Top 20 cases 2012

Consequently the bar’s rising stars are cutting their teeth on what will be the defining cases of the recession, a situation that will produce a new generation of star barristers.

Today The Lawyer reveals the leading trials that will define 2012 and provide an insight into what they mean for litigants and their lawyers.

The banking collapse of 2008 ­continues to dominate, kicking off with what is widely believed to be the defining case on bankers’ bonuses. While it may not be the largest sum in dispute – £29m claimed by 104 bankers – it will certainly be high-profile. On the defendants’ side sits Dresdner Kleinwort, which merged with Commerzbank in early 2009, backed by a German government bailout of €18.2bn (£15.4bn). Linklaters partner Nicola Rabson has instructed Matrix Chambers’ Thomas Linden QC for the bank.

While examining whether bankers should be entitled to promised bonuses despite the liquidity of their former employers, lawyers are also gearing up to decide to what extent spouses should be liable for sureties for their partners’ banking debts.

AIB Group (UK) disputes assertions made by the claimant, Christine Davies, that she was unduly ­influenced by her late husband when he secured loans. A central plank of the dispute is that the claimant received independent legal advice and, the bank contends, this negates her claim she was ­unduly influenced.

Vicious circling

Elsewhere in the banking community Barclays Private Clients International, the banking division of Barclays that crosses both onshore and offshore jurisdictions, is attempting to recoup losses stemming from ­alleged mortgage fraud.

The case is typical of several major mortgage fraud claims, which litigators say have been circling the City for some time without confirmed ­instructions.

Professional negligence lawyers will be observing the case closely, as it provides an opportunity for the country’s leading professional negligence silks to go head-to-head.

For Barclays is 4 Pump Court’s Michael Douglas QC, who will face two 4 New Square silks Justin Fenwick QC for Savills Private Finance and Roger Stewart QC for Montague Lambert. Ben Hubble QC of 4 New Square is leading for what was formerly Saracens Solicitors, while Wilberforce Chambers silk Joanne Wicks QC is representing Stocker & Roberts.

On a multijurisdictional level, Deutsche Bank’s global dispute with Sebastian Holdings has already tested the jurisdiction law, with the ­defendants attempting to bring an anti-suit injunction in New York to prevent Deutsche from launching proceedings in London. There are now proceeding in both jurisdictions, with Deustche’s claim being heard in the High Court and Sebastian ­Holdings’ counter claim in the New York Supreme Court.

In what is sure to be a classic showdown for the bar, this case pitches Essex Court Chambers’ David Foxton QC and 3 Verulam Buildings’ Sonia Tolaney QC for the bank against Brick Court Chambers’ Tim Lord QC for Sebastian Holdings.

Squaring up

What is noticeable from the cases that unpick the global webs behind the ­recession is the re-emergence of insolvency set South Square (formerly 3-4 South Square). Rubin & Lan v Eurofinance puts South Square’s Robin Dicker QC and Robin Knowles QC against Gabriel Moss QC. What makes it more intriguing is the application by the US-appointed trustee of Bernard L Madoff Investment Securities, Irving Picard, to intervene.

Such was the enormity of the Madoff scandal that this case is only starting to break through to the surface domestically, and this Supreme Court case will define the extent to which US bankruptcy proceedings can be enforced in England and Wales.

What is clear is that, in acting for the Madoff intervernors, Blackstone Chambers’ Pushpinder Saini QC and Adrian Briggs QC are attempting to set up a framework that will enable US bankruptcy proceedings to be ­enforceable in the UK.

For litigators this case is significant for reflecting increased judicial coordination around the globe, particularly for common law jurisdictions. Critics say the current status quo puts English-based defendants at a disadvantage and lawyers are ­watching closely to see whether the Supreme Court will uphold the Court of Appeal (CoA) ruling.

Bar flier

London’s position as a world disputes centre is underpinned by the international litigants who continue to file claims at the High Court.

Be it a legal status symbol for a Russian oligarch, the judicial fairness afforded to parties involved in the $1bn (£640m) dispute over exploration rights in a Kurdistan oilfield, or the insurers who believe that the bar is best to argue technical points on coverage, it can be found in London.

The generalist commercial bar is enjoying a boom time. Brick Court can boast 21 appearances in The Lawyer’s leading cases for 2012, with Blackstone and Fountain Court on 10 each and South Square on 18.

However, it is the niche chambers that will really come into their own this year. Take Pump Court Tax Chambers, one of the country’s leading tax sets, which this year has silks on two of the leading cases: David Ewart QC and Rupert Baldry QC have been instructed by HM Revenue & Customs (HMRC) to defend a potentially groundbreaking franked investment income (FII) group litigation order; and David Milne QC has been instructed by Hogan Lovells partner Greg Sinfield to act for the group behind the Nectar loyalty scheme, Loyalty Management UK, in its dispute with the taxman.

