Serlecourt ANNUAL CASE REVIEW 2020 - Serle Court
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ANNUAL CASE REVIEW 2020 serlecourt RAISING THE BAR IN CHANCERY & COMMERCIAL
“Stacked with highly
experienced silks and
juniors, Serle Court has
long
“one of been one best
the very of the
leading
commercial setschancery
when it sets,
comes
to
andcivil
onefraud
of thedisputes”
few that
Legal 500
genuinely competes in both
traditional chancery and
commercial litigation”
Chambers UK
serlecourt
I am extremely proud to introduce the 2020
Annual Review in what is my last year as
Head of Chambers at Serle Court. In what
was a year different to any other we have
experienced, Serle Court has again been
involved in some of the most complex and
interesting Commercial and Chancery
cases across a wide range of practice areas
and in many jurisdictions. Whilst the new
experience of virtual trials and hearings has
changed the way we conduct legal process,
it has not changed the nature of the cases
which again include, some high profile, some
legally complex, and others establishing key
legal principles. The selection of cases in
this Annual Review includes many before the
higher courts, the Courts of Appeal in the UK
and other jurisdictions, the Supreme Court
and Privy Council.
Alan Boyle QC
Head of Chambers
02
In 2020, Serle Court was involved in
many substantial, high-profile, and
precedent-setting cases
Elizabeth Jones QC, Justin 20 April 2020). Richard Wilson
Higgo QC, Gareth Tilley, Paul QC (assisted by James Weale)
Adams, Zahler Bryan and Oliver acts for Tony Wang, an intervenor
Jones continue to act for Kea in the appeal. The Plaintiffs and
Investments in the ongoing Tony Wang have each been
litigation against Eric Watson, granted leave to appeal to the
following the substantial Judicial Committee of the Privy
judgment obtained against Mr Council.
Watson for deceit and breach of
fiduciary duty in 2018. This year Elizabeth Jones QC and Oliver
resulted in notable decisions Jones are acting for the eOne
on the circumstances in which group, a major international
a defendant can have resort producer of material for film and
to assets subject to a freezing TV (e.g. the film ‘Green Book’
or proprietary injunction when and ‘Peppa Pig’), in proceedings
there is an unsatisfied judgment against Monex Europe Ltd and
debt ([2020] EWHC 472 (Ch)), eOne’s former Treasury Manager.
a judgment creditor’s right to be The claim arises out of the
subrogated to the position of a paying of secret commissions
bank that had used money held on to fiduciaries, alleging that
trust for the judgment creditor to Monex paid some £8m of secret
satisfy debts of its customer, the commissions to eOne’s Treasury
judgment debtor ([2020] EWHC Manager and his deputy in order
309 (Ch)) and, in a judgment to induce them to place FX trades
reaffirming the risk taken by with Monex. The 4-week trial is
litigants who deliberately breach listed for March 2021.
court orders, Mr Watson was
committed to prison for 4 months Philip Marshall QC, Jonathan
for failing to disclose assets which Harris QC (Hon.) and James
were made available for his use Mather are acting for Abu Dhabi
([2020] EWHC 2599 (Ch); [2020] Commercial Bank in State of Qatar
EWHC 2796 (Ch)). Mr Watson’s v Emirates NBD Bank, one of the
application to stay the committal largest claims to be brought in
order was refused. the English High Court, in which
claims are brought against the
Dakis Hagen QC (assisted by bank by the State of Qatar in
Emma Hargreaves) acts for the conspiracy said to arise out of
Plaintiffs and Jonathan Adkin QC an alleged international scheme
(assisted by Adil Mohamedbhai) to manipulate the value of Qatari
acts for the Defendant trustee currency and bonds connected
in Wong & Anor v Grand View with the so-called ‘blockade’ of
Private Trust Company Ltd, a Qatar by neighbouring Gulf states
claim to recover substantial trust causing the Qatari Central Bank
property transferred to a trustee to have to deposit US$13 billion to
of a purpose trust. The Plaintiffs defend its currency peg.
succeeded in obtaining summary
judgment at first instance on the Philip Marshall QC and Matthew
ground that powers of addition and Morrison continue to act for
exclusion cannot be exercised in Business Energy Solutions (BES)
a manner which alters or destroys in respect of proceedings arising
the substratum of the trust ([2019] from the obtaining and execution
SC (Bda) 37 Com (5 June 2019)), of search warrants, and an ongoing
but this was overturned by the trading standards investigation into
Bermuda Court of Appeal in April BES’s affairs. The claims, which
2020 (Civil Appeal No. 5A of 2019, seek damages for misfeasance
in public office and just satisfaction Philip Jones QC was successful
under the Human Rights Act 1998, in the Privy Council in Shanda
raise novel points of public and Games. This was an appeal
private law including immunity from from the Cayman Islands and
suit. The 12-day trial commences in was the first case to reach the
November 2021. Privy Council in relation to the
determination of the ‘fair value’
Philip Marshall QC and James of shares owned by those
Mather are acting for Dr Vijay who dissent to the merger of a
Mallya, the former Chairman of company as part of a de-listing of
Kingfisher Airlines, in relation to shares. Philip was also involved
a bankruptcy petition presented in a lengthy trial at first instance in
by a consortium of Indian banks the Cayman Islands in Trina Solar
on the basis of an alleged debt involving the same jurisdiction.
in excess of £1bn and in the
context of substantial overlapping Philip Jones QC and Hugh
proceedings in India. It was held Norbury QC are each instructed
in a judgment of Chief ICC Judge on behalf of separate Defendants
Briggs in April 2020 ([2020] BPIR in the major commercial fraud case
990) that the petitioner banks had of Vale v Steinmetz & Ors, arising
failed to disclose the security they out of a failed mining joint venture
held over the assets of Dr Mallya in Guinea. The claim is for nearly
in India, rendering the petition US$2 billion.
defective. There is an ongoing
dispute as to whether the banks Philip Jones QC and Gareth Tilley
can now amend the petition. The are acting for HMRC in HMRC
case also raises important issues v IGE USA Investments Ltd, a
in regarding, among other things, claim arising from the Revenue’s
validation of legal expenses and contention that it has rescinded
forum conveniens in respect of tax settlements with the UK
insolvency proceedings. Subgroup of the US conglomerate
worth upwards of £650m. The
Philip Jones QC appeared in a trial is to take place in late 2021. An
5-day Court of Appeal hearing interlocutory decision of Zacaroli
in the BVI in the long running J reported at [2020] EWHC 2121
Peckson case involving the (Ch) permitting the Claimants to
ownership of shares in a BVI amend to allege fraud is currently
company which was the ultimate on appeal to the Court of Appeal
owner of a casino and hotel in raising the question of what if
Macau. This followed a 5-week any limitation period applies to
retrial. The case had already been equitable claims for rescission
to the Privy Council, which had
ordered a retrial. 04
on the basis of fraudulent which the Claimant has been
misrepresentation. given permission to appeal.
