The New Year brings with it the annual publication of The Lawyer’s Top 20 cases. This eagerly-awaited feature outlines which disputes are likely to dominate the courts in the forthcoming year.
Of the Top 20 Cases for 2015, judgments have been delivered in six and a half (including a partial settlement); four and half have settled; three are ongoing having been referred to another court for further hearings; four are awaiting judgment and one was withdrawn. The outcome of Kesabo & Ors v African Barrick Gold plc and North Mara Gold Mine Ltd is currently unknown.
Of course not every case ends up having a court outing, while others rumble on for several years taking on different guises.
Excalibur Ventures v Texas Keystone and Gulf Keystone, for instance, was first listed as a case to watch back in 2012.
After some extraordinary twists, Excalibur’s firm, Clifford Chance, ended up on the wrong end of a professional negligence claim issued by the third party funders that had bankrolled the case. Funders Psari Holdings and Adonis Lemos issued the case after the High Court ruled them to be liable for £23m indemnity costs in the Excalibur dispute.
The professional indemnity claim was settled on confidential terms earlier this month.
Among other cases which continue to rumble on is the huge equal pay claim against Asda. This case is now due to be heard in June 2016.
Asda has drafted in some heavyweight silks to defend the claims and now has four QCs on its legal team. That includes the former Lord Chancellor and now Gibson Dunn & Crutcher partner Charles Falconer QC; Cloisters’ Paul Epstein QC, widely seen as a leader in the field of equal pay; 11KBW’s Chris Jeans QC, a leading employment law silk; and Brick Court’s Marie Demetriou QC, who is advising on EU law matters.
While there was a judgment in the matter of Abdul-Hakim Belhaj & Ors v (1) Security Service (2) Secret Intelligence Service (3) Government Communication Headquarters (4) Secretary of State for the Home Department and (5) Secretary of State for Foreign & Commonwealth Affairs concerning legal privilege, this complex dispute continues.
The case concerns Libyans Abdul-Hakim Belhaj and Sami al-Saadi and their families, who sued the Government over its role in their alleged rendition and torture back to Libya. The Investigatory Powers Tribunal (IPT) case centred around the security services’ use of legally privileged information.
In March the IPT ordered GCHQ to destroy legally privileged documents belonging to the former Gaddafi opponent, Sami al-Saadi. Some of those documents could be construed as legally privileged, it said, but no compensation would be awarded.
Belhaj’s case against the former foreign secretary Jack Straw, Sir Mark Allen, MI6’s counter-terrorism chief at the time, the Home Office and the Foreign Office reached the Supreme Court in November. He is seeking damages for their alleged role in his rendition back to Libya in 2004 along with his wife Fatima Bouchar.
The Supreme Court has been asked to decide whether the foreign act of state doctrine should prevent Belhaj’s claim being pursued on the grounds that it would involve other countries. The CoA dismissed Foreign Office objections that the case should not proceed. Judgment is outstanding in the Supreme Court case.
Foreign cases in the UK courts
The Government is also defending a major claim brought by Russian oil giant Rosneft. This case, in which Rosneft challenged UK economic sanctions imposed against the company, was referred to the European Court of Justice (ECJ) in February.
It has been asked to examine whether the sanctions comply with EU legislation, and if so, how they should be interpreted.
Iranian financial institution, Bank Mellat, is also fighting sanctions imposed against it by the UK Government. The UK claimed that the bank financed companies involved in Iran’s nuclear weapons programme. The bank denied the allegations and contends it lost more than $2bn as a result.
In 2013, the Supreme Court held that the case should be heard in public and that the sanctions
imposed on the bank in 2009 were unlawful.
Earlier this year the court decided three points: HM Treasury could not argue it did not contravene the Human Rights Act; that HM could not rely on the reflective loss principle to defeat the claims; and that damages could be recovered once it had been established that an unlawful interference had been made.
Mr Justice Flaux referred the case back to the Administrative Court following the ruling.
There was a victory for the Government in the Competition Appeals Tribunal in January. Private healthcare provider AXAPPP argued that the the newly formed Competition and Markets Authority (CMA) acted outside its remit when it concluded that the formation and operation of anaesthetists groups gave rise adverse effect on competition. Not so, said the CAT, dismissing the appeal.
Law firms in the spotlight
Elsewhere, law firm management was under the spotlight as Barclays’ case against four former Dewey & LeBoeuf lawyers was expected in court in May. The bank settled its case against three of the lawyers under confidential terms, leaving its dispute against former Dewey partner Londell McMillan outstanding.