4 New Square has cashed in on the wave of professional negligence claims, while Monckton Chambers is getting its young silks involved in the major competition cases.

Methodology

The Lawyer invited more than 100 leading litigators, barristers and senior clerks to nominate what they felt to be the most significant cases of 2012. The responses to the survey form the basis of the listings.

These cases, which are not listed in order of priority, have been selected based on the contribution they are expected to make to the development of the law. In addition, we have selected cases that will be high-profile and those that bolster London’s reputation as an international litigation centre.

Age discrimination

Seldon v Clarkson Wright & Jakes

This case is of central to how firms can retire partners and will assess the social justifications that can be used to justify retirement legitimately. Such is the importance of the outcome that the Government has intervened in support of the firm and the Equalities and Human Rights Commission (EHRC) is supporting the appellant, Leslie Seldon.

Former Clarkson Wright partner Leslie Seldon claims the firm was wrong to enact its partnership agreement against him to force him to retire because it could not justify the action.

The CoA held that the Employment Appeal Tribunal (EAT) had been right to find that the firm could justify the retirement because it enabled associates to achieve partnership; it facilitated the planning of the partnership and gave the workforce long-term expectations on when vacancies would arise; and it limited the need for partners to be expelled by way of performance management, thus contributing to the congenial and supportive culture of the firm.

These points will be assessed by the Supreme Court in January.

Appellant: Cloisters’ Robin Allen QC instructed by the EHRC to act for Seldon

Respondent: Blackstone’s Thomas Croxford instructed for the firm

Intervenor: Blackstone’s Dinah Rose QC instructed by the Treasury Solicitors Department for the Secretary of State in support of the firm

Hearing date:January

Court: Supreme Court

Bankers’ bonuses

(1) Richard Attrill & Ors v Dresdner Kleinwort Limited & Commerzbank AG and (2) Fahmi Anar & Ors v Dresdner Kleinwort Limited & Commerzbank AG

As the definitive case on bankers’ bonuses and the first group action of its kind to be heard in the High Court, this is an eagerly awaited matter.

The group of bankers launched their claim in September 2009, alleging that they are owed a combined €33m in bonuses that the bank had previously agreed to honour.

In June 2008 the bank had informed the FSA that it had taken action to mitigate the risk of significant staff defections by creating a staff retention scheme, which would include a minimum bonus pool. Instead of receiving their traditional Christmas bonus letter, the claimants were told that any bonus would be subject to a so-called ‘material adverse change clause’, effectively meaning that the bonus would be paid in February 2009 pending the financial performance of Dresdner Kleinwort.

The case is against the former bank Dresdner Kleinwort, which merged with Commerzbank in early 2009, backed by a German government bailout of €18.2bn.

Claimant: 4 Pump Court’s Nigel Tozzi QC to lead Kate Livesey of the same set, instructed by Stewarts Law partner Andrew Shaw for the 83 Attrill claimants; Essex Court’s Andrew Hochhauser QC to lead David Craig of the same set, instructed by Mishcon de Reya partner Mark Levine for the 21 Anar claimants

Defendant: Thomas Linden QC of Matrix to lead Brick Court’s Martin Chamberlain and Oliver Jones, instructed by Linklaters partner Nicola Rabson

Hearing date: 23 January 2012 for four weeks

Court: Queen’s Bench Division (QBD)

Phone-hacking test claims

Multiple claimants v News Group Newspapers

Revelations that reporters at the now defunct News of the World (NoW), owned by News Group Newspapers (NGN), had paid private investigator Glenn Mulcaire to hack the mobile phone messages of high-profile individuals caused the closure

of the tabloid last year.

At the end of January Mr Justice Vos will hear a series of test cases for breach of privacy against NGN, a decision that was taken to stop such claims from blocking up the courts. The claimants have been grouped according to the themes of their claims, and should one settle contingency cases have been lined up.

The claimants have been selected for reflecting the range of victims, from Sheila Henry, the mother of 7/7 bomb victim Christian Small, to Berwin Leighton Paisner (BLP) partner Graham Shear, former lawyer to Chelsea FC footballer Ashley Cole.

This case is distinct from the Leveson Inquiry, which is canvassing opinion about the

role of the press going forward.

A number of lawyers involved with the phone-hacking cases have also appeared in front of Lord Justice Leveson, chair of the ongoing press inquiry.