In Re Infund LLP, John Machell David Blayney QC, Sophie
QC and Dan McCourt Fritz act for Holcombe and Sophia Hurst
the appellants in respect of a claim continue to represent the
brought by Grupo Mexico seeking Claimants in the group action
to avoid the restoration of an LLP against British Airways over its
to the Register of Companies. The 2018 customer data breach.
case will be heard by the Supreme With over 16,000 claimants, the
Court in October 2021 and claim is now the largest ever data
concerns the proper construction protection and privacy group
and effect of section 1096 of the action in England and Wales.
Companies Act 2006.
In Re Dinglis Properties Ltd,
John Machell QC acts for the Daniel Lightman QC and
appellants in ITG Limited v Gregor Hogan represented the
Glennalla Properties Limited in an respondents to a section 994
appeal to the Privy Council. The petition. In a landmark judgment
case concerns issues relating to in June 2020 ([2020] 2 BCLC
the insolvency of trusts including 607), Adam Johnson QC (sitting
the priority between the indemnity as a deputy High Court Judge)
claims of successive trustees, and considered the impact of the
between trustees and outside Covid-19 crisis on the share
creditors. purchase order which he had
previously made.
Jonathan Adkin QC, Sophie
Holcombe and Jamie Randall Dakis Hagen QC (assisted by
act on behalf of the former Prime Emma Hargreaves and Stephanie
Minister of Georgia and his family Thompson) acts for the Plaintiff,
as beneficiaries of a Singapore Jonathan Adkin QC (assisted by
Trust in Bidzina Ivanishvili v Adil Mohamedbhai) acts for the
Credit Suisse Trust. Claims have Defendant trustees, and Richard
been commenced against Credit Wilson QC and Jonathan Harris
Suisse entities for losses arising QC (Hon.) (assisted by James
from the mismanagement of an Weale and Charlotte Beynon)
investment portfolio said to be act for another Defendant, Tony
worth over US$1bn. In July 2020 Wang, in Wong v Grand View
the Singapore Court of Appeal Private Trust Company Ltd &
dismissed Credit Suisse Trust’s Ors, proceedings in Bermuda
jurisdiction challenge, bringing an concerning very substantial
end to a long-running jurisdiction purpose trusts. In 2020, the
battle. Bermuda Supreme Court
handed down decisions on
Jonathan Adkin QC and Charlotte issues including: (i) the iniquity
Beynon act for the fourth exception to legal professional
defendant and Philip Marshall privilege ([2020] SC (Bda) 33
QC and Simon Hattan for the fifth Com, 5 August 2020); (ii) purging
defendant in Public Institution for contempt for breach of the implied
Social Security of Kuwait v Al- undertaking ([2020] SC (Bda)
Rajaan and Ors, one of the largest 52 Civ, 10 December 2020); and
fraud claims ever heard in the (iii) specific discovery based
Commercial Court. PIFSS alleges on “practical control” and joint
that the defendants are liable for interest privilege ([2020] SC
over US$800m as a result of a (Bda) 57 Com, 30 December
large-scale fraud perpetrated by 2020). The trial of the case is
its former director general, Mr listed to be heard in 2021 for
Al-Rajaan, in conjunction with the several months and is thought to
other defendants. The Serle Court be the largest case in Bermuda
contingent recently successfully and one of the largest ever trust
challenged the jurisdiction of the disputes anywhere in the common
English Court to hear the claims law world.
against their clients, with the Court
directing that the claims should be
heard in Switzerland, a decision
Constance McDonnell QC acts Servier Laboratories Ltd [2020] 3
for the claimants in the first-ever WLR 1207, where it was held that
derivative claim in Bermuda by the the EU law principle of absolute
beneficiaries of an estate. res judicata arising from decisions
of the European Courts annulling
David Drake appeared for the acts of EU institutions could
successful respondents in not be applied in a legal context
the Supreme Court hearing in detached from the annulling
Secretary of State for Health v judgment.
...we remain a leading set for Civil Fraud
Philip Marshall QC and Oliver the claimant in Kelly v Baker &
Jones continue to represent Braid, a commercial court claim
Emmerson International for damages for fraudulent
Corporation and several other misrepresentation and/or breach
defendants and claimants by of fiduciary duty leading to the
way of counterclaim and ancillary sale of a group of companies at an
claim in proceedings in the BVI undervalue of over £110m.
in a dispute worth circa US$1bn
between two prominent Russian Lance Ashworth QC acts for the
businessmen and associated claimant in Grove Park Properties
parties concerning a joint venture v Royal Bank of Scotland, which
in relation to power generation is due for a 10-day Commercial
and distribution assets in Russia Court trial in January 2021,
(Renova Industries Ltd & Ors in which it is alleged that the
v Emmerson International defendant bank fraudulently
Corporation & Ors). The amended a loan agreement to
proceedings involve contractual halve the term of the loan.
claims and claims for breach of
trust and dishonest assistance, Lance Ashworth QC and Matthew
deceit, conspiracy to injure and Morrison are acting for the
other economic torts. There claimants in Wellcourt Investment
were numerous interlocutory Corp v Propfurn Ltd, a claim in
hearings and appeals in 2020, connection with a £100m property
including a successful appeal portfolio in London, owned by BVI
by Emmerson against the lower and Liberian companies. They
court’s decision to set aside have so far successfully obtained
certain amendments to its recovery of all monies held by the
claims (BVIHCMAP 2019/0017), former agents of the claimants.