The case concerned outstanding capital partner loans, which the bank said were left unpaid after the firm went bust.
In June Mr Justice Popplewell dismissed McMillan’s claim he did not intend the loan agreement to be for the provision of partner capital because he did not need a loan for such purposes. He said the argument was “untenable in light of the clear terms of the correspondence”.
June was also a bad month for Bird & Bird, which was ordered to pay £1.8m to former client and British Virgin Islands (BVI) company Orientfield Holdings over its advice on a property development there.
His Honour Judge Mark Pelling QC ruled the firm had failed in its duty to inform its client of the contents of a planning report that gave permission for a development close to its’ clients property.
Had Orientfield been told of the details of the development, it would have not gone ahead with the purchase, the court said.
The largest professional negligence claim of the year at £1.6bn was Cattles v Pricewaterhouse Coopers. It was one of the highest-value auditors’ negligence cases to be brought for some time.
Sub prime lender Cattles launched its claim in February 2013, alleging that PwC had negligently audited its 2006 and 2007 financial statements and in consequence the accounts fundamentally mis-stated the financial position of the company.
At the time the claim was lodged, PwC said it was “an inflated and misguided claim and, as we have made clear before, we will vigorously defend our work and stressed the lender’s publicly stated accounting policy for bad loans was reasonable”.
This case settled just days before it was due to be heard. Terms of the agreement were confidential.
London’s place as a top global litigation centre is constantly under threat as other jurisdictions look to attract big money disputes to their shores. Yet the calibre of cases in The Lawyer Top 20 Cases shows that London’s is home to top litigators and counsel who are successfully competing on a global stage to attract instructions.
Litigation might be a cyclical market, but this a sector that continues to enjoy a boom period.
The Top 20 Cases 2015
AXA & Ors v Competition & Markets Authority (CMA)
Competition Appeals Tribunal, Lord Justice Sales (chair)
For the claimant, AXA PPP Healthcare Ltd: Brick Court Chambers’ Kelyn Bacon QC and Sarah Love, instructed by Linklaters partner Simon Pritchard
For the claimant, Federation of Independent Practitioner Organisations: Blackstone Chambers’ Brian Kennelly and Emily Neill, instructed by Watson Farley & Williams partner Emanuela Lecchi
For the defendant, the Competition and Markets Authority: Monckton Chambers’ Kassie Smith QC and Brendan McGurk, instructed by the Treasury Solicitor
For the intervener, the British Medical Association: Brick Court Chambers’ Aidan Robertson QC, instructed by in-house lawyer Emma Mason-Fornazaric
For the intervener, the Association of Anaesthetists of Great Britain and Ireland: Monckton Chambers’ Anneli Howard, instructed by Hogan Lovells partner Suyong Kim
This case constituted the first substantive challenge to the then newly formed Competition and Markets Authority.
The Competition Appeal Tribunal (CAT) dismissed the appeal by AXA PPP, which focused on an investigation by the Competition and Markets Authority (CMA) into the private health markets.
AXA PPP challenged the CMA’s finding that the formation and operation of anaesthetists groups did not give rise to an adverse effect on competition (AEC) for the purposes of the Enterprise Act 2002.
Brick Court Chambers’ Kelyn Bacon QC, for AXA PPP, argued that there was an evidential presumption of an AEC where anaesthetists groups with a high market share collectively set prices; that the CMA had acted irrationally in its assessment of pricing evidence; and that the CMA had acted unlawfully in reaching its decision without having undertake further investigation.
The appeal was rejected on all grounds.
The Tribunal confirmed that the CMA had a wide discretion in carrying out such assessments and in making such decisions, particularly given the complexity of the markets concerned and the statutory time-limits within which the CMA had to operate.
OMV Petrom SA v Glencore International Aktiengesellschaft
19 January, 16 days
Commercial Court, Mr Justice Flaux
For the claimants, OMV Petrom SA: 20 Essex Street’s Duncan Matthews QC, Andrew Fulton and Luke Pearce, instructed by Withers partner Madalina Dumitrescu
For the defendant, Glencore: 7KBW’s Richard Southern QC and Brick Court Chambers’ Fionn Pilbrow, instructed by Clyde & Co partner Hatty Sumption
In March Mr Justice Flaux ordered Glencore to pay out $40m to the claimant, OMV Petrom, in this dispute over allegations the defendant fraudulently shipped low quality oil to Romania in the 1990s.
