For the past three years the courts have been bristling with recession-related claims. As every year passes, however, the disputes become more complex, the sums get bigger and the legal teams involved swell.
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.
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.
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.
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.
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.
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
Court: Supreme Court
(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
Hearing date: 30 January
Court: Chancery Division
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
Hearing dates: 30-31 January (CoA); February/March (Senior Court costs office)
Courts: CoA; Senior Court costs office before Senior Costs Judge Hurst
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
Hearing date: 21 February (for six days)
Court: Supreme Court
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)
Hearing date: 21 February (for five days)
Court: Chancery Division
(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
(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)
Hearing date: 19 March (for 14 days)
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
Hearing date: March (interlocutory hearings)
Court: Chancery Division
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
Hearing date: April (for 10 weeks)
Court: Commercial Court
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
Hearing date: 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
Hearing date: May (for four to five days)