Litigation wave finally arrives to usher in the New Year
14 December 2009 | By Katy Dowell
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A clear trend is emerging in litigation markets: the global recession has spawned a wave of high-value multijurisdictional disputes. It took months for the upswing to take hold, but in August - typically a quiet month for litigators - the instructions started to roll in.
“Until about three or four months ago things were flat,” says Berwin Leighton Paisner head of litigation Jonathan Sacher. “Suddenly that changed and things that had been bubbling along were being put into action.”
Against this backdrop 2009 can be seen as a year spent clearing the decks of past disputes to make way for the big-ticket litigation that has come about due to the recession.
There have been several notable cases in the past year, but in the fullness of time they may be remembered as small fry compared with the high-level litigation that is set to get underway in 2010.
That said, 2009 has seen some trials that have had far-reaching consequences, such as the bank charges case that the Supreme Court ruled on in November (The Lawyer, 25 November).
This was the first major case decided by the Supreme Court since it opened on 1 October. The ruling, which found that the OFT could not investigate charges on overdrafts, was controversial.
Simmons & Simmons partner Colin Passmore instructed Jonathan Sumption QC of Brick Court Chambers to lead the advocacy for Barclays Bank.
Sumption’s co-counsel included Ali Malek QC of 3 Verulum Buildings, instructed by Ashurst partner Wilson Thorburn for Abbey; Robin Dicker QC of 3-4 South Square, instructed by Allen & Overy partner Marc Florent for HBOS; and One Essex Court’s Laurence Rabinowitz QC, who was instructed by Linklaters partner James Gardner for RBS.
The ruling was a bitter blow for the OFT, which had won in both the High Court and the Court of Appeal.
A similar blow was dealt to Baltic telecoms company Levicom, which attempted to sue Linklaters for $55m (£33.79m) on grounds of professional negligence. In April Mr Justice Andrew Smith rejected the claim and ordered the firm to hand over just £5 in nominal damages.
Instructed by Manches to act for Levicom, Four New Square’s Justin Fenwick QC argued that the firm had given advice that resulted in it settling a case on unfavourable terms. Appearing for Linklaters was Fountain Court’s Stephen Moriarty QC, who was instructed by Clyde & Co.
Linklaters was not the only firm to face negligence claims. Cobbetts and Eversheds settled a joint claim alleging that they gave negligent advice on a fraudulent property deal. The action was brought against them by Nationwide Building Society and Cheshire Building Society. Also, the High Court threw out a £17m claim brought against Fladgate Fielder by Land Securities (The Lawyer, 30 March).
Sumption played a key role both in the first judgment handed down by the Supreme Court and in the last decision delivered by the House of Lords.
Stone & Rolls (in liquidation) v Moore Stephens (auditors) (2009) was handed down in favour of Moore Stephens in July (The Lawyer, 31 July).
Barlow Lyde & Gilbert partner Julian Randall instructed Sumption to defend the professional negligence claim. Norton Rose litigation partner Sam Eastwood instructed Fountain Court’s Michael Brindle QC for Stone & Rolls.
The claimant sought damages from Moore Stephens, alleging that the auditor had failed to detect its sole director Zvonko Stojevic’s dishonest behaviour and should be held liable for losses.
These were just a few of the cases to reach fruition in the past year. Some will rumble into 2010, including the much-anticipated BSkyB v EDS judgment. The trial concluded in July 2008, but Mr Justice Ramsey has yet to deliver a verdict. Whichever side he comes down on, lawyers are anticipating an appeal.
Litigators are predicting that 2010 will be a vintage year for disputes.