applications made by Emmerson
for anti-suit injunctions in relation John Machell QC acts for the
to proceedings brought in Russia claimants in Circumference v
(currently subject to appeal) and Martin in which the Claimants
Cyprus, and an application by the claim an entitlement to rescind
Renova parties for an order that a share purchase agreement for
Emmerson be required to share fraudulent misrepresentation.
legal representation with certain
other parties notwithstanding Hugh Norbury QC has been
that there is a conflict of interests involved in the English leg of
between them. Judgment of China Metals v Chun, a large
the ECCA is also pending on international fraud case relating
Emmerson’s appeal against the to the alleged misappropriation
lower court’s decision to impose of assets in China / Hong Kong.
a confidentiality club in relation Hugh is acting for the daughters
to disclosure ordered to be given of the alleged fraudster in relation
ancillary to a freezing injunction to a proprietary injunction over
obtained by Emmerson, which will valuable assets that they hold in
be the first appellate decision on London.
the subject in the BVI.
06
Lance Ashworth QC acts for
Hugh Norbury QC is instructed on
behalf of corporate and individual
trustee and director defendants
in Ballacorey What v Brown and
Ors, a fraud claim issued in the Isle inhouse counsel. A seventeen-
of Man arising out of a relationship day trial in the Chancery Division is
between investment managers in due to commence in June 2021.
the GEM financial management
business. Matthew Morrison acts for the
defendants to proceedings
Jonathan Adkin QC and Adil concerning the ownership and
Mohamedbhai acted for the operation of Globcon Limited,
successful defendants in an English company which
Magdeev v Tsvetkov & Ors, a was the ultimate owner of a
high-profile piece of civil fraud and shopping centre in Ukraine.
commercial litigation involving The proceedings raise issues
various Russian individuals concerning the extent to
who had invested in a jewellery which criminal proceedings in
business in the UAE and Cyprus. Turkey and Ukraine concerning
The trial lasted three weeks. fraudulent attempts to
Cockerill J’s judgment ([2020] misappropriate the shopping
EWHC 887 (Comm)) contains centre may be relied upon by the
a detailed analysis of the law on defendants in proceedings in the
foreign illegality. Chancery Division.
In Equity Real Estate (Bracknell) In Ward v Savill [2020] EWHC
Ltd & Ors v Capstan Capital 1534 (Ch), James Mather acted
Partners LLP & Ors, Justin Higgo for the successful defendant in
QC and Stephanie Thompson the determination of a preliminary
are representing five SPVs who issue on whether declarations
are the apparent victims of a obtained in earlier proceedings
substantial property investment to which the defendant was not
fraud. They have so far obtained a party that property was held
extensive disclosure from third on constructive trust for the
parties under the Bankers Trust, claimants could be relied on in
Norwich Pharmacal and pre- future proceedings for purposes
action disclosure jurisdictions. of asserting a tracing or following
claim against her. The case is due
In Federal Republic of Nigeria v to be heard by the Court of Appeal
Tibit, Timothy Collingwood QC in March 2021.
acts for the defendant company
in an action in the BVI brought In Russell v Cartwright [2020]
on behalf of the Government of EWHC 41 (Ch), Dan McCourt
Nigeria to recover funds which it Fritz and Stephanie Thompson
is claimed were appropriated by represented three defendants in
corrupt former officials and used the trial of a claim for fraudulent
to purchase an executive jet. non-disclosure and unlawful
means conspiracy brought by
Matthew Morrison acts for Sheikh their former business partner.
Mohamed Bin Issa Al Jaber and a They were wholly successful at
number of companies within the trial, with the Court finding that
MBI Hotel Group in proceedings the parties did not owe fiduciary
alleging breaches of fiduciary duties or duties of disclosure and
duty, fraudulent misrepresentation that the defendants had been
and an unlawful means conspiracy honest in their dealings with the
in relation to loans which are said claimant. The defendants were
to have been orchestrated by and entitled to their costs on the
for the benefit of MBI’s former indemnity basis.
...we are at the forefront of Commercial
Litigation in London and globally
Lance Ashworth QC and Dan Shipyard v Reignwood
McCourt Fritz acted for the International Investment (Group)
successful Respondents in Company Ltd [2020] EWHC
the Court of Appeal in Taylor 803 (Comm). She is also acting
v Van Dutch Marine Holding for the shipowner in its 2021
[2020] EWCA Civ 353, in a LMAA arbitration claim under the
claim concerning agents for shipbuilding contract.
undisclosed principals. They are
now instructed for the defendants In PPRS v Tecar Justin Higgo
in Taylor v Khodabaksh in which QC represents the defendant
it is claimed that the original in multiple claims for breach of
decision in Taylor v Van Dutch warranty arising out of the sale of
Marine Holding was obtained by a Romanian paper business.
fraud. That will come on for trial in
2022. Julian Burling advised the PRA
on the FSMA Part VII transfer to
Hugh Norbury QC has been Lloyd’s Insurance Company S.A.,
working on the Bermudian Brussels, of the EEA situs risk
element of the international battle cover in all policies written in the
waged by the private equity firm Lloyd’s market from 1993 to 2018.
Apollo and its subsidiary Athene
against their former partner / David Drake acted for the
employees who have set up a successful defendants in
competitive business (Athene v SPI North Ltd v Swiss Post
Siddiqui, Cernich & Caldera). International (UK) Ltd [2020]
EWHC 3268 (Ch), where the
Hugh Norbury QC was instructed court had to consider the practical
in Gens v Goldenberg, in which a limits to the permission, frequently
battle between Russian investors given to respondents to an
in a Russian software business amendment application, to make
was briefly before the English High “consequential” amendments to
Court; the case was compromised their own responsive statement
before the interesting issue of of case.
jurisdiction was resolved.