Claimants: Matrix silk Hugh Tomlinson QC and Sara Mansoori instructed by (1) Bindmans partner Tamsin Allen for Chris Bryant MP and (2) Mishcon partner Charlotte Harris for Skylet Andrews; Hogarth Chambers’ Jeremy Reed instructed by (3) Steel & Shamash partner Gerald Shamash for Paul Gascoigne; and (4) Taylor Hampton solicitor advocate Mark Lewis for Sheila Henry; 5RB’s David Sherborne instructed by (5) Atkins Thomson partner Mark Thomson for Jude Law; (6) BLP partner Graham Shear in his own action

Defendants: Olswang partner Dan Tench instructed Blackstone’s Dinah Rose QC and 11 South Square’s Michael Silverleaf QC for NGN

Hearingdate: 30 January

Court: Chancery Division

Legal costs

Motto & Others v Trafigura Ltd & Trafigura Beheer BV

Having settled its £100m action against Trafigura without the company conceding liability for a reported £30m, Leigh Day & Co issued an eye-watering costs bill of £105m. These costs were allegedly incurred in conducting a group personal injury action for approximately 30,000 residents of the Ivory Coast against Trafigura from 2006 to 2009.

It is the dispute over costs that the court will examine in 2012. This will start with a five-day first-instance hearing on points of principle on 9 January before Senior Costs Judge Hurst. The hearing will be followed by another before the CoA on two fundamental points of law: the incidence of interest on costs and the proper calculation of after-the-event (ATE) insurance policy premiums. The outcome of these hearings will lay the foundation for what is believed to be the most detailed assessment of costs ever put before the courts.

The case will be monitored closely and will throw up plenty of case law for firms working on conditional fee arrangements (CFAs). Whatever the outcome, it is widely expected that this bitterly fought case will progress to a higher court.

Court of Appeal:

Appellant: 7KBW’s Christopher Butcher QC to lead Benjamin Williams of 39 Essex Street, instructed by Leigh Day partner Martyn Day

Respondent: Nicholas Bacon QC and Daniel Saoul of 4 New Square, instructed by Macfarlanes partner Simon Nurney for Trafigura

Senior Court costs office:

Claimant: As above

Defendant: As above

Hearingdates: 30-31 January (CoA); February/March (Senior Court costs office)

Courts: CoA; Senior Court costs office before Senior Costs Judge Hurst

Tax relief

Franked Investment Income Group Litigation Order [FIIGLO] v HMRC

The FIIGLO is appealing a decision over whether the UK’s double tax relief rules for companies breached EU law. The companies with shares in EU companies claimed compensation expected to be in the multibillion-pound range for paying more UK corporation tax on dividends from their EU shares than they would have paid on similar dividends from UK shares. They also claimed compensation for having to pay more advance corporation tax than they would have had to had they received dividends from shares in UK companies than shares in other EU companies.

This long-running case began with a High Court hearing in October 2004 before questions were referred to the European Court of Justice (ECJ) and then the case going back to the High Court before a CoA hearing. In February seven Supreme Court justices will be asked to decide whether it was lawful for UK legislation to curtail the extended limitation period for mistake for EU law-based restitutionary claims.

Appellant: One Essex Court’s Laurence Rabinowitz QC, David Cavender QC and Pump Court Tax Chambers’ Graham Aaronson QC, instructed by Dorsey & Whitney partner Simon Whitehead for Franked Investment Group

Respondent: Pump Court Tax Chambers’ David Ewart QC and Rupert Baldry QC, Fountain Court door tenant Andrew Burrows QC (Hon) and Brick Court’s Kelyn Bacon, Sarah Ford, instructed directly for HMRC

Hearingdate: 21 February (for six days)

Court: Supreme Court

Banking

Christine Davies v AIB Group (UK)

This case is important in defining the limits of a successful plea of undue influence against lenders, especially where wives agree sureties for their husbands’ debts.

The claimant contends that she was unduly influenced by her late husband in respect of the provision of security in favour of the bank. The bank disputes this and claims payment of substantial secured sums, in respect of which charges and guarantees were executed by Christine Davies.

An important legal issue is the effect of the independent solicitor’s advice that Davies received in respect of at least one transaction. Can the bank maintain that such advice negated the possibility of notice of undue influence to the bank on other transactions?

The bank maintains that it is entitled to assume that proper legal advice will have been given to a joint mortgagor, to the effect that she will be responsible for all of the co-mortgagor’s debts to the lender.

The case will have implications for whether both spouses will need to get independent legal advice when agreeing bank arrangements.

Claimants: Fountain Court’s Richard Coleman, instructed by Judge Sykes Frixou consultant Michael Gardner

Defendants: 11 Stone Buildings’ Jeremy Cousins QC instructed to lead St Philips Barristers Chambers’ John Brennan by Moran & Co name partner Patrick Moran for AIB (UK)

Hearingdate: 21 February (for five days)

Court: Chancery Division

Insurance coverage

Primary insurers:

(1) Royal & SunAlliance Insurance; (2) Zurich Insurance; (3) Aviva International Insurance; (4) Aviva Insurance; (5) XL Insurance Company & Ors v (1) Rolls-Royce plc; (2) Rolls-Royce

Excess insurers:

(1) Ace European Group; (2) Chartis Insurance UK (formerly AIG UK); (3) CNA Insurance Company Limited; (4) HDI-GERLING Industrie Versicherung AG; (5) Portman Insurance Company; (6) Chubb Insurance Company of Europe SE; (7) Swiss RE Europe SA, UK Branch; (7) Axa Corporate Solutions Assurance SA (UK) Branch v (1) Rolls-Royce plc; (2) Rolls-Royce AB (incorporated under the laws of Sweden)

Possibly the largest coverage dispute to come before the Commercial Court in several years, this case concerns claims in excess of £100m against Rolls-Royce.

