Heini Junior takes the spoils as Thyssen case settles

The Thyssen dispute in Bermuda has finally settled, but not before it had incurred legal fees estimated to be in excess of £100m

At one stage, legal costs, in what is one of the most expensive courtroom battles in history, were running at £500,000 a week.
The settlement sees the $2.7bn (£1.9bn) family fortune remaining in the hands of Baron Hans Heinrich Thyssen-Bornemisza's son Heini Junior. The Baron initiated the claim, alleging that his son had duped him into agreeing to establish a continuity trust to control the family's empire, the Thyssen-Bornemisza Group (TBG). The trust was governed by an independent supervisory board under the chairmanship of Heini Junior.
On 15 February, it was announced that, after the millions of pounds spent in litigation and the months of family heartache and court deliberation, Heini Junior remains chair of the board.
The plaintiff is due to pay the costs of the defendant but an agreement has been reached that the costs will be met by the continuity trust. The Baron's extensive legal team included Michael Crystal QC of 3/4 South Square and Bermudian attorneys Appleby Spurling & Kempe. Heini Junior's team comprised a litigation team from Clifford Chance and four counsel from commercial chancery set Serle Court. The corporate defendants instructed Norton Rose, led by partner Antony Dutton, and various leading counsel.
The settlement also includes new arrangements for the payments of the Baron's annuity, a figure of some 30 per cent of TBG's annual profit.
In addition, the Baron's fifth wife Baroness Carmen 'Tita' Cervera, a former Miss Spain, gains the title of vice-chairman of the Thyssen-Bornemisza Foundation in Madrid, which houses the Baron's extensive art collection, said to be rivalled only by the Queen of England's collection. The Baroness faced the possibility of gaining nothing from the TBG after her husband's death.
The Baron's daughter Archduchess Francesca joins the Baroness as vice-chair.
The Baron's settlement statement said: “The family very much regrets that misunderstandings have led to legal proceedings, which are all dismissed or withdrawn, and also that the family, its members and professionals who have worked with the family, were subjected to adverse media coverage connected with such misunderstandings.”
The settlement was finalised on 15 February after deliberations in camera. This brings to an end a long period of dormancy, which began when the case collapsed last March after the judge, Mr Justice Mitchell, stepped down over a dispute with the Bermudian government over pay.
Immediately afterwards Thyssen sought £10.7m compensation from the island's government for its handling of the debacle, although it is understood that this has not resulted in any litigation or payments to date (The Lawyer, 2 April 2001).
There were several attempts to reach a settlement while parties awaited the appointment of a new judge. One involved the Baron seeking advice from two barristers at Leolin Price QC's specialist trust set 10 Old Square; and last summer, the feuding family had various failed attempts at forging an agreement during meetings between Zurich and London.
Also, it was reported last June that the chief justice of Bermuda Austin Ward had invited parties to consider moving the case to London for pre-trial hearings and the full trial (The Lawyer, 4 June 2001).
Meanwhile, witnesses were primed in preparation for a return to trial. One was the sitting High Court judge Sir Timothy Lloyd, who as a barrister had advised the Baron on the sale of his paintings to Spain between 1990 and 1993, as well as in the review of the arrangements for the beneficiaries of the art trust and the continuity trust in 1993.

What Thyssen teaches us

While the law and its reputation is not well served when litigation is not completed in a reasonable time and without time-consuming procedural complexities, it is also a function of the state to ensure disputing parties' cases are argued fully.
However, although saving the time spent in court should not be regarded by the court as of overriding importance, there should be no timewasting by parties, and procedures should be regulated so that issues in dispute are identified clearly. Also, at the substantive hearing, the court should achieve the requisite procedural orderliness and necessary speed if justice is to be done.
Parties concerned about matters taking longer than the rules state should ask the court to require compliance, or better compliance, with the timetable set by the rules and by the court's own directions.
Applying this to the Thyssen litigation, there is no reason to assume that filibustering was present in this remarkable case.
However, while compromise can be the best outcome, it is always regrettable if the parties feel driven to compromise by the time spent in the litigation, or by the expense already incurred and to be incurred if the litigation is to be continued to judgment; and avoiding the sort of pressure to compromise is something that ought to influence the judge to insist on procedural orderliness and reasonable speed.
Lawyers can be forgiven for regretting that one result of the compromise is to deny them the opportunity to study a judgment in which troublesome issues of law and equity (as well as of fact) would have been examined and explained in what should have been a very learned contribution to the jurisprudence of the common law world. But litigation does not have as its primary function the development of jurisprudence or of legal principle. Its function is to achieve an independently judicial resolution of the disputes between the parties.
Leolin Price QC is the head of specialist trust chambers 10 Old Square