In January The Lawyer highlighted the cases to keep an eye on in the litigation sector this year. Here’s what happened…
It is boom time for the litigation sector, with the number and value of cases being heard by the High Court on the rise. As we near the end of 2010 it is time to take a look back at The Lawyer’s top 10 cases of the year.
According to senior barristers involved with the trials, 2010 has seen a greater willingness to litigate rather than settle as clients fight for financial survival.
“The hallmarks of the year have been the amount of Russian work, both in the courts and in private arbitrations,” one leading silk comments. “It remains the position that London’s regarded as a top venue for legal services and it’s a fact that parties are not settling as much as they were doing in the immediate aftermath of the financial collapse. There is, in short, more money about to risk on a risky business.”
Monckton Chambers head Paul Lasok QC agrees.
“Every year’s a busy year, but one does feel that the volume of litigation is greater than it’s been,” he says.
An increase in regulatory work, competition-related instructions and more bank-on-bank actions are expected to be the themes of 2011, and 2010 has laid the foundations for that. Litigation is a long-tail business and the boom is expected to last for some time.
1 Chelsea Barracks: CPC Group Ltd v Qatari Diar Real Estate Investment Company
Property developer CPC Group claimed the defendant breached its contract when it reneged on an agreement to buy its stake in London’s Chelsea Barracks. It was alleged that the defendant
withdrew from the deal after Prince Charles intervened personally because he was not in favour of the development’s proposed architectural design.
Claimant lawyers: Wragge & Co partner Nicola Mumford instructed Lord Tony Grabiner QC of One Essex Court.
Defendant lawyers: Herbert Smith partner Philip Carrington instructed Joe Smouha QC of Essex Court Chambers.
In June Mr Justice Vos delivered a judgment spanning more than 320 pages, ruling in favour of CPC.
The High Court was scathing in its ruling, commenting: “The parties’ suspicions of one another have turned out to be rather exaggerated and to have had little or no effect on what actually happened. It would perhaps have been better if the parties had worked a little harder towards solving their mutual problems together, rather than resorting to immediate and somewhat intransigent positions in preparation for what they thought was going to be inevitable litigation.”
While Vos J found in favour of the claimants, no financial remedy was ordered.
Within weeks the case had settled, with the Candy brothers, owners of CPC , issuing an unreserved apology for the action. They apologised to the emir of Qatar, the prime minister of Qatar and Ghanim Al Saad, managing director of Qatari Diar.
2 The Administrators of Lehman Brothers International (Europe) (LBIE) v Lehman Brothers Finance SA & Ors
Application to determine proprietary claims to billions of dollars worth of securities known as ’Rascals’.
Claimant lawyers: Linklaters partner James Gardner instructed Iain Milligan QC and Andrew Baker QC of 20 Essex Street.
Defendant lawyers: For Lehman Brothers Finance: Herbert Smith partner Tim Parkes instructed Gabriel Moss QC of 3-4 South Square.
For Lehman Brothers Commercial Corporation Asia and Lehman Brothers Asia Holdings: Mayer Brown partners David Allen and Steve Miller instructed Mark Phillips QC of 3-4 South Square.
For Lehman Brothers Inc: Norton Rose partner Radford Goodman instructed Michael Brindle QC of Fountain Court.
For Lehman Brothers Special Financing: Weil Gotshal & Manges partner Matthew Shankland instructed Philip Jones QC of Serle Court.
However, when the Rascals were enacted the beneficial titles in the securities were transferred to LBIE. Therefore, Briggs J ruled, the Last month Mr Justice Briggs ruled that more than $1bn (£64m) of the collapsed bank’s assets should stay with its European operations rather than be handed to its global subsidiaries. The High Court found that, after the acquisition of the securities, they were beneficially owned by the defendant affiliates.
securities that had gone through the traditional Rascals process were beneficially owned by LBIE.
3 Raiffeisen Zentralbank Österreich AG (RZB) v Royal Bank of Scotland (RBS)
Austrian Bank RZB claimed for misrepresentation by RBS as arranger of a syndicated loan to an Enron subsidiary.
Claimant lawyers: Memery Crystal partner Harvey Rands instructed Jeffrey Gruder QC of Essex Court Chambers.
Defendant lawyers: Travers Smith partner Stephen Paget-Brown instructed Antony Zacaroli QC of 3-4 South Square.
The ruling given by Mr Justice Clarke in June gave clarification on the approach the court should take when dealing with misrepresentation claims.
Finding in favour of RBS Clarke J said RZB showed no evidence to support its claim that RBS had made four implied representations in an effort to induce it to enter into the syndication agreement.
A claim for misrepresentation required consideration of what RZB might have done if RBS had not many any representation. It was not enough for RZB to show that, but for the isrepresentation, it might have acted differently. On the facts, had the representations been made, there would have been no reliance on them.
