Representing a Russian oligarch is a high-pressure gig – but the fees a top QC can charge are even higher
The wealthy Russian sits at the head of the table in his Mayfair mansion as the lawyers file in, papers in hand, ready to pitch for what could potentially be the biggest case of their careers. Each partner comes from a different firm and each is given a certain amount of time to explain why they should be instructed. When they are given an ominous tap on the shoulder by a burly bodyguard they must leave the room.
They are out of the race.
It is a simple and effective method of sniffing out the Rottweiler lawyers who are willing to do battle whatever the cost. Acting for clients like this will eat up the instructed lawyer’s life, but this is a client who is willing to spend big to win their case. It is this spending power that is creating a fresh batch of millionaires at the bar.
Over the past five years London has firmly become the jurisdiction of choice for wealthy Russian litigants. The Rolls Building has hosted the mammoth battle between Boris Berezovsky and Roman Abramovich; it is getting ready to hear Michael Cherney’s billion-dollar claim against Oleg Deripaska; and further up the agenda it will decide whether Yukos Capital can force arbitral agreements against the Russian state-owned OJSC Rosneft Oil Company.
It is the most lucrative end of the litigation market, with QCs now demanding what some solicitors dub a ‘Russian premium’. Hourly rates for silks have stabilised at between £800 and £1,000. For the super-silks, £1,500 an hour is the norm – on top of the brief fee, that is.
The ‘Sumption effect’
Some are calling it the ‘Sumption effect’, caused by speculation surrounding the brief fee agreed for former Brick Court Chambers silk Jonathan Sumption QC when he was instructed by Abramovich. It was widely thought that his fee hovered around the £10m mark, although sources closer to chambers assert that it was closer to £3m.
In fact, £3m looks like being the going rate for the Brick Court super-silks.
Speculation is beginning to mount about how much Mark Hapgood QC, also of Brick Court, has been paid to replace One Essex Court’s Laurence Rabinowitz QC for Berezovsky. A reliable source close to the case says the fee, which traditionally pays for case preparation and the first day of trial, is touching £3m. The hourly rate for the six-month trial comes in addition to that.
It is likely that the cost of the second tranche of Berezovsky’s proceedings will outweigh significantly the £100m legal bill he and Abramovich amassed during their six-month court battle.
“There’s definitely a premium to pay for Russian work,” one litigation partner asserts. “The oligarchs only want the best silks practising at the bar and they’re prepared to pay for it. The clerks are beginning to take control of the process. At the moment some sets are asking clients to pay a lump sum and that’s being divided between the counsel team.”
“We provide the same standard of service for everyone, regardless of where they are from,” adds another clerk. “We do understand that when it comes to these clients the sums involved are already accepted. They know they have to pay if they want the best and they’re willing to do so.”
Some suggest the premium exists not because these litigants are Russian, but because they are high-net-worth individuals bringing personal disputes worth billions to London’s courts. Such cases will not settle because the parties are so deeply entrenched.
Travers Smith head of litigation Stephen Paget-Brown, who is instructed for Rosneft in its dispute with Yukos Capital, shrugs off talk of a Russian premium, but points out that “these disputes are usually involving significant sums of money, several months of dedicated resources as well as a labyrinth of underlying facts and complex legal issues. These are individuals who want to fight to the bitter end and they’ll take on every point imaginable.”
“The litigation that’s coming out of Russia or any of the CIS into this jurisdiction tends to be very complex, long-running and of extremely high value,” says Maitland Chambers senior clerk John Wiggs. “That sort of work often attracts higher rates, whether they involve Russians, Americans, Europeans or are purely domestic.
“A consequence of this type of work being litigated in this jurisdiction may be that the Chancery, commercial bar and litigation departments of certain law firms are busier than they might ordinarily be and therefore more in demand.”
For clerks the Russian bubble is a perfect storm. It is purely a question of supply and demand; after all, elite silks are few in number while demand for their services is plentiful.
There is a leading pack of super-silks working for Russians, but there is only one set that has aggressively positioned itself for the cream of this work – Brick Court.