Romanian oil company Petrom had sued Glencore for $60m, alleging systematic fraud, deceit and conspiracy over the delivery. Instead of being sent of 32 cargoes of crude oil, the claimant alleged Romania was sent various types of cheaper and heavier crude oils.
The fraud was revealed by a Glencore whistle-blower who contacted another Romania company, Petex, in 2002 and told the company “the 32 cargoes were not what they purported to be,” Flaux J said in his ruling. The defendant company, known as Marc Rich & Co between 1993 and 1996, falsified documents to cover up the fraud, the ruling found.
The court rejected arguments that Petex was aware of the wrongdoing and said two former Marc Rich traders who testified at the trial were “duplicitous witnesses, anxious to downplay their own involvement in the fraud”.
OJSC Rosneft Oil Company v 1) Her Majesty’s Treasury 2) The Secretary of State for Business, Innovation, and Skills 3) The Financial Conduct Authority
27 January, three days
Queen’s Bench Division, Administrative Court (Divisional Court)
For the claimant, Rosneft: Blackstone Chambers’ Pushpinder Saini QC and Joseph Hage Aaronson barristers Patrick Dunn-Walsh and Sarah Tulip, instructed by Joseph Hage Aaronson partner Michael Anderson and Joseph Hage
For the first and second defendants, the Treasury and the Secretary of State: Monckton Chambers’ Tim Ward QC, Gerry Facenna and Julianne Morrison, instructed by the Treasury Solicitor
For the third defendant, the Financial Conduct Authority: 3 Verulam Building Chambers’ Sonia Tolaney QC and Fountain Court Chambers’ James McClelland, instructed by Kingsley Napley partner Adam Chapman
This case, which centred on the legality of EU sanctions against Russia in the wake of the Ukraine crisis, was referred to the European Court of Justice (ECJ) in February.
Rosneft was caught up in sanctions prohibiting EU nationals and member states from transactions with Russian companies in sectors including oil and gas, following Russia’s annexation of the Crimea in 2014.
It challenged the Financial Conduct Authority’s definition of “transferable security”, and the secretary of state for BIS’s interpretation of “financial assistance”. The latter phrase is commonly used in EU sanctions and is accordingly also of relevance in relation to legislation imposing sanctions against North Korea and Iran.
Adams & Ors v Asda Stores Ltd
30 January (preliminary hearing)
Manchester Employment Tribunal
For the claimants, Adams and Ors: Outer Temple Chambers’ Andrew Short QC, Naomi Cunningham and Keira Gore, instructed by Leigh Day partner Chris Benson, and associate Michael Newman
For the defendants, Asda: Gibson Dunn & Crutcher partner Charles Falconer QC, Cloisters’ Paul Epstein QC instructed by Pinsent Masons partner Jon Fisher and 11 KBW’s Chris Jeans QC instructed by Herbert Smith Freehills partners Peter Frost and Susan Black; Marie Demetriou QC of Brick Court Chambers on EU matters
Asda failed to have this mammoth equal pay claim struck out in early December on the grounds that the claimants, of which there are 8,000, had filed one claim form rather than individual claim forms.
The retailer has beefed up its legal team to defend the case, instructing two heavyweight silks, Gibson Dunn & Crutcher partner Charles Falconer QC and Cloisters’ Paul Epstein QC, to join 11KBW’s Chris Jeans QC on the defence. Herbert Smith Freehills has also been drafted in, thanks in part to its relationship with Asda owner Walmart and is now defending alongside Pinsent Masons.
This landmark equal pay claim is the first mass claim brought against a private sector employer since the 2012 Supreme Court ruling that allowed equal pay claims to be brought in the High Court up to six years after a worker leaves their employment where pay discrimination may have occurred. The previous time limit for such claims was six months.
The case is now expected to be heard in June 2016, when the courts will be asked to decide whether the representative sample of female claimants put forward can claim to have comparative roles to their male counterparts.
Another hearing is expected in 2017 when the court will decide whether jobs done by the men were considered to be of a higher value than those done by women.
If successful the claim could have implications for up to 100,000 women who have previously worked for Asda.
