The shortlist for Litigation Team of the Year, sponsored by Gallagher, once again demonstrates the strength of London as a global disputes hub.
In what was one of the most complex litigations of 2019, Akin Gump sealed a resounding victory for senior banker, Robert Foresman, in October. Foresman, currently chair of the UBS investment bank in New York, faced allegations of bid rigging fraud in connection to a state-linked Russian auction following the 2007 break-up of Yukos Oil. The case, in which Foresman was named as defendant along with four other people, was highly politicised and put Foresman at the heart of a transatlantic scandal. The outcome also had major implications for an ongoing trial in Holland.
The case, which raised serious allegations of dishonest conduct, was heard in London and concerned complex issues of Russian law. London-based partner Mark Dawkins worked with New York partner Robert Pees on the case alongside senior counsel Sheena Buddhdev, and associates Rekha Rogers and Mouna Moussaoui.
One particular challenge faced by Akin Gump was to convince the judge that the auction had not been rigged in favour of the Russian government despite many reports in the Western press claiming so. The firm conducted a forensic examination of the auction to disprove the widely reported allegations of rigging, which was critical to the outcome of the case.
In what was a resounding victory for Akin Gump the presiding judge, Sir Michael Burton GBE rejected all allegations of dishonesty and decided all the issues of Russian law in favour of the defendants. In doing so, he found Foresman to be a credible witness who, despite vigorous cross examination “did not accept or indicate any dishonesty….”. Rejecting all the claims against Foresman and the four co defendants, the judge ordered the claimants to stump up indemnity costs.
Freeths pulled off a major coup for 550 postmaster clients in their group action against the Post Office in high profile domestic dispute at the end of 2019, which ended with a £57m settlement.
The case almost didn’t get off the ground because of the Post Office’s staunch defence of its Horizon IT system. The claimant’s contended that Horizon was the source of accounting errors which had serious financial consequences for the postmasters – some of whom were subjected to private prosecutions on the back of unreliable evidence it produced.
Group litigation orders are notoriously difficult to co-ordinate and few make it to full trial. While two other firms were unable to launch proceedings due to funding issues, Freeths partner James Hartley coordinated a campaign to bring together enough claimants to get the case off the ground with the support of ATE and third party funding.
Getting the case to court also had its challenges. The case produced four judgments, including the Post Office bringing in two star silks (Tony Grabiner QC and David Cavendar QC) in a bid to have Mr Justice Fraser recuse himself from managing the case- which he rejected. The Post Office also issued a counter claim for fraud.
Over the course of two subsequent trials, Fraser J heard from some 36 witnesses who racked up a total 46 days in court. Throwing out the Post Office’s defence of the system, Fraser J said the “approach by the Post Office has amounted… to bare assertions and denials that ignore what has actually occurred… It amounts to the 21st century equivalent of maintaining that the earth is flat.”
Freshfields Bruckhaus Deringer
Competition disputes have grown in number and severity over the last decade and follow on claim arising from cartel cases have become a feeding ground for claimant firms.
Freshfields Bruckhaus Deringer has worked with client ABB for more than a decade, helping it to manage its exposure to follow on damages claims arising from ABB’s participation in the power cables cartel, the subject of a 2014 European Commission infringement decision.
Following a High Court case claimant, BritNed, was awarded limited damages (€11.7m from more than €200m claimed) after ABB was found to have made ‘cartel savings’ during the alleged infringement time period. It was a blow for BritNed which instructed lawyers to go to the CoA for a higher award, while Freshfields’ client, ABB, counterclaimed that the case should be thrown out.
In a stunning victory for Freshfields’ client, the CoA dismissed BritNed’s appeal and ordered it to repay half the limited damages it was awarded at first instance and ABB’s appeal costs.
Setting the precedent for all future follow-on competition claims, the CoA upheld Freshfields’ argument that reversing the burden of proof or lowering it should not be permitted in cartel claims.
The judgment is now the leading authority on how the English courts should quantify damages for competition law breaches, providing a watershed moment for competition lawyers.
Partner Dominique Speekenbrink led the team for ABB alongside partners Mark Sansom and Nick Frey.
