Chambers UK 2020

Serle Court offers a strong bench of impressive advocates and receives frequent instructions in high-value and multi-jurisdictional fraud disputes. The set is particularly well regarded for its handling of disputes in offshore jurisdictions such as Bermuda, the BVI and the Cayman Islands, and members are skilled in the handling of cases involving a raft of allegations such as dishonesty, negligence and misappropriation. Additional areas of expertise for the set include injunctive relief applications and jurisdiction disputes. Recent work for the set includes Accident Exchange v McLean and others, a £127 million claim in respect of an alleged conspiracy arising out of the conduct of thousands of cases involving credit hire insurance claims.

Client Service: "The clerks are happy to negotiate and are always responsive." "Even though they're juggling so many different matters at the same they always know what you're talking about and you don't have to chase them. You always get a response and they're all very professional." "The clerks are very friendly, efficient and deal well with the courts. They're always able to discuss fees in a calm and sensible way." "The team is well organised, helpful and keen to make your life easier."

Silks

Dominic Dowley QC: "Approachable and diligent." "Very persuasive in court."

Elizabeth Jones QC: "She's on top of cases from the start and drives them forwards." "Steely and effective in court."

Hugh Norbury QC: "He has excellent insights, is very good with clients and cuts through issues very quickly." "He's thoughtful and analytical but gives a firm view when needed."

Jonathan Adkin QC:"He's commanding in court and delivers his submissions in an impressive way, so judges have a lot of confidence in him." "He's very easy to deal with and a good team player."

Philip Jones QC: "He's very good with clients." "Personable, focused and easy to deal with." "He's very familiar with cross-border litigation strategies."

Philip Marshall QC: "One of the most popular practitioners at the Commercial Bar - he has a formidable reputation." "He's great to work with and really responsive, which is impressive for such a high-end silk."

Juniors

David Drake: "He is excellent at handling the technical details of a case and grasps highly complex issues quickly." "He finds niche points that will help the client and argues them persuasively."

Justin Higgo: "A level-headed, commercially astute barrister." "He's proactive, very nice to work with and ready to fight his client's corner."

Matthew Morrison: "He's very user-friendly and trained as a solicitor so he's pretty astute in dealing with clients." "He's commercial, thorough and good to work with."

Nicholas Harrison: "He's a brilliant drafter who is passionate about his cases."

Simon Hattan: "He has an excellent ability to get straight to the heart of the case and writes in a persuasive and academic manner." "He's able to comprehensively digest material and find the cracks."

Legal 500 2020

Silks

Elizabeth Jones QC: "Truly the crème de la crème, at the very top of the profession."

Philip Marshall QC: "Robust and incisive litigator and adopts a proactive approach to ensure that maximum pressure is exerted on opponents."

Alan Boyle QC: "An excellent fraud silk."

Hugh Norbury QC: "A very user-friendly silk who commands the confidence of the court."

Jonathan Adkin QC: "Always very well prepared, easy to work with, and clever – as an advocate he's like a Sherman tank."

Philip Jones QC: "A phenomenal advocate who will regularly stand head and shoulders over other commercial silks in the room."

Daniel Lightman QC: "He is tenacious and extremely intellectually rigorous."

Dominic Dowley QC: "Charming, always available, and gets the issues quickly."

Juniors 

Justin Higgo: "He is tenacious, gets stuck in and provided fantastic support in a very difficult case."

Nicholas Harrison: "Hugely popular for civil fraud disputes."

Simon Hattan:"Intelligent, thorough and insightful, he should be a QC."

David Drake: "Unbelievably bright and someone you want on your side."

Dan McCourt Fritz: "Quite frankly, he has it all, and will rise to the very top."

Matthew Morrison:"A very hardworking junior who provides excellent support and is a good team player."

Richard Walford: "Very measured and thorough, he also has a pleasing written style.

Guernsey litigation Investec Trust (Guernsey) Limited v Glenalla Properties Ltd:

On 23 April 2018, the Privy Council handed down its advice in the weighty and long-running Guernsey litigation of Investec Trust (Guernsey) Limited v Glenalla Properties Ltd [2018] UKPC 7, involving a Jersey proper law trust. The advice was given by Lord Hodge on behalf of the Board (Lord Mance dissenting on two points, and Lord Briggs on one aspect of the reasoning).