Any litigator will tell you that Brick Court’s Sumption, the first silk to leapfrog to the Supreme Court bench, is a true one-off.
“When it comes to negotiating for someone like that,” states a rival senior clerk in reference to Sumption’s instruction for Abramovich, “there’s no framework for formulating the fee, there’s no reference point. What the client wants to know is what value it adds to have him involved.
“They don’t want to know how many hours he’s going to dedicate to the case, they want to know he can win. That’s where the clerks add value, by finding the right fee – it’s about making the right judgment call.”
A senior litigator with experience of this work agrees. “The clerks will look to extract a premium for their best silks, it’s what they do,” he says. “It doesn’t matter whether the client’s Russian or not, if they want the best they’ll have to pay.”
Sumption’s elevation to the bench has left a gap at the top end of the bar. One Essex Court’s Tony Grabiner QC, who is instructed by Paget-Brown for Yukos Capital, is an old hand, but it is Brick Court’s Mark Hapgood QC and Mark Howard QC who are building superstar status, and their chambers’ pedigree helps.
“They are the silks who can pick a figure just because they’re so in demand,” another senior clerk states. “It’s the workings of the market coming into play.”
The country’s leading commercial set is described by several solicitors as ruthless when it comes to brief fee negotiations. The set has deliberately positioned itself as the upper crust of the bar, suitable only for the most complex of cases where the end clients are the most sophisticated.
This has not always won the set fans among its solicitor market. There are lawyers who refuse to go elsewhere for advocacy and are happy to deal with the set’s traditionalist style, but there are others who are put off by this perceived elitist approach.
It is the bar that attracts the Russians to London. Some solicitors suggest that it is exactly Brick Court’s traditionalist style, its sense of establishment and depth of expertise, that is attractive to the international litigant. It is clear that chambers has sought to build on this reputation and that, in turn, has encouraged the flow of instructions.
Howard is currently instructed for Michael Cherney by Dechert in a four-month trial that was to be heard in April, but is likely to be delayed until the summer.
Cherney launched his claim against a Russian billionaire Deripaska, 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 him 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 in London’s High Court. Such is the enormity of the case that Deripaska has drafted in three leading silks to take on Howard, who is appearing alongside Essex Court’s David Foxton QC. They are Blackstone Chambers’ Tom Beazley QC, Essex Court Chambers’ Paul Stanley QC and One Essex Court’s Alain Choo Choy QC.
Fee good factor
Hapgood, meanwhile, has secured what is believed to be the largest brief fee of his career in replacing Rabinowitz for Berezovsky.
Following on from his commercial court cases against Abramovich, Berezovsky is gearing up for another six-month trial in which he is pursuing three defendants: Russian metal magnate Vasily Anisimov, represented by Freshfields Bruckhaus Deringer partner Ian Terry; the estate of Arkady ‘Badri’ Patarkatsishvili, formerly Georgia’s richest man, represented by Hogan Lovells partner Graham Huntley; and investment company Salford, represented by Macfarlanes partner Iain Mackie.
Negotiations over Hapgood’s fee were tense and driven hard by both Addleshaw Goddard and, it is understood, the set’s leading clerks Julian Hawes and Deborah Anderson. They locked themselves into a room and agreed to hammer out a deal.
Interested to know how such fees are negotiated, and no doubt to see how his money was being spent, a representative of Berezovsky’s team observed.
Neither side would comment on the brief fee, but The Lawyer understands that it was comparable to Howard’s. And replacing Sumption is not going to come cheap.
“Hapgood’s an amazing barrister and it’s easy to see why Addleshaws wanted him involved,” a clerk comments. “He’s the person to fill Sumption’s shoes. He has a wonderfully analytical brain. There are other barristers working on these cases who are high profile, but who don’t necessarily have the right type of expertise. They’re there because of their names.”
One magic circle partner asserts that the bar’s ingrained habit of brief fees is “an outrage”. “Law firms charge an hourly rate,” he adds. “We usually get beaten down on it, but at least you know what the rate is.
