Annual Case Review 2021

ANNUAL CASE REVIEW 2021 serlecourt RAISING THE BAR IN CHANCERY & COMMERCIAL “Stacked with highly experienced silks and juniors, Serle Court has long been one of the leading sets when it comes to civil fraud disputes” Legal 500 serlecourt 02 Welcome to Serle Court’s Annual Review of 2021. In the second year of the pandemic, barristers at Serle Court have continued to appear, often remotely, in courts at all levels around the world, in cases across our wide field of commercial chancery law. We hope you will enjoy reading about the range of legally complex and factually fascinating cases which members of Serle Court have been involved in this year. Elizabeth Jones QC Head of Chambers 04 In 2021, members of Serle Court were involved in a range of substantial, high-profile and precedent-setting cases Elizabeth Jones QC and Will Henderson acted for the protectors in In the Matter of the X Trusts [2021] SC (Bda) 72 Civ (7 September 2021). In this leading case the court (Kawaley AJ) held that the role of a protector when giving its consent to the exercise of a trustee’s powers to appoint capital and deal with shares in a specified company was limited to satisfying itself that the trustee’s proposed exercise of the power was a proper exercise of the power which a reasonable body of properly informed trustees was entitled to undertake and, if so satisfied, to consent to the same. Contrast decisions to the opposite effect on this hot topic in England (PTNZ v AS [2020] WTLR 1423, Master Shuman) and Jersey (Re Piedmont Trust [2021] JRC 248, Sir Michael Birt, Commissioner). Dakis Hagen QC, Emma Hargreaves and Stephanie Thompson act for the Plaintiffs and Jonathan Adkin QC and Adil Mohamedbhai act for the Defendant trustee in Wong & Anor v Grand View Private Trust Company Ltd, a claim to recover substantial trust property transferred to a trustee of a purpose trust. The Plaintiffs succeeded in obtaining summary judgment at first instance on the ground that powers of addition and exclusion cannot be exercised in a manner which alters or destroys the substratum of the trust ([2019] SC (Bda) 37 Com, 5 June 2019), but this was overturned by the Bermuda Court of Appeal in April 2020 (Civil Appeal No. 5A of 2019, 20 April 2020). Richard Wilson QC and James Weale act for Tony Wang, an intervenor in the appeal. The Plaintiffs and Tony Wang have each been granted leave to appeal to the Judicial Committee of the Privy Council and the appeal is set to be heard in March 2022. Dakis Hagen QC (assisted by Emma Hargreaves and Stephanie Thompson) acts for the Plaintiff, Jonathan Adkin QC (assisted by Adil Mohamedbhai and Tim Benham-Mirando) acts for the Defendant trustees, and Richard Wilson QC and ProfessorJonathan Harris QC (Hon.) (assisted by James Weale, Adrian de Froment and Charlotte Beynon) act for another Defendant, Tony Wang, in Wong v Grand View Private Trust Company Ltd & Ors, proceedings in Bermuda concerning very substantial purpose trusts. In 2021, the Bermuda Court of Appeal and Supreme Court handed down judgments on issues including joint interest privilege ([2021] CA (Bda) 3 Civ, 12 April 2021), hearsay evidence ([2021] SC (Bda) 46 Com, 9 June 2021)), open justice ([2021] SC (Bda) 32 Com, 16 April 2021), witness preparation and iniquity exception ([2021] SC (Bda) 22 Com, 22 March 2021; [2021] CA (Bda) 6 Civ, 11 June 2021) (in which Dominic Dowley QC also acted for Tony Wang) and pleading amendments ([2021] SC (Bda) 21 Com, 11 March 2021). The trial of the case was heard over six months in 2021 and is thought to be the largest case in Bermuda and one of the largest ever trust disputes anywhere in the common law world. Judgment is awaited. In last year’s Review we referred to Philip Marshall QC and Matthew Morrison continuing to act for Business Energy Solutions (BES) in respect of proceedings arising from the obtaining and execution of search warrants, and an ongoing trading standards investigation into BES’s affairs. The claims, which seek damages for misfeasance in public office and just satisfaction under the Human Rights Act 1998, raise novel points of public and private law including immunity from suit. The trial, which took place between November and December 2021 is subject to reporting restrictions. Philip Marshall QC and Oliver Jones, with counsel from other chambers, continue to represent Emmerson International Corporation and several other parties to proceedings in the BVI worth circa US$1 billion, arising out of a dispute between two prominent Russian businessmen concerning a joint venture in relation to power generation and distribution assets in Russia (Renova Industries Ltd & ors v Emmerson International Corporation & ors). The proceedings involve contractual claims and claims by Emmerson for breach of trust and dishonest assistance, deceit, conspiracy to injure and other economic torts. There were numerous interlocutory hearings and appeals in 2021, including a 4-day further hearing of part-head service and jurisdiction challenges brought by several Russian and Swiss defendants, and hearings at which Emmerson successfully resisted the Renova parties’ applications for orders that Emmerson be required to share legal representation with certain other ancillary