Simon Hattan is acting for RSA
Hugh Norbury QC and Mark plc in defence of claims brought
Wraith represented Charles by a group of over 50 institutional
Saatchi and relevant corporate claimants under section 90A
entities in a successful attempt of the Financial Services and
to obtain permission to pursue Markets Act 2000. The claimants
derivative proceedings against allege that Annual Reports
his former senior employee, Rahul and other published financial
Gajjar and in related litigation. The information contained untrue
underlying dispute related to the or misleading statements, in
storage and transportation of Mr particular about accounting
Saatchi’s fabulous collection of irregularities in the company’s Irish
art. subsidiary, and that as a result
they suffered significant losses on
Zoe O’Sullivan QC acted for their holdings of RSA shares.
the successful defendant in
a US$170m guarantee claim In The Union Castle Steamship
brought by the Shanghai Shipyard, Company Ltd v HMRC [2020]
in which Robin Knowles J held EWCA Civ 547 a case concerning
that the guarantee given by it to the use of derivative contract rules
the Shipyard in respect of the to engineer tax deductible losses
final instalment of a shipbuilding exceeding £100m, the Court of
contract was not a performance
bond but gave rise only to 08
secondary liability: ShanghaiAppeal clarified the meaning of of Appeal gave guidance on
‘loss’ and ‘arising from’ and the the inter-relationship between
nature of the ‘fairly represents’ principles of agency law and
test in that context. The earlier contractual construction in order
decision of the Upper Tribunal to determine when a disclosed
also extended the application of principal can intervene in, and
transfer pricing rules to certain assert rights under, a contract.
shareholder transactions (bonus James acts in related proceedings
share issues). Ruth Jordan acted in Jersey which have been listed
for HMRC. for trial in March 2021.
Matthew Morrison successfully James Weale acted in
resisted an application to set committal proceedings
aside an order permitting service against Oleg Deripaska. The
out of the jurisdiction on Dubai judgment of Andrew Baker J
Islamic Bank (DIB) in proceedings [2020] EWHC 1978 (Comm)
before the Commercial Court established that an applicant
which seek mandatory injunctive in committal proceedings
relief aimed at securing an end to is under a duty to present a
Mr Ridley’s ongoing imprisonment contempt dispassionately and
in Dubai ([2020] EWHC 1213 in the public interest and that
(Comm)). Mr Ridley was an application may be abusive
imprisoned under Dubai’s Law if the subjective motive of the
37 of 2009 which allows certain applicant is inconsistent with that
types of judgment creditors to duty. Permission to appeal the
apply for the imprisonment of judgment has been granted by
debtors for up to twenty years. Mr the Court of Appeal and James is
Ridley claims that DIB’s ability to instructed in the appeal listed to
seek an order under Law 37 was be heard in October 2021.
compromised by a settlement
agreement governed by English Adil Mohamedbhai is advising
law with an exclusive jurisdiction (unled) a potential defendant who
clause in favour of England. is being threatened to be sued
Matthew also successfully for professional negligence in the
opposed DIB’s attempts to obtain context of a very high-profile fraud
an order allowing the costs which has generated substantial
awarded to Mr Ridley to be set off global press coverage. If the case
against monies said to be due to proceeds, it is likely to be one of
DIB under an earlier Commercial the most high-value professional
Court judgment: [2020] EWHC negligence claims ever brought
2088 (Comm). in an English court (in excess of
US$1 billion).
In Filatona Trading Ltd v Navigator
Equities Ltd [2020] 1 Lloyd’s Rep.
418, James Weale acted for the
successful respondent before
the Court of Appeal. The CourtIn Khalifeh v Blom Bank, Zahler the relationship between the
Bryan is acting for the claimant debtor and the creditor and raise
who seeks the return of monies novel issues, some of which
held in a Lebanese bank account are untested in the courts. The
and, in a high-profile decision Financial Conduct Authority
earlier this year, successfully estimates that Plevin pay-outs
resisted the Lebanese bank’s could exceed £33bn.
jurisdiction challenge by
establishing that the claimant was Stephanie Wickenden acted as
a consumer for the purposes of sole counsel for the successful
the European rules of jurisdiction appellants in the Court of Appeal
([2020] EWHC 2427(QB)). in Glencairn IP Holdings Ltd &
Anor v Product Specialities Inc
In Satfinance Investment Ltd v & Ors [2020] EWCA Civ 609
Inigo Philbrick [2020] EWHC which created new precedent
1261 (Ch), Zahler Bryan acted in respect of solicitors’ conflicts.
for Athena Art Finance Corp, The Appellants/Defendants’
a New York based company solicitors previously acted for
specialising in providing finance another defendant in a case
secured on works of art, in brought by the same claimant
proceedings arising from an where the facts had some overlap,
alleged fraud concerning a Jean- and which was resolved by a
Michel Basquiat. Permission for confidential mediation. The Court
Satfinance to serve Athena out of found that the principles to be
the jurisdiction was successfully applied were not the same as
set aside as there was no real those in former clients, but that
issue to be tried and on forum there was a potential for a conflict
conveniens grounds. of duties owing to the confidential
information received through the
Professor Suzanne Rab is previous mediation. On the facts,
advising on a number of potential the solicitors had not breached
claims against leading UK banks any duty as they had implemented
and lenders which represent an appropriate information barrier.
the ‘second wave’ of payment
protection insurance (PPI) Sophia Hurst represented the
litigation. The claims arise out of Claimants in Toucan Energy
the Supreme Court’s judgment Holdings Ltd v Wirsol Energy
in the Plevin case of 2014 which Ltd in a five-week trial in the
allowed the claimant to claim Commercial Court before
the full amount of undisclosed Henshaw J. The US$60m dispute
commission on a PPI policy. Unlike related to the sale, construction
claims for mis-sold PPI these and financing of 19 solar farms in
claims focus on the unfairness in the UK. Judgment is awaited.
...we continue to have considerable
expertise in domestic and offshore
trusts, probate and private client matters
Philip Jones QC has been the discharge of a world-wide
acting in the BVI in numerous freezing injunction and, in par-
applications in the Skobelev case ticular, whether the judge at first
in which a Russian national has instance was right to discharge
sought to recover money and the injunction on the basis of a lack
assets stolen from him by a former of risk of dissipation. Judgment is
employee and her husband. awaited.