“It’s very different if you want a top silk. The clerk will say, ‘If you want this person for an October trial for six months, we need to agree an upfront brief fee’. Basically the client pays in advance for a lot of work that hasn’t been done. The fee will cover the preparation in the run-up to the trial and the first day in court. In most cases it’s a staged fee and you make the payments in the lead-up to trial.”
The partner explains that this ensures the silk’s availability on the case, which is particularly important for sets that are alleged to double book silks should one case settle.
“Although it’s not a science,” comments another partner, “the brief fee should relate to what hours you’ve been given. It should be agreed that X millions or £500,000 means you get the barrister’s time exclusively and you know they’re properly prepared for trial.”
There are chambers that demand the entire fee up front. A new method of devising a fee for the entire counsel team is beginning to emerge, with clerks playing a central role in negotiating the breakdown, with the most senior silk taking the largest bite of the pot.
Others, such as Blackstone, request weekly payments in the run-up to trial, ensuring payment should the client suddenly decide to switch counsel.
“Blackstone says, if you want a good or reasonable commercial rate on an exclusive basis, you have to pay weekly,” an insider says. “The clerks will issue a lockout and promise not to double book. It works out better in the long term and must be more sustainable.”
Too much pressure
The demands placed on the legal teams are severe. When Rabinowitz pulled out of representing Berezovsky in his Chancery proceedings, some close to the case claimed it was due to prior diary commitments. Those commitments came as a surprise to Addleshaws, which thought the deal was sealed.
Some suggest that the pressure Rabinowitz was under in the run-up to and during the commercial trial was enormous. Berezovsky’s case was monumentally complex and the most minor of details turned on witness statements. Rabinowitz had simply had enough, the source says, and wanted to focus on other legal projects.
Another member of the counsel team has taken six months off to recuperate from the 20-hour days – after all, he had earned enough to be able to do so.
“The commitment needed for one of these cases is very serious,” a partner says sombrely. “They’re very demanding as clients. They come from a totally different culture and they want things to work like they did in Russia – they want lawyers to work around them.
“For solicitors it can be difficult to deal with managing expectations, particularly as the clients don’t have the niceties that the profession’s used to.”
Another litigator says that working for individuals who have built their own empires is radically different to working for a corporate client. The vested interest is fierce.
“They only have themselves to blame,” the partner says of fee inflation at the bar.
“They’re strong minded, strong willed, demanding and they want to win.
“If you’re doing one of these cases, you’re doing nothing else for six, 12, 18 months, and that can be exhausting, even for the most heavyweight of silks.”
In some matters, a clerk adds, it is the barrister’s responsibility to deliver bad news to the client.
“It isn’t necessarily a close relationship with the client, in some cases it’s healthy to keep a distance,” the clerk says. “It enables the barrister to take a dispassionate view and in some matters deliver the bad news without getting fired.”
In the firing line
The fear of getting fired is intense and it is not difficult to understand why. As individuals with personal interest in these cases the litigants want positive results, especially when they have paid out a significant sums. When those results are not forthcoming something has to give, and in some instances it is the lawyers. It is the willingness of the client to change lawyers that adds to the pressure of working for these clients.
“The cases are very wearing and extremely attritional,” comments one litigator. “It’s blood and guts work, a long hard slog.”
Take the sprawling case that is Berezovsky v Abramovich. While it would be unfair and untrue to say that any lawyer has been forced off the matter, the changing line-up
does reveal how precarious these instructions can be.
In May 2008 Berezovsky was represented by Cadwalader Wickersham & Taft, with Blackstone’s Barbara Dohmann QC as leading counsel. Abramovich, who has kept Skadden Arps Slate Meagher & Flom litigator Paul Mitchard QC on the team throughout, was represented by Brick Court’s Andrew Popplewell QC (another potential successor to Sumption had he not joined the bench) and Helen Davies QC.
By 2010 Addleshaws had replaced Cadwalader, bringing in One Essex Court’s Richard Gillis QC and Rabinowitz to work on different aspects of the cases. Davies, meanwhile, took the lead for Abramovich before Popplewell QC became reinvolved.
