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Autumn Update

Welcome to 3VB’s Autumn 2020 Newsletter. We hope you will be interested to read about some of the matters members of 3VB have been involved in during recent months and other news from Chambers, including articles and updates arising out of the COVID-19 crisis.

Practice Areas

Members of 3VB specialise in disputes across the full spectrum of commercial law. Details of some of our recent significant cases and publications in response to the Covid-19 pandemic are below.

Arbitration

Republic of Mozambique v Credit Suisse & Ors

Scott Ralston and Ryan Ferro, instructed by Peters & Peters Solicitors LLP

The Republic advances claims against 12 defendants with a value in excess of $2 billion relating to sovereign guarantees, including damages for bribery, conspiracy, deceit, dishonest assistance and knowing receipt.

In a series of four judgments this year Scott Ralston and Ryan Ferro (led variously by Nathan Pillow QC and Joe Smouha QC) successfully acted for the Republic in resisting challenges to the High Court's jurisdiction. First, the Commercial Court accepted the Republic’s contention that the existence and scope of various alleged arbitration agreements, on which certain defendants had relied to seek a stay of the High Court proceedings under s.9 of the Arbitration Act 1996, should be decided by the Court rather than awaiting a decision from the arbitrators. Second, the Court granted the Republic’s application to amend the name of the sixth defendant and declared that the sixth defendant had been properly served. Third, the Court dismissed the s.9 applications after ruling on the scope of the Swiss-law governed arbitration agreements and the proper identification of the issues in the litigation. Fourth, the Court upheld the Republic’s contention that one of the defendants had been validly served pursuant to s.1140 of the Companies Act 2006. 
Aggreko International Projects v Sumitomo Mitsui Banking Corp

Farhaz Khan and William Day, instructed by Stephenson Harwood 

Farhaz Kahn and William Day act for Aggreko in a $37m claim against a Yemeni electricity company. Injunctive relief preventing payment out under performance bonds was successfully obtained. The autonomy principle usually prevents interreference with payment under these financial instruments. However, the Court was satisfied, in the unusual circumstances of the case, that an exception should be made. It was also prepared to allow service out notwithstanding a Yemeni exclusive jurisdiction clause and a DIFC-LCIA arbitration agreement. The injunction in support of the intended arbitration was successfully defended on the return date.

The case was reported in the Global Arbitration Review here and Farhaz was named as barrister of the week by The Lawyer for this judgment here

Banking & Finance

BNP Paribas SA v Trattamento Rifiuti Metropolitani SpA

Adrian Beltrami QC and Christopher Bond, instructed by Allen & Overy LLP

A 3VB team acted successfully for a bank in the trial of its claim for declaratory relief against an Italian project company in a dispute over the alleged mis-selling of an interest rate swap. The judgment contains important guidance on the meaning of key provisions of the ISDA Master Agreement, the present state of the law on contractual estoppel, the role of judgments on jurisdiction in establishing issue estoppel/abuse of process, and the principles for the grant of declaratory relief.
 State of Qatar v Banque Havilland

David Quest QC and Philip Hinks, instructed by Reed Smith

This fraud claim is one of The Lawyer’s “most eagerly anticipated banking disputes” of the year. It is a claim brought by Qatar against Banque Havilland, a private bank headquartered in Luxembourg. It is alleged that Havilland was party to a fraudulent conspiracy to devalue the Qatari economy by, amongst other things, the spoofing of QAR/USD currency quotations posted on Bloomberg and other currency trading platforms. Quite aside from the issue of whether any fraudulent scheme existed (which is denied by Havilland), substantial causation issues arise: the conspiracy is said to have been carried out at the same time that Qatar was the subject of the economic blockade imposed by its neighbouring states.

A second CMC will take place in December 2020 and a 8 week trial has been fixed to start in January 2022. 
Banco San Juan Inc v Petroelos de Venezuela SA

Ali Malek QC and William Day, instructed by Gresham Legal

Dispute over the effect on US sanctions on the liability of Venezuela’s state-owned oil giant, PDVSA, to repay $80m pursuant to facility agreements entered into in 2016 and 2017. Ali Malek QC and William Day act for PDVSA. Summary judgment application was heard on 16 October 2020, judgment was handed down on 4 November 2020 and permission to appeal is currently being sought.    
Click here to read the full judgment and here for related press articles
Henderson & Jones Ltd v Ross and others

Adam Kramer and Hannah Glover, instructed by Addleshaw Goddard

Acting for Barclays Bank Plc defending a £35m claim for unlawful means conspiracy and dishonest assistance.
Medsted Associates Ltd v Canaccord Genuity Wealth (International) Limited

Hodge Malek QC and James Potts, instructed by Devonshires

Judgment on quantum has been handed down, following a remote trial on 5-8 October 2020, in this claim brought by an introducing broker in relation to a scheme to conceal trading in contracts for difference (CFDs) in order to cut the introducer out of commission and rebate payments. Canaccord succeeded at the liability trial ([2017] EWHC 1815 (Comm)) in reducing Medsted’s claim to nominal damages on the grounds that Medsted had breached its fiduciary duties to the underlying clients by misleading them about its own charges, but that ruling was reversed by the Court of Appeal ([2019] EWCA Civ 83) and the case was remitted to the Commercial Court for an assessment of damages. At the quantum trial, damages sought by Medsted of c.£8 million were reduced to c.£2.5 million. Key issues were whether Medsted’s claim should be assessed on the basis of a loss of chance and whether account has to be taken of Medsted’s payments to its own sub-introducing brokers.
Raiffeisen Bank International AG v (1) Asia Coal Energy Ventures Limited (ACE); and (2) Ashurst LLP

Matthew Hardwick QC instructed by Squire Patton Boggs LLP

The claim was featured in The Lawyer’s Top 20 Cases of 2020: a $70m claim by Raiffeisen Bank arising out of ACE’s takeover of Asia Resource Minerals plc, the indirect owner of one of Indonesia’s largest coal producers. Matthew Hardwick QC acted successfully for the First Defendant ACE.
 
