The Lawyer Awards’ Litigation Team of the Year is one of the most coveted prizes in the UK disputes market. In just a few short weeks a new team will be crowned champions, joining an impressive list of previous victors.
Clyde & Co triumphed last year for its work on the case of Philip Sebry v Companies House. The firm won £9m in damages for its client – the victim of a typo that forced his business into administration – and succeeded in setting a precedent to help prevent future errors by government.
This year our external panel of judges has narrowed the potential winners in this category down to seven nominations.
The shortlist comprises Clyde & Co, Freshfields Bruckhaus Deringer, Herbert Smith Freehills and Jones Day (in a joint submission), Hill Dickinson, Hogan Lovells, Irwin Mitchell and Olswang.
Clyde & Co
A landmark judgment for an NHS trust could save the cash-strapped health service hundreds of millions of pounds thanks to Clyde & Co’s defence of a clinical negligence claim last August.
The court dismissed a mother’s claim over the alleged failure by a trust in East Kent to detect a chromosomal abnormality in her pregnancy, ruling the abnormality was so rare and the risk so low that it was reasonable not to advise the mother of such theoretical risks.
With its client accused of causing great financial difficulty to a family by not allowing it the chance to abort their disabled child, Clydes had to deal with an extremely sensitive, high-profile dispute.
The case was one of the first consent cases to be tried following the much-publicised Supreme Court decision in Montgomery v Lanarkshire, which held that women have a right to information about “any material risk” in order to make decisions about how to give birth.
Following on from the East Kent decision it is now clear a patient cannot rely on Montgomery to demand an absolute right to know of all risks.
The Supreme Court decision threw a spanner in the works in the run-up to the trial, with Clydes partner Claire Petts having to significantly adapt her argument. The decision has already been relied upon by subsequent cases to limit the exposure of the NHS in similar cases.
Freshfields Bruckhaus Deringer
It has been nearly a decade since the financial crisis but the legal issues related to the world’s biggest ever insolvency are still rumbling on.
Freshfields has been nominated for its work on the vast and thorny Lehman Brothers administration dispute, which centres on the bank’s main trading entity, Lehman Brothers International Europe (LBIE). When the entity repaid its creditors in 2014 there was a surplus of around £8bn and complex litigation ensued to determine who should be paid from it.
Named Waterfall I and Waterfall II, the proceedings are continuing through this year and into next. The scale and financial significance of these cases keeps them on the list of ones to watch, but the dispute also breaks new ground as it is the only solvent administration dispute of this size with no provisions in the Insolvency Rules that apply. Lawyers are delving into case law from hundreds of years ago to find the answers to 21st century problems arising from the collapse of a global bank.
The work is also significant for Freshfields, which had no relationship with lead creditor Carval prior to the Lehman insolvency. While running a complex dispute with multiple law firms, Freshfields has set up a consultation process with firms including Morrison & Foerster and Ropes & Grey so creditors speak with a single voice during and in the run-up to court proceedings.
Herbert Smith Freehills and Jones Day
Herbert Smith Freehills (HSF) and Jones Day will forever hold the accolade of having acted on the UK’s first deferred prosecution agreement (DPA) after ICBC Standard Bank settled with the Serious Fraud Office (SFO).
The deal ended a year of speculation over which major corporate would be first to sign a plea agreement with the SFO after DPAs were introduced in the UK in 2014.
It also prevented the firms’ client from lengthy and costly prosecutions in the UK and US, resulted in no criminal findings against the client or disbarment from public contracts, and allowed business certainty.
HSF partner Rod Fletcher led for Standard Bank, while Jones Day partners Sion Richards and Adam Brown advised its parent group and subsidiaries in Africa.
ICBC Standard Bank is the UK subsidiary of South Africa’s largest banking group. It was fined £7.6m by the Financial Conduct Authority in January 2014 for failings related to its anti-money laundering policies.
Lord Justice Leveson, who signed off on the deal, praised the actions of the bank and lawyers on both sides in coming to the agreement. He said lawyers’ “attention to detail and to ensuring that all sides of the argument are properly reflected should create the benchmark against which future such applications may fall to be assessed”.
SFO director David Green QC said the “landmark DPA will serve as a template for future agreements”.