The final line-up settled with Sumption being appointed in spring last year, although Skadden had wanted to keep his instruction under wraps for as long as possible.
Cherney and Deripaska have both instructed various legal teams in the buildup to their trial. Back in July 2008 Cherney was being represented by 3 Stone Buildings’ Geoffrey Vos QC, who was appointed to the bench in 2009, while 4 New Square’s Roger Stewart QC represented Deripaska. A year later and 3 Verulam Buildings’ Ali Malek QC and Essex Court’s Joe Smouha QC were brought in for Deripaska.
Speculation is mounting as to who will be brought in to defend the second round of Berezovksy’s case. Fountain Court QC Michael Brindle’s name has been mooted, as has 20 Essex Street’s Iain Milligan QC, but whether they are actually involved is another matter. In the build-up to the trial many more names are likely to be thrown into the mix in an effort to keep Berezovsky’s team off the scent. Who is representing whom is the ammunition of the defendants.
Despite the heavy commitment, the pressures and the legal risks involved, these are the cases that the serious advocates crave. The fact is that these matters are more likely to go to court than would a domestic corporate battle.
“Spend two years working on a case like this,” muses one litigator, “and you could afford to have a year off to recover.”
For senior junior barristers, involvement in these cases carries a different bag of risks. Being off the general circuit for up to 24 months can lower the profile needed to keep the instructions rolling in.
“We do keep an eye on the youngsters; they can find themselves in predicaments they don’t have the experience to handle,” says a clerk. “They don’t know when it’s okay to say no.”
The clerk adds that it is a rare for this type of situation to arise, but there have been incidents when foreign litigants were unaware of the extent of the law and that paying off a judge is simply unacceptable.
Moreover, there is concern that juniors can find themselves doing the menial work rather than being given the experience they need to develop their careers.
“We explain the risks and tell them what’s involved, then they can decide,” the clerk says.
There is always a flipside.
“Barristers applying for silk need to have reported cases,” notes a clerk. “These are high profile, they look fantastic on your CV.”
The never-ending story
Many litigators believe the current spate of Russian-related litigation is a fad that will go out of fashion as quickly as it came in.
“For firms and chambers it’s a great weekly boost to the budget,” a litigator comments. “People aren’t really considering any reputational issues at the moment, they’re looking at getting the money in.”
Many are already predicting that whichever party loses in Berezovsky v Abramovich will appeal. It is well-known that Mrs Justice Gloster does not like her judgments being dissected by an appellate court and many believe she will do everything she can to tie up the loose ends. The outcome of that case may well have some implications for the Chancery proceedings.
Hourly rates for super-silks involved in these disputes are at an all-time high, but so are the sums being fought over. The outcome of these cases will define the next generation of commercial and Chancery super-silks. In the meantime, Brick Court reigns supreme.
Why not Russia? The reasons behind the choice for UK courts
Russian lawyers contend that the inadequacies in the Russian judicial system have been a key factor in bringing oligarchs’ cases to the UK.
“Russian domestic corporate law is considered inadequate and the Russian court system is too unpredictable to entrust multibillion disputes to it,” notes Yuri Monastyrsky, a founding partner at Monastyrsky Zyuba Stepanov & Partners.
He adds that the opportunity to conduct the case under English law was also bound to be attractive to the parties and lawyers involved.
“From a Russian lawyer’s perspective, English law is relatively simple and convenient when used to construct such complex documents as sale-and-purchase agreements with multiple conditions precedents, representations and warranties, waivers etc, while Russian law doesn’t support certain legal categories,” he says. “It also a common practice for Russian operational and resource development companies to be held by foreign or offshore holding companies. In turn, relations within and between foreign holding companies are governed by shareholders’ agreements, option agreements and other instruments that are usually subject to English law, as is common international practice.”
Other peculiarities of Russia’s system will influence decisions to file claims in the UK, says Roman Khodykin, an associate professor at the Moscow State Institute of International Relations.