John Machell QC appeared for John Machell QC and Dan
the appellant before the East- McCourt Fritz act for one of the
ern Caribbean Court of Appeal
(BVI) in July in Green Elite v Fang 10
Ankong. The appeal concernedrespondents to an appeal in St Dakis Hagen QC appeared for the
Johns Trust Company (PUT) first defendant in Geneva Trust
Ltd v Medlands (PTC) Ltd. The Company (GTC) SA v IDF & Anr
appeal concerned various orders (21/12/2020) FSD 248 OF 2017
made by the Court exercising its (IKJ) in her successful application
supervisory jurisdiction in relation for a stay of a claim in the Cayman
to trusts. The appeal was heard by Islands seeking declarations as
the Bermudian Court of Appeal in to the validity of a Cayman Islands
January 2020. trust which trust was already
being impugned by her in ongoing
In Sofer v SwissIndependent litigation in Italy. The application
Trustees SA [2020] EWCA was met in part by the argument
Civ 699, Richard Wilson QC that the Cayman court had an
and James Weale acted for the exclusive statutory jurisdiction
respondent in an appeal against to determine such matters under
an order striking out the claimant’s section 90 of the Cayman Trusts
pleading on the basis that it did Law (which, it was said, in that
not properly particularise a claim context abrogated the power
in fraud. The Court of Appeal to stay on grounds of forum non
gave important guidance on the conveniens); the court noted that
pleading requirements of fraud in such had been the orthodox view
the context of a dispute against a historically based on authorities
professional trustee. stretching back 20 years.
However, having conducted a full
In Cowan v Foreman, Richard survey of the case law, Kawaley J
Wilson QC and Gregor Hogan found that on analysis no authority
acted for the trustee-executors was binding or persuasive as to
in this high-profile Inheritance the presence of such a statutory
(Provision for Family and exclusive jurisdiction, nor was
Dependants) Act 1975 litigation, such the proper reading of the
which was brought to a successful statute, and on the facts ordered
settlement in Spring 2020. a stay of the Cayman claim. The
case is also important more
Constance McDonnell QC is widely for its commentary on the
acting for the respondent in the scope of jurisdiction clauses in
important case of Re H, in which trust instruments in the wake of
the Court of Appeal will consider Crociani.
in June 2021 whether a CFA
success fee can be recoverable Dakis Hagen QC and Emma
as part of an award under the 1975 Hargreaves continue to act for
Act. the adult children of a late Russian
businessman in Re Scherbakov,
Constance McDonnell QC deceased, a cross border dispute
successfully resisted the concerning the succession to
adjournment of a trial sought for his very substantial worldwide
Covid-related reasons in Lucas estate and related proceedings
v Gatward [2020] EWHC 3040 concerning the beneficial
(Ch). The widely reported case ownership of very valuable
about ownership of a family home shares in a BVI company. Dakis
settled shortly before the trial due and Emma recently succeeded
to commence in November 2020. in obtaining an order for joint
case management of the two
Constance McDonnell QC acted English claims, notwithstanding
for minor beneficiaries in QR v ST, opposition from the claimants.
an application to vary trusts so Giles Richardson acts for
that illegitimate children could be the deceased’s former wife
included as beneficiaries. and Richard Wilson QC and
Oliver Jones act for the interim
Constance McDonnell QC administrators.
appeared in Glover v Barker
[2020] EWCA Civ 1112 in which Ruth Jordan is acting for the
the Court of Appeal considered applicants in a judicial review
for the first time the extent of the
liability of a litigation friend for legal 12
costs.challenge to a controversial order over a property over a
exploratory offshore oil drilling property valued at £9m, which
project in the Bahamas by formed the subject matter
Bahamas Petroleum Company of a 3-day trial before Edis J
plc. in July 2020 in Cobussen v
Akbar [2020] EWHC 2805
James Weale acted for the (QB). Notwithstanding that the
successful applicant in a property was held by a company,
committal application against whose shares were held within
the managing partner of an a discretionary trust, the Court
international law firm in Schwartz found that the property was
v VGV (UK) Ltd, Vivanco and held on resulting trust for the
Ors [2020] EWHC 2227 (Ch). judgment debtor, Ghouse Akbar.
Following a 5-day trial, Roth J Following a successful application
found that Clemente Vivanco for wide-ranging disclosure in
had been complicit in forging the same proceedings, Edis J
trust documents and, in breach gave guidance as to the role of
of a court order, had failed to solicitors in ensuring compliance
produce an original electronic with disclosure obligations [2020]
version of one such document. At EWHC 476 (QB).
a subsequent sentencing hearing,
the Court imposed an immediate In Z v Z, Sophie Holcombe
custodial sentence of 4 months and Gregor Hogan act for the
[2020] EWHC 3500 (Ch). trustees of a Jersey trust holding
UK residential property in the
James Weale acted for the context of English matrimonial
successful claimant in a proceedings.
dispute over the ownership of
company which held a valuable Adil Mohamedbhai acted as an
Chelsea property in Moutreuil expert in Swiss proceedings
v Andreewitch [2020] EWHC brought by a former trustee in
2068 (Fam). Following a 4-day relation to an English trust holding
trial, Cobb J held that the transfer valuable assets worth many
of shares by Mr Andreewitch to millions of dollars. Adil opined
his partner in order to insulate the on complex issues concerning
property against creditors took the proper characterisation of
effect as an outright gift. In related a claim for remuneration and
committal proceedings, which reimbursement of expenses by
also formed the subject of hearing former trustees.
in the Court of Appeal [2020]
4 W.L.R. 54, James succeeded In B v B, Emma Hargreaves and
in an application to commit Mr Gregor Hogan act for the wife in
Andreewitch for contempt of divorce proceedings involving
court [2020] 2 F.L.R. 812 for Portuguese property held in a
which he received a suspended Cypriot trust. The case involves
sentence of 6 months [2020] complex questions of jurisdiction
EWHC 2068 (Fam). and trusts law, and is expected
to be one of the first decisions
James Weale acted for the considering the Privy Council’s
successful claimant in an decision in Webb v Webb.
application for a final charging Judgment is expected in early
2021.