claimants (not withstanding that there is a conflict of interests between them) and for security for costs (which involved consideration of the effect of US sanctions on the ultimate beneficial owner of the Renova Group, Mr Viktor Vekselberg). Judgment of the ECCA is also pending in Emmerson’s appeal against the lower court’s decision to impose a confidentiality club in relation to disclosure ordered to be given ancillary to a freezing injunction obtained by Emmerson, which will be the first appellate decision on the subject in the BVI. Philip Jones QC, Gareth Tilley and Max Marenbon represented HMRC in its attempt to rescind a substantial tax settlement with the GE Group for fraudulent misrepresentation (HMRC v IGE USA Investments Ltd [2021] Ch 423 (CA)). The matter settled in late 2021 shortly after permission was granted to appeal to the Supreme Court on the question whether rescission of contracts in equity for fraudulent Mishcon de Reya for property investors who lost £48 million of their investment in a £500 million super-prime residential development in Bayswater (Aurium Real Estate London Ultra Prime v Mishcon de Reya). A three-week trial will take place from 14 March 2022 in the Business and Property Court. This case is one of The Lawyer’s Top 20 Cases of 2022. Zoe O’Sullivan QC acted for the defendant guarantor in an important Court of Appeal decision on the construction of a shipbuilding guarantee: Shanghai Shipyard Co Ltd v Reignwood International Investment [2021] EWCA Civ 1147. The Court held that the guarantee was in effect a “demand bond” imposing primary liability on the guarantor even where there was a dispute as to whether the vessel complied with the terms of the contract. The Court also disparaged the use of presumptions to determine whether a guarantee imposes primary liability or is a “see to it” obligation to pay only where the main debtor is in fact liable. The Supreme Court has granted permission to appeal. Dakis Hagen QC, James Brightwell and Emma Hargreaves continue to act for the adult children of a late Russian businessman in Re Scherbakov, deceased, a cross border dispute concerning the succession to his very substantial worldwide estate and related proceedings concerning the beneficial ownership of very valuable shares in a BVI company. Giles Richardson acts for the deceased’s former wife and Richard Wilson QC, Jonathan McDonagh and Oliver Jones act for the interim administrators. Constance McDonnell QC acted for the successful respondent in Hirachand v Hirachand [2021] EWCA Civ 1498, described in the legal press as a ‘landmark’ case, in which the Court of Appeal determined that a CFA success fee can be recoverable as part of an award under the 1975 Act. The misrepresentation carries a 6-year limitation period by analogy with the tort of deceit. John Machell QC (assisted by John Eldridge) appeared for the Appellants and James Brightwell (assisted by Andrew Gurr) appeared for the Respondants before the Privy Council in ITG v Glenalla Properties Limited. The landmark appeal – which was heard at the same time as the appeal in the Re Z II Trust litigation – raises fundamental issues as to the principles applicable in cases involving insolvent trusts. James Brightwell has continued to act in the Guernsey Royal Court proceedings in the same matter concerning the entitlement of a former trustee who has successfully defended breach of trust claims and the grounds on which objections to the recovery of costs can be made (see [2021] GRC 007, HH Lieutenant Bailiff Marshall QC). Hugh Norbury QC is co-leading for the claimant, Jonathan Adkin QC and Charlotte Beynon act for the fourth Defendant, Philip Marshall QC and Simon Hattan act for the fifth defendant and James Mather acts for the 41st Defendant in Public Institution for Social Security v Al Rajaan & ors, a claim for in excess of US$800m arising out of alleged bribery of the former Director General of the Kuwaiti State Pension and Social Security Fund, one of The Lawyer’s Top 20 cases for 2020. PIFSS alleges that the defendants are liable for over $800 million as a result of a large scale fraud perpetrated by its former director general, Mr Al-Rajaan, in conjunction with the other defendants. The Serle Court counsel acting for the fourth and fifth defendants recently appeared in a three day appeal, opposing the Claimant’s appeal against the decision of Mr Justice Henshaw that the English Court does not have jurisdiction over the claims against their respective clients. Judgment has been handed down. Rupert Reed QC continues to act on negligence claims against 06 appellant is now seeking leave to appeal to the Supreme Court. Nicholas Harrison and Jonathan McDonagh continued to act for the claimants in the Fundão Dam Disaster group litigation. In Mariana and ors v BHP Plc and BHP Ltd [2021] EWCA Civ 1156, the Court of Appeal granted permission to appeal from the first instance decision striking out the claim, following a rare (successful) application and oral hearing under CPR 52.30. The hearing of the appeal has been set down for 5 days in April 2022. James Weale acted for the successful respondent in the Jersey Court of Appeal in Deripaska v Chernukhin [2021] JCA 240. In clarifying the principles applicable to