The claim was brought against (1) ACE (a BVI special purpose vehicle), for the balance allegedly due under a Sale and Purchase Agreement in respect of a portfolio of loans and their associated security; and (2) Ashurst, for damages for the alleged breach of its duties in relation to an $85m escrow fund.
 
In a comprehensive success for ACE, and following a 3 week trial in July 2020 (conducted entirely remotely with witnesses in Vienna, London, Singapore and Hong Kong), Moulder J. found that (1) Raiffeisen Bank had made a series of material misrepresentations (express and implied) to ACE in a data room marketing document in relation to the status of the loans security; (2) ACE had relied on the misrepresentations in entering into the SPA; and (3) ACE was entitled to rescind (and had rescinded) the SPA. Raiffeisen Bank’s claim against Ashurst also failed and for related reasons.
 
The Judgment is of particular interest for the importance attached by the Judge to the accuracy of the bank’s data room marketing material – and provides a compelling modern example of the power of the equitable remedy of rescission.
 
Click here to read the full judgment and here for related press articles
Piraeus Bank v Grand Anemi & Ors

Rajesh Pillai QC instructed by Reed Smith

Major Greek Bank is pursuing recoveries following the collapse of a Greek shipping conglomerate formerly led by Michail Zolotas. Actions in a number of jurisdictions and the London arm involves claims under lending and security arrangements. Defendants based in Malta and the Marshall Islands and have gone to ground. Following decisions on interim issues by Jacobs J and Baker J, the trial is set down for spring 2021.


Click here to read related press articles
EOL and ors v Monex Europe Ltd

David Quest QC and Saima Hanif, instructed by Shakespeare Martineau

David and Saima act for Monex, an FX provider, defending a multimillion pound claim seeking to set aside various FX trades on the grounds that, inter alia, the trades were placed in breach of fiduciary duty, and that Monex dishonestly assisted in the same. A 4 week trial is listed for March 2021. 

Click here to read related press articles
ICTSI v Government of Sudan

Rajesh Pillai QC instructed by HFW

Leading international port operator (International Container Terminal Services Inc.) engaged to operate terminal at Port Sudan is suing the Government of Sudan for large debts owed by the Government under a refund bond. Complicated service issues against the state (affected by the political upheaval in Sudan over the course of 2019) were resolved by Jacobs J and a summary judgment hearing is due in spring 2021.

Click here to read related press articles
Fox and others v The SG Group Claimants in the RBS Rights Issue Litigation

Hannah Glover, instructed by Signature Litigation

Acting with Ben Valentin QC for the SG Group Claimants in the RBS Rights Litigation in a continuing series of disputes to as to the proper distribution of monies received in the RBS Rights Issue Litigation.

Chancery Commercial

Byers v Samba

Andrew Onslow QC and Sarah Tulip, instructed by Latham & Watkins

The latest hearing in a long-running dispute between Cayman entity SICL and its liquidators against Samba Financial Group. The case relates to alleged knowing receipt of securities in various Saudi Arabian banks transferred to Samba by Saudi Arabian businessman Mr Maan Al-Sanea in 2009. The case turns upon whether, as a matter of Saudi Arabian law, Samba acquired good title to the securities and – if so – whether that is sufficient to defeat the English law knowing receipt claim on the basis that such a claim requires the claimant to establish an “undestroyed proprietary base.” There is also a dispute as to how the securities are to be valued and, in particular, whether (as a matter of law and/or as a matter of expert evidence) a block discount should be applied when valuing the securities.

Click here to read related press articles
Soemarli Lie v (1) Ng Min Hong and (2) Success Overseas Finance Limited

Matthew Hardwick QC, instructed by Conyers, Dill & Pearman (BVI)

Matthew Hardwick QC represents the Claimant in this complex and high value minority shareholder dispute arising out a major palm oil business based in Sumatra and East Kalimantan. The trial took place fully remotely over 4 weeks this October 2020 in the Commercial Court of the British Virgins Islands – with counsel based in the UK, the Judge (Wallbank J.) in the BVI and the witnesses in Jakarta. Issues arise as to dividend non-payment, share dilution (in a rights issue) and share transfers (allegedly pursuant to an Indonesian tax amnesty). Judgment is pending.
Allan v Ladbrokes Coral Group Limited

Jonathan Davies-Jones QC and Hannah Glover, instructed by Wiggin LLP

Acting for the Defendant gambling operator in a claim brought by a former customer who seeks restitution of approximately £3.5m said to have been staked as bets whilst he was in Spain in breach of Spanish legislation.
Potamianos v Prescott