The case is significant firstly for its treatment of the public international law issues arising from Article 32 of the Trusts (Jersey) Law 1984 (“TJL”). Where a trustee is a party to a transaction or matter affecting the trust and if the other party knows that the trustee is acting as trustee, Article 32(1)(a) restricts that party’s claims to the trust property. The question for the court was whether this local limitation should be recognised as applying where the obligations themselves were non-Jersey obligations, being adjudicated on outside of Jersey. The Board by a majority upheld the decision of the Guernsey Court of Appeal that in such a situation, the Jersey law should nonetheless apply. They were not persuaded that Article 32 should be characterised as partially discharging the trustee’s obligation to the third party (which would have suggested that the proper law was that of the underlying obligation rather than the trusteeship). Rather, they considered that the Article did not work any discharge of liability but, together with the definition of a trust in Article 2, should be understood as creating a special status for Jersey trustees. However, the decision went wider: see paras 88ff of the judgment: “… in the Board’s opinion, the time has come to recognise that as a general rule the common law will recognise and give effect to limitations of liability which arise under an entity’s constitutive law by reason of the particular status or capacity in which its members or officers assume an obligation…. The Board would not confine this rule to entities which have separate legal personality but would apply it to partnerships … associations of persons without legal personality and also a Jersey or Guernsey trust… “ (the Trusts (Guernsey) Law 2007 (“TGL”) having similar provisions in sections 1 and 42). The Board gave two other reasons for its conclusion, first, by construing section 65 of the TGL as obliging the Guernsey court to apply the entire law of Jersey, including Article 32, to the question, and secondly, by applying Jersey law seemingly for policy reasons as a concomitant to insulating trust assets from exposure to personal transactions. Lord Mance provided a powerful dissenting opinion in relation to all of these reasons, and Lord Briggs on the first of those.

Secondly, the Board has confirmed that whilst Article 32 ensures that a Jersey trustee has no personal liability for trust obligations, and the creditor no claim in rem against the trust assets, it reversed the Guernsey Court of Appeal in three respects:

(a) the Board held that Article 32 offers the trustee no discharge once the trust fund is exhausted.

(b) Article 32 does not have the effect of enabling a creditor to seek payment from the trustee regardless of the state of the account between the trustee and the beneficiaries. The creditor has no right to the trust fund, other than through its right of subrogation to any entitlement the trustee might have to  indemnity from the trust fund for the obligation to the creditor. If there are any grounds for denying the trustee that indemnity in whole or in part, whether as a result of the obligations having been unreasonably incurred, or as a result of there being any cross-claim against the trustee for breach of trust  (whether related to the creation of the obligation or not), the creditor is affected too; their position is not improved by Article 32.

(c) Article 32 does not apply to costs orders made against trustees, which are always liabilities personal to the trustee.

Thirdly, the Board has determined that the availability of the statutory indemnity offered by Article 26(2) of the TJL falls to be assessed when the liability for which the indemnity is sought, is first incurred. There is no possibility of considering whether the indemnity should be available with the benefit of the facts known at the time it is claimed. Three reasons were given for this: the first relating to the limited ambition of the language of Article 26 itself (though Article 26 would sit alongside an indemnity under the general law), the second relating to the fact that events after the fact could best be responded to by claims for breach of trust, and the third being that otherwise a trustee exoneration clause may be in effect undercut by arguments about the unreasonable incurring or, as in this case, retention of liabilities.

The decision also confirmed that a claim in restitution cannot be maintained in the context of a contractual matrix, and dealt with various interlocutory matters.

Kathryn Purkis of Serle Court appeared as junior counsel for the current trustees, led by Lord Goldsmith QC. James Brightwell of Serle Court appeared as junior counsel for the former trustees, led by Simon Taube QC.

Tatiana Akhmedova v Farkhad Teimur Ogly Akhmedov and 6 others:

On 19th April 2018 Haddon-Cave J handed down his reasoned judgment in an attempt by Mrs Akhmedova to enforce the £453 million award obtained against her former husband Farkhad Akhmedov in  December 2016.  The award has hitherto remained almost entirely unsatisfied.  However, an opportunity  arose at the end of 2017 when Mr Akhmedova's yacht M/V "Luna" (worth US$487m and formerly owned by Roman Abramovich) sailed into Dubai waters and was placed in dry dock.  Mrs Akhemdova's lawyers obtained a freezing order in the Dubai International Financial Centre in aid of the English judgment and launched substantive proceedings to enforce it; she then successfully sought, in further support, a precautionary attachment in the local Dubai courts in effect arresting the vessel. 

