Commercial Court grants Norwich Pharmacal order in Filatona Trading and Oleg Deripaska v Quinn Emanuel Urquhart & Sullivan UK
On 14 October 2024 the Commercial Court handed down judgment in Filatona Trading Limited and Oleg Deripaska v Quinn Emanuel Urquhart & Sullivan UK LLP [2024] EWHC 2573 (Comm). Mr Justice Calver acceded to the Claimants’ application for a Norwich Pharmacal order where the defendant law firm had obtained from an unnamed business consultancy a report which was subsequently deployed in s.68 proceedings against the Claimants with a view to setting aside an arbitration award. The report was subsequently revealed to be a forgery. The judgment contains a very interesting analysis of the circumstances in which a law firm might become amenable to a Norwich Pharmacal order and the extent to which privilege might bar such relief.
Thomas Grant KC led James Sheehan KC of Essex Court Chambers, who were instructed by Mark Hastings, Abigail Healey and Emma Kingstone of Quillon Law.
High Court hands down judgment on Jaffé v Greybull Capital LLP
The High Court handed down judgment on Jaffé v Greybull Capital LLP [2024] EWHC 2534 (Comm), following a 3-week, multimillion-pound Commercial Court fraud claim brought by the insolvency administrator of Wirecard.
The Claimants had sought c. £12m in damages for deceit, alleging that a deliberate oral misrepresentation at a meeting in 2016 led to Wirecard Bank extending credit to Monarch Airlines (which subsequently became insolvent). Mrs Justice Cockerill DBE dismissed the case in its entirety. In her judgment, she considered the conflicting accounts of two “equally patently honest and truthful witnesses”, the inherent probabilities and the surrounding circumstances, and, notwithstanding a near-contemporaneous note of the meeting taken by one of the Claimants’ witnesses, concluded that the alleged misrepresentations had not been made. The Judge agreed with the Defendants that German law applied to the claim and considered and applied the German law of causation, concluding that even if the misrepresentations had been made, they had not been relied upon.
Of particular interest is the Judge’s consideration of “Gestmin” and the matters raised by Popplewell LJ in his 2023 COMBAR lecture “Judging Truth from Memory”.
John Wardell KC, instructed by Andrew Head, Bryan Shacklady and David Young (Forsters LLP) and leading Thomas Elias (Serle Court), acted on behalf of the successful Defendants.
Cayman Grand Court grants case management stay in TFKT True Holdings
On 3 October 2024 the Grand Court of the Cayman Islands (FSD) granted a case management stay of a just and equitable winding up petition in the case of Re TFKT True Holdings pending the resolution of separate proceedings in Hong Kong between the same parties to the petition. The judgment of Hon Justice David Doyle contains a comprehensive survey of the now very well-developed Cayman law on case management stays, which has become a very important aspect of Cayman procedural law.
Thomas Grant KC, instructed by Anna Peccarino, Ian Huskisson and Ray Ng of Travers Thorp Alberga, acted for the successful respondent.
Leicester Square Ltd & ors v Empire Cinema [2024] EWHC 2294 (Ch)
On 10th September 2024, the High Court dismissed the landlord’s appeal in Leicester Square Ltd & ors v Empire Cinema [2024] EWHC 2294 (Ch).
Jonathan Seitler KC and Benjamin Faulkner, instructed by Maples Teesdale, acted for the successful tenant Respondent.
Cayman Court makes Indemnity and Interim Costs Awards – Cowan v Equis Special LP
Thomas Grant KC acted for the plaintiff in Cowan v Equis Special LP in a 3-day hearing considering applications to amend and for security for costs. Both applications raised interesting procedural issues concerning the Caymanian law of amendment and security.
In a lengthy written judgment ([2024] CIFSd 57) the judge, the Hon Justice Parker, granted the amendment application in large part and rejected the security application. In a subsequent written judgment handed down on 7 August the judge awarded the plaintiff the bulk of his costs of the applications on the indemnity basis, holding that that “Ds’ conduct across these applications was unreasonable to a high degree. The way in which they litigated these summonses was in the Court’s view outside the norm and warrants an Order of indemnity costs.” This had the important consequence that, applying the decision in The Armand Hammer Foundation Inc v Hammer International Foundation (unreported, 24 April 2024) foreign lawyers’ costs were allowable. An interim payment of $560,000 was ordered.
Thomas led Stuart Cribb of Essex Court Chambers and was instructed by Gareth Murphy, Nicholas Dunne, Brett Basdeo, David Lee and Chaowei Fan of Walkers LLP.
Court of Appeal hands down judgment in Mex Group Worldwide Ltd v Ford & Ors
On 8th August 2024, the Court of Appeal handed down judgment in Mex Group Worldwide Ltd v Ford & Ors [2024] EWCA Civ 959 following a 3-day hearing in July.
The case is the first appellate decision to consider the scope of the ‘expediency’ requirement under s.25 of the CJJA 1982 following the landmark decision of the Privy Council in Convoy Collateral Ltd v Broad Idea International Ltd [2021] UKPC 24, and the implementation of the European Union (Withdrawal) Act 2018.
It will also be of interest to practitioners for its guidance on the approach to applications to set aside WFOs obtained on an ex parte basis for breaches of full and frank disclosure – in particular the deprecation of the torrential approach frequently adopted by respondents . As Males LJ explained at [112], “In future, if the court is presented with a long shopping list of alleged failures of disclosure, with no attempt made to identify the relatively few points which really matter, it should simply decline to consider the issue at all.”
Thomas Grant KC and Daniel Petrides acted with Caley Wright (Maitland Chambers) for the appellants, instructed by Mark Hastings and James Clark of Quillon Law.
Committal to prison: Wang v Darby
On 24 July 2024, the Defendant was sentenced to 18 months immediate imprisonment following the trial of a contempt application on 4 June 2024 (Wang v Darby [2024] EWHC 1394 (Comm)). The Court found that the Defendant had breached the asset disclosure provisions of a worldwide freezing order by giving inaccurate asset disclosure and that he had given false evidence seeking to verify that disclosure.
This case is likely to be of real significance to civil fraud and cryptocurrency fraud practitioners. It is believed to be one of the first successful contempt applications arising out of a cryptocurrency fraud claim.
The underlying claim (in which the Claimant was successful) pertained to breaches of contract concerning swaps of two cryptocurrencies, Bitcoin and Tezos. At the end of the relevant contractual period, the Defendant failed to transfer a substantial amount of Tezos to the Claimant. A worldwide freezing order was made prior to the commencement of proceedings.
In support of his application for a freezing order, the Claimant relied on expert blockchain forensic evidence to identify cryptocurrency assets on which the injunction could bite. A very sizeable cache of 100 Bitcoin was identified (which at the present date is worth nearly USD$7 million).
The Defendant’s asset disclosure and subsequent witness evidence failed to disclose the existence or ownership of these Bitcoin. The judgment on the contempt application attached great weight to the findings of the Claimant’s expert.
It is often wrongly said that blockchain technology provides anonymity, when in fact it only provides pseudonymity: parties to a transaction are generally identifiable by their unique cryptographic keys (i.e., wallet addresses), which are long strings of numbers and letters that are used to sign and verify transactions. It is therefore possible, with the right resources, to ascertain to a high degree of certainty the ownership of cryptocurrency.
The judgment is a timely reminder that the Court continues to take the breach of freezing orders extremely seriously, and that such breaches merit condign punishment, which is