Anthony Pavlovich, instructed by Blake Morgan LLP

This shareholder dispute under s994 Companies Act 2006 has already had a trial on liability [2018] EWHC 1924 (Ch) together with an appeal on the relevance of ‘reasonable offers’ for the minority’s shares [2019] EWCA Civ 932. The trial of quantum concluded in October and judgment is awaited. One important point for decision is whether, and if so how, the court can take account of events that bear on the valuation of the shares but which have not occurred by the date of the trial. A further question is whether the court should depart from matters that have been agreed between the expert witnesses. 
Evans v Muxworthy and others

Nicholas Craig QC and Hannah Glover, instructed by Blake Morgan

Acting for a businessman resisting claims of conspiracy, inducing breach of contract, dishonest assistance and knowing receipt.
Proventus Capital Partners v Eyre

Hannah Glover, instructed by Baker McKenzie

Hannah acted for the claimants seeking to recover US$18m loaned to the defendants as part of an aircraft financing scheme.

Civil Fraud

SKAT v Solo Capital Partners & Ors

Ali Malek QC, Andrew Onslow QC, Hodge Malek QC, Matthew Hardwick QC, David Head QC, Saima Hanif, George McPherson, Tom De Vecchi, Cleon Catsambis, Yash Bheeroo, Emmanuel Sheppard, Sophia Dzwig and Ravi Jackson.

Various members of 3VB are acting for groups of non-fraud and alleged fraud defendants to the £1.5 billion claim brought by the Danish tax authorities in relation to a sophisticated alleged dividend withholding tax fraud. 3VB has more Counsel acting for more Defendants in this action than any other set.

PJSC Tatneft v Bogolyubov & Ors

Ewan McQuater QC, Matthew Parker and Nathaniel Bird, instructed by Enyo Law 

A 3VB counsel team are appearing for Ukrainian billionaire businessman Gennadiy Bogolyubov, instructed by Enyo Law, in an ongoing heavyweight Commercial Court trial set down for 12 weeks. Mr Bogolyubov and others are accused by Russian oil company PJSC Tatneft of participating in a scheme to divert substantial sums owed for oil delivered to a Ukrainian refinery. The claim raises a myriad of issues under Russian and Ukrainian law and is vigorously contested. Members of 3VB have acted for Mr Bogolyubov throughout the course of this litigation, including at a significant interlocutory hearing at which Picken J set aside a world-wide freezing injunction obtained by Tatneft and in Tatneft’s subsequent appeal to the Court of Appeal. 

Click here to read related press articles
Tuke v Hood

James McWilliams, instructed by Dechert LLP 

The Claimant, Mr Michael Tuke, brought multiple fraud claims with a value in excess of £40m against Mr Hood and JD Classics Ltd. Mr Tuke had acquired a huge collection of iconic classic cars through Mr Hood and JD Classics, spending nearly £40m on the collection in a matter of a few years. Mr Tuke contended that he had been induced to enter the various transactions concerning his collection by fraudulent misrepresentations made by Mr Hood and JD Classics as a result of which he had suffered substantial losses. Mr Tuke brought claims in deceit, dishonest assistance, knowing receipt and conversion.  

Mr Hood was made bankrupt before the trial commenced and 3VB's James McWilliams appeared for Mr Hood’s Joint Trustees in Bankruptcy. The Joint Trustees were neutral as to the question of liability but challenged the quantum of Mr Tuke’s claims. In the judgment handed down by Jacobs J, the Joint Trustees were successful in reducing the quantum of Mr Tuke’s claims from in excess of £40m to approximately £13m.

The trial took place over the course of three weeks in July 2020 and was heard entirely remotely.

Click here to read related press articles
Phones 4U (in administration) v various mobile phone operators

Ewan McQuater QC and Adam Kramer, instructed by Hogan Lovells

A £1bn claim alleging anti-competitive collusion by the phone operators leading to the insolvency of Phones4U. Ewan and Adam act for the Vodafone Defendants. A remote further hearing to determine split trial issues took place before Roth J in October 2020. The case has been listed for a 11-week trial commencing May 2022, with an appeal in relation to a third party disclosure issue to be heard by the Court of Appeal in January 2021.
Lakatamia Shipping Co Limited v Nobu Su, Toshiko Morimoto & ors

David Head QC and Georges Chalfoun, instructed by Baker McKenzie
 
Members are acting for the Second Defendant, the wife of a late Taiwanese shipping magnate, in a substantial (c. £30m) claim by one of her son’s creditors who alleges that she (and others) conspired to assist in her son’s breaches of an English freezing injunction and judgment. There have been a plethora of interlocutory applications, including more recently a Court of Appeal decision relating to a freezing injunction against the Second Defendant. Trial in the Commercial Court is scheduled for March 2021.
Investors in Eclipse v HSBC UK Bank plc

John Jarvis QC and William Day, instructed by Edwin Coe 

This is a £1.3bn claim in deceit, conspiracy and dishonest assistance against HSBC for its part in structuring partnerships to invest in the Pirates of the Caribbean franchise and other Disney films. John Jarvis QC and William Day act for almost 400 claimants who made investments into those partnerships and allege that they were misled about the proposed trade and operation of those partnerships.