collateral waiver, the Court’s judgment is one of the most significant Jersey cases on the law of privilege in recent years. James is also instructed for the substantive trial (to be listed in 2022) in which the claimant is seeking damages arising out of an application for interim relief relating to shares worth over $100 million. Stephanie Wickenden acted for the successful claimant in the precedent-setting easyGroup v Beauty Perfectionists [2021] EWHC 3385 (Ch). In one of the first cases considering the interpretation of post-Brexit implemented legislation, the Chancellor of the High Court, Sir Julian Flaux, found that the Withdrawal Agreement had direct effect and that the implementing legislation could not be construed as limiting jurisdiction which had been agreed bilaterally in the Withdrawal Agreement between the UK and EU. Accordingly, the UK court retained pan- EU jurisdiction in respect of pending trade mark proceedings. 08 Philip Marshall QC, Professor Jonathan Harris QC (Hon.), Justin Higgo QC, Oliver Jones and Jamie Randall acted for 24 BVI companies in bringing claims for bribery against the former manager of their superprime London property portfolio and its directors. There were several interlocutory decisions in 2021, concerning the definition of control for the purpose of disclosure under PD51U (Berkeley Square Holdings & Ors v Lancer Property Asset Management & Ors ([2021] EWHC 849 (Ch)); amendments to statements of case and the withdrawal of admissions ([2021] EWHC 750 (Ch)); and the striking out of pleaded allegations that are irrelevant to the cause of action or defence ([2021] EWHC 818 (Ch)). The proceedings settled shortly before trial, which had been listed for 18 days in June 2021. Philip Marshall QC, Professor Jonathan Harris QC (Hon.) and James Mather acted for Abu Dhabi Commercial Bank in State of Qatar v Emirates NBD Bank, one of the largest claims to be brought in the English High Court, in which claims were brought against the bank by the State of Qatar in conspiracy said to arise out of an alleged international scheme to manipulate the value of Qatari currency and bonds connected with the socalled ‘blockade’ of Qatar by neighbouring Gulf states causing the Qatari Central Bank to have to deposit US$13 billion to defend its currency peg. Lance Ashworth QC and Dan McCourt Fritz appeared for the Defendants in Taylor v Khodabakhsh [2021] EWHC 655 (Ch) in which it is claimed that the judgment they had successfully obtained in Taylor v Van Dutch [2019] EWHC 1951 (Ch) had been obtained by fraud. Falk J dismissed applications for proprietary and personal freezing orders in respect of the costs paid following the original proceedings and for declarations that previous freezing orders applied to the defendants to these proceedings. The matter is likely to go to trial in 2023. John Machell QC appeared for Flavio Maluf in various hearings before Jack J and the Eastern Caribbean Court of Appeal in Durant International Corp v Maluf, a case in which Mr Maluf is alleged to have been involved in a fraud against the Municipality of Sao Paulo. Judgment was handed down by the Court of Appel on the service issues on 13 January 2022. Hugh Norbury QC continues to act in Ballacorey Wheat v Brown & ors, a fraud claim commenced in 2019 in the Isle of Man (relating to asset management) in which fraud is alleged against Barclays Bank and offshore trustees. Hugh Norbury QC is leading Dan McCourt Fritz in Carey Street Investments & anor v Brown & Equity Trust (Jersey) Limited, a claim by the liquidators of 2 property companies in relation to alleged unpaid tax; the claim is outside the standard limitation period so is based on fraud, involving numerous difficult legal and factual issues relating to events taking place over 10 years ago. Daniel Lightman QC and Charlotte Beynon represented five of the ten defendants to a £58m Commercial Court unlawful means conspiracy claim who successfully applied to strike out and for summary judgment in King v Stiefel [2021] EWHC 1045 (Comm), The Times June 4, 2021 - a rare example of a court striking out a fraud claim. In her excoriating judgment, Mrs Justice Cockerill DBE addressed a number of significant legal and procedural issues, including the purposes and requirements of a pleading (in particular when pleading fraud) and confirmed that (save in relation to actions for negligence) an advocate’s immunity from suit has not been abolished. In Equity Real Estate (Bracknell) Ltd v Patel & Ors, Justin Higgo QC and Stephanie Thompson continue to act for five SPVs who are the alleged victims of a complex property fraud. Following disclosure from third parties under the Bankers Trust and Norwich Pharmacal jurisdictions, the SPVs have commenced claims in the Chancery Division against thirteen defendants for breach of fiduciary duty, unlawful means conspiracy, dishonest assistance and knowing receipt. Jonathan Adkin QC and Adil Mohamedbhai act for three of the defendants. In Trafalgar Multi Asset Trading Co v Hadley & Ors, Justin Higgo QC and Jamie Randall continue to act for the benefit of numerous small pension holders to recover the proceeds of a complex pension fund fraud from multiple defendants who conspired with the fund managers to misappropriate fund