At the time of the English judgment in 2016 Luna had been owned by a Liechtenstein Anstalt called Qubo 2, an entity which had been held jointly and severally liable to pay Mrs Akhmedova £350 million under the original judgment. But in breach of a Liechtenstein freezing order Luna had surreptitiously been transferred to a newly created Anstalt called "Straight Establishment" in March 2017.  The DIFC freezing order was then defended by Straight Establishment on grounds that there was no judgment against it in London.  It was against that backdrop that Mrs Akhmedova applied before Haddon-Cave J, who happened to be sitting in the Old Bailey, on 21 March 2018 under a variety of jurisdictions to obtain ownership of the vessel as well as orders directly against Straight.  The orders sought were made on that day, and the reasons are now published. 

The judgment will be of interest to civil/commercial fraud and contentious trusts lawyers for four reasons in particular.  First, it is thought to be the first judgment since Prest where the court has pierced the corporate veil applying the "evasion principle". Secondly, the court, having considered the conflict of laws position, was prepared to apply English law, the lex fori, to that question notwithstanding that Straight is a Liechtenstein anstalt.  Thirdly, the court declared, on grounds of privity of interest, that it had taken Straight to have submitted to the English court's jurisdiction owing to Mr Akhmedov's submission to the jurisdiction.  Fourthly, having made orders transferring the vessel to Mrs Akhmedova, the court made an order against Straight under s. 425(1)(d) of the Insolvency Act 1986 that, in default of its effecting the transfer, Straight had to pay Mrs Akhemdova a liquidated sum referable to the capital value of the vessel (US$487m).  

Serle Court's Dakis Hagen QC appeared on behalf of Mrs Akhmedova.  

Instant Access Properties Limited (in liquidation) v Mr Bradley John Rosser and 6 others:

On the facts of this case, Morgan J held that neither Mr Rosser nor Mr Moore (whom he found to have been shadow directors for certain purposes) were in breach of any fiduciary duty they might have owed to the company, neither was dishonest or fraudulent, and that whatever fiduciary duty might be imposed on them, it would not place upon them a liability to account for profits when a de jure director in the same position would have been relieved from such a liability.

This judgment shows that there can be no blanket rules for the duties owed by shadow directors (as the law now stands before in the exercise of the powers conferred by section 89 of the Small Business, Enterprise and Employment Act 2015, the Secretary of State makes regulations which define the duties of a shadow director).  Whether a particular shadow director owes fiduciary duties and the extent of those duties will be highly fact sensitive.

Lance Ashworth QC and Matthew Morrison represented Mr Rosser, the First Defendant.

Liongate SPC v Dilard and Ors:

A case concerning the authority of directors of the fund management vehicle and the proprietary consequences of an alleged lack of authority.

Glenn v Watson:

Representing the interests of New Zealand businessman and philanthropist  Sir Owen Glenn in 3 sets of proceedings arising from the breakdown of a property joint venture with Eric Watson, set down initially for a 12-week trial commencing in May 2017. Glenn v Watson seeks accounts of profits for brach of fiduciary duty and rescission of over £100m of loans to the joint venture company on the basis of fraudulent misrepresentation.

Newmarket Holdings (Guernsey) Ltd v Confiance Ltd and Ors.:

Acted for defendant Guernsey trustees in a c.£20m claim in the Chancery Division relating to an alleged partnership/joint venture concerning London real estate.

Perry and others v National Crime Agency:

Acted for the applicants in a very substantial compensation claim in the region of £200m against the government body for loss said to have been caused by a property freezing order.

FM Capital Partners Ltd v Marino:

Acting for the principal defendant in this substantial commercial and civil fraud dispute in the Commercial Court relating to the operation of a fund manager.  The claim includes allegations of breach of fiduciary duty, dishonest assistance and unlawful means conspiracy.

Superior Composite Structures LLC v Parrish:

The trial of a claim for enforcement of a judgment worth over US$2m obtained in South Dakota.  This case invovled issues of fraud, principles of natural justice, public policy and Article 6 of the ECHR.  The judgment illustrates the limited grounds on which enforcement of a foreign judgment may be revisted before the English court, particularly where the grounds for challenge could have ben pursued.

BTA Bank v Ablyazov:

Costs of Norwich Pharmacal disclsoure exercise.

Novship (UK) Ltd v Mikhaylyuk:

Dealt with questions of the availablity of the remedy of an account of profits made by dishonest assistance and breach of fiduciary duties, causation and proportionality.