...we continue to be instructed in major
company, insolvency and partnership
disputes
Dominic Dowley QC, Richard restructuring of a substantial
Wilson QC and Zahler Bryan group of English trusts, in a case
acted for the trustee in PTNZ involving proceedings before the
v AS, a Public Trustee v Cooper English and Jersey courts.
application concerning thePhilip Marshall QC and Simon 2021 the Court of Appeal will
Hattan represent the US Trustee consider the appeal against the
in Bankruptcy of Sean Dunne, a refusal of the first instance judge
well-known Irish businessman to strike out the petition.
and property developer, who
filed for bankruptcy in the US in Lance Ashworth QC and Zahler
2013 and was adjudged bankrupt Bryan have been acting for the
in the Republic of Ireland the claimant in the case of de Silva v
same year. The US bankruptcy Lucas & Ribeiro, a claim in respect
was recognised by the English of the ownership of an Estonian
Court following an application holding company, which (through
by the Trustee in March 2020. Estonian and Portuguese
The Court subsequently granted subsidiaries) owns a very
applications for both Mr Dunne substantial property development
and his ex-wife to produce in Lisbon, Portugal.
documents relating to various
of their financial dealings and In Nimat Halal Food Ltd v Patel
made an order for Mr Dunne to be [2020] EWHC 734 (Ch), Zoe
examined under section 366 of O’Sullivan QC appeared for the
the Insolvency Act 1986. creditor in an insolvency case in
which Chief ICC Judge Briggs
Philip Jones QC was successful gave guidance on the personal
in the Privy Council in Ocean liability of an administrator to
Sino, a case which involved a pay costs following a creditor’s
claim by one joint owner of a BVI successful appeal against the
company to wind it up on the just rejection of its proof of debt.
and equitable ground. He had
previously acted at the original In Re Global-IP Cayman, Daniel
trial and before the BVI Court of Lightman QC, representing the
Appeal. majority shareholder in the Grand
Court of the Cayman Islands,
Lance Ashworth QC is acting for successfully argued before
two sets of Joint Administrators Parker J that (i) the case was an
of 2 electricity suppliers, each of exception to the usual rule that
which is facing claims from Ofgem the petitioning creditor should be
and from Suppliers of Last Resort, awarded its costs of a winding-
which claims are for many millions up petition (unrep, 21 July 2020)
of pounds and will make very and (ii) the majority shareholder’s
substantial impact on the returns appointees to the company’s
available for other creditors. The board had not been removed
Court will have to determine these from office because on a proper
claims in 2021. interpretation of the company’s
articles the relevant board
Lance Ashworth QC and meeting had been inquorate
Dan McCourt Fritz acted for (unrep, 31 December 2020).
the successful Appellants in
Loveridge v Loveridge [2020] In Christoforou v Christoforou
EWCA Civ 1104 overturning [2020] 1196 EWHC (Ch), Daniel
injunctions in an unfair prejudice Lightman QC and Stephanie
petition and in partnership Thompson represented the
proceedings which had granted claimant, who claimed that a
the running of the companies London property was held on trust
and partnerships to a minority for him pursuant to a common
shareholder and partner. The intention constructive trust, in a
Court of Appeal effectively put successful and novel application
the majority back in charge. Both to strike out allegations of
the petition and the partnership dishonesty, fraud, and illegality
proceedings continue and will from the defendants’ Amended
come on for trial in 2022. Defence and to exclude those
allegations from consideration
Lance Ashworth QC and Dan and cross-examination at trial, on
McCourt Fritz continue to act for
the company and shareholders in
The Hut Group, in which in early 14the grounds that they amounted counsel for the Official Receiver
to similar fact evidence which was in Re Keeping Kids Company;
of peripheral value to determining Official Receiver v Atkinson, the
the claim and would have disqualification proceedings
increased the cost (and risked arising from the collapse of the
adjournment) of the trial. charity Kids Company. These
are believed to be the first ever
In Trafalgar v Hadley & Ors proceedings for disqualification
Justin Higgo QC and Jamie of charity trustees as company
Randall continue to represent directors and they raise questions
the liquidator of Trafalgar in about the standard to be applied
multi-party proceedings in the to unpaid trustee directors,
Chancery Division to recover whether a remunerated charity
funds misappropriated from a CEO can or ought to be classified
Cayman Islands segregated as a de facto company director,
portfolio by its fiduciaries. and what degree of latitude the
trustee directors have in relation
In Brown v MML Capital, Timothy to the pursuit of charitable objects
Collingwood QC acted for the when the company is of doubtful
petitioners in an unfair prejudice solvency.
petition in which he succeeded in
obtaining an injunction to restrain Matthew Morrison and Gregor
the continuation of disciplinary Hogan act for Haz International
proceedings concerning disputed Limited in connection with
allegations of misconduct pending misfeasance proceedings
resolution of the Petition ([2020] alleging the diversion of business
EWHC 23 (Ch)). opportunities and other wrongs by
a former director and shareholder.
In Re: H Limited, Timothy These have been consolidated
Collingwood QC acts for majority with a just and equitable winding
shareholders in BVI proceedings up/unfair prejudice petition
involving allegations against them presented by the defendant
of unfairly prejudicial conduct, director/shareholder. The
where the Court has had to evidential stage of the trial
address the effect on the claim (including the cross-examination
against the shareholders of an of three Turkish witnesses via a
arbitration agreement in the translator) took place remotely
company’s articles of association. over ten days in the Insolvency
and Companies Court during
In Medical Imaging Partners January 2021. Closings will be
v St Joseph’s Independent presented in March 2021.