Re Lehman Brothers International (Europe): ‘Waterfall II’
Three stages from February-October, 25 days
Chancery Division, Mr Justice David Richards
For the joint administrators, PricewaterhouseCoopers: South Square’s William Trower QC, Daniel Bayfield, Alexander Riddiford and Stephen Robins instructed by Linklaters partners Tony Bugg and Euan Clarke and managing associate Jared Oyston
For the senior creditor group: South Square’s Robin Dicker QC, Richard Fisher and Henry Phillips, instructed by Freshfields Bruckhaus Deringer partner Christopher Robinson
For Wentworth Sons Sub-Debt Sàrl: South Square’s Antony Zacaroli QC, David Allison QC and Adam Al-Attar, instructed by Kirkland & Ellis partners Partha Kar and Kon Asimacopoulos
For York Global Finance: South Square’s Tom Smith QC and Robert Amey, instructed by Michelmores partners Charles Maunder and Peter Sigler
Over seven years after the collapse of Lehman Brothers, the administrators of the UK subsidiary, Lehman Brothers International (Europe) (LBIE) paid off all debts. Left with a £7.39bn surplus, the administrators went to the High Court for directions as to how it should be distributed.
These complex cases asked the courts to address 39 novel points of law and construction. There were two rulings, the first handed down by the Court of Appeal in May concerned Waterfall I, and the second, handed down by Mr Justice Richards in July, concerned Waterfall II, parts (A) and (B).
The CoA judgment, which covered unprecedented legal issues, concerned how creditors should be ordered when it came to payments made from the surplus.
The second decision concerned two points: part (A) the calculation of statutory interest rates and currency conversion claims; and part (B), the impact of the Claims Resolution Agreement (CRA) and Claims Determination Deeds (CDDs) on creditors’ claims.
Overall, both judgments largely found in favour of the arguments run by the unsecured creditors, rather than the subordinated creditors.
There is another ruling to come from this trial – Waterfall II part (C) decision is expected to give guidance on the effect of pre-administration ISDA and other market standard contracts.
Quah Su-Ling v Goldman Sachs / Ng Su-Ling v Goldman Sachs
February and October, three weeks
For the claimants, Quah Su-Ling and Ng Su-Ling: 39 Essex Street’s Hodge Malek QC and James Ramsden, instructed by Wiggin and Quahe Woo & Palmer partners Lawrence Quahe and Michael Palmer
For the defendants, Goldman Sachs: Fountain Court Chambers’ Bankim Thanki QC, Ben Valentin and Rebecca Loveridge, instructed by White & Case partner John Reynolds
Goldman Sachs was named as a defendant in this $30m (19.1m) case from two former private wealth clients in the Far East.
In March a late attempt to amend the claim by Quah Su-Ling was dismissed by Mrs Justice Carr. The new case, she said, “is at best a difficult one” and the documents upon which it relied “do not exist”.
The claim was “inherently implausible” as it involved “not only defiance of instructions from GS in New York but also GS acting against its own interests which, in terms of realising the best value from the Shares in the face of an imminent crash, would have coincided with those of Ms Quah” .
The cases did not continue.
(1) Dar Al Arkan Real Estate Development Company and (2) Bank Alkhair BSC v Majid Al-Sayed Bader Hashim Al Refai & Ors
9-12 March (opening submissions); evidence commencing 14 April, eight weeks
Commercial Court, Mr Justice Andrew Smith
For the claimants, (1) Dar Al Arkan Real Estate Development Company & (2) Bank Alkhair BSC: Essex Court Chambers’ David Foxton QC and Stephen Houseman QC, Fountain Court Chambers’ Paul Casey and Maitland Chambers’ Rosanna Foskett and James Sheehan, instructed by Addleshaw Goddard partners Mark Hastings, Kambiz Larizadeh and David Engel
For the first defendant, Majid Al-Sayed Bader Hashim Al Refai: Selborne Chambers’ Neil Mendoza and 11 Stone Buildings’ Harriet Ter-Berg, instructed by PCB Litigation partner Trevor Mascarenhas
For the second defendant, Kroll Associates: One Essex Court’s Craig Orr QC, Nicholas Sloboda and Sophie Weber, instructed by Slaughter and May partner Jonathan Cotton
For the fourth defendant, FTI Consulting: 39 Essex Street’s Richard Spearman QC and 5 Raymond Buildings’ Godwin Busuttil, instructed by CMS partners Belinda Schofield and Zoe Burge
This hard-fought litigation saw the claimants allege losses of $1bn.
