Partners testify in Barings case

PARTNERS at Slaughter and May and Linklaters & Paines have given evidence in a High Court battle which lawyers say will have implications for the capital markets sector.

The lawyer-packed case is the first to come to trial as a result of the Barings bank collapse. A judgment is expected any time from this week.

Mr Justice Walker will consider the position of two groups of Barings institutional creditors, each holding $150 million of guaranteed floating rate capital notes, which have competing claims on the assets of Dutch subsidiary Barings BV (BBV).

One group, with notes issued in 1986 (the '86 Notes), went to court to seek a half share of the BBV assets, which total $150 million, in the event of a liquidation. The group is represented by Denton Hall, and its trustees by Theodore Goddard.

However the other group, (the '96 Notes), says it has a just claim to all BBV's assets, and has applied to wind up BBV in order to obtain them. It is represented by Clifford Chance, and its trustees by Linklaters & Paines.

The '86 Notes are hampered by a “flip clause” in the trust deed. This will novate the BBV debt owed to the group to collapsed parent company Barings plc, which has no assets, thereby depriving the '86 Notes of any chance of recovery.

The '86 Notes claim the flip clause is invalid because it was unintentional and contradicts other elements of the group's trust deed.

Witnesses included Linklaters managing partner Terence Kyle, who acted for Credit Suisse First Boston which originally placed the '86 Notes in the market, and Slaughters partners who acted for Barings at the time. These include corporate head Tim Freshwater, Martin Whelton, Stephen Edge, and Nick Wilson (retired).

“It's a battle between two sets of bondholders, but it raises issues and lessons for people investing in, and drafting, bonds,” said one lawyer in the case.