Click here to read related press articles
Executive Authority for Air Cargo and Special Flights v Prime Education Limited & others

David Head QC and Lisa Lacob, instructed by Stewarts Law

This is a case where In 2015 EACS agreed to pay c£15 million to the Defendant, a UK educational and training consultancy, for purposing of it arranging training programmes for around 250 student pilots. EACS claims that Prime Education acted in breach of that agreement and in breach of trust by transferring the funds out of a trust account in the UK to an associate company in Turkey. Prime Education defends the claim on the basis of the terms of an amendment agreement entered into between the parties in 2016.

David Head QC and Lisa Lacob successfully acted for the defendant. 

Click here to read more about this case
Foglia v The Family Officer

Philip Hinks, instructed by Fieldfisher

In July 2019, the claimant was subject to a cyber fraud attack pursuant to which €15m was stolen from one of her accounts. Norwich Pharmacal disclosure orders were obtained, and the disclosure given showed that the money was paid to the defendants, against whom a WFO was obtained. In their defence, the defendants (who quickly paid away large parts of the receipt) allege that they believed that the money belonged to a third party and they had acted on his instructions in making various transfers of that money. The claimant’s summary judgment application seeking repayment of the stolen monies has been fixed to take place in March 2021.
Banque Havilland (Bahamas) v Mazurier

David Quest QC, Philip Hinks and William Day, instructed by Lennox Paton

This claim relates to two agreements entered into by the claimant bank (based in the Bahamas) shortly before and after that bank was acquired by the Havilland group. The agreements were made with entities connected with the bank’s former directors, and it is alleged that those agreements were made in breach of fiduciary duties owed by those directors to the bank.

A two week trial has been fixed to take place in the Bahamas (possibly remotely) in July 2021.
 Tugushev v Orlov

Philip Hinks, instructed by PCB Litigation

This is a fraud claim relating to the Russian fishing giant, Norebo. It is alleged by Mr Tugushev that a fraudulent conspiracy was entered into by Messrs Orlov, Roth and Petrik (for whom PH acts) to misappropriate his one-third interest in that group.

A 16-week trial has been fixed to start in April 2022.

Commercial Litigation

Loches Capital Limited v Goldman Sachs International

Richard Salter QC and Lisa Lacob, instructed by Acuity Law Limited

Members of chambers successfully acted for Loches, in a pre-action disclosure application against Goldman Sachs International (GSI). Loches alleged that Mittal directors and other parties conspired to carry out a dishonest scheme under which the shares of certain Arcelor minority shareholders were exchanged for shares in ArcelorMittal at an artificially deflated Share Exchange Ratio (SER) which did not reflect the fair value of those shares.


Andrew Onslow QC had also previously worked on the application.

Click here to read more about this case
Brown-Forman Beverages, Europe, Ltd v Bacardi UK Ltd
 
Jonathan Davies-Jones QC and Christopher Bond, instructed by DLA Piper
 
A 3VB team acts for the defendant in a guarantee claim in a substantial dispute between two major drinks manufacturers where there is a related arbitration. In the Commercial Court proceedings, the defendant parent company (the guarantor) relies on an equitable set-off arising from cross-claims by its subsidiary (the debtor) under a cost-sharing agreement with the claimant. The claim is also defended on the basis that the guarantee has been discharged. A CMC will take place on 11 December 2020.
Dodika Ltd & Others v United Luck Group Holdings Limited
 
Matthew Hardwick QC, instructed by Clifford Chance LLP
 
This was a summary judgment application seeking the immediate release of the sum of $50m from an SPA escrow account. The Claimants allege that the Defendant’s notification of the breach of an SPA tax covenant (arising out of a tax investigation in Slovenia) did not comply with certain elements of the SPA notification clause. The case raises important issues (in the particular context of a complex and incomplete tax investigation) as to (1) the nature of the “reasonable details” that such a notification must contain; and (2) the relevance of the Claimants’ own knowledge of the details of the tax investigation. Judgment was handed down on 31 July 2020 and permission to appeal is currently being sought.

Click here to read the full judgment
UK Ltd & Ors v Primus International Holding Company & Ors
 
Rajesh Pillai QC and Nathaniel Bird, instructed by RPC 
 
Rajesh and Nathaniel successfully represented Fortune 500 aerospace manufacturer Triumph Group in the Court of Appeal following their earlier victory for Triumph at trial on claims for breach of warranties given by the Defendants in a share purchase agreement. The Court of Appeal unanimously dismissed the Defendants’ argument that Triumph’s claims were barred by a contractual exclusion of claims brought “in respect of lost goodwill”. Coulson LJ, giving judgment on behalf of the court, accepted Triumph’s argument that this exclusion was not engaged because, on its proper construction, it applied only to exclude claims brought in respect of lost business reputation.