4 Banca Popolare di Intra SpA v Barclays Bank
The Italian bank claimed Barclays Capital mis-sold it a complex structured product that incorporated a collateralised debt obligation, and for abuse of substitution rights arising from the product.
Claimant lawyers: Nabarro partner Michael Hales instructed Jonathan Nash QC of 3 Verulam Buildings.
Defendant lawyers: Linklaters partner Patrick Robinson instructed David Owen QC of 20 Essex Street.
The case reached the Commercial Court in February, but just a week into proceedings the claim was settled, with neither party accepting liability or responsibility. The terms of the settlement were kept confidential.
5 Construction companies v Office of Fair Trading (OFT)
The Competition Appeal Tribunal considered 25 applications for appeal from companies that were fined by the OFT for colluding in “illegal anticompetitive bid-rigging activities” on 199 tenders between 2000 and 2006.
Claimant lawyers: For ISG Pearce: DLA Piper partner Mike Pullen instructed Paul Lasok QC of Monckton Chambers.
For Galliford Try: Pinsent Masons partner Alan Davis instructed John Swift QC of Monckton Chambers.
For Ballast Nedam: CMS Cameron McKenna partner David Marks instructed Christopher Vajda QC of Monckton Chambers.
For Renew Holdings and Robert Woodhead Holdings: DLA Piper partner Martin Rees instructed George Peretz of Monckton Chambers.
For PKF Coringway: Nabarro partner Cyrus Mehta instructed Paul Harris of Monckton Chambers.
For G&J Seddon and Seddon Group; Interclass Holdings and Interclass; JH Hallam and JH Hallam (Contracts); GAJ Construction and GAJ (Holdings); and Hobson & Porter: Watson Burton partner Tristan Meears White, now at DWF, instructed Aidan Robertson QC of Brick
For Apollo Property Services Group: Pinsent Masons partner Giles Warrington instructed Tom de la Mare QC of Blackstone Chambers.
For Durkan Holdings; Durkan Ltd; and Concentra Ltd (formerly known as Durkan Pudelek Ltd): Jones Day partner Frances Murphy instructed Mark Hoskins QC of Brick Court Chambers.
For Kier Group and Kier Regional: Simmons & Simmons partner Charles Bankes instructed Mark Brealey QC of Brick Court Chambers.
For John Sisk: Mayer Brown partner Gillian Sproul instructed Thomas Sharpe QC of One Essex Court.
Defendant lawyers: OFT lawyer Francis Barr instructed David Unterhalter SC of Monckton Chambers.
A case management hearing in January decided that the 25 appeal applications would be heard at the end of June. Judgment is still pending and is anticipated in early 2011.
6 Berezovsky v Abramovich
Russian oligarch Boris Berezovsky is pursuing his former business partner Roman Abramovich for damages estimated at £3.12bn in a dispute arising from the sale of the claimant’s shares in Sibneft, one of Russia’s largest oil companies.
Claimant lawyers: Addleshaw Goddard partner Mark Hastings instructed Laurence Rabinowitz QC of One Essex Court.
Defendant lawyers: Skadden Arps Slate Meagher & Flom partner Paul Mitchard QC instructed Michael Brindle QC of Fountain Court.
An attempt by Abramovich’s lawyer to gain a summary judgment and have Berezovksy’s claim thrown out was rejected by the High Court in March after an unprecedented three-week hearing.
“I’m satisfied that it’s impossible to say that this claim has no real prospect of success,” Mr Justice Colman stated.
In August the judge in charge of the Commercial Court Mrs Justice Gloster set a precedent in the High Court by sitting alongside Mr Justice Mann of the Chancery Court and jointly giving directions on the case.
A separate claim Berezovsky is pursuing against the estate of his former business partner Arkadi ’Badri’ Patarkatsishvili, who was also a business partner of the feuding pair, will be heard at the same time as the Abramovich case.
The full trial has been listed to start in October.
(For more, see Special Report)
7 Simon Singh v British Chiropractic Association (BCA)
An appeal against a 2008 ruling handed down by Mr Justice Eady in favour of the BCA. It pursued Singh for libel after he wrote an article published in The Guardian that criticised the view that chiropractors can cure disease by manipulating the spine.
Claimant lawyers: Collyer Bristow partner Rhory Robertson instructed Heather Rogers QC of Doughty Street Chambers.
Defendant lawyers: Bryan Cave associate Robert Dougans instructed Adrienne Page QC of 5 Raymond Buildings.
In April the Lord Chief Justice Lord Judge, Master of the Rolls Lord Neuberger and Lord Justice Sedley overturned Eady J’s ruling, giving Singh permission to use the defence of fair comment in the libel case. Just two weeks later the BCA dropped its case, although costs had already reached £100,000.