The row erupted after Al Refai, a senior executive of Bahraini investment bank Bank Alkhair, was dismissed in August 2010 following the alleged discovery of money laundering. The claimants contended that after he was dismissed, Al Refai and the other defendants set out to destroy their business, spreading rumours in meetings with investors and publishing damaging allegations.
On 15 May 2015, having agreed a settlement with the defendants, the claimants agreed to pay Al Refai’s costs on an indemnity bases.
There then followed a hearing in June to resolve any outstanding costs matters. In that ruling, Mr Justice Andrew Smith held that an order to discontinue an action does not have any effect upon interlocutory cost orders.
The ruling stated: “Costs are often assessed summarily and paid accordingly, and it is not easy to identify a legal mechanism to require a recipient to disgorge costs already paid, there being good consideration for the payment at the time that it was made: the recipient might have altered his position on the basis of the payment…
“As a matter of policy, it would be surprising if the CPR provides for harsher consequences on a litigant who discontinues a claim or part of a claim than are typically visited on one who pursues an invalid claim or arid litigation to the bitter end. Surely a litigant who comes to appreciate that there is no point in pursuing a claim or part of one is to be encouraged to discontinue it promptly.”
June judgment: http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Comm/2015/1793.html
Abdul-Hakim Belhaj & Ors v (1) Security Service (2) Secret Intelligence Service (3) Government Communication Headquarters (4) Secretary of State for the Home Department and (5) Secretary of State for Foreign & Commonwealth Affairs
10 March, four days
Investigatory Powers Tribunal, Mr Justice Burton and colleagues
For the claimants, Abdul-Hakim Belhaj and Ors: Blackstone Chambers’ Dinah Rose QC and Ben Jaffey and Monckton Chambers’ Conor McCarthy, instructed by Leigh Day partner Richard Stein
For the claimants, Amnesty: Matrix Chambers’ Hugh Tomlinson QC, Nick Armstrong and Tamara Jaber, instructed by Amnesty’s Nick Williams
For the defendants, (1) Security Service (2) Secret Intelligence Service (3) Government Communication Headquarters (4) Secretary of State for the Home Department and (5) Secretary of State for Foreign & Commonwealth Affairs: Blackstone Chambers’ James Eadie QC, 11KBW’s Karen Steyn QC, 39 Essex Street’s Kate Grange and 1 Crown Office Row’s Marina Wheeler, instructed by the Treasury Solicitor
Counsel to the tribunal: Matrix Chambers’ Jonathan Glasson QC
This headline-making case was closely monitored by human rights specialists.
Libyans Abdul-Hakim Belhaj and Sami al-Saadi and their families sued the Government for its role in their alleged rendition and torture back to Libya. The Investigatory Powers Tribunal (IPT) case centred around the security services’ use of legally privileged information.
This complex case resulted in the IPT ordering GCHQ to destroy legally privileged documents belonging to a former opponent of the Gaddafi regime, Sami al-Saadi, who was sent back to Libya in 2004 in a joint MI6-CIA “rendition” operation with his wife and four children under 12.
The tribunal did not order compensation to be paid as the material involved had not been disclosed to any lawyer or policy officials working on the main case and was of no significant value.
The tribunal made a “no determination” ruling in eight other claims brought by Belhaj and other members of the Saadi family that legally privileged material had been unlawfully accessed by GCHQ involving their rendition cases.
Dexia Crediop SPA v Provincia Di Crotone
March, two to three weeks
For the claimants, Dexia Crediop: 3 Verulam Buildings’ Sonia Tolaney QC and Essex Court
Chambers’ James Willan, instructed by Cleary Gottlieb Steen & Hamilton partner Jonathan Kelly
For the defendants, Provincia di Crotone: 11 Stone Buildings’ Charles Samek QC and James Barnard, instructed by Pini Franco partner Nicole Hirst
Mr Justice Popplewell rejected this claim by the southern Italian province of Crotone against Dexia and ordered it to pay indemnified costs to the defendant.
The dispute concerned three interest rate swap transactions entered into in 2007 to restructure Crotone’s €27m (£20.9m) borrowing from Dexia.
Crotone defaulted and Dexia is claimed the substantial sums due under a swaps agreement. Crotone counterclaimed for approximately €6m, arguing that Dexia made illicit profits from hidden costs embedded in the swaps and that the swaps are therefore void or voidable due to breaches of Italian law, lack of capacity and fraudulent representations.
The swaps were declared valid and binding by the High Court and the Crotone claims dismissed.