Click here to read the full judgment
The World LLC v Shokat Mohammed Dalal
 
David Head QC and Christopher Bond, instructed by Norton Rose Fulbright LLP
 
A 3VB team is acting for a UAE property developer in its claim for recognition and enforcement of judgments of the Dubai courts. The dispute arises from the purchase of plots in the World Islands project off the coast of Dubai, and includes allegations that the judgments were procured by fraud. A 12-day trial in the Commercial Court is listed for November/December 2020.
Barnsley Football Club Ltd v the Estate of Patrick Cryne/Oakwell Holdings Ltd v BFC Investment Company Ltd
 
Christopher Bond, instructed by DLA Piper

Representing the new owners of Barnsley FC in a dispute with its former owners, the Cryne Family. The new owners allege that they entered the agreements to acquire the club as a result of a fraudulent misrepresentation by the former owners concerning the right to acquire ownership of the club’s stadium.
Winlink v Liverpool FC

Andrew Sutcliffe QC and William Day, instructed by BLM 

Judgment was handed down in dispute over commission for £15 million sponsorship of Liverpool’s FC training kit shirt between 2016 and 2019, with the judge finding that introductions made by Winlink to Liverpool before termination of an Introduction Agreement could accrue commission subject to Winlink acting as the effective cause of any subsequent sponsorship deal. The case is now on appeal. 

Click here to read the full judgment and here for related press articles

Financial Services 

Guernsey Financial Services Commission v GIGL and ors

Saima Hanif, instructed by Guernsey Financial Services Commission

Saima Hanif acted for the GFSC in contentious enforcement proceedings taken against an insurance company, two directors and three non-executive directors. The enforcement action arose out of various systems and control failings relating to the monitoring and conduct of an outsourced intermediary. The case illustrates the ongoing regulatory focus on individual accountability, especially for those in senior positions.

Click here to read more on this case
Financial Conduct Authority v 24 Hour Trading Academy

Philip Hinks and William Day, instructed by Financial Conduct Authority
 
Phil and William act for the FCA in this unauthorised business case. In April 2020, they obtained freezing and prohibitory injunctions against the defendants on the basis that they were engaging in regulated activities (advising on investments, arranging deals in investments and unlawful financial promotion) without being authorised to do so. The claim is defended on the basis that the defendants merely provided educational training in Forex trading without overstepping the mark into regulated activities. A one week trial is anticipated in 2021.
Al Masah Capital v Dubai Financial Services Authority

Adam Temple, instructed by the Dubai Financial Services Authority

 Adam was instructed by the DFSA on a referral to the DIFC Financial Markets Tribunal by two companies and three individuals. Each applicant challenged Decision Notices which imposed sanctions for various contraventions of DIFC law, involving the promotion, sale and operation of collective investment funds and misleading or deceptive conduct. After an entirely remote hearing the FMT found in favour of the DFSA, imposing fines on all of the applicants, prohibiting the individual applicants and awarding the DFSA its costs of the referral.
 
Click here to read the decision
Financial Conduct Authority v Avacade

Adam Temple, instructed by Financial Conduct Authority

 Adam represents the FCA in proceedings against five defendants who promoted pension transfers, and investments, to UK consumers. By a judgment in June, the defendants were found to have carried on regulated business whilst unauthorised, and to have used false and misleading statements in doing so. Judgment has now also been handed down on the FCA’s application for interim restitution orders against the Defendants, with the Court imposing interim orders totalling £10.7 million.
 
The initial judgment can be read here, and the judgment on interim restitution orders can be read here. Both are subject to applications for permission to appeal.
Financial Conduct Authority v Forster

Adam Temple, instructed by Financial Conduct Authority

The FCA has commenced proceedings against three defendants, arising out of investments in individual rooms within care homes. The FCA alleges that retail investors invested approximately £50 million, and that the investments constituted collective investment schemes promoted and operated by unauthorised entities. The FCA also alleges that misleading statements and impressions were given to investors about the investments. It seeks injunctions and restitution orders with which to compensate investor losses. One of the defendants has given undertakings to the Court in relation to his assets, and has agreed not to promote or sell further similar investments.

Click here to read FCA's press release
Part VII insurance business transfers and schemes of arrangement
3VB members have been busy on a series of FSMA Part VII insurance business transfers and schemes of arrangement that have recently been determined or are soon to be considered by the Courts.
In the matter of certain members at Lloyd's for any or all of the 1993 to 2018 (inclusive) years of account, represented by the Society of Lloyd's sub nom in the matter of (1) Society of Lloyd's (2) Lloyd's Insurance Co SA (2020)
 
Tom Weitzman QC is instructed on behalf of the Prudential Regulation Authority and Charlotte Eborall is instructed on behalf of the Financial Conduct Authority.

The Society of Lloyds has applied to the High Court, on behalf of the members at Lloyd’s, for a sanction of the transfer of all EEA insurance business from London to a new Lloyd’s subsidiary, Lloyds Insurance Company SA (LIC) located in Brussels to address the consequences of Brexit. After a preliminary directions hearing in November 2018 (judgment available here) and communications directions hearing in May 2020 (judgment available here) the final hearing is currently listed for late November 2020, in advance of the end of the transitional period on 31 December 2020. The intended Scheme will transfer business in respect of approximately £35.9 billion of gross premium from Lloyd’s of London to LIC.

Click here to read related press articles
In the matter of (1) Prudential Assurance Co Ltd (2) Rothesay Life Plc (2019)

Robert Purves and Theodor van Sante were instructed for the Financial Conduct Authority at first instance.
  
Tom Weitzman QC is instructed for the Prudential Regulation Authority and Robert Purves is instructed for the Financial Conduct Authority, in the Appeal.

Charlotte Eborall is instructed, together with Barry Isaacs QC of South Square, by Pinsent Masons on behalf of certain policyholders in the appeal.