The dispute concerns problems that occurred with a marine propulsion system known as the ‘Mermaid Pods’ system, which was developed for use on cruiseliner vessels and oil rigs.

Rolls-Royce settled claims brought against it over the issues with the pods in the French and US (Florida) courts. It now wants its primary level and excess insurers

to indemnify monies paid in settlement, defence costs associated with the proceedings and its own first-party costs associated with the investigation of the problems with the Mermaid Pods.

After a jurisdiction dispute, which the insurers won, the case has been set down for London. The court will be asked to scrutinise the company’s coverage levels and consider six points, including the impact of late notification of the claims; the impact of the scope of notifications made to the insurers; and the application of the excess layer policies.

Claimant: Devereux Chambers’ Colin Edelman QC to lead 2 Temple Gardens’ Charles Dougherty, instructed by Herbert Smith partner Tony Dempster for primary insurers (1) Royal & SunAlliance Insurance; (2) Zurich Insurance; (3) Aviva International Insurance; (4) Aviva Insurance; (5) XL Insurance Company; Edelman and Dougherty also instructed by Kennedys partner Trevor Davies for the excess insurers (1) Ace European Group; (2) Chartis Insurance UK (formerly AIG UK); (3) CNA Insurance Company Limited; (4) HDI-GERLING Industrie Versicherung AG; (5) Portman Insurance Company; (6) Chubb Insurance Company of Europe SE; (7) Swiss RE Europe SA, UK Branch; (7) Axa Corporate Solutions Assurance SA (UK) Branch

Defendant: Fountain Court’s Anthony Boswood QC to lead Eversheds advocacy chief Tom Keith, instructed by Eversheds partner Ben Bruton for Rolls-Royce plc and Rolls-Royce AB (incorporated under the laws of Sweden)

Hearingdate: 19 March (for 14 days)

Court: QBD

Technology

Nokia v Samsung & Ors

In December 2009 Nokia, the world’s largest handset maker, launched claims in the UK and US against a range of LCD manufacturers over price-fixing. This came ahead of fines totalling hundreds of millions of euros imposed on the defendants by Europe’s antitrust watchdog.

The company is seeking unspecified damages for price-fixing alleged to have been carried out over a 10-year period between 1996 and 2006 by the defendants.

As a result Nokia has paid too much for LCD display screens and now the company wants some of its money back.

Philips, which was represented by Slaughter and May and Monckton’s Paul Lasok QC, has already settled the claim.

Nokia uses LCD technology in its mobile phones and they are used to make cathode ray tube displays.

Many of the defendants are looking to either strike out or stay the proceedings in the March interlocutory hearings, while Nokia is aiming to amend its claim so as to broaden it.

Claimants: Monckton’s Christopher Vajda QC and Paul Harris QC are leading Ben Raymond of the same set, instructed by Bird & Bird partner Gerry Kamstra for Nokia

Defendants: Brick Court’s Aidan Robertson QC, instructed by Osborne Clarke partner Adrian Lifely for AU Optronics; Brick Court’s James Flynn QC leading Robert O’Donoghue, instructed by Covington & Burling of counsel Richard Mattick for Samsung;

Brick Court’s Danny Jowell QC, instructed by Simmons & Simmons partner Tony Woodgate for Sharp; Brick Court’s Nicholas Green QC leading Tony Singla of the same set, instructed by Allen & Overy (A&O) partner Philip Mansfield for Hitachi; Brick Court’s Kelyn Bacon, instructed by Morrison & Foerster (MoFo) partner Alan Owens for Seiko Epson; Monckton’s’ Paul Lasok QC leading Alistair Lindsay, instructed by A&O partner Neville Cordell for Samsung SDI; Blackstone’s Tom de la Mare, instructed by White & Case partner John Reynolds for Toshiba

Hearingdate: March (interlocutory hearings)

Court: Chancery Division

Competition appeal

Tesco v Office of Fair Trading [OFT]

Tesco has appealed its £10.4m fine in relation to a ‘hub and spoke’ competition infringement in the OFT’s dairy investigation, which is the OFT’s longest-running Competition Act investigation.

This case has already attracted interest from the US and Europe due to the novel nature of the hub and spoke allegations argued by the OFT. Hub and spoke and information exchange are two of the hottest topics in European competition law at present, showing how the antitrust authorities are trying to widen the scope of their investigatory remits.

Tesco is challenging the fine, which saw it accused of fixing indirectly the retail price of cheese products in 2002-03 with other retailers by sharing information on future retail price moves through their dairy suppliers.