8 Clydesdale Financial Services & Ors v Smailes & Ors
The claimants were creditors of firm Alexander Samuel, which was put into prepackaged administration. The claim was brought against the initial administrators of the firm and its purchaser on the basis that it was undervalued when it was sold.
Claimant lawyers: For Clydesdale Financial Services and Justice Capital: Clifford Chance partner Simon Davis instructed Timothy Howe QC of Fountain Court.
For Focus Insurance: Just Costs partner Paul Shenton instructed Nigel Jones QC of Hardwicke.
Defendant lawyers: For Rob Smailes and Steve Ryman: Colman Coyle partner Howard Coyle instructed Lloyd Tamlyn of 3-4 South Square.
For Jiva Solicitors: Ozon partner Michael Ozon instructed Timothy Dutton QC of Fountain Court.
For Alexander Samuel (a firm) and Alexander Samuel LLP: Howes Percival partner Richard Healey instructed John Jarvis QC of 3 Verulam Buildings.
After a hearing before Mr Justice Richards in April the case went on to settle behind closed doors.
9 Claire Horwood & Ors v Argos Home Retail Group & Ors
More than 4,500 claimants issued claims against a number of retailers alleging they suffered dermatological injuries from exposure to Chinese-manufactured leather furniture containing mould inhibitor DMF.
Claimant lawyers: Russell Jones & Walker partner Richard Langton instructed Ralph Lewis QC of No5 Chambers.
Defendant lawyers: For Argos Home Retail Group: Halliwells partner Jim Bryant instructed Michael Kent QC of Crown Office Chambers.
For Unibrook, trading as Walmsley Furnishing: Berrymans Lace Mawer partner Jim Sherwood instructed Jonathan Waite QC of Crown Office Chambers.
For Zurich: Beachcroft partner Wendy Hopkins instructed Colin Edelman QC of Devereux Chambers on policy coverage issues, while Beachcroft partner Tania Sless instructed Neil Block QC of 39 Essex Street on personal injury claims.
For Deloitte (administrator of Land of Leather): Ashurst partner Arundel McDougall instructed Lex Hilliard QC of 3-4 South Square.
In April Mr Justice MacDuff approved plans for a compensation fund for claimants pursuing claims against Argos, Land of Leather and Walmsleys. But the court also found that Zurich could not be held liable for claims against Land of Leather, which had gone into administration.
The insurer agreed to pay only the claims against Land of Leather where sofas had been supplied by Chinese company Eurosofa.
Otherwise, the court ruled, it would not be held liable for Land of Leather’s losses. That strand of the case will be taken to the Court of Appeal and will be heard in January.
10 Pilots Pension
Scheme litigation: PNPF Trust Company v Geoff Taylor & Ors
The dispute centred on the provisions of Section 75 of the Pensions Act 1995 and addressed a number of key pensions issues, including the interaction of the scheme-specific funding regime with pension scheme contribution provisions.
Claimant lawyers: Hogan Lovells partner Angela Dimsdale Gill instructed Michael Tennet QC of Wilberforce Chambers.
Defendant lawyers: For Geoff Taylor: Linklaters partner Mark Blyth instructed Christopher Nugee QC of Wilberforce Chambers.
For Terry Clark: CMS Cameron McKenna partner Mark Grant instructed Andrew Spink QC of Outer Temple Chambers.
For Milford Haven Port Authority: Morgan Cole partner Michael Prior instructed Paul Newman QC of Wilberforce Chambers.
For Port of London Authority: Sacker & Partners partner Peter Murphy instructed Brian Green QC of Wilberforce Chambers.
For Shoreham Port Authority: Nabarro partner Jonathan Warne instructed Robert Ham QC of Wilberforce Chambers.
For Port of Tyne Authority: Eversheds partner Giles Orton instructed Sarah Asplin QC of 3 Stone Buildings.
For First Corporate Shipping, trading as Bristol Port Company: LG partner Thomas Ross instructed Michael Furness QC of Wilberforce Chambers.
For PD Teesport: Dickinson Dees partner Craig Monty instructed John Martin QC of Wilberforce Chambers.
The judgment was significant for a number of reasons, not least the fact that the opposing sides were working together to find answers to some scheme funding questions.
The confusion arose after a raft of legislation designed to protect pension scheme members from raiders such as Robert Maxwell was passed in the early 1990s. The rules meant employers would be obliged to pay into any scheme they were involved with and would also have to pay an exit fee to help fund any deficit when they ceased to be involved. The problem was that most employers already had agreements with trustees on how much money they should pay in and it was unclear whether the legislation would override this.
Things were more confusing because it was unclear whether employers were always under one or other obligation, or whether there was a gap between making contributions and paying an exit fee that meant they could get away without paying anything.
Mr Justice Warren ruled that there is no gap and that, if scheme rules allow for a greater level of funding than the legislation, trustees have the right to demand that higher level.