In 2019, Prudential Assurance Co Limited (PAC) and Rothesay Life Plc sought the court’s sanction for an insurance business transfer scheme, under FSMA 2000, Part VII. If sanctioned, the scheme would have transferred approximately 366,000 non-profit annuity policies from PAC to Rothesay. The proposed scheme was opposed by a number of policyholders and the High Court declined to exercise its discretion to sanction the scheme. The applicants appealed to the Court of Appeal, and the 3-day appeal was heard on 27, 28 and 29 October 2020. This is the first occasion on which the Court of Appeal has been asked to consider the principles applicable to the sanction of FSMA 2000 insurance business transfer schemes. Judgment is awaited. 

Click here to read related press articles
In the matter of (1) Legal & General Assurance Society Ltd (2) in the matter of Reassure Ltd (2020)

Tom Weitzman QC appeared on behalf of the Prudential Regulation Authority and Theodor van Sante appeared on behalf of the Financial Conduct Authority.

Legal & General Assurance Society part of the Legal & General group, decided to move away from “mature” savings products into other lines of business and, as a result, proposed the transfer of its traditional insurance-based savings, pensions, life and with-profits business, which included with profit and non-profit annuities, to Reassure, which specialises in acquiring similar books of business. A number of policyholders appeared in person to object to the scheme including by reference to the decision at first instance in Prudential. The transfer was approved and the decision in Prudential insofar as concerned the transfer of annuitants was distinguished on various grounds. The decision also considered in detail the impact of Covid-19 on whether to sanction a transfer.

The Court’s sanction of the scheme brought an end to Legal & General’s long-term business. 

Click here to read related press articles
In the matter of (1) Equitable Life Assurance Society (2) Utmost Life & Pensions Ltd (2019)

Tom Weitzman QC appeared on behalf of the Prudential Regulation Authority and Theodor van Sante appeared on behalf of the Financial Conduct Authority. 

The applicants sought the court’s sanction of a Part 26 Companies Act 2006 scheme of arrangement by which the with-profits business of Equitable was converted into unit-linked business and certain guaranteed investment returns removed in exchange for an uplift to policy values. Mutual rights were removed by a separate vote. These were combined with a Part VII FSMA transfer of the compromised business from Equitable, to life and pensions provider, Utmost. The scheme of arrangement, mutual vote and Part VII transfer were all inter-conditional. The purpose of the scheme was to address increasing diseconomies of scale and tontine effect that were anticipated to arise within Equitable’s closed book of with-profits business. A number of policyholders appeared in person to object to the overall scheme, including by reference to the first instance decision in Prudential, which was distinguished.

The Court’s sanction of the scheme marks the end of the Equitable Life saga. In so doing, it is the first transaction to combine a scheme of arrangement to directly facilitate a linked transfer of insurance business.

Click here to read related press articles
In the matter of Royal London Mutual Insurance Society (2018) [2018] EWHC 3803 (ch) (and [2018] EWHC 2215 (ch))
 
Robert Purves and Theodor van Sante were instructed on behalf of the Financial Conduct Authority.

This was a scheme of arrangement by which Royal London sought to compromise various types of guarantees it had written into its with-profits business providing guaranteed annuity rates, by providing an uplift to policyholders to the value of their policies representing the value of their guaranteed rights. The scheme included a right to opt-out, the provision of free guidance and subsidised advice on how to vote. The scheme was sanctioned with particular focus on the issues that although turnout was low, Royal London had done all it reasonably could to engage policyholders and the scheme had been independently assessed as fair. The scheme would improve the solvency position of Royal London and remove investment constraints caused by the need to hold capital to cover the risk under the guarantees.

Insolvency

Pagden v Fry

Andrew Sutcliffe QC, Sophie Mallinckrodt and William Day, instructed by Harcus Parker 

3VB appeared in the Court of Appeal for liquidators acting in members’ voluntary liquidation (“MVL”), resisting removal from office on the application of a member under investigation by the liquidators. David Richards LJ refused the removal application but has set out a new procedure to be followed whenever companies are restored from dissolution into MVL for the purpose of pursuing claims, requiring member sanction to be obtained in general meeting. The matter has now been remitted to the Companies Court.

Click here to read the full judgment and here for related press articles
Brake v Chedington Court Estate Ltd

Andrew Sutcliffe QC and William Day, instructed by Stewarts Law

Andrew Sutcliffe QC and William Day successfully obtained final dismissal at first instance in long running insolvency proceedings over an estate in Dorset. Trial was preceded by a number of interlocutory applications between March and May 2020 by both sides, which saw Andrew and William ranked as the joint busiest restructuring and insolvency barristers in the first half of 2020 in The Lawyer litigation tracker. Andrew and William were also successful on all of those interlocutory matters which dealt with a number of important points of principle for insolvency applications. The Court of Appeal handed judgment on the question of standing in insolvency applications, largely dismissing the appeal, on 13 November 2020. Applications have now been made for permission to appeal to the Supreme Court.

Click here to read the trial judgment and here for the Court of Appeal judgment
Wormleighton & Anor v Salamander Invest A/S & Ors

Jonathan Nash QC, instructed by Withers LLP

Application for the approval of modified proposals for the conduct of the administration of a biotech company, and application to prevent the holding of a creditors’ meeting to replace administrators. The context of the administration was a shareholder dispute which had left the company without funding and unable to carry on its research and development, but one shareholder faction was using the administration to preclude a winding up which would have led to the transfer of valuable intellectual property to the other shareholder faction.