Appellant: Blackstone’s Dinah Rose QC instructed to lead Brick Court’s Maya Lester and Daniel Piccinin, instructed by Freshfields Bruckhaus Deringer partners Paul Lomas and Deirdre Trapp

Respondent: 20 Essex Street’s Stephen Morris QC and Monckton’s Tim Ward QC, instructed by the OFT

Hearing date: April (for three weeks)

Court: Competition Appeal Tribunal (CAT)

Breach of contract

Michael Cherney v Oleg Deripaska

Michael Cherney launched his claim against Oleg Deripaska, a Russian billionaire who owns the huge Russian aluminium company Rusal, in November 2006.

Cherney claims Deripaska holds 20 per cent of the Rusal shares on behalf of Cherney and is suing for damages for breach of Deripaska’s agreement to dispose of the shares and to account to Cherney for the proceeds. The claims are based on a written agreement between the two businessmen signed in a London hotel room in March 2001. Deripaska denies that Cherney owns shares and said in an affidavit that his relationship with Cherney was one of a businessman being extorted by a crime boss.

In July 2008 Mr Justice Clarke ruled that Cherney had the right to sue Deripaska for £2bn. Clarke J held that Cherney might be assassinated or held on trumped-up charges if he tried to bring the case in Russia. Cherney has been given permission to give evidence via videolink at the April trial.

The feud between the two is typical of the type of dispute the Government wants to attract to London. Significant both in terms of ramifications and legal costs.

Claimant: Brick Court’s Mark Howard QC, Essex Court’s David Foxton QC and Brick Court’s Fionn Pilbrow and Tony Singla instructed by Dechert partner Andrew Hearn for Cherney

Defendant: Blackstone’s Tom Beazley QC, Essex Court’s Paul Stanley QC, One Essex Court’s Alain Choo Choy QC leading Essex Court’s Paul Key and Blackstone’s Tom Weisselberg, instructed by Quinn Emanuel Urquhart & Sullivan partner Sue Prevezer QC for Deripaska

Hearingdate: April (for 10 weeks)

Court: Commercial Court

Insider trading

FSA v (1) James Sanders; (2) Miranda Sanders; (3) Christopher Hossain; (4) James Swallow, (5) Adam Buck

This is the first cross-jurisdiction prosecution of insider dealing by the FSA and one that will be followed closely by the City.

The FSA has charged five people, including two former directors and one former trader at the derivatives brokerage Blue Index, with insider dealing.

Blue Index’s co-owners James Sanders and James Swallow and senior trader Christopher Hossain are all defendants in the case. The offences are alleged to have taken place between October 2006 and February 2008.

The prosecution alleges that inside information relating to the potential sale of various US companies was passed from members of the Sanders family in the US to the Sanders in the UK.

The prosecution alleges that this inside information was obtained by James Sanders’ brother-in-law, a tax adviser in the US, who worked on the various transactions connected to the sale and acquisitions of relevant companies connected to the indictment. It is alleged that this inside information was then used by Sanders to place spread bets.

The total value of these combined spread bets and contracts for difference is more than £20m.

Claimants: 18 Red Lion Court’s Peter Carter QC leading 3 Serjeants’ Inn’s Sarah Clarke and 18 Red Lion Court’s Ruby Hamid, instructed ­directly

Defendants: 2 Hare Court’s Andrew Radcliffe QC leading ­Siobhan Grey of Doughty Street Chambers ­instructed by Irwin Mitchell partner Kevin Robinson

for (1) James Sanders; ­Garden Court Chambers’ Henry Blaxland QC leading Adrian Eissa of the same set, instructed by Irwin Mitchell partner Robyn Walters for (2) ­Miranda Sanders; 9-12 Bell Yard’s Mukul Chawla instructed by Kingsley Napley partner Jill Lorimer for (3) Christopher ­Hossain; Matrix’s Matthew Ryder QC and Helen Law ­instructed by Corker ­Binning ­partner David Corker for (4) James Swallow; Ken Macdonald QC and Julian Knowles QC both of Matrix instructed by Bindmans partner Neil O’May for (5) Adam Buck

Hearingdate: 16 April (for three to four months)

Court: Southwark Crown Court

Jurisdiction in enforcement

Rubin & Lan v Eurofinance SA

The CoA in July 2010 recognised not only US Chapter 11 bankruptcy proceedings, but also the enforcement of US clawback proceedings. The domestic court found that foreign court actions to recover money from debtors could be recognised and enforced under the Uncitral Model Law on Cross-Border Insolvency. This was despite the fact that the foreign actions were technically distinct from the primary collective insolvency proceedings.

The case is of importance to English defendants,who are now required to mount substantive defences to this class of claim, including setting aside a payment received from the debtor, in any jurisdiction throughout the world.

It is central to the extent of judicial cooperation in cross-border insolvencies, particularly for common law jurisdictions. The Supreme Court will decide whether or not the CoA ruling in the assessment of the jurisdiction of foreign courts is justified.