Bank of St Petersburg v Vitaly Arkhangelsky & Anor:

A claim to enforce a series of guarantees afforded to a defaulting oligarch and for declaratory relief to exonerate the Bank from accusations of corporate raiding made against it by the Defendant.

CR v MZ:

A sham trust/forgery case relating to the ownership of a substantial London property and its holding company.

BTA Bank v Ablyazov:

Acted for a non-party respondent ordered to provide detailed information about the assets of a judgment debtor. Successfully narowed the scope of the disclosure order on the grounds that it was unreasonably oppressive. Secured the return of the respondent's passports which had been delivered up pursuant to a passport order preventing the non-party leaving the jurisdiction until the disclosure order had been complied with.

L v K (Freezing Orders: Principles and Safeguards):

Clarified freezing injunction principles in a case involving trusts and foundations noting (among other things) that the presence of an offshore structure was on its own insufficient evidence of a risk of dissipation. 

Okritie Bank v Urumov et al:

Jonathan McDonagh acted for the Urumov and Pinaev defendants, in Otkritie Bank v Urumov et al [2014] EWHC 191 (Comm), a claim for more than $170m in an alleged Russian banking fraud.  The case was the subject of considerable international media attention, and was heard over the course of 12 weeks in the Commercial Court. In addition to the usual issues arising from a civil fraud action, this case raised questions of international private law, foreign law, priviliege and the doctrine of ex turpi causa, Jonathan Adkin QC was involved at earlier stages in the proceedings. Hugh Norbury QC also acted for a third party in relation to the claim at an early stage of the proceedings.

Fiona Trust & Holding Corp v Skarga:

Appeared for the appellants in which the Court of Appeal upheld the judge's decision under the Private International Law (Miscellaneous Provisions) Act 1995 that the bribery claim in tort was governed by Russian law.

Sukhoruchkin v van Bekestein:

A multi-party, multi-jurisdictional dispute arising out of the management and subsequent liquidation of an off-shore investment fund. A freezing order was successfully set aside at first instance but was reinstated by the Court of Appeal.  The matter has subsequently settled.

Constantin Medien AG v Ecclestone & Ors:

Philip Marshall QC, David Blayney QC, James Mather and Emma Hargreaves appeared for the claimant. A claim for damages relating to an alleged $44m bribe paid by Bernie Ecclestone and his family trust upon the sale of commercial rights in Formula One.

Aeroflot v Berezovsky, Gluskhov, Forus Holdings SA & Ors:

Philip Marshall QC and Justin Higgo continued to represent Aeroflot and Philip Jones QC and Jennifer Haywood continued to represent Mr Glushkov. Aeroflot is suing in relation to a number of financial arrangements entered into to the alleged benefit of companies in which the Defendants were interested and which it is alleged resulted in the misappropriation of substantial overflight revenues in the sum of US$99m.  Aeroflot is also seeking to enforce a Russian judgment.  The claim was struck out but the first instance decision was overturned on appeal.

JSC BTA Bank v Mukhtar Ablyazov, Zharimbetov & Ors:

Large fraud trial in which the Bank successfully obtained Judgment for over $1billion in relation to a series of banking frauds.

Philip Marshall QC acted for the Bank at trail; Hugh Norbury QC represented the second Defendant, Mr Zharimbetov at trial. Philip Jones QC, Matthew Morrison were also involved for the Bank during the litigation; Justin Higgo acted for Mr Zharimbetov; Dan McCourt Fritz acted for Mr Ablyazov.

Secretary of State for Health & Ors v Servier Laboratories Ltd:

Rejected the defendants' attempt to rely on a French criminal statue in order to resist providing further information and disclsoure.

Aeroflot v Berezovsky, Glushkov, Forus Holdings SA & Ors:

Aeroflot is suing its former Deputy Director General, Nikolai Glushkov, Boris Berezovsky and a number of companies in which they allegedly held interests in relation to a number of loans which allegedly had no proper commercial justification and resulted in the payment of fees and interest and misappropriation of fees due to Aeroflot.  Aeroflot claims to have suffered loss in the sum of US$102m.  Philip Marshall QC and Simon Hattan act for Aeroflot and Philip Jones QC and Jennifer Haywood are acting for Nikolai Glushkov.

Aeroflot v Berezovsky:

The defendants applied for summary judgment on the claimant's claim to enforce a Russian judgment increasing the amount of damages awarded under a much earlier russian judgment that had already been satisfied.