Hospital, the question arose as
to whether an MRI machine and James Mather acted for the Joint
other medical equipment subject Administrators of an insolvent
to chattel leases had become FCA-regulated international
annexed to land owned by a payment services provider in Re
company in administration, so that Supercapital Ltd [2020] EWHC
title to the equipment passed to 1865 (Ch). This involved the first
the purchasers of the business application to seek a court’s
when the company’s assets approval for a distribution plan
were sold by the administrators. under the Payment Services
Thomas Braithwaite acted for the Regulations 2017, on the basis of
purchasers. statutory trust principles applied
in the context of other financial
Gareth Tilley acted as junior services regulations.
...we have covered a broad range of
Property and Charities work
In Wickers v Humbles, Philip in a dispute arising from the
Jones QC and Gregor Hogan impact of the global financial
continue to act for the directors of crisis on a super-prime property
a property development company development in London. The caseis expected to proceed to a six- then available for the purpose, the
week trial in the Isle of Man in late fund was sufficient to discharge
2021 or 2022. the National Debt. The fund was
then to be transferred to the
In Children’s Investment Fund National Debt Commissioners to
Foundation (UK) v Attorney be applied by them in reduction
General [2020] UKSC 33, the of the National Debt. The Fund
Claimant charitable company is now worth about £0.5 billion.
had agreed to make a grant of Zacaroli J held that there was a
US$360m to another English valid charitable trust and that the
charity conditionally on the court had jurisdiction to order a
approval of the court. The cy-pres scheme. He adjourned
payment of the grant required the question of what (if any)
the approval of the members scheme to order.
under section 217 Companies
Act 2006. The Supreme Court In Dunmoore (West London) Ltd v
held that the members owed Vanessa Donegan [2020] (Upper
fiduciary duties and that the court Tribunal Lands Chamber), Andrew
had an exceptional jurisdiction Bruce acted for the Objector
to order them how to vote, even on an application to modify a
if they had not and were not restrictive covenant under s.84(1)
threatening to vote in breach (aa) of the Law of Property Act
of duty. The majority of the 1925. The Applicants were
Supreme Court also held that by constructing an industrial park on
reason of the High Court having, agricultural land near Billingshurst,
on the directors’ surrender of Sussex and sought to modify
discretion, held that it was in a covenant which prevented
the best interests of the charity any building on a buffer zone
for the grant to be paid; the of 200’ from the boundary of
members, who were parties to the Objector’s (extensive and
that decision were bound by it valuable) home. The application
and, absent a substantial change was settled the last working day
in circumstances were bound to before the Upper Tribunal hearing
vote in favour of it, even if, but for on commercial terms.
the judicial decision, they could
reasonably have voted against In Kelleher v Castlebourne Homes
it. Will Henderson acted for the (Rock) Ltd [2020] (High Court,
charitable company. Bodmin District Registry)
Andrew Bruce represented
In Attorney General v Zedra the Defendant developers in a
Fiduciary Services (UK) Ltd dispute about the width of a strip
[2020] EWHC 2988 (Ch), of land and easement at a site in
Will Henderson acted for the Trebetherick, Cornwall. The trial
Attorney General. This involved took place over a week entirely
‘The National Fund’ which was remotely in Summer 2020 and
settled with £500,000 of cash involved detailed consideration
and securities in 1928 on trust to of historic conveyances,
accumulate income and profits numerous plans and various aerial
until the date fixed by the trustee photographs, together with
as being the date when, either
alone or together with other funds
16contested expert surveying from the Charity Commission’s
evidence. HHJ Carr’s judgment decision to disqualify him
paid tribute to the quality of the as a charity trustee. Jonathan
submissions. succeeded in reducing the period
of his disqualification from 15 to 7.5
Thomas Braithwaite, acting for the years. The judgment of the FTT
Crown Estate Commissioners, provides the most in-depth legal
successfully defeated an adverse analysis yet of the Commission’s
claim to part of the North Norfolk relatively new disqualification
coast. The case addressed power.
the principles of accretion and
avulsion, and the presumption of Amy Proferes acts for the First
Crown ownership of the foreshore and Second Defendants in
(Bett & Gethin v Crown Estate Toner v Telford Homes & Ors, a
(FTT, REF/2017/0591)). claim regarding a flat purchased
off-plan. The claimant seeks
Jonathan Fowles has been rescission, damages and other
acting for London Borough of remedies against 6 defendants
Merton against Nuffield Health including the developer, the
in a dispute about the charitable property manager and the
exemption from non-domestic current freeholder, on the basis
rates. The issues in the case are of misrepresentation, breach
of potentially wide significance for of contract, fraud, negligence
charities. Nuffield succeeded in and harassment. The case
their claim at first instance ([2020] raises questions which will be
EWHC 259 (Ch), but Merton of importance to developers
obtained permission to appeal. selling properties off plan as to
The case was heard by the Court representations made in sales
of Appeal in January 2021 and models and brochures, as well as
judgment is awaited. how (and whether) developers
can protect themselves from such
Jonathan Fowles acted for claims by means of disclaimers
Dr Zakir Naik, a renowned and/or contractual terms.
international speaker and Judgment is currently awaited on
author of books on Islam and applications by the First to Fourth
comparative religion, in his appeal Defendants seeking summary
judgment and/or strike out of the
claim.
...our Intellectual Property practice has
remained as active as ever
In 2020 Michael Edenborough on late filing of TM8s [2020] FSR
QC has been instructed in relation 33), and the EU IPO (e.g. an appeal
to 4 new trade mark appeals to the to the General Court on the
General Court, Luxembourg, and proper construction of potentially
taken to trial a case alleging that ambiguous specifications for
Amazon is involved in importing EUTMs [2020] ETMR 7).
counterfeit goods.
In Lunar Holdings Ltd v
Michael Edenborough QC has Lunar Caravans Ltd, Thomas
also dealt with some interesting Braithwaite blended IP and
trade mark cases, e.g. a bottle company law when he appeared
in the shape of a human skull in the IPEC for defendants
(Skullduggery Rum Ltd v accused of breach of a trade mark
Globefill Inc [2020] ETMR 9), licence. A summary judgment
and the ‘Babybel’ red cheese application was defeated on
mark ([2020] Bus LR 514). These the grounds that the claimant
decisions and other decisions arguably did not have good title to
continued developing the law on the trade mark, having acquired it
procedure in both the UK IPO (e.g. by way of an unlawful return ofcapital and disguised distribution Stephanie Wickenden continues
by a company to its shareholder. to act for easyGroup in a number
of matters, including in a disputed
Stephanie Wickenden acted as jurisdiction application in case
sole counsel in a dispute relating against Colombian airline “Easy
to trade mark and design rights Fly” which set new guidance for
in the Glencairn IP Holdings Ltd assessing whether trade mark
& Anor v Product Specialities. acts are in the jurisdiction.