Rubin has been listed in the Supreme Court with the appeal in the New Cap Re case, where the CoA upheld an order requiring English based defendants to pay back amounts held to be preferences under Australian law to the Australian liquidator.

In addition the trustee of the Bernard L Madoff  Investment Securities has been given permission to intervene.

Appellant: Lead silk to be confirmed to lead XXIV Old Buildings’ Marcus Staff, instructed by Brown Rudnick partner Patrick Elliot; Edwards Wildman Palmer partner David Kendall instructed 3-4 South Square’s Robin Knowles QC and Blair Leahy for AE Grant

Respondent: Dundas & Wilson partner John Verrill instructed 3-4 South Square’s Robin Dicker QC and Tom Smith; Mayer Brown partner Devi Shah instructed Gabriel Moss QC and Barry Isaacs QC both of 3-4 South Square for New Cap Reinsurance

Intervener: Irving H Picard as trustee in respect of the consolidated liquidation of the business of Bernard L Madoff Investment Securities LLC and Bernard L Madoff:  Blackstone’s Pushpinder Singh QC and Adrian Briggs leading Shaheed Fatima of the same set alongside South Square’s Ian Fletcher and Stephen Robins, instructed by Taylor Wessing partner Nick Moser

Hearingdate: May (for four to five days)

Court: Supreme Court

Mortgage fraud

Barclays Private Clients International v (1) Savills Private Finance; (2) Montague Lambert; (3) Stocker & Roberts Partnership; (4) OC313414 (Saracens Solicitors) and Ors

Barclays Private Clients International and Barclays Bank are suing mortgage brokers, valuers, solicitors and guarantors over an alleged mortgage fraud the bank claims cost it £12.7m.

Barclays is pursuing Savills Private Finance and Stocker & Roberts Partnership for fraud, while it has launched a professional negligence claim related to several mortgages against Montague Lambert and the firm of solicitors formerly known as Saracens LLP, granted between September 2006 and April 2007.

Barclays claims that chartered surveyor Stocker & Roberts prepared reports that were “persistently and grossly overvalued, consistent with a fraud”, adding that the areas of

the properties were overstated in order to bring them in line with the stated price.

It also alleges that, in four of the actions, Savills introduced the borrowers to Barclays and commissioned reports from Stocker & Roberts and that in two of those the professional acting for Savills, Charles Goldsmith, received payments of £10,000 and £70,000 into his personal bank account very shortly afterwards.

Claimants: 4 Pump Court’s Michael Douglas QC leading Ben Pilling of the same set, instructed by Simmons partners James Pollock and Emma Kendrick-Jones for Barclays Bank

Defendants: 4 New Square’s Justin Fenwick QC instructed by Berrymans Lace Mawer partner Caterina Yandell for (1) Savills Private Finance; 4 New Square’s Roger Stewart QC leading Alex Gunning of 4 Pump Court, instructed by Kennedys partner David Wilkinson for (2) Montague Lambert; Wilberforce’s Joanne Wicks QC instructed by Browne Jacobson partner Nik Carle for (3) Stocker & Roberts; 4 New Square’s Ben Hubble QC instructed by Henmans partner Duncan Crine for (4) Saracens Solicitors

Hearingdate: 18 June (for five weeks)

Court: QBD

Trademark infringement

(1) A&E Television Networks;

(2) AETN UK v Discovery Communications Europe

This claim for trademark infringement is being brought by A&E Television Networks, the broadcaster of television channel History, and AETN UK against Discovery Communications Europe, the broadcaster behind Discovery History, a channel launched last November.

A&E claims trademark infringement based on registered trademarks for The History Channel and History with an ‘H’ symbol.

Discovery dispute that there is any confusion or damage arising from its use of the name Discovery History and relies on its use of the word ‘History’ in a descriptive sense. Discovery is also counterclaiming for invalidity of A&E’s trademarks.

A&E is relying on survey evidence to prove confusion. Mr Justice Mann’s judgment in April 2011 in relation to A&E’s application for permission to conduct a survey, which was challenged by Discovery, was novel.

The judgment was significant for providing new guidance as to when a party should challenge the proposed form of survey and methodology and has been commented upon widely.

Claimants: 8 New Square’s James Mellor QC leading Lindsay Lane of the same set, instructed by SNR Denton partner Anthony Trenton for A&E Television Networks LLC and AETN UK

Defendants: 8 New Square’s John Baldwin QC leading Charlotte May of the same set, instructed by Burges Salmon partner Jeremy Dickerson for Discovery Communications Europe

Hearing date: July (for five days)

Court: Chancery Division

Oil exploration

Excalibur Ventures v Texas Keystone and Gulf Keystone

This $1bn case concerns exploration rights to oilfields in Kurdistan. The case has already had an interesting journey through the courts, with the claimant, Excalibur Ventures, attempting to launch arbitration proceedings in New York while also trying to bring Commercial Court proceedings in London against the defendants.