assets, and from professional third parties who failed to take steps to prevent the frauds. We remain a leading set for Civil Fraud and asset tracing James Mather acted unled for the successful defendant in Ward v Savill [2020] EWCA Civ 1378, in which the Court of Appeal upheld the decision of the first instance judge, that declarations obtained in earlier proceedings to which the defendant was not a party that property was held on constructive trust for the claimants could not be relied on in future proceedings for purposes of asserting a tracing or following claim against her. In SMPI Bordeaux SPV 3 Ltd & Ors v Burton & Ors Stephanie Thompson acts for 136 claimants who were induced by fraudulent misrepresentations to invest in a scheme involving the making of loans purportedly secured against fine wine collections. The claimants recently obtained judgment without trial following strike-out and default judgment, including declaratory relief as to the claimants’ beneficial interest in monies paid to the defendants, avoiding the need for a lengthy and expensive trial. 10 We are at the forefront of Commercial Litigation, both in London and globally List (Leeds District Registry), the claimant’s claims for an order requiring the defendant to take back and settle outstanding finance on over 100 Mercedes Benz Actros trucks that it had previously supplied at their two year anniversary on the strength of an alleged collateral contract were dismissed. Indemnity costs were awarded in the defendant’s favour having regard to the dishonest manner in which the claimant had advanced its claims, as well as various additional aspects of the manner in which the proceedings had been conducted which took the case out of the norm. Thomas Elias is instructed in several matters in The Bahamas, including a judicial review claim regarding a dock development in Abaco and a claim for damages where the plaintiff was falsely imprisoned for over 6 years: both matters are now being appealed to the Privy Council. Professor Suzanne Rab is acting in a standalone claim by a London based music publishing company, Delicious Digital, which writes music that appears on BBC Five Live and 5 Live Sports Extra, against PRS for Music Limited (PRS) raising primarily breach of competition law, contract and regulatory law under the 2016 Collective Management of Copyright Regulations. The case is a true ‘David and Goliath’ battle which has attracted significant press coverage including by The Times Newspaper. The competition claims relate to claims of abuse of a dominant position by PRS in its calculation and distribution of royalties which are alleged to have favoured the major publishers including UMP and Sony to the detriment of small composers. The case is the first action in the English courts raising breach of the 2016 Collective Management of Copyright Regulations. Elizabeth Jones QC and Oliver Jones continued to act for the eOne group, a major international producer of material for film and TV (e.g. the film Green Book, Peppa Pig), in proceedings against Monex Europe Ltd and eOne’s former Treasury Manager concerning the payment of secret commissions to fiduciaries. eOne alleged that Monex paid some £8m of secret commissions to eOne’s Treasury Manager and his deputy in order to induce them to place FX trades with Monex. The case settled shortly before trial, which was listed for 4 weeks in March 2021. John Machell QC appeared before Jack J in a three week trial in Green Elite Limited (in liquidation) v Fang, a case concerning alleged breaches of fiduciary duty by the directors of Green Elite. Hugh Norbury QC is leading Tim Benham-Mirando in Jinxin v Aser Media Pte Limited & ors, a US$660m claim for rescission or damages arising out of alleged deceit in the purchase by a Chinese fund of a controlling interest in a leading sports media rights group. Hugh Norbury QC is acting in a Bermudan claim, Athene v Siddiqui & ors which is part of an international campaign of litigation by the huge US private equity firm Apollo and its subsidiary insurance company Athene against Imran Siddiqui and Steve Cernich, who left Apollo / Athene respectively to set up a rival insurance business. Various issues of breach of fiduciary duty and misuse of confidential information arise, with a total claim value of hundreds of millions of dollars, though this is hotly disputed. Hugh Norbury QC is acting for the claimant in a significant combined contractual / confidential information claim relating to a hedge fund specialising in the energy / utilities sector, Covalis v BTG. The contractual claim relates to an unpaid commission fee of approximately £10m and involves an interesting issue involving the exercise of contractual discretion. The potentially much larger claim for misuse of confidential information relates to “side-trading” by BTG, a large Brazilian investment bank, using information supplied to it by Covalis on a confidential basis, with a potential value of £ tens of millions. Justin Higgo QC continues to represent the defendant in PPRS Holdings & Anor v Tecar, a commercial court claim for breach of warranty in relation to the sale of a substantial paper business in Romania. David Blayney QC and Sophie Holcombe acted for the Claimants in the