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Royal Bank of Scotland (RBS) has spent £3m on its legal battle with US hedge fund Highland Capital, a figure that is expected to rise to £4m by the end of the five-day trial that begins on 23 January.
The snowballing action originally started out as a debt collection exercise for RBS after the bank, which is backed by the taxpayer, launched anti-suit injunction claims at the High Court aimed at preventing the hedge fund from suing it in Texas.
The £66m case relates to a collateralised debt obligation (CDO) funded by RBS and issued by Highland in 2008. The CDO failed to close because of the economic crash and RBS called in its loan.
A source close to the case told The Lawyer in October that the matter had become a “nightmare” for RBS, which dumped traditional adviser Herbert Smith for Linklaters part-way through preparation for the case (24 October 2011).
The bank was heavily criticised by Mr Justice Burton, who in his December 2010 judgment ruled in favour of RBS but reduced its award from £36m to £18m.
Then, at a pre-trial review (PTR) in November, Burton J ordered the bank to disclose privileged communications between its in-house lawyers and Herbert Smith (28 November 2011).
During earlier hearings RBS voluntarily waived confidentiality on communications with Herbert Smith up to 18 June 2010, the date when RBS managing director Sam Griffiths made a witness statement that allegedly contained incorrect statements.
At the PTR Burton J ordered RBS to disclose all relevant information up to the quantum hearing in December 2010, despite protests from RBS counsel.
The hedge fund is represented by litigation boutique Cooke Young & Keidan, which has instructed One Essex Court’s Stephen Auld QC. Maitland Chambers’ John Nicholls QC is advising RBS, having been instructed by Linklaters.