Floyd J held that there had been a plain breach of finality principle, a principle of public policy recognised by both English law and article 6 of the ECHR and gave judgment for the defendants.
 

Mulu Mengiste v The Endowment Fund for the Rehabilitation of Tigray:

Appeared in an application for a stay on grounds of forum non conveniens.  Rather unusally, the Judge directed oral evidence.  3 days of evidence related to expert evidence given in secret by an anonymous expert at an anonymous location, attended only by Counsel for the other side on account of the expert fearing retribution from the Ethiopian authorities. 

Novoship (UK) Limited and Ors v Mikhaylyuk and Ors:

A mulit-million dollar fraud claim against agents.  The fraud related to bribes paid in connection with charters of oil tankers.  The claim was for an account of profits made by the briber.

Lexi Holdings v Pannone:

Philip Marshall QC and Ruth Holtham continued to appear on behalf of Lexi Holdings plc in the fall out following its collapse in circumstances of fraud.  Philip appeared in front of Briggs J on a summary judgment application against solicitors in respect of a claim for breach of mandate. The Court considered the scope of the actual and apparent authority of a managing director to give instructions to solicitors leading to misapplication of company funds.

Lexi Holdings plc (in administration) v. (1) DTZ; (2) Mace & Jones:

In a professional negligence claim brought by a mortgagee, the Defendants (a firm of valuers and a firm of solicitors) applied shortly before trial to amend their Defences to plead illegality.  The Court held that it was arguable that: (i) the Claimant was a one-man company; and (ii) there was sufficient nexus between the loss suffered and the alleged fraud, such that the amendments should be allowed provided that the trial date was not lost.

This is an interesting interlocutory decision of Briggs J in which he considers the effect of the House of Lords' decisions in Gray v. Thames Trains and Stone Rolls Ltd v. Moore Stephens on a proposed illegality defence in a professional negligence claim. In this case the professionals admitted negligence and accepted that the transaction upon which they advised; was genuine, but asserted that the Claimant's entire business was part of a fraudulent scheme.

Antonio Gramsci Shipping (& ors) v Romanica (& ors):

The Defendants are alleged to have defrauded the claimants of between US $50 and 100 million through interposing charters with themselves between real charters and their charter customers.

Philip Jones QC, assisted by Hugh Norbury, acted for the Claimants in a commerical fraud worth up to US$1.25m relating to undervalued charters in the Latvian shipping industry. It is the largest commercial dispute that Latvia has known. Obtained a freezing injunction and an order that the defence is "shadowy" on our summary judgment application so the defendants have been ordered to pay $40m (or $20m plus shares worth more than $20m) into court.

Golfrate v Aziz:

Philip Marshall QC led Daniel Lightman QC for the Claimant, a decision of Sir Donald Rattee on the propriety of awarding security for costs in relation to a claim brought by an Isle of Man holding company with an Angolan operating subsidiary (being the largest supermarket chain in Angola).  The case involved an analysis of the significance of a bank guarantee and the ability to meet a costs award timeously if made.  An application to amend the pleadings went to the Court of Appeal (2009 EWCA Civ 250).

BITEL LLC v Kyrgyz Mobil Tel Ltd and Ors; Kyrgyz Mobil Tel Ltd and Ors v BITEL LLC & Ors:

A claim to enforce a judgement from Kyrgyzstan in the Isle of Man which was met with a counterclaim for several hundred million dollars in respect of the fraudulent misappropriation of shares in the leading Kyrgyz mobile telephone operator.  The defendants to the counterclaim contested jurisdiction sucessfully but the first instance decision has now been reversed by the Manx Court of Appeal.  An application by the Defendants to the counterclaim for special leave to appeal to the Privy Council has been made.

Nicholas Harrison acts for the original Defendants (Claimants in the Counterclaim). Any appeal to the Privy Council is likely to be heard around the end of 2009.

Millhouse Capital UK Ltd and Abramovich v Sibir Energy plc:

Even had there been merit in a US$4bn fraud claim brought against Roman Abramovich, those proceedings were dismissed because of material non-disclsoure to the Court by the Claimant when seeking ther appointment of a Provisional Liquidator.

This case raised important issues on the test to be applied when seeking a winding up order in respect of an overseas company, and on the duties of full and frank disclosure on applying for the appointment of a Provisional Liquidator

Yugraneft v Roman Abramovich:

Reverse summary judgment obtained against a Russian company which claimed that the dilution of its interest in another company (from 50% to 1%) had been procured by fraud.