In June Mrs Justice Gloster refused the company permission to launch dual proceedings in New York and London, ordering it to stick to the domestic route.

The crux of the claim is that Excalibur alleges that it is entitled to an interest in rights to exploit and develop petroleum fields in Iraqi Kurdistan. These rights

were granted to Texas and one of the Gulf defendants by the Kurdistan regional government pursuant to a production sharing contract.

Excalibur claimed that it had introduced management of Gulf Keystone Petroleum to opportunities for oil exploration in Iraqi Kurdistan and together they had agreed to share any plans to develop the region. The defendants deny any agreement ever existed.

Claimant: 7KBW’s Simon Picken QC leading Timothy Kenefick, Benjamin Parker, Jessica Parker and Emma Hilliard, all of the same set, for Excalibur Ventures, instructed by Clifford Chance partner Alex Panayides

Defendants: Fountain Court’s Michael Crane QC leading Tamara Oppenheimer and Richard Power, also of Fountain Court, instructed by Jones Day partner Stephen Pearson for Texas Keystone; 7KBW’s Jonathan Gaisman QC leading Brick Court’s Harry Matovu QC and Richard Eschwege, instructed by Memery Crystal partners Harvey Rands and Nicholas Scott for Gulf Keystone

Hearingdate: October (for 10 weeks)

Court: Commercial Court

The oligarchs

Boris Berezovsky v Hine & Ors

Self-exiled Russian oligarch Boris Berezovsky has created a legal market of his own with his multibillion-dollar disputes over Russian assets. This case encompasses three tranches of Chancery proceedings that have been case-managed together. The claims have been split into two phases, with the first, which is expected to last between three

and six months, currently listed to begin in October.

The dispute is focused on allegations by Berezovsky that significant proportions of assets and funds worth between $2bn and $3bn held by the Estate of Badri Patarkatsishvili, or a large number of offshore trusts and funds set up by Patarkatsishvili, formerly Georgia’s richest man, as well as assets held by Russian oligarch Vasily Anisimov, are in fact beneficially part-owned by Berezovsky.

Berezovsky alleges that Patarkatsishvili was his joint venture partner and therefore either holds Berezovsky’s assets or is liable for Patarkatsishvili’s alleged negligence or breach of trust in dissipating assets to others, including Anisimov.

Claimant: One Essex Court’s Laurence Rabinowitz QC and Richard Gillis QC to lead Brick Court’s Roger Masefield instructed by Addleshaw Goddard partners John Kelleher, Robert Harvey and Mark Hastings for Berezovsky

Defendants: 3 Verulam Buildings’ Ali Malek QC instructed to lead Sonia Tolaney QC and Anne Jeavons of the same set, instructed by Freshfields partner Ian Terry for Anisimov; Serle Court’s Jonathan Adkin instructed by Hogan Lovells partner Graham Huntley to represent Patarkatsishvili’s family and the interests of his estate; Maitland Chambers’ David Mumford instructed by Macfarlanes partner Iain Mackie

for the Salford defendants

Hearingdate: October (for three to five months)

Court: Chancery Division

Loyalty cards

Loyalty Management UK v HM Revenue & Customs [HMRC]

HMRC is attempting to overturn a CoA ruling concerning VAT payments made by Loyalty Management UK (LMUK), which runs the Nectar card points scheme. The Supreme Court ruling will have implications for all loyalty card schemes.

It will look specifically at the scheme redeemers – those outlets that points are redeemable against – and its relationship with the scheme organiser.

LMUK pays redeemers for what it describes as “redemption services”, which include providing redemption goods and services to customers, plus provision of statistical information to LMUK.

Redeemers charge VAT in respect of redemption services and LMUK sought to deduct that VAT as its input tax.

HMRC denied that redeemers provided any services to LMUK in respect of which LMUK could treat the VAT it had paid as its input tax.

The CoA ruled in favour of LMUK, preserving the principle that no more VAT should be accounted for than is paid by the final consumer. HMRC is challenging the decision.

Appellant: 4 Pump Court’s David Milne QC instructed by Hogan Lovells partner Greg Sinfield for Loyalty Management UK

Respondent: Monckton’s Christopher Vajda QC leading 1 Crown Office Row’s Suzanne Lambert, instructed by HMRC head of litigation Anthony Inglese

Hearingdate: October (for two days)

Court: Supreme Court

Financial contracts

Deutsche Bank AG v Sebastian Holdings Inc

This bitterly fought dispute encompasses parallel proceedings in London and New York. At the High Court Deutsche Bank has launched claims against Sebastian Holdings, a company incorporated under the laws of the Turks and Caicos Islands, spinning out of the collapse of the financial markets in October 2008. The defendant has counterclaims in the New York Supreme Court.

