accused him of making “a very stupid comment”, to which Grabiner responded by saying “this is a scandalous and wholly unjustified observation”. (The Lawyer, 18 November).