Richard Walford is a member of the counsel team which obtained reverse summary judgement.  The case involved wide issues of Russian company and insolvency law, conflicts of laws, problems of jurisdiction, forum non conveniens and residence as well as points involving res judication in other countries.

Royal Bank of Scotland Group plc v Winterthur (UK) Holdings Ltd:

A £37m claim for breach of warranty and fraudulent misrepresentation arising from the takeover of Churchill Insurance.   The case settled during trial.

Simon Hattan and Gareth Tilley appeared for the claimants in a £37m claim for breach of warranty and fraudulent misrepresentation arising from the takeover of Churchill Insurance.

Re Lexi Holdings Plc:

A debt owed to an unsecured third party can only be paid by a restrained person where there is no possible conflict with any confiscation order which has, or may, be made.

Yugraneft v Abramovich:

Alan Boyle QC and Richard Walford appeared in the continuing saga of Yugraneft v Abramovich (2008, Christopher Clarke J), a major multi jurisdiction case concerning the affairs of a Russian oil company.

London Strategic Health Authority v Pandya:

Judgment obtained for more than £1m on behalf of the NHS in relation to a prescription form fraud.

Hugh Norbury obtained judgment.

Stow v Stow:

The trustees brought a claim for declaratory relief to which they joined HMRC and the widow on the basis of their intimated claims against the estate.  HMRC's challenge to the High Court's jurisdiction on the basis that the fact sought to be decided was also in issue in disputed tax assessments raised against the trustees directly, was rejected by Warren J on the basis that the case fell outside the exclusive jurisdiction of the Special Commissioners.

David Drake appeared as junior counsel representing trustees whose administration of a settlement had been paralysed by their anticipation of claims, inter alia from a potentially insolvent estate of which there were no personal representatives.

Re Lexi Holdings Plc:

Held that the Court could disbelieve affidavit evidence as incredible when appropriate (even without cross-examination) for the purposes of deciding to make an unless order for asset and tracing disclosure in aid of freezing relief.

Re Lexi Holdings Plc:

Held that a company director who knows of some instances of misappropriation and does nothing to prevent it will be in breach of his common law duty of care and liable to compensate the company for the entire loss (including losses from other misappropriations which he was not party to or knowledgeable about) because he is aware of a practice of misappropriation and it results from his inactivity. The decision also gave guidance on the importance of establishing causation in cases of non-feasance (i.e. negligent omission) as opposed to misfeasance (negligent action).

Fiona Trust & Holding Corp & Ors v Privalov & Ors:

The appellant shipowners appealed against a decision granting the respondent charterers a stay of proceedings pending arbitration. The shipowners had issued proceedings seeking a declaration that they had validly rescinded charterparties on the ground that they had been procured by bribery.

Upholding the decision of the Court of Appeal, the House of Lords ruled that any jurisdiction or arbitration clause in an international commercial contract should be liberally construed, and that the dispute as to whether the charters could be rescinded for bribery fell within the arbitration clause. Under the doctrine of separability, the arbitration agreement was separable from the charterparty and the arbitration clause itself had not been impeached. There was no reason why an arbitrator could not decide whether the contract had been procured by bribery.

Fiona & Ors v Privalov & Ors:

The Claimants sought permission to add further claims and a freezing order in relation to those new claims. A freezing injunction had previously been granted (in September 2005) in support of the initial claims and had been discharged upon provision of $225m security. The application was made inter partes. The Defendants contended that the existing claims were already oversecured and that the Claimants had not made out a sufficient risk of dissipation. In particular, one defendant relied on the fact that the Claimants had not previously sought a freezing order against him on the original application, the Claimants' alleged failure to demonstrate dissipation since then, and the fact that the application was made inter partes. The defendants also contended that, in any event, the Claimants should be precluded from obtaining injunctive relief because there was evidence of improper investigation techniques.

Steel J gave leave to amend the particulars of claim and granted further freezing orders up to £377m. He found that the Claimants had more than made out an arguable case on liability. He held that it was not open to the Defendants to contend that the existing claims were oversecured; that there was a risk of dissipation; that, the Claimants not having relied upon the investigators' reports, the possibility that they had included information derived from unlawful activity was no basis for refusing the relief sought; and, that it was not open to the Defendants to raise an allegation of non-disclosure which had already been before the Court.

