Linklaters goes to Lords over £1.8bn claim against E&Y

Linklaters has applied to the House of Lords for leave to appeal a decision which re-instates the largest claim ever to be struck out in English interlocutory hearings $1.8bn against BCCI's former auditor Ernst & Young.

Linklaters partner John Turnbull, acting for Ernst & Young, had to apply direct to the House of Lords because the Court of Appeal refused leave last month.

Before BCCI's dramatic collapse in the 1980s, Ernst & Young's predecessor firm Ernst & Whinney had audited BCCI Holdings, while BCCI Overseas was audited by Price Waterhouse.

The liquidator, represented by Lovell White Durrant, is claiming that auditor, Ernst & Whinney, was negligent in its audit of Holdings and that it owed a duty of care to BCCI Overseas, as it was effectively supervising Price Waterhouse.

Ernst &Young argues it cannot be held liable for alleged negligence by another auditor.

A year ago, Mr Justice Laddie in the High Court found the liquidator's case “long on assertion and deficient on relevant facts” and struck out the $1.8bn part of the claim which related to BCCI Overseas.

But Lords Justices Nourse, Brooke and Neill in the Appeal Court last month held that the barrier between BCCI Overseas and BCCI Holdings and their two auditors was “a mere shadow”, a fact “strikingly illustrated” when they looked at the transfer of funds between the two.

Lovell White Durrant partner Russell Sleigh, who acted for BCCI liquidator Chris Morris of Deloitte & Touche, said that the key difference between the Court of Appeal and the High Court approach was that the former had “looked in some details at the underlying facts we were alleging.”

But Turnbull said: “I didn't find their judgment intellectually compelling.”