Litigating circumstances

From groundbreaking cases to QCs’ squabbles, the court were as entertaining as usual. Here are some of the best

Naomi Campbell v The Mirror Group Newspapers

For Naomi Campbell: Schillings, Andrew Caldecott QC
For The Mirror Group: Davenport Lyons, Desmond Brown
QC, Richard Spearman QC

Naomi Campbell losing her privacy case against the Daily Mirror at the Court of Appeal was a victory for the press, but came as a blow to her law firm Schillings, which has been building up a lucrative practice specialising in privacy law.

Campbell brought the action in February 2001 for snapping her outside a Narcotics Anonymous meeting and revealing details of her treatment. She won the case in the High Court this April.

Her win looked set to establish infringement of privacy as a species of the existing tort of breach of confidence, which could have become a lucrative area of media law – especially for Schillings.

But now, it seems, the media can only be attacked on traditional libel grounds.

As Mark Bateman of Davenport Lyons, acting for the Daily Mirror, put it in The Lawyer (21 October), the courts said to the celebritocracy: “Don’t use us to protect your dirty laundry from getting an airing in public.”

But all is not lost. Although refused leave to appeal, Schillings has asked the Law Lords for permission directly and is still awaiting a result.

Schillings, the celebrity media boutique which won the Niche Law Firm of the Year Award at The Lawyer Awards this year, is also preparing a similar action for radio presenter Sara Cox.

Those in the privacy camp think that they stand a better chance of getting their law approved by the courts in other cases.

Perhaps Cox’s sweet demeanour, popularity and relatively unblemished character can help push the new law through.

The Noboa saga

For Alvaro Noboa: Cadwalader Wickersham & Taft, Lord Grabiner QC
For Fruit Shippers Ltd: Herbert Smith, Geoffrey
Vos QC

The Thyssen case gave litigators something to endlessly jaw about in 2001, while in 2002 – at least from October – they had the remarkable Noboa litigation.

The Noboa saga had the ingredients of a Hollywood film: a family dispute over the inheritance of a $1bn (£635.6m) corporation specialising in fruit, concluded by the claimant sisters being found guilty of dishonesty and deception. But it was not just the parties – which included Alvaro Noboa, who was electioneering for the Equador presidency during the litigation – who made the case so entertaining. The lawyers themselves also had their moments of drama.

First Coudert Brothers and then Ince & Co were unceremoniously dumped and replaced by LeBoeuf Lamb Greene & MacRae and Herbert Smith respectively. Then those legal magicians Gordon Pollock QC and Lord Grabiner QC entertained an already electrified courtroom by having a slanging match, after the former accused the judge, Mr Justice Langley, of making “a very stupid comment”.

Soon after, Pollock sent a letter to Herbert Smith’s team explaining that his case on behalf of the sisters against Fruit Shippers, the company that the sisters were wrestling after, was unworkable. Thus ended the trial’s first phase, originally set down for several weeks but completed after a mere eight days.

Phase two, which dealt with the sisters’ claim against their brother, Alvaro, concluded with Langley accusing Pollock of using no restraint during the case and criticising him for the nature of his cross-examination.
All in all, a case the High Court will not forget quickly.

Saab Brothers v Jones Day

For Jones Day: Richards Butler, Stephen Rubin QC
For the Saab brothers: Lovells,
Andrew Sutcliffe QC

As revealed by The Lawyer (12 December), Jones Day Reavis & Pogue has been through a tough time in the High Court, where the US firm was recently found guilty of professional negligence.

Jones Day now faces a £33m damages claim, a revelation that coincided with the US giant’s recent merger negotiations with mid-tier City firm Gouldens.

Plaintiffs the Saab brothers contended that Jones Day lawyer Mohammed Amersi acted for both sides on their private placement at the Saudi American Bank (Samba), which was de-signed to raise money for a property development in Lebanon.

Tactically, the Saabs’ lawyers played a blinder. 3 Verulam Buildings’ Andrew Sutcliffe QC (who also acted for Italian scooter manufacturer Aprilia against the Spice Girls last year) and James Evans combined with Lovells partner Graham Huntley to get a split trial.

The first covered only liability issues and the second, which is set down for next October and which will also be vigorously contested by Jones Day, will cover causation and damages.

By splitting the trial the Saabs and their lawyers have ensured maximum exposure for Jones Day in a very embarrassing case.

The trial judge Mr Justice Smith said in his judgment: “The conflict forms were completed by Amersi’s secretary, which I find to be a quite extraordinary state of affairs.”

He added that Amersi’s record-keeping “shows a lamentable way of conducting oneself as a lawyer”.

Throughout the trial the Saabs contended that they did not know Amersi was acting for Samba.

The judge disagreed, but held nevertheless that Amersi had acted improperly by not explaining the conflict.

The stage is now set for October’s hearing, although the Saabs may find proving loss on the Lebanese venture a tougher task.

CFA costs cases

There has been plenty of lessons learnt this year about conditional fee arrangements (CFAs), and typically they are the result of unfortunate errors having been made. Here are a few of them.

The Law Lords kicked off the year on a bad footing when it was discovered that three years after CFAs had been introduced in the UK they had failed to implement their own CFA procedures. A quick introduction of procedures was not enough to wipe the egg off their faces.

Then poor old Tim House at Allen & Overy and Michael Tugenhat QC were not financially rewarded for their months of hard work, as they had fouled up on their CFAs.

Amazingly, it was a case of them making a mess of not just one but two CFAs: House with his private client Bonnie Woods defending a defamation claim brought by the Scientologists, and House’s second CFA blunder was with his barrister Tugenhat. Berwin Leighton Paisner, Constant & Constant and DAC, defendant lawyers in England’s first competition trial, could also be out of pocket.

Thanks to CFA rules, the claimant, an impoverished former shipowner Yeheskel Arkin, has not had to take out an after-the-event insurance policy to cover the other side’s costs. Therefore, in the event of a defendant victory it will be down to them and not Arkin to pay their lawyers’ fees.

However, it seems that 2003 will prove even more interesting than 2002, particularly as lawyers acting in the ECJ Spanish fisheries case Factortame are preparing a claim for the fees they were denied in early 2002 because of problems with their CFAs.

The Football League v Hammonds

For the Football League: Lawrence Graham, Charles Flint QC
For Carlton/Granada: Slaughter and May, Lord Grabiner QC

You would have thought it would have gone away by now, but poor Hammonds is still cowering under the huge shadow of a potential £130m claim from the Football League.

It all began with Edge Ellison lawyers drafting a contract between the Football League and ITV Digital for a £315m TV rights deal in 2000. When ITV Digital collapsed the Football League took its parents, Carlton and Granada, to the High Court for the £180m it was still owed this summer.

The Football League lost, and in a press conference after the judgment made threatening noises about suing Edge Ellison, which has since merged with Hammonds.

The Football League is still investigating whether it was the lawyer’s drafting of the contract that allowed Carlton and Granada to wriggle out of being held liable for the money ITV Digital owed.

The league’s original loss has been mitigated by a deal with Sky, but it is still some £130m out of pocket.

Hammonds is now insured for £200m, but The Lawyer understands that at the time the contract was drafted the legacy Edge Ellison partnership was indemnified for much less than £130m.

The Football League’s official line is that it is “keeping its options open”, which does not allow Hammonds any opportunity to comment on the case, save to say that it has had no communication on the matter.

The firm, though, has instructed lawyers to spring into action if need be.

The cash-strapped Football League claims to have appointed counsel but is mainly handling the matter in-house after dropping its law firm Lawrence Graham for financial reasons.