Bank Mellat v HM Treasury
For the claimant, Bank Mellat: Fountain Court Chambers’ Michael Brindle QC, Blackstone Chambers Tim Otty QC and 11KBW’s Amy Rogers, instructed by Zaiwalla & Co partner Sarosh Zaiwalla
For the defendant, HM Treasury: 39 Essex Street’s Steven Kovats QC, Fountain Court Chambers’ Patrick Goodall QC and 6KBW’s Julian Blake, instructed by the Treasury Solicitor
The decision handed down in May by Mr Justice Flaux came after the Supreme Court ruled in 2013 that the case should be heard in public and that sanctions imposed on the bank in 2009 were unlawful.
The Treasury imposed a ban restricting trading with Bank Mellat as it claimed the bank financed companies involved in Iran’s nuclear weapons programme. The bank denies the claims, and says that the sanctions caused the loss of businesses, relationships and dealing services totalling $2.3bn
The court decided three points: HM Treasury could not argue it did not contravene the Human Rights Act; that HM could not rely on the reflective loss principle to defeat the claims; and that damages could be recovered once it had been established that an unlawful interference had been made.
Flaux J referred the case back to the Administrative Court following the ruling.
Barclays Bank plc v Lester Charles Landgraf, Londell McMillan and Elias Farrah
5 May 2015, seven to nine days
For the claimant, Barclays Bank plc: Fountain Court Chambers’ Guy Philipps QC and Adam Zellick instructed by Addleshaw Goddard partner Richard Clayton
For the defendants, Lester Charles Landgraf, Londell McMillan and Lewis Rosenbloom: 4 Stone Buildings’ John Brisby QC and Alexander Cook, instructed by Candey partner Andrew Dunn
For the defendant, Elias Farrah: 4 New Square’s Dan Saoul, instructed by Signature Litigation partner Graham Huntley
This case was under the spotlight not only because the defendants were former Dewey & LeBoeuf lawyers but also because it scrutinised include partner loan programmes and the financing of equity contributions in LLPs.
Barclays settled its dispute with former Dewey and LeBeouf lawyers Lester Charles Landgraf, Lewis Rosenbloom, and Ellias Farrah in May, leaving one judgment outstanding with former Dewey partner Londell McMillan as defendant.
In the June ruling Mr Justice Popplewell rejected McMillan’s defence that he did not know he was signing a loan that would fund his capital contributions.
The loan, he said, was standard at the time it was agreed and there was nothing unusual or unfair about its terms. Neither was McMillan obliged to take the loan from the bank.
Sabre Oil & Gas v Standard Bank Plc
3 June, five weeks
For the claimant, Sabre Oil & Gas: One Essex Court’s Laurence Rabinowitz QC instructed by King & Spalding partner Sarah Walker
For the defendant, Standard Bank plc: Brick Court Chambers’ Mark Howard QC and Roger Masefield QC instructed by Herbert Smith Freehills partner Damien Byrne-Hill
This multi-million pound claim arose out of the sale of an oil company investing in the Jubilee offshore oil field in Ghana.
The field was discovered in 2007 and commercial pumping began three years later.
Petro SA, South Africa’s national oil company, purchased Sabre Oil & Gas Holdings in 2012, giving it a stake in the oil field. Petro SA also bought out Sabre’s interest in the Deepwater Tano and Ghana’s West Cape Three Points blocks.
The deal proved contentious, with Petro SA hit with corruption allegations and put under investigation by the country’s anti-corruption police unit.
The case settled ahead of the court outing.
Orientfield Holdings Ltd v Bird & Bird
June, five days
For the claimant, Orientfield Holdings: Wilberforce Chambers’ John Wardell QC and Enterprise Chambers’ Geoffrey Zelin instructed by Wedlake Bell partner David Golten and senior associate Tammy Evans
For the defendant, Bird & Bird: Wilberforce Chambers’ Joanna Smith QC and Tiffany Scott instructed by Triton Global director Michael Robin
In June the High Court ordered Bird & Bird to pay £1.8m for former client and British Virgin Islands (BVI) company Orientfield Holdings.
The case related to Orientfield’s aborted purchase of a £25m property later bought by media executive Elisabeth Murdoch.
Orientfield claimed the firm had failed to inform it of a proposed substantial development close to the £25m property which would have negatively affected its intended use of the house.
The court held that the firm was under a duty to inform Orientfield of the content of the planning report and it had failed in this duty. It added that had Orientfield been told of the details of the development, it would have not gone ahead with the purchase.