Freshfields Bruckhaus Deringer
Rarely does a month go by without news of a retailer going bust, at the very least, looking to reduce their property portfolio and renegotiate tenancies for those that remain. Freshfields client Debenhams was one such client. The retailer set up a CVA only for it to be challenged in the High Court by landlords bankrolled by Sports Direct (now Frasers), one of Debenhams’ former shareholders and major competitors.
Mr Justice Norris threw out the challenge and in doing so created the leading authority on CVA law. Had the defence been lost, it may have pushed Debenhams into administration. The ruling provides clarity to high street tenants and the restructuring industry as a whole, which would have been severely affected if the courts had denied this use of the CVA jurisdiction.
Competition head Craig Montgomery led the heavyweight team for Debenhams, which included finance partner Ken Baird and litigation partner David Scott.
Herbert Smith Freehills
At Herbert Smith Freehills shareholder disputes took centre stage. Partners Harry Edwards and Damien Byrne Hill were drafted in by Lloyds Banking Group and five former directors after they were named as defendants in one of the biggest disputes to emerge from the 2008/09 financial crash.
The £600m case, pursued by 6,000 group claimants, concerned losses alleged to have arisen as result of Lloyds’ acquisition of Halifax Bank of Scotland (HBOS) at the height of the crisis in 2008/09.
The proceedings were high in value, high profile and large in scope, with allegations extending to a number of different issues relating to the bank’s takeover bid.
Dismissing the claim in favour of HSF’s clients, judge Sir Alan Norris said of the shareholder claimants, “They knew the course recommended unanimously by the board. They knew the risks identified by the board. They knew that the board assessed the chance of advantage as outweighing the risk inherent in the transaction.”
This was the first shareholder class action to be brought to trial in London, making it the one of the most hotly anticipated cases of recent years.
Lloyds Banking Group litigation head Richard Blann said of HSF, “As well as sound advice and an ability to understand client objectives, the team was able to integrate well with counsel and third party providers to deliver a seamless, cost efficient service on a complex case requiring a mastery of a number of technical disciplines and management of an extensive roster of witnesses.”
Mishcon de Reya
A case with global consequences for data protection law kept Mishcon de Reya partner James Oldnall (now at Milberg London LLP) busy after securing a Court of Appeal ruling against Google in 2019.
Described by judge Sir Goeffrey Vos C as the case which seeks “to call Google to account for its allegedly wholesale and deliberate misuse of personal data without consent, undertaken with a view to commercial profit”, this truly is a David & Goliath dispute.
Oldnall acted for consumer champion Richard Lloyd in his bid to hold Google to account for allegedly hacking into 4.4million English and Welsh iPhones in 2011 to illicitly obtain users personal data.
The challenge facing the Mishcon team was how to establish that Google had violated its clients’ rights and should such violation amount to a claimable loss.
Oldnall found a little-known provision which dated back to 1873 which allowed “representative claimant” to bring his claim on behalf of himself and all of those who have a “similar interest”. As to the question of ‘loss and damage’, the firm was unable to claim damages for distress as it would have to show distress in each claimant. Instead the team identified that the loss of the use of control of personal data is a uniform breach of a uniform right
The claim failed at first instance, but the CoA unanimously reversed the decision with Vos C giving the substantive opinion.
This ruling has implications for the ability of the ordinary citizen to enforce their rights and hold big data companies to account.
Hogan Lovells has acted on some of the most high-profile disputes to come before the English courts in the past five years and the case for which it is nominated is no different.
In what is widely considered to be a significant decision for worldwide freezing orders and London’s position as a global litigation forum, Hogan Lovells secured seminal CoA ruling for Ukraine’s PrivatBank, which is now under state ownership.
The multi-billion-pound claim was launched against the bank’s former shareholders, Igor Kolomoisky and Gennadiy Bogolyubov, and six companies – three incorporated in England and three in the BVI – alleged to be secretly owned and controlled by them. Hogan Lovells’ client contended that the pair conspired to use the companies to defraud the bank while it was under their control.
The firm secured a high profile worldwide freezing order against the Bogolyubov and Kolomoisky in 2017. The defendants went to the High Court and successfully argued that the London court had no jurisdiction to issue a global freezing order. Hogan Lovells took the case to the CoA and a ruling last October reversed the first instance decision, allowing the freezing orders to remain in place and PrivatBank to continue its fraud case against Bogolyubov and Kolomoisky in the High Court.
This decision makes London an attractive destination for litigants wanting to compensation for frauds allegedly committed on a global scale.
