M&S: why Freshfields ought to have known

Revealed: Freshfields faced same Slaughters team, same M&A tactic last year

Slaughter and May

’s injunction of Freshfields Bruckhaus Deringer on Philip Green’s M&S bid two weeks ago was the second time in just over a year that it had pulled the tactic on Freshfields.

On Hugh Osmond’s aborted bid for Six Continents, Slaughters contacted Freshfields to tell the firm it was considering an injunction over Freshfields’ dual role.

Sources say Freshfields incensed the Osmond camp by accepting instructions both from Osmond’s lending banks Credit Suisse First Boston and Lehman Brothers and from the Hilton Group, which at one stage was considering a rival bid. There is some dispute as to whether clearance was obtained from Osmond.

Both the Six Continents deal and Green’s ongoing bid for M&S have seen Slaughters partners Nigel Boardman and Andy Ryde take on Freshfields.

Freshfields’ failure to see the Green injunction coming suggests it has been comprehensively trounced on tactics by its biggest M&A rival.

Sources say that on Six Continents, Slaughters contacted Freshfields’ then head of corporate Barry O’Brien, who also advised Green on M&S, to inform him of their client’s concerns.

The Lawyer understands that some Freshfields partners believed there was a serious prospect of an injunction. Last March a Freshfields corporate partner told The Lawyer: “That b*****d Boardman, he’s just about mad enough to do it!”

Despite this, Freshfields sources say it did not consider the possibility of an injunction when it continued to advise Green after O’Brien became aware that M&S’s contract with fashion guru George Davies, on which Freshfields advised, was a crucial part of Green’s due diligence.

Slaughters was at pains to point out in its application for an injunction that Freshfields used conflicts clearing procedures and that it took a bona fide view that the Davies contract was not material. The feeling among lawyers is that Freshfields has been slightly unfortunate. The firm is not regarded as one of the worst offenders on conflicts.

Slaughters and O’Brien declined to comment.