This included successfully
representing the Defendant in the Stephanie Wickenden has acted
Court of Appeal in respect of an for Standard International hotels
application brought to restrain the regarding their EU trade mark, and
Defendants’ solicitors from acting will continue to act in an upcoming
owing to an alleged conflict. She appeal before the General Court
also was involved in proceedings led by Michael Edenborough QC.
going to the validity of the trade
marks at the European IPO.
...and worked on a range of EU,
Competition and Regulatory cases
Professor Suzanne Rab is procedure subject to the
advising on EU and UK data requirements of the Public
protection and privacy matters Contracts Regulations 2015 (SI
under the General Data 2015/102) (PCR 2015) and related
Protection Regulation and the duties arising under EU law. The
Data Protection Act 2018. Her case raised novel issues of law
representations straddle claims including consideration of when
involving data breach, misuse of judicial review claims can be
personal information and human brought where there is a statutory
rights. Many of the legal issues procedure.
raised have not been tested in
the courts (e.g. data controller Suzanne is also advising energy
classification, measure of market regulator Ofgem on
damages). Her representations an ongoing basis on a range
include proceedings before the of competition and regulatory
Information Commissioner’s matters. This involves providing
Office (ICO) and in litigation legal support to the regulator’s
seeking orders for compliance in-house legal team on significant
with data protection legislation projects, providing strategic, risk-
and damages. based advice up to board level on
a regular basis across these areas
Suzanne also represented and advising Ofgem lawyers and
Riverside Truck Rental in parallel policy officials.
proceedings in the Technology
and Construction Court (TCC)
and the Administrative Court
for judicial review. The claim
raised EU and procurement
law questions arising out of the 18
conduct of a public procurement...we are regularly instructed overseas in
the Dubai International Financial Centre
Rupert Reed QC and James Zoe O’Sullivan QC is acting for
Weale act for the Claimant Dr Michael Fakih in his DIFC
bank in a US$30m fraud claim fraud claim against NMC Health
against various defendants in plc, which collapsed in early
proceedings in the DIFC in SBM 2020 following the revelation of
Bank (Mauritius) Ltd v Renish widescale fraud by the short seller
Petroleum FZE (CFI 054/2018). Muddy Waters. Zoe O’Sullivan QC
Having successfully obtained and Adrian de Froment are also
summary judgment against the acting for Barclays Bank in the
first two defendants, the trial DIFC Court in a guarantee claim
against the third defendant has against Dr BR Shetty, the founder
been listed in December 2021. of the NMC Health Group.
A committal application against
the first two defendants has been In Basin v Rouge CFI 057/2018,
listed for January 2021. James Weale appeared in the
last in-person hearing in the DIFC
Rupert Reed QC and Gregor Court before lockdown. Following
Hogan act for the Sarjah Elecricity a trial, James obtained judgment
and Water Authority in FAL Oil for the claimant in a claim
Company Ltd v Sarjah Electricity under a guarantee agreement:
and Water Authority. The case [2018] CFI 057. The Court
involves the challenging of the gave guidance on the extent to
recognition and enforcement which variations to underlying
in the DIFC of a Sarjah court obligations affect the validity of
judgment on the basis of inter- an associated guarantee. James
Emirate immunity. This is the also successfully defeated a
first time the DIFC Court has jurisdiction challenge submitted
considered the concepts of to the Joint Judicial Committee
sovereign immunity within the (Cassation No. 9 of 2019).
UAE and judgment is expected in
early 2021.
In Brown & Company Plc v Faber
Capital (DIFC) Ltd, Rupert Reed
QC and Gregor Hogan continue
to act for a financial services firm
defending allegations of breach
of fiduciary duty arising from a
sophisticated phishing attack.
In Credit Europe Bank (Dubai) Ltd
v. (1) NMC Trading LLC (2) NMC
Healthcare LLC (3) Bavaguthu
Raghuram Shetty [2020] DIFC
CFI 031, Rupert Reed QC and
Gregor Hogan acted for the major
Dutch Bank, CEBD, to obtaining
a worldwide freezing order
against Dr BR Shetty, founder of
the troubled NMC Group. The
decision also confirmed that an
applicant need not demonstrate
any assets of the respondent
in the jurisdiction of the DIFC to
obtain a worldwide freezing order.
Rupert and Gregor will represent
CEBD at the trial of its claim
against Dr Shetty in September
2021.... and in arbitration matters generally
In Cesfin Ventures LLC v Ghaith resident entrepreneur.
Al Qubaisi, Rupert Reed QC
and Gregor Hogan obtained Zoe O’Sullivan QC appeared for
a worldwide freezing order in the respondent at the quantum
the Chancery Division against stage of a multi-million dollar
a director and shareholder of a LCIA arbitration arising out
UAE conglomerate in support of of the collapse of a Ukrainian
New York proceedings against agricultural joint venture following
him as “alter ego” of the UAE the revolution in Ukraine in 2014,
holding company, alternatively in involving complex valuation
setting aside fraudulent transfer issues.
to himself and others of company
assets to frustrate enforcement James Weale and Jamie
of the award rendered in an ICC Randall act for the defendant in
arbitration seated in New York. an LCIA Arbitration governed
by Kuwaiti Law. The claimant
In L v B [2020] DIFC ARB 014 seeks commission payment in
(17 June 2020), Rupert Reed the sum of US$10m allegedly
QC and Gregor Hogan obtained due in respect of substantial
an order for the recognition of contracts for petroleum products.
a London arbitration award, a The matter has been listed for
worldwide freezing order and the determination in 2021.
first notification order made by the
DIFC Court against a UAE
206 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
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