Partners Richard Lewis and Rebecca Wales led the team.
Steptoe & Johnson
More battles concerning Russia-related worldwide freezing orders are at the centre of Steptoe & Johnson’s submission, with the firm securing two major judgments for two Russian banking clients both with major fraud claims against former executives.
Earlier this year, Steptoe partners Partners Neil Dooley and Natalia Gofman secured a judgment for Russia’s National Bank Trust (NBT) against its former majority shareholders who were alleged to have defrauded the bank of more than $1bn via a sophisticated network of offshore companies.
This came after the High Court granted a US$570 million freezing order in a separate case against the Mints family, Russian oligarchs who moved to England following the collapse of their O1 Group. Prior to its collapse the O1 Group had been bankrolled by Bank Otkritie with loans worth up to $500m secured secured on Russian real estate and valuable shares. A few days before Bank Otkritie collapsed in August 2017, those loans were replaced with long-term unsecured, unrated, non-income producing bonds. It is alleged good assets were swapped for bad assets.
Partners Dooley and Gofman have represented NBT and Otkritie since 2011 and advised the banks on several of global cases, including a $100m claim against Threadneedle Asset Management emerging from the involvement of a dishonest Threadneedle employee in fraud.
The ruling secured for RPC client EZ has major implications for high-value and hotly contested non-compete covenants.
Partner Patrick Brodie led the team for EZ which called in the firm after a senior partner resigned to join a competitor and challenged the non-compete contract clause which prevented her from becoming a shareholder in a competitor business.
The CoA reversed a first instance decision that found the covenant to be reasonable and that the term “interested” did not capture a shareholding and EZ appealed to the Supreme Court.
This was the first time in a century that the Supreme Court had been asked to consider the breadth of the restraint of a trade doctrine, how contracts are interpreted and whether it’s possible to sever words from a contract. The fundamental issues apply not just to executive contracts but, also, to the enforceability of commercial agreements. It was the first time in a century that our highest court had considered the legal principles relating to restraint of trade.
The Supreme Court unanimously found in favour of EZ, reinstating the injunction and ensuring EZ’s global non-compete clauses were enforceable and wouldn’t be challenged by other competitor organisations. The Supreme Court ruling affects the extent to which companies can protect their business interests by enforceable executive restrictive covenants is of genuine relevance to issues of leadership and executive recruitment.
A note from our sponsor: Gallagher
Security for costs : Can insurance based products be an effective mitigant to the defendants’ seemly constant request for Security for Costs fortification?
In a recent CAT judgment an insurance policy was held to stave off the need for a Deed of Indemnity or Letter of Undertaking or Anti-Avoidance endorsements [AAE] or indeed cash into Court, but generally we are seeing a need of these additional forms of instrument to supplement the policy wording. Furthermore, in a recent Judgment in the High Court, we saw that the court viewed clauses addressing Severability of action and proposal and also various controls relating to the Insurance Act 2015 ‘as good’, but not adequate for 100% Fortification of Security for costs order.
So where does that leave claimants that are faced with a Security for Costs order? It suggests that the policy should be robustly negotiated, but ultimately there will probably be need for the use of these other instruments mentioned above. Looking at trends in this regard, we are seeing a move to Anti-Avoidance Endorsements where all insurers subscribing to a particular policy agree the same language and ideally as a close to the language offered by the CAT in Trucks cartel as Insurers will allow. This trend could allow for quicker discussions for all stakeholders around Security, if this is required at all, rather than protracted debates with each insurer all of whom have different Bond languages.
The trend for additional policy enhancements looks set to continue, albeit at extra premium cost to the Insured. It is important to note that even if an AAE, bond or similar instrument is deployed, these instruments will tend to have language that continues to place controls on the Insured, such that if a claim is paid to the Defendant under the AAE, but said claim would not have been paid by the policy (ie as a result of breach of condition of the policy), then Insurers have the right to recover such from the Insured – working hard to get the best fit policy and AAE language in addition to the best price remains key.
Alan Pratten, Steve Jones, Ian Coleman and Thomas Byrne – dispute resolution team in the major risks practice at Gallagher.
The Lawyer Awards is going virtual for 2020! The ceremony, in association with Travelers, will take place online on the afternoon of 3 November. Visit the awards website to register.