Marlwood Commercial Inc & ors v Kozeny & ors.:

A world-wide freezing order was extended where there was good reason to suppose that a defendant had substantive control over assets potentially subject to the freezing order. This was despite the consistent claim of the defendant's mother and the defendant that the assets at issue had at all times either belonged to her or been held on trust for her.

The Court exercised its Chabra jurisdiction in freezing assets held on discretionary trusts in respect of which the defendant had no legal or equitable rights (in the strict trust law sense).

Re City Group Ltd, Secretary of State for Trade & Industry v Gee & Ors:

The first defendant was the majority shareholder, and executive chairman of the City Truck Group Ltd group of companies (the group) providing various logistical services. The second defendant was a chartered accountant, and, in 1991, became the finance director and company secretary of each of the City group companies. In February 2001, three of the group’s companies entered into a debt financing agreement with a third party financier. Under the terms of that agreement, the companies assigned debts owed to them by trade debtors to the financier. The value of those debts, less certain finance and administration charges, was then credited to an assets account, from which the companies could draw down funds within an agreed limit. The amounts drawn down by each company would then be debited to an individual current account. The agreement placed accounting and reporting obligations upon the group, and further provided a right for the financier to conduct audits of the group’s accounts. Towards the end of 2002, concerns arose in relation to the group’s accounting practices. Several members of staff expressed concerns internally, and, subsequently, the financier was informed of those concerns. Accordingly, the financier arrived at the group’s premises on 2 January 2002 in order to carry out a full audit on its accounts. It became apparent that there existed serious problems within all the group’s companies and all were placed into administration. Subsequently, the financier brought proceedings against the defendants alleging that various frauds, in relation to the debt financing agreement had been perpetrated against it. The fraud alleged consisted of, inter alia: over-declaring the level of debts notified to the financier; falsification of sales ledgers, management accounts and other records to cover up that over-declaration; deliberate double-counting in relation to ‘works in progress’ debts of self-billing customers; and the misuse of the bank clearing system to enable immediate draw down of funds that the group were not in fact entitled to. The financier succeeded in demonstrating that the defendants had defrauded it, and was awarded a substantial sum in damages (see [2005] All ER (D) 162 (Sep)). Subsequently, the Secretary of State brought proceedings under s 6 of the Company Directors Disqualification Act 1986, by which he sought the disqualification of the defendants on the grounds of the alleged fraud perpetrated against the financier, and the deliberate non-payment of Crown liabilities from mid 2001 onwards.

The Secretary of State submitted that the fraud allegedly perpetrated against the financier, and the non-payment of Crown liabilities had been deliberately orchestrated and procured by the second defendant. The allegation against the first defendant was that he either knew or should have known of the matters complained of, and that he had taken no steps to prevent the frauds from continuing.

In support of the allegations in relation to the fraud perpetrated against the financier, the Secretary of State sought to rely upon the evidence adduced in, and the transcripts of, the earlier proceedings. It was common ground that the findings in those proceedings were not binding in the instant case.

Held: The Secretary of State had proved the underlying facts forming the basis of the proceedings in relation to the frauds perpetrated against the financier and the non-payment of Crown liabilities. On the evidence, it was clear that the second defendant had been at the heart of the financial function of the group, and that he had orchestrated and procured the matters complained of, and that he had known that the actions of the group were improper. Furthermore, the first defendant knew of, and approved of, the actions of the second defendant. Accordingly, both defendants were unfit to be concerned in the management of a company within the meaning of s 6 of the Act. In the instant case, the infringing actions had been deliberate and had involved the falsifications of financial records in an attempt to cover-up the fraudulent activities. In those circumstances, the conduct of the defendants fell within the highest disqualification band, and, accordingly, each would be disqualified for a period of 12 years.

Alhamrani v Alhamrani:

The case revolved around a very substantial family trust and involved extensive allegations of breaches of trust and fiduciary duty.  The litigation involved innumerable interlocutory hearings over a number of years which ruled on significant trust law issues, including the availability of 'dog leg' claims [2007] JRC 026 and trustees' rights to indemnification for legal costs incurred by them [2007] JLR 527. 

Fiona Trust & Holding Corp & Ors v Privalov & Ors:

The appellant charterers appealed against the dismissal of their application to stay proceedings pending arbitration and the grant of an injunction in favour of the respondent shipowners staying the arbitration. The respondent shipowners had purported to rescind the arbitration contracts on the ground they had been procured by bribery.