Sebastian entered into a series of contracts with Deutsche relating to trading on the financial markets.

In October 2008, in the midst of the global crisis in the financial markets, Deutsche demanded that Sebastian post additional collateral. Sebastian refused.

The following month the bank informed Sebastian that its failure to add collateral was in effect a breach of contract.

In the London claim Deutsche is seeking $175m for trading debts allegedly incurred under the Master Netting Agreement, a termination agreement, and $120.6m for breaches under the FX Agent Master Agreement, relating to foreign exchange offsetting transactions.

Claimants: Essex Court’s David Foxton QC and 3 Verulam Buildings’ (3VB) Sonia Tolaney QC leading James McDonald, also of 3VB, instructed by Freshfields partner Andrew Hart for Deutsche Bank

Defendants: Brick Court’s Tim Lord QC, Simon Birt and Oliver Jones instructed by Travers Smith partners Jonathan Leslie and Andrew King

Hearing date: October (for 12 weeks)

Court: TBC

Legal professional privilege

R (Prudential plc) v Special Commissioner of Income Tax

At the heart of this case is whether accountants offering legal advice should enjoy the same legal professional privilege as lawyers. Such is the importance of the case that the Legal Services Board (LSB) is considering joining the string of interveners in support of HMRC. If the case goes in favour of Prudential it could have implications for accountancy firms wanting to evolve into alternatives Business Structures (ABSs) under the Legal Services Act (LSA).

HMRC wants Prudential to release documents believed to contain information relevant to Prudential’s tax liability. Prudential argued that the documents are privileged information.

The CoA rejected arguments submitted by Blackstone’s David Pannick QC that privilege is a judge-made rule and therefore it was down to the court to determine that it should apply. The court said that was for the Government to decide.

Appellant: Blackstone’s David Pannick QC leading Conrad McDonnell of Gray’s Inn Tax Chambers, instructed by PricewaterhouseCoopers [PwC] Legal head of litigation Agnes Quashie

Respondent: Blackstone’s James Eadie QC leading Patrick Goodall

of Fountain Court, having been instructed by the HMRC Solicitor’s Office for the inspector of taxes

Intervenor: Fountain Court’s Bankim Thanki QC leading South Square’s Ben Valentin and Henry King, also of Fountain Court, instructed directly for the BarCouncil; Brick Court’s Sydney Kentridge QC and Tom Adam QC instructed by Herbert Smith partners Heather Gething and Julian Copeman for the Law Society; Fountain Court’s Patricia Robertson QC instructed by Simmons partner Colin Passmore for the Institute of Chartered Accountants in England and Wales; Serle Court’s Michael Edenborough QC instructed to lead Gowlings in-house counsel James Tumbridge for Association Internationale pour la Protection de la Propriété Intellectuelle

Hearingdate: November

Court: Supreme Court

Pensions liabilities

Nortel & Lehman Brothers v the Pensions Regulator

This case is being watched very closely by both the insolvency and pensions industries as it will have huge implications for pensions liabilities.

The relevant insolvency and pensions legislation is unclear as to how liabilities for financial support directions (FSDs) or contribution notices (CNs) should be treated.

The matter began as an application for directions as to how such liabilities should be treated by the administrators of certain companies in both the Nortel and Lehman administrations.

The CoA ruled last October that obligations arising from FSDs and CNs rank as expenses of an administration or liquidation, which means they must be honoured ahead of payments to the insolvent companies’ unsecured creditors.

That decision will now be examined by the Supreme Court, with the administrators of Nortel and Lehman appealing.

Appellants: Brick Court’s Mark Howard QC and South Square’s William Trower QC leading Andrew Mold of Wilberforce and Tom Smith, also of South Square, instructed by Herbert Smith partner Stephen Gale for the Nortel administrators; South Square’s Robin Dicker QC, Wilberforce’s Paul Newman QC leading Daniel Bayfield, also of South Square, instructed by Linklaters partner Mark Blyth for the Lehman administrators

Respondents: 11 Stone Buildings’ Raquel Agnello QC leading Wilberforce’s Jonathan Hilliard and Thomas Robinson, also of 11 Stone Buildings, instructed by the Pensions Regulator, the respondent in both appeals; 3-4 South Square’s Richard Sheldon QC and Felicity Toube QC and Wilberforce’s Michael Tennet QC instructed by Hogan Lovells International partner Angela Dimsdale Gill for Nortel Networks UK Pension Trust and for the board of the Pension Protection Fund; South Square’s Gabriel Moss QC and David Allison and Outer Temple’s Nicolas Stallworthy QC, instructed by Travers Smith partner Anna Gray for Lehman pension fund trustees and for the board of the Pension Protection Fund; South Square’s Barry Isaacs QC instructed by Weil Gotshal & Manges partners Joanne Etherton and Adam Plainer for Lehman Brothers Holdings and Neuberger Berman Europe

Hearingdate: TBC

Court: Supreme Court