group action against British Airways over its 2018 customer data breach. In 2020 the ICO fined British Airways £20 million in respect of the data breach – the largest penalty issued by the ICO to date. In 2021, the group action was settled on confidential terms. James Weale (led by Jonathan Crow QC) acted for the successful appellants in the Court of Appeal in Navigator Equities Ltd v Deripaska [2021] EWCA Civ 1799. In overturning the decision of Andrew Baker J, the Court gave important guidance on the conduct of committal applications and confirmed that the subjective motives of the applicant are irrelevant. Subject to the determination of an application for permission to appeal to the Supreme Court, the substantive trial of the committal application against Oleg Deripaska (in which James is also instructed) has been listed for May 2022. Matthew Morrison acted for the successful defendant in Green GRP Logistics Limited v Northside Truck & Van Limited. After a seven day trial heard in the Chancery Division Business John Machell QC and Dan McCourt Fritz (assisted by John Eldridge and Andrew Gurr) appeared for the protector before the Bermuda Court of Appeal in St. John’s Trust Co. (PVT) Ltd v Medlands (PTC) Ltd. The appeal concerned the appropriateness of a former trustee appealing against first instance orders against the wishes of the beneficiaries. They also appeared before Subair Williams J in Medlands (PTC) Ltd v A-G and Brockman [2021] SC (Bda) 41 Com at a hearing to determine the terms of the appointment of a new trustee. Hugh Norbury QC is leading Thomas Elias in Lemos v Church Bay Trust Company & ors, a claim to set aside the transfer of assets to an offshore trust allegedly in contravention of s.423 of the Insolvency Act 1986. Richard Wilson QC and James Weale act for the defendant trustee in a $30 million claim for alleged dishonest breaches of trust in Sofer v SwissIndependent Trustees SA. The claim raises important questions of law as to what conduct and knowledge on the part of a trustee must be shown in order to establish a claim in dishonesty. The claim has been listed for a 5-week trial in the High Court commencing in July 2022. Richard Wilson QC and Oliver Jones represent the trustees of two very valuable BVI trusts settled by a successful international businessman in relation to the proposed restructuring of the trusts, which raises among other things issues of US, Japanese, Australian and Singaporean tax law. Several other members of Chambers are also involved: Will Henderson 12 acts for one of the adult beneficiaries, Justin Higgo QC represents the Next Friend to the minor beneficiaries, and Giles Richardson represents the unborn beneficiaries. The hearing of the Trustees’ Public Trustee v Cooper application is listed for 3 days in the BVI in November 2022. The proceedings were before the BVI court in 2021, when the court appointed the Next Friend for the minors but refused her application for recognition by the BVI court of orders made by courts in California and Texas which she claimed conferred on her the status of mother and/or guardian, or a person otherwise having legal responsibility for each of the Minors: O Trustee & P Trustee v Q & Ors (BVIHCM 2020/0116). Constance McDonnell QC acted for the successful defendant in Reeves v Drew, in which the court held that a daughter had exploited her wealthy father’s illiteracy, and engineered a will under which she would take 80% of his £100m estate. The trial extended over 3 weeks in November 2021, and the Court considered over 100 witness statements. The case has attracted wide national press coverage. Will Henderson acted for the claimant Nigerian executors in Otubu v Otubu [2021] EWHC 1354 (Ch), [2021] 5 WLUK 282, [2021] 2 P & CR Dig 16. The deceased was of Nigerian domicile. He died lawfully and polygamously married to 4 wives. He died intestate as regards English immovable property. The Claimants had a Nigerian grant of probate. The 4th wife obtained letters of administration in England & Wales and consequential registration as proprietor of a house in London without revealing the existence of the 1st, 2nd or 3rd wives or their children. The court appointed 2 of the Nigerian executors in place of the 4th wife under s.50 AJA 1985 and ordered the alteration of the proprietorship register. The court also made an order altering the register in the claimants’ favour in respect of a second London house which had been vested beneficially in a Panamanian company. We continue to be instructed in major company, insolvency, restructuring and financial services disputes appealed to the Court of Appeal in Loveridge v. Loveridge [2021] EWCA Civ 1697 against permission which had been granted to amend a petition presented under section 994 Companies Act 2006 in respect of 5 companies said to be worth up to £50 million in order to save it from being struck out following their previous success in the Court of Appeal in Loveridge v. Loveridge [2020] EWCA Civ 1004. The petition was struck out by the Court of Appeal in November 2021. An application for permission to appeal has been lodged by the petitioner with the Supreme Court. Lance Ashworth QC is acting for the Official Receiver, as liquidator of Beaufort Asset Clearing Services