Granting the appeal, the Court ruled that any jurisdiction or arbitration clause in an international commercial contract should be liberally construed, and that the dispute as to whether the charters could be rescinded for bribery fell within the arbitration clause. Under the doctrine of separability, the arbitration agreement was separable from the charterparty and the arbitration clause itself had not been impeached. There was no reason why an arbitrator could not decide whether the contract had been procured by bribery. Further, where there was a valid arbitration agreement, s9 of the Arbitration Act 1996 governed the position and proceedings could not be launched under s72.

Fiona v Privalov:

The respondents to a freezing order application sought disclosure of material that they alleged had been obtained unlawfully and an adjournment of the freezing order application pending disclosure, contending, inter alia, that were the court to grant a freezing order, it would be condoning the collection of evidence by illegal means. Prior to the issue of the application, the applicants had produced redacted copies of reports prepared by private investigators.

Steel J dismissed the application for disclosure. He took as his starting point the principle that the power to order disclosure should be exercised sparingly and only for such documents as can be shown to be necessary for the fair disposal of the application. He held that even if illegal activity had taken place and had been concealed form the Court, it would not preclude the granting of relief (Moody v Cox & Hutt [1917] 2 Ch 71). The further held that the evidence obtained in the investigation had not been relied upon for the purposes of the freezing order and, in any event, admitting illegally obtained evidence does not as such condone any illegal activity (Memory Corporation v Sidhu No 2 [2000] 1 WLR 1443.)

Fiona & Ors v Privalov & Ors:

The applicant shipowners sought to restrain certain of the respondents from continuing arbitration proceedings; the respondents sought to stay court proceedings pursuant to s9 of the Arbitration Act. The applicant shipowners had purported to rescind the arbitration contracts on the gound they had been procured by bribery.

Distinguishing Harbour Assurance Co (UK) v Kansa General International Insurance Co Ltd (1993) 3 WLR 42, Morison J held that the whole contract, including the arbitration clause, was impeached by bribery and that the question of whether the owners had ever made the contract could not be said, as a matter of construction, to be a dispute that arose "under" the contract.

Mackinnon v The Regent Trust Company Limited & Ors:

A plaintiff beneficiary tried to set aside three family settlements on sham-like grounds but refused to plead an intention to mislead on the parts of the settlor and the original trustees. The incumbent corporate trustee maintained that the Plaintiff's pleading disclosed no reasonable cause of action in this regard. The Jersey Royal Court and the Jersey Court of Appeal found for the trustee on its strike-out application. Douglas Close and Dakis Hagen advised the trustee.

Mackinnnon is a leading case on the doctrine of sham, consolidating the developments which took place in the earlier Jersey authority of Esteem. The Plaintiff failed in the Privy Council to win leave to appeal.

Crystal Decisions v Vedatech:

Crystal sought security for costs to cover their trial costs and were awarded £200,000 by Evans-Lombe J.  The Court of Appeal allowed the appeal on the basis that the judge had failed to take into account the consequences if security was not paid, which were that the Claimant's case would be dismissed and this result was disproportionate.

Jacob J, in giving judgmenet on liablity in favour of the Claimant, considers the appropriate measure of quantum meruit where the claimant had performed pre-contractual work in the expecation of a contract that never materialised.

The Claimants obtained injunctions restraining the defendants from continuing Californian proceedings on the basis that such proceedings were in breach of an exclusive jurisdiction clause. The defendants objected on the basis that the exclusive jurisdiction clauses could not be relied on as tainted by fraudulent misrepresentation.

Secretary of State for Health v Norton Healthcare Ltd (No. 3):

Where a claimant's cause of action was founded on activities in the nature of a conspiracy (in this case anti-competitive arrangements) in respect of which the claimant was able to proffer only limited particulars and evidence, the need for the claimant to have access to the oral evidence of the defendants at trial made summary judgment for the defendants inappropriate.

Re Omar (a bankrupt):

Jahre:

The estate's claim that the defendants had dishonestly misappropriated assets from trusts causing loss in excess of US$150m. The action was compromised shortly before trial in the Grand Court of the Cayman Islands, bringing what promises to be an end to litigation which has been active since the death of Anders Jahre in 1982.

Justin Higgo was acting for the plaintiffs in what promised to be the final chapter of the Jahre litigation, the estate's claim that the defendants had dishonestly misappropriated assets from trusts causing loss in excess of US$150m.