Banco Santander Totta v Companhia Carris De Ferro de Lisboa SA & Ors
October, seven weeks
For the claimants, Banco Santander Totta: One Essex Court’s Lawrence Rabinowitz QC, 3 Verulam Buildings’ John Odgers QC and One Essex Court’s Alexander Polley, instructed by Slaughter and May partner Ewan Brown
For the defendants, Companhia Carris De Ferro de Lisboa SA & Ors: 3 Verulam Buildings’ Ali Malek QC, Richard Brent and Kate Holderness, instructed by Lipman Karas partner Andrew Ford
This case, which concerned five claims against four Portuguese public transport companies, kicked off in October and ran for seven weeks. Judgment is awaited.
Between them the transport companies undertook nine derivative transactions with the bank, which resulted in them paying interest rates under some swap contracts of more than 40 per cent despite Euribor rates sitting at less than 1 per cent.
The bank is seeking a declaration in the English courts that the swap agreements entered into by the companies are binding. It is also seeking damages from the companies.
Cattles plc v PricewaterhouseCoopers
5 October, 16 weeks
For the claimants, Cattles plc: 7KBW’s Jonathan Gaisman QC, Rebecca Sabben-Clare QC, Josephine Higgs and Adam Turner instructed by Ashurst partner James Levy
For the defendants, PricewaterhouseCoopers: 4 New Square’s Justin Fenwick QC and Graham Chapman QC, Brick Court Chambers’ Mark Hapgood QC and Thomas Plewman SC, and One Essex Court’s Alexander Polley instructed by Taylor Wessing partner Andrew Howell
This case was settled just days before it was due to be heard. Terms of the agreement were confidential. At £1.6bn it was one of the highest-value auditors’ negligence cases to be brought for some time.
The case arose from the collapse of sub-prime lender Welcome Finance, a subsidiary of financial services group Cattles. The claimants alleged that PwC was negligent in its audit of Welcome’s accounts for the financial years ending 2006 and 2007.
Cattles suspended lending through Welcome in 2009 and closed it to new business.
Street Map v Google / Foundem v Google
26 October, six weeks
Chancery Division, Mr Justice Roth
For the claimant, Foundem: Brick Court Chambers’ Helen Davies QC and David Bailey, instructed by Hausfeld partners Anthony Maton, Nicola Boyle and Anna Morfey
For the claimant, Street Map: Brick Court Chambers’ Mark Hoskins QC, Maya Lester and David Bailey, instructed by Sidley Austin partner Tim Cowen and senior associate John Bedford
For the defendant, Google: Monckton Chambers’ Jon Turner QC and Josh Holmes and Brick Court Chambers’ Robert O’Donoghue, instructed by Bristows partner Pat Treacy
This litigation brought by price comparison site Foundem and online mapping site Street Map against Google is the first English case alleging abusive conduct on the part of the search engine.
The two sites have brought multi-million pound damages claims against Google alleging abuse of dominance in the way in which Google operates its search engine. Both alleged that Google favours its own products over those of third parties.
The case brought by Street Map has been heard and judgment is awaited, while the case brought by Foundem will be heard in 2016.
Peak Hotels and Resorts Ltd v Tarek Investments Ltd, Sherway Group Ltd & Ors
9 November, five weeks
For the claimants, Peak Hotels & Resorts Ltd and the part 20 defendant Omar Amanat: 4 Stone Buildings’ John Brisby QC, Richard Hill QC and Alexander Cook, instructed by Candey partners Ashkhan Candey and Andrew Dunn
For the defendant, Tarek Investments: Brick Court Chambers’ Mark Howard QC and One Essex Court’s David Caplan, instructed by Herbert Smith Freehills partner Paula Hodges QC and Jeremy Garson
For the defendants, Sherway Group and Johan Eliasch: Fountain Court Chambers’ Michael Brindle QC, Paul Sinclair and Adam Zellick, instructed by Berwin Leighton Paisner partners Michael Polonsky and Graham Shear
For the part 20 defendant, Lalit Modi: Maitland Chambers’ Catherine Newman QC and Gregory Banner, instructed by Kerman & Co partner John Evans
Peak Hotels and Resorts is a party to a joint venture which acquired the Aman Resorts group of luxury hotels in January 2014.
It launched a case against its joint venture partner Tarek Investments, alleging that the company conspired with logistics company Sherway, which provided a debt facility for the deal, to breach shareholder agreements related to the joint venture.