Ltd, which was previously in Special Administration, going into administration with £429 million of client assets at risk. There remains a rump of assets valued at about £7 million, of which the company is the trustee, but which cannot be returned to clients. The Official Receiver will be seeking directions in early 2022 to allow her to take steps to dissolve the company notwithstanding the existence of this rump of assets John Machell QC and James Mather appeared in WWRT v Tyshchenko [2021] EWHC 939 (Ch) in which Bacon J held that a stay of proceedings could not be granted on modified universalism grounds in favour of insolvency proceedings in a Philip Marshall QC and James Mather acted for Dr Vijay Mallya, the former Chairman of Kingfisher Airlines, in relation to a bankruptcy petition presented by a consortium of Indian banks on the basis of an alleged debt in excess of £1 billion and in the context of substantial overlapping proceedings in India. The case raised important issues regarding, among other things, the effect and consequence of ongoing proceedings in India, the validation of legal expenses and forum conveniens in respect of insolvency proceedings. Philip Jones QC and Gareth Tilley are representing the interests of rich-lister Peter Stephenson in a substantial claim against tax advisers arising from allegedly negligent advice in relation to restructuring of part of the Able Group. Lance Ashworth QC and Dan McCourt Fritz succeeded in the Court of Appeal in Re Hut Group Ltd [2021] EWCA Civ 904 in having the majority of the petition presented under section 994 Companies Act 2006 in respect of a company worth in excess of £3 billion struck out on the basis that there were not sufficient facts pleaded to allow a claim of bad faith to be pursued. While a very small part of the petition remained on foot, the petitioner has not taken any further steps in the proceedings. Lance Ashworth QC and Dan McCourt Fritz successfully We continue to have considerable expertise in private client, trusts and probate matters James Brightwell represents the Public Trustee of Guernsey in ongoing proceedings concerning the administration of Guernsey pension schemes in which the former trustees are uncooperative. See [2021] GRC 013 on construction, and a further decision of the Bailiff was given at the very end of 2021 on the means of obtaining documents where there is a lack of co-operation. 14 non-EU / Lugano state where the English Court has jurisdiction under the Judgments Regulation / Lugano Convention. In Taylor Goodchild Ltd v Taylor [2021] EWCA Civ 1135, Daniel Lightman QC (who had not appeared below) represented the appellant in its successful appeal against the striking out of its claim for damages for breach of fiduciary duty against a former shareholder and director who had also been the respondent to a section 994 petition. The Court of Appeal considered, for the first time, how the guidelines laid down in Aldi Stores Ltd v WSP Group plc [2008] 1 WLR 748 (which require a party which intends to bring an additional claim in subsequent proceedings against the same defendant to draw that fact to the attention of the court in the first set of proceedings) should be applied in the context of unfair prejudice petitions. In allowing a law firm’s appeal against the decision of Snowden J to strike out as an abuse of process claims it brought against its former director and 50% shareholder who had been found in an earlier unfair prejudice petition to have acted in breach of fiduciary duty, the Court of Appeal queried whether the decision in Aldi had in mind “the rather special position relating to section 994 petitions”. Daniel Lightman QC and Charlotte Beynon are acting for one of the former directors of the BHS group of companies in proceedings brought by the liquidators for alleged breach of duty and wrongful trading. The claims, which raise issues in relation to the BHS Group’s pension schemes, which were in deficit at the time of the companies’ entries into administration and thereafter liquidation, are alleged to be worth over £160m and are said to have arisen in the period following the sale of BHS by Sir Philip Green to Retail Acquisitions Limited for £1. A judgment in December 2021 (Re BHS Group Ltd [2021] EWHC 3501 (Ch)) considered novel issues concerning the pleading requirements for liquidators in relation to wrongful trading claims. Jonathan Adkin QC, Sophie Holcombe and Jamie Randall continue act on behalf of the former Prime Minister of Georgia and his family as beneficiaries of a Singapore Trust in Bidzina Ivanishvili v Credit Suisse Trust. The claim against Credit Suisse Trust for losses arising from the mismanagement of an investment portfolio said to be worth over US$1bn is due to go to trial before the Singapore International Commercial Court in 2022. In Siong Beng Seng v Caldicott Worldwide Limited, Timothy Collingwood QC appeared for the appellant majority shareholders in two separate appeals before the Eastern Caribbean Court of Appeal in unfair prejudice proceedings. In the wake of the stay of the unfair prejudice claims against the company on the grounds of an arbitration agreement in its articles of association, the decision in the first appeal (BVIHCMAP 2020/0020) addresses