“The Russian Procedural Code states that a judgment should be handed down within a three-month period, except in very exceptional circumstances,” he says. “As a result, Russian courts are overloaded, with a Moscow court judge presiding over an average of 60-90 cases a month. There are a lot of cases pending, and with this kind of workload they’re not able to consider cases with all the care and diligence that’s probably in existence in English courts.”
Another key issue has been that Berezovsky v Abramovich has been based primarily on witness statements. In Russia, as Khodykin notes, it is very difficult to deliver
a judgment purely on witness statements and on contractual agreements that are not in writing.
“Therefore in Russia it’s likely that the case would have been dismissed, as there’s no written contractual agreement,” he says.
He adds that other issues, such as the fact that judgments in Russian courts are not easily enforceable abroad and that there is currently no enforcement treaty between Russia and the UK, will have affected the decision over location.
As for the impact on the Russian legal market itself, Monastyrsky points out that it may lead to more opportunities for Russian lawyers.
“Any type of business restructuring, transfer of ownership etc gives plenty of work opportunities,” he says. “Thus it’s possible to say that any foreign court decision and subsequent or related transaction that results in an impact on Russian-based business will provide the Russian legal market with additional work.”
However, Dimitry Afanasiev, chairman of Egorov Puginsky Afanasiev & Partners, stresses that trying so many cases in England may prevent the Russian judicial system from moving forward.
“In the mid to long term this isn’t good for Russia and it’s not good even for the English law firms, which are benefiting from this market distortion. Unless Russian law is going to apply to business transactions here, the Russian lawyers and judges aren’t going to gain the experience and sophistication, English courts are going to be overloaded with essentially domestic Russian disputes on matters so alien to any English judge that he or she isn’t going to know how to do away with the case, and there’s not going to be any rule of law in Russia,” he says.
While Afanasiev notes that litigating these cases in English courts has had a positive impact on how Russian business deals are being examined in court, there are a number of underlying concerns.
“From Russia’s perspective,” he says, “it’s bad for national security because it impacts on sovereignty; bad for the development of the Russian judicial system, which isn’t getting the experience; bad for Russian business, because it increases the legal costs; and in the long run it’s bad for Russian lawyers, who lose a market share to foreign lawyers.”
He is quick to add that improving the standards of the Russian judiciary hinges on the Russian government amending the judicial system and the Civil Code.
“The two immediate solutions are to rid the Civil Code of imperative provisions and to set up a credible arbitration centre in Moscow,” he asserts. “If implemented, both initiatives are going to be a big leap forward in the development of Russian law; and a small collateral benefit for Russian law firms will be that there’ll be more demand for Russian lawyers.”
Russians and the Russian legal market as a whole have been monitoring the developments of Berezovsky v Abramovich closely, notes Monastyrsky.
“For ordinary Russian citizens, it’s interesting to see how in reality the post-perestroika property privatisations and initial creation of oligarchs’ capitals were carried out, particularly the current Berezovsky v Abramovich case, related to the privatisation of SibNeft,” he says. “For lawyers, it’s obvious that decisions taken in London may have an impact on Russian businesses, which in turn may result in additional projects and opportunities.”
Transcripts of the trial are published regularly in Russia and are widely available to read. Russian citizens are particularly interested in the oligarchs’ cases because they are revealing many things that Russians, having known little about them, have wondered about for more than two decades, notes Khodykin. After the fall of the Soviet Union in 1991, a large number of government-owned businesses were transferred to private ownership. How exactly this was done and the legality of the process has largely been a mystery to many up until now.
Therefore, “once the courts begin to uncover the truth behind the ‘raging ’90s’, many additional grounds for litigation are likely to arise,” Monastyrsky notes.
Afanasiev believes that what the Russians think of these cases depends on whose side they are on.
“For some, the English courts are the last opportunity to obtain justice; yet for others it’s a venue to bring frivolous claims,” he says.
Khodykin points to the growing relationship between the UK and Russian bars in recent years.
“There have been a number of seminars organised by the UK bar, and the British Embassy in Moscow’s hosted a number of events recently, including one on promoting arbitration and one on the UK Bribery Act. So I think it’s obvious that the UK bar’s been trying to market to Russia,” he says.