Hill Dickinson
Hill Dickinson provided difficult advice in tragic circumstances, a high level of media interest, access to justice issues and being in the public spotlight during its representation of the late PC David Rathband.
Rathband was shot and blinded while on duty by Raoul Moat, who was on the run from police. It later emerged Moat had threatened to kill or injure officers in phone calls to police. Rathband claimed he was given no warning of such threats and sought damages from his former employer.
The case was a departure from Hill Dickinson’s usual roster, but it invoked significant arguments about the scope of the police’s obligations to its officers, run by lead partner Peter Southeran.
Rathband tragically committed suicide after commencing proceedings and Hill Dickinson continued the case by acting on behalf of his estate and dependants.
The much-publicised case focused on a period of less that 15 minutes – from a 999 call made by Moat to the shooting of Rathband – but involved 30 witnesses, reams of evidence and endless transcripts of phone calls and emails related to the incident.
As Rathband was unable to fund the litigation privately the firm worked on a conditional fee arrangement and also helped secure after-the-event (ATE) insurance.
Despite not winning the case, Hill Dickinson’s work is considered of great significant to the general public due to the large number of welfare-related issued involved.
Hogan Lovells
Hogan Lovells has secured a number of significant wins for its client the Russian Deposit Insurance Agency (DIA) in its three-year fight with ‘Putin’s banker’ Sergei Pugachev.
The DIA sought to take Pugachev to task for his role in the collapse of Mezhprombank, which went into liquidation in 2010 with a deficit of $2bn (£1.4bn).
Working flat out on of the biggest Russian disputes before the High Court the firm has been in court two or three times a week for nearly 18 months, securing around 40 judgments over the course of the case, including several Court of Appeal (CoA) decisions and a groundbreaking £1bn global freezing order.
Lead partner Michael Roberts has submitted more than 30 affidavits and witness statements, and even personally handed Pugachev a major injunction at a flower stand on the Fulham Road. He also successfully secured a High Court order for Pugachev to give up his Russian and French passports while the case continued.
The English court battle culminated in a ruling in February sentencing Pugachev to two years’ imprisonment for 12 counts of contempt of court, the maximum sentence permitted. The charges against him included lying under oath, selling assets in breach of a freezing junction and failing to disclose information on $150m of hidden assets.
Irwin Mitchell
Last year marked the first time in a generation that the Supreme Court heard cases on the issue of non-disclosure in divorce proceedings.
Irwin Mitchell head of Manchester family law Ros Bever led on two of those cases in 12 months, working tirelessly to achieve a victory for her clients, Mrs Sharland and Mrs Gohil, last October.
Both women had previously secured financial settlements on divorce based on fraudulent evidence and sought to have the orders overturned due to non-disclosure. In both cases the CoA had refused to set aside the orders on the basis the court would not have made substantially different rulings have the full pictures been known at the time.
Bever succeeded in getting both CoA decisions overturned and both cases have been remitted for retrials. The outcomes provided a landmark ruling on each party’s right to a fair trial with accurate disclosure in divorce proceedings.
In the Gohil case Bever was instructed at the 11th hour, when public funding was not extended to cover the Supreme Court appeal. Bever took the instruction while on holiday but still had the written appeal submitted within 10 days. The rulings are a unique and pioneering development for the family law market.
Olswang
Olswang led on a landmark test case against Google that marked the first time the internet giant has been threatened with group litigation, over its breach of UK users’ privacy relating to online advertising.
The dispute follows Google being fined $22.5m by US authorities in 2012 for breaching the default privacy settings of users with Apple devices. UK regulators estimate there could be 10 million affected Britons.
The Olswang team, led by partner Dan Tench, has already seen off a jurisdictional challenge by Google, which wanted the cases against it heard in California where it is headquartered.
The battle went all the way to the Supreme Court and Olswang’s victory marked a court ruling that misuse of private information is to be considered a tort for the purposes of serving a party abroad. This was the first time the English courts had recognised a new tort for more than 80 years.
The judgment has opened the floodgates to litigation for the millions of UK users who used the Safari web browser in 2011 and 2012, likely to be definitive in holding internet giants to account for privacy breaches.
Claimant Judith Vidal-Hall called the ruling a “David and Goliath” victory.