The Court (unusually) rejected the modified proposals put forward by Deloitte on the basis that they did not offer any prospect of achieving any relevant statutory purpose; it held also that the Court had jurisdiction to direct that no creditors’ meeting should take place (although the rejection of the modified proposals rendered this moot). The Court ordered that the company should be wound up.

Insurance

The Financial Conduct Authority v Arch and others

Peter Ratcliffe and Adam Kramer, instructed by Herbert Smith Freehills

This is the high profile and expedited test case on business interruption insurance coverage brought by the FCA on the application of certain extensions to losses related to the COVID-19 pandemic.

On 15th September, the Commercial Court (Flaux LJ and Butcher J sitting together) handed down a judgment largely in favour of the FCA, which overcame the causation hurdles presented by the decision in Orient-Express Hotels. 

The Supreme Court of Appeal is listed for four days from Monday 16th November. 

Click here for related press articles

Offshore

BML Properties Ltd v CCA

Hodge Malek QC and James Potts, instructed by Harry B. Sands, Lobosky & Co., Bahamas.
 
Mr Justice Winder in the Supreme Court of The Bahamas gave a further judgment on 3 November 2020 in this dispute over legal professional privilege. The background to the dispute is the insolvency of the US$3.5 billion Baha Mar resort in Nassau, which has given rise to a US$2+ billion fraud and breach of contract claim in New York brought by BML Properties Ltd against construction firm CCA Construction America Inc. and its affiliates. 
 
Winder J refused CCA’s application for a declaration that privilege had been waived in two legal opinions and related valuation reports provided to CCA over which BML Properties Ltd claims privilege.
 
Click here to read the full judgment
JTrust Asia Pte Ltd v Konoshita & Ors

Hefin Rees QC, instructed by Walkers (Singapore & BVI offices)
 
A worldwide freezing injunction and a receivership order was granted by the BVI Commercial Court. Hefin Rees QC is representing the BVI court appointed Receivers (both from FTI Consulting in BVI and Singapore) in a civil fraud case arising out of a claim by a Singaporean bank for US$70m losses. The underlying claim is for an unlawful conspiracy committed against the bank in Singapore by a company in Thailand. The Singapore Court of Appeal on 6 October 2020 upheld the claim in a 125-page judgment at [2020] SGCA 95.
 
At a hearing listed for 30 November 2020 before Wallbank J, the BVI Commercial Court will determine whether to sanction the Receivers’ application to vote a majority shareholding they hold in order to remove the majority board of directors of a company publicly listed in Japan on the Tokyo Stock Exchange. The Receivers wish to establish an Independent Review Committee to investigate various questionable transactions that the Singapore Court of Appeal have characterised as shams which relate to the activities of the Japanese company. The BVI Commercial Court will consider whether the Receivers are acting reasonably in seeking to remove the 6 directors who have hitherto resisted the establishment of the Independent Review Committee.
Steven Goodman v DMS Governance Ltd

Hefin Rees QC, instructed by Conyers Dill & Pearman (Grand Cayman office)

 Before the Privy Council, Hefin Rees QC is currently representing an appellant seeking permission to appeal from the Cayman Court of Appeal (Moses JA, Beatson JA, Birt JA). The Appellant is an assignee of a cause of action by an investment manager against an offshore corporate services provider in the Cayman Islands who provided a director onto the board of directors of the investment manager and various other services to monitor the decisions of the director. Over a period of a year that director made over US$100m unlawful payments to, amongst others, Swiss numbered bank accounts and to corporate entities in the Marshall Islands that had nothing to do with the lawful activities of the investment manager.  
 
The case involves principles of vicarious liability, and whether the Cayman Court of Appeal case authority of Paget-Brown [1999] CILR 184 is still correct in law in light of the various recent cases on vicarious liability determined by both the Privy Council and Supreme Court over the last 7 years and jurisprudence from New Zealand. If the appeal succeeds, the Privy Council will overturn its previous decision in Kuwait Asia Bank E.C. v National Mutual Life Nominees Ltd [1991] 1 AC 187.

Professional Negligence

Simon Fine v Greystone Financial Services Limited

Matthew Hardwick QC and Christopher Burdin instructed by DAC Beachcroft LLP
 
Matthew Hardwick QC and Christopher Burdin are acting for Greystone Financial Services Limited in the defence of this claim arising out film scheme investments in 2003 and 2004. Issues arise as to advice, reliance, causation, limitation and loss. The trial is listed for 12 days in January 2021.
Addlesee and others v Dentons LLP
 
Adam Kramer and Pia Dutton, instructed by Clyde & Co
 
A £5m claim against successors to law firm Salans LLP by over 200 former investors in a gold trading scheme operated by a client of Salans, alleging conspiracy, deceit, negligence and other wrongdoing by the law firm. (This dispute previously produced the leading authority on whether privilege applies to dissolved companies: [2019] 3 WLR 1255). In October there was a CMC dealing with disclosure and costs issues, and a six week trial of common issues and test claims was set down for spring 2022.