Peak Hotels claimed it is entitled to exercise rights under a mandatory share transfer clause to buy Tarek’s stake in the joint venture at a substantial discount and to rescind the debt facility provided by Sherway.
Tarek and Sherway deny the allegations and Tarek is counterclaiming against Peak Hotels for damages for breaches of the shareholder agreement.
This is a hard fought case in which decisions have already been made on costs. The judgment to the substantive hearing is outstanding.
(1) Antonio Caliendo (2) Barnaby Holdings LLC v Mishcon de Reya (and its professional indemnity insurers)
30 November, 10 days
For the claimant, Antonio Caliendo and Barnaby Holdings: 11 Stone Buildings’ Alan Gourgey QC and 4 New Square’s Graham Chapman QC, instructed by DLA Piper partner Mark Goodwin
For the defendant, Mishcon de Reya: Wilberforce Chambers’ Ian Croxford QC and Clare Stanley, instructed by Triton Global partner Michael Robin
Mishcon de Reya was named as a defendant in this professional negligence case from the former chair of Queens Park Rangers (QPR) football club, Antonio Caliendo. The case relates to the sale of the club to Italian businessman Flavio Briatore and Formula 1 boss Bernie Ecclestone in 2007.
Caliendo and Barnaby Holdings alleged that Mishcon negligently failed to incorporate a term that would have given Caliendo a big bonus if QPR got into the premier division, and that it failed to make provision for the repayment of debts by QPR to Brazilian football team manager Carlos Dunga.
The case was expected to run until 18 December and judgment is expected in 2016.
Ecotricity Group Ltd & The Electric Highway Company Ltd v Tesla Motors Inc & Tesla Motors Netherlands BV
18 December (preliminary issues)
Chancery Division, Mrs Justice Rose
For the claimants, Ecotricity Group Ltd & the Electric Highway Company Ltd: Matrix Chambers’ Rhodri Thompson QC and Nicholas Gibson, instructed by Lewis Silkin partner Adam Glass (competition issues); 3 Hare Court’s Peter Knox QC and Rupert Butler, instructed by Lewis Silkin partner Adam Glass (non-competition issues)
For the defendants, Tesla Motors Inc & Tesla Motors Netherlands BV: Monckton Chambers’ Paul Harris QC and Ronit Kreisberger, instructed by Osborne Clarke partner Charlie Wedin
Green energy supplier Ecotricity invested in a network of charging stations around the UK intended to promote the use of electric vehicles. Originally it teamed up with electric car manufacturer Tesla, which was founded by PayPal co-founder Elon Musk, to use Tesla’s superchargers. However an email was allegedly sent by mistake from Tesla to Ecotricity, suggesting that Tesla wanted to persuade motorway service stations to break off their contract with the supplier.
Ecotricity promptly filed for an injunction preventing Tesla from using information it picked up during the two companies’ relationship and sued Tesla for breach of non-disclosure agreements, while Tesla retorted by challenging the exclusivity of Ecotricity’s network.
The case settled ahead of the court outing.
Kesabo & Ors v African Barrick Gold plc and North Mara Gold Mine Ltd
Queens Bench Division
For the claimants, Kesabo and Ors: Matrix Chambers’ Richard Hermer QC and Samantha Knights, and Blackstone Chambers’ Tom Hickman, instructed by Leigh Day partner Shanta Martin
For the defendants, African Barrick Gold plc and North Mara Gold Mine Ltd: Fountain Court Chambers’ Bankim Thanki QC and Simon Atrill and Henderson Chambers’ Andrew Kinnier, instructed by Quinn Emanuel partners Richard East, Sue Prevezer QC and Ted Greeno
The year’s top cases were rounded off by another dispute involving Africa. This three-month trial is a class action case, brought by illegal prospectors to the site of a gold mine in Tanzania who were injured or killed by Tanzanian police and private security guards.
The claims involve issues as to the extent to which private entities can be liable for the acts of law enforcement agencies, and the application of the Act of State doctrine in that context, as well as the potential liability of an English parent company for such acts in Tanzania. It also involves disputes on the facts, regarding whether the circumstances relate to a mass violation of human rights or the lawful response to an armed invasion.
The events have been the subject of questions in Parliament, and the outcome is expected to have implications for English companies – particularly in the mining, energy and natural resource sectors – operating in areas of conflict throughout the world.