the limited circumstances in which the Court might grant a stay of the proceedings against the majority shareholders on case management grounds. A decision from the Court of Appeal on the second appeal is awaited. Simon Hattan continues to act for RSA plc in defence of claims brought by a group of over 50 institutional claimants under s.90A of the Financial Services and Markets Act 2000. The claimants allege that Annual Reports and other published financial information contained untrue or misleading statements, in particular about accounting irregularities in the company’s Irish subsidiary, and that as a result they suffered significant losses on their holdings of RSA shares. The claim, which has given rise to a number of interlocutory decisions and will be the subject of an eight week trial commencing in October 2022, is set to be the first determined under s.90A and is likely to establish important precedents for the proper application of the statutory provision. The case is included in The Lawyer’s Top 20 Cases of 2022. Matthew Morrison and Gregor Hogan acted for Haz International Limited and one of its shareholders in successfully resisting an unfair prejudice petition which also sought the winding up of the company on the just and equitable ground, and successfully pursuing a number of misfeasance claims to judgment, including the diversion of a valuable project to conduct marble installation work on the the US embassy in Pakistan ([2021] EWHC 1695 (Ch)). As a result of the Covid-19 pandemic, the trial took place remotely over ten days in the Insolvency and 16 Companies Court. The logistical difficulties were compounded by the need to cross-examine of the petitioner’s witnesses through a Turkish translator who was not in the same location as the witnesses. Dan McCourt Fritz appeared for the successful appellant in Broadcasting Investment Group Ltd v Smith [2021] EWCA Civ 912, a landmark appeal on the scope of the reflective loss principle and the proper construction of section 4 of the Contract (Rights of Third Parties) Act 1999. law of public benefit under s.4, Charities Act 2011. The Court of Appeal by a majority (David Richards LJ dissenting) held that the Respondent charity had not needed to show that its relevant needed to show that its relevant premises were used for the public benefit to qualify for exemption, but unanimously that, if it had needed to show this, it had not done so. …and Partnership & LLP work James Mather acted for the claimant at trial in Tribe v Elborne Mitchell [2021] EWHC 1863 (Ch), in which the court considered the application of the “Braganza duty” in the context of a discretionary profit share mechanism between members of a solicitors’ firm. James Mather and Mark Wraith acted in Malik v Hussain [2021] EWHC 1405 (Ch), a dispute concerning a prominent restaurant business, in which, following an earlier trial in which a partnership was held to exist, it was held that the Claimant was entitled to a marketing process for the assets of the dissolved partnership rather than their transfer at a value determined by the court and various valuation disputes were determined. Dan McCourt Fritz (led by David Allison QC) acted for the successful plaintiffs in Kuwait Ports Authority v Port Link GP Ltd (FSD 236 of 2020, unreported, 25 November 2021, Parker J), a ground-breaking decision as to the scope and requirements of derivative claims in respect of exempted liability partnerships in the Cayman Islands. We have covered a broad range of Property work Lance Ashworth QC and Tim Benham-Mirando act for the purchasers of hotels from a hotel group, alleged to have conspired with the Law of Property Act receiver to acquire the properties at substantially less than the market value. The case is likely to be determined in late 2022/early 2023. Andrew Francis appeared in three hotly contested trials in the Upper Tribunal (Lands Chamber) where applications to modify restrictive covenants over freehold land were made under s. 84(1) Law of Property Act 1925. These were Morris v Brookmans Park Roads Ltd. (May) Father’s Field Developments Ltd. v Namulas Pension Trustees Ltd. (July) and Moskofian v Foster (October). Each demonstrates the multifaceted and fact specific nature of these applications in a complex jurisdiction where the expertise of counsel and the expert witnesses is at a premium. …as well as specialist Charities work Jonathan Fowles appeared with Cain Ormondroyd of Francis Taylor Building for the Appellant Council in Nuffield Health v London Borough of Merton [2021] EWCA Civ 826, [2021] 3 WLR 838, the first case in which the Court of Appeal has considered the charitable mandatory exemption from nondomestic rates in the context of a charity occupying multiple premises, and the first occasion on which the Court has given detailed consideration to the Our Intellectual Property, IT & Art practices have remained as active as ever Michael Edenborough QC was instructed in five General Court appeals, including acting for the successful party, Huawei, against Chanel (Case T-44/20, [2021] ETMR 40) and for Mircon Technology (Case T-386/20 [2021] ETMR 51). He, along with Stephanie Wickenden, appeared in the last appeal filed by UK advocates to the General Court from the EUIPO (The Standard, Case T-768/20, which was filed on 31st December 2020). Michael Edenborough QC was lead counsel in the case of Lifestyle Equities v Amazon [2021] FSR 19, in which Amazon’s various internet business models were challenged on the grounds that they permitted counterfeit goods to be sold to UK customers. Michael Edenborough QC, along with Thomas Elias, formed part of the #FreeCuthbert legal team defending Aldi’s caterpillar cake from M&S’s Colin the Caterpillar, which formed the subject matter of cartoons in The Sunday Times, Private Eye and The Beano! They are also both instructed for Aldi in a further case brought by M&S against Aldi in relation to snow globe gin liqueurs. Michael Edenborough QC acted pro bono publico for the Defendant in a patent entitlement dispute that considered for the first time in the High Court whether the assignment of the legal title to an invention (as opposed to any patent or patent application) had to be in writing to be valid. Stephanie Wickenden’s trade mark and passing off practice is as busy as ever, acting for household names such as easyJet, Aldi and the Standard International hotel chain. She has also been instructed on numerous designs and patent cases with subject matter ranging from top fashion brands to children’s toys and industrial machinery. This year Stephanie continued to achieve successful results for easyGroup, including easyGroup v Beauty Perfectionists [2021] EWHC 3385 (Ch) and [2021] Easygroup Ltd v Easyway SBH EWHC 2007 (IPEC). Easygroup Ltd v Easyway SBH involved novel issues of jurisdiction and consideration of the place of trade mark use. Douglas Campbell QC (sitting as an IPEC Judge) found that the advertising and arranging of services by the defendant, travel agent based in the Caribbean, to consumers in the UK constituted infringing use in the jurisdiction. Stephanie Wickenden has had a busy year acting for artists, art dealers and estates. She continues to act in the matter of Adolf Schaller v Ivor Braka, which will be the first case in the UK to consider the lawfulness of appropriation art. She has also advised on a number of cases with complex issues of moral rights, derivative and re-contextualised use of works, artist endorsement and artist resale rights. In SBM Bank (Mauritius) Ltd v Renish Petrochem FZE [2018] DIFC CFI 054, Rupert Reed QC, James Weale and Gregor Hogan acted for the successful claimant in a substantial trial in the DIFC in October 2021 involving a complex trade finance fraud. In his judgment handed down on 29 December 2021, Justice Lord Glennie found the defendants liable in fraud for a sum in excess of $20 million. In the same proceedings, James Weale acted for the successful applicant in committal proceedings against an oil company and its managing director. The judgment of H.E. Ali Al Madhani dated 20 October 2021 is the first reported case in the DIFC in which the court has acceded to a committal application. The sanctions hearing is due to be listed in early 2022. Zoe O’Sullivan QC and Gregor Hogan acted for the successful claimant in the first case to establish definitively that the Court of the Dubai International Financial Centre has jurisdiction to grant a worldwide freezing order in support of foreign proceedings. In a detailed judgment in December 2021 (yet to be published), Justice Wayne Martin held that Article 5A(1)(e) of the Judicial Authority Law, in combination with Article 7(6) of the same law and Article 20 of the Court Law, confers statutory jurisdiction on the DIFC Court to grant relief even where judgment has not yet been given in the foreign proceedings. Adopting the reasoning of the Privy Council in Broad Idea v Convoy Collateral [2021] UKPC 24, Justice Martin held that the underlying jurisprudential basis for the grant of a freezing order is the “enforcement principle”: its purpose is to facilitate the enforcement of a judgment or other order to pay a sum of money. We are regularly instructed in the Dubai International Financial Centre EU Law, Public Procurement and Regulation Professor Suzanne Rab has been advising the UK regulators on the onshoring of EU regulations under the EU Withdrawal Act and continues to be involved in the implementation of key UK legislative instruments. She has also been advising government departments including the Department of Health and Social Care on the legal and regulatory issues presented by the UK’s obligations under the Trade and Cooperation Agreement amongst other regulatory and competition issues. She provides ongoing support to Ofgem on a wide range of regulatory issues including net zero and the establishment of a new Future System Operator. She has provided support to regulators on the UK’s new subsidy control and internal markets regime under the Subsidy Control Bill. Professor Suzanne Rab is advising a number of public bodies on a range of public procurement cases including the Department of Health and Social Care and the Home Office. In 2021, Suzanne was the only lawyer to be appointed as one of four experts to the UK Regulators Network (UKRN) where she provides strategic advice across the UK regulators. 18 6 New Square Lincoln’s Inn London WC2A 3QS T: +44 (0)20 7242 6105 F: +44 (0)29 7405 4004 @Serle_Court www.serlecourt.co.uk