Latest News 

3VB Receives New Rankings in Legal Directories 
Christopher Harris QC Appointed to ICSID Panels

We are delighted to announce that 3VB has been ranked as a leading set in 13 practice areas, including as a Top Tier Set in 5 practice areas in the new Legal 500 UK Bar Rankings for 2021, with 63 individual barristers listed as leading practitioners.

Chambers & Partners UK Bar 2021 has ranked 3VB as a leading Set in 12 areas of practice, including four Band 1 rankings and two new Set rankings in Public International Law and Restructuring/Insolvency. 

Please click
here for a full overview of our rankings in Legal 500 and here
for Chambers and Partners. 



 

The Department for International Trade has today announced new appointments to the International Centre for Settlement of Investment Disputes’ Panels of Arbitrators and of Conciliators. Members of 3VB warmly congratulate Christopher Harris QC, who has been selected for appointment to both panels. 

Christopher has been appointed alongside Sir Daniel Bethlehem QC and Professor Sir Christopher Greenwood QC and Wendy Miles QC to the Panel of Arbitrators, and alongside Ian Forrest QC, Professor Jan Kleinheisterkamp and Wendy Miles QC to the Panel of Conciliators.

Read more about the ICSID, the newly appointed panel of arbitrators and the panel of conciliators 
here.

3VB Shortlisted for Chambers Bar Awards 2020
Members of Chambers Welcome New Tenants to 3VB

We are delighted to announce that we have been shortlisted for the following three awards at the Chambers Bar Awards 2020:
 
- Banking Set of the Year
-  Commercial Litigation Set of the Year
- Banking Silk of the Year -
Ali Malek QC
 
3VB was also selected for commendation at The Lawyer Awards 2020.



 

Members of 3VB are delighted to announce that Adam Temple joined Chambers as a new tenant on Monday 5th October and 3VB welcomed a new Associate Member José-Antonio Maurellet SC on 2 November. 

Clarissa Jones and Calum Mulderrig have joined also chambers as full tenants after following successful completion of pupillage.

Sarah Parker will become a full tenant as of 8th December.

Black History Month: Teniola Onabanjo's Interview with The Lawyer
Members of 3VB take part in London Legal Walk 10xChallenge

As part of The Lawyer's coverage for Black History Month, 3VB's Teniola Onabanjo has given an interview on why she became a barrister, the challenges faced by black lawyers and how can the legal industry can seek to address diversity issues.
 

Read Teniola's full interview here




 

On Monday 5 October, members of 3VB took part in the London Legal Walk 10xChallenge in support of the London Legal Support Trust. LLST is an independent charity that raises funds for the provision of free frontline legal advice services in London and the South East. The challenge also supported the Free Representation Unit and Advocate. 

The 3VB Charitable Trust is delighted to continue to support local causes at this difficult time.

Publications

Challenging Private Law: Lord Sumption on the Supreme Court
Sixth Edition of Goode and McKendrick on Commercial Law
Members of 3VB have contributed to the new book published by Hart Publishing called 'Challenging Private Law: Lord Sumption on the Supreme Court'. 

Lord Sumption has been one of the most influential judges of his generation. This book critically reflects on the important and controversial issues raised by his jurisprudence. 

Ewan McKendrick QC wrote about contract interpretation, Adam Kramer focused on contract damages and William Day wrote on variation and waivers.
Ewan McKendrick QC has co-authored the Sixth edition book of Goode and McKendrick on Commercial Law, formerly known as Goode on Commercial Law. 

The book provides theoretical and practical coverage of commercial law in both a national and an international context and combines a deep theoretical analysis of foundational principles with a practical approach in the context of typical commercial and financial transactions. 

Click here to find out more about this publication
Click here to find out more about this edition

Events

S.90A FSMA: Where are we now?
8 December 2020
CIGA Webinar Series

11 and 14 December 2020
Peter de Verneuil Smith QC, Philip Hinks and Dominic Kennelly will address developments under s.90A FMSA and whether we are any closer to answers as to key areas of uncertainty.
Members of 3VB’s Insolvency Team are pleased to present a series of webinars focusing on different areas of the CIGA reforms. The series will concentrate on two different areas of CIGA reforms: winding up petitions and wrongful trading, given by Angharad Start and James McWilliams and moratorium and restructuring, given by Jamie Riley QC and William Day.
Email Nicola Birkett to find out how to join these sessions
GAR Virtual Dubai Arbitration Week
16 - 19 November 2020
40th ICC Institute Annual Conference
3 and 4 December 2020

3VB are proud to be sponsoring this year's Global Arbitration Review's Virtual Dubai Arbitration Week Conference, which will be running from 16 - 19 November. 
 

Nicholas Craig QC will be speaking alongside a host of other panelists to discuss the rise and fall of jurisdictional challenges.

3VB are pleased to be sponsoring this year's 40th ICC Institute of World Business Law's Annual Conference on 3rd and 4th December.

The conference will discuss the topic of Overriding Mandatory Rules and Compliance in International Arbitration. Ali Malek QC and Sir William Blair will be speaking on national monetary restrictions, export control and sovereign debt moratoria.

Click here to find out more and to book your place 
Click here to find out more and to book your place 
For more information on any of the matters above or to discuss any aspect of the work undertaken by members of 3VB, please contact the Senior Practice Managers, Stephen Penson and Stuart Pullum.
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