Two Russian lawyers were also appointed to Berezovsky v Abramovich as legal experts. Mikhail Rozenberg, a senior partner at Chadbourne & Parke in Moscow, acted as the Russian law expert for Abramovich, while Ilia Rachkov, a partner at Noerr in Moscow, acted as the Russian law expert for Berezovsky. Both lawyers were required to submit expert reports to the court as well as giving evidence over three days of cross-examination, from 30 November to 2 December 2011. Neither Rachkov nor Rozenberg were able to comment on the case.
Mark Hapgood QC
Year of call: 1971
Berezovsky v (1) Vasily Anisimov; (2) The Estate of Arkady ‘Badri’ Patarkatsishvili; (3) Salford (October 2012)
For Berezovsky, instructed by Addleshaw Goddard partner
JP Morgan Chase Bank v Springwell Navigation Corporation (2008)
For JPMorgan, instructed by Clifford Chance partner Ian Moulding
Office of Fair Trading v Lloyds TSB & Tesco (2007)
For Tesco, instructed by SJ Berwin
Munib Masri v Consolidated Contractors International UK Ltd & Another (2006)
For Masri, instructed by Simmons & Simmons managing associate Andrew Bartlett
Equitable Life Assurance Society v Ernst & Young (settlement 2005)
For Ernst & Young, instructed by Barlow Lyde & Gilbert partner Clare Canning (now Ernst & Young general counsel)
Mark Howard QC
Year of call: 1980
Michael Cherney v Oleg Deripaska, court date tbc 2012
For Cherney, instructed by Dechert partner Andrew Hearn
(1) Morrisons; (2) Imperial Tobacco; (3) Cooperative Group; (4) Safeway; (5) Asda; (6) Shell v Office of Fair Trading (2011)
For Imperial Tobacco, instructed by Ashurst partner Nigel Parr
Rainy Sky SA & Ors v Kookmin Bank (2011)
For appellants Rainy Sky, instructed by Ince & Co partner Paul Herring
British Sky Broadcasting v Electronic Data Systems (2010)
For British Sky Broadcasting, instructed by Herbert Smith partner Ted Greeno
Stone & Rolls v Moore Stephens (27 July 2007)
For defendant Moore Stephens, instructed by partners Julian Randall and Tim Strong, then of Barlow Lyde & Gilbert
Get set, go
Brick Court Chambers, One Essex Court and Essex Court Chambers dominate the Russian legal scene in London.
Such sets can justify rates described as “eye-watering” by many solicitors because they are home to the country’s leading silks, and it is the credentials of these barristers that attract the feuding Russians to London’s High Court.
Supreme Court Justice Sumption, formerly Jonathan Sumption QC of Brick Court Chambers, raised the bar considerably when speculation began to mount about his alleged £10m brief fee for Chelsea FC owner Roman Abramovich.
Brick Court, of course, vehemently denied the figure – after all, Sumption had a seat on the Supreme Court bench and to confirm the largest brief fee in the bar’s history would be an own goal.
Nevertheless, the speculation had an instant effect. First, it alerted the Russian litigants to Brick Court’s existence (if they were not already aware of it); and second, it informed the Russians that, if they were to litigate in London, they would need to pay.
Sets began to target the big cases, marketing their top guns heavily with a view to getting teams of juniors involved.
According to one source, Brick Court has been particularly keen to attract the leading cases, although its senior clerks, Ian Moyler and Julian Hawes, are among the toughest fee negotiators at the bar. This has paid off for Mark Hapgood QC, who has secured the mandate to represent self-exiled Russian oligarch Boris Berezovsky in his six-month trial set for October.
He replaces One Essex Court’s Laurence Rabinowitz QC, who acted for Berezovsky in his Commercial Court fight against Abramovich. One Essex Court is still in the Russian game, however, with Tony Grabiner QC and Connall Patton instructed by Travers Smith partner Stephen Paget-Brown for Russian oil giant Rosneft in its Yukos Capital dispute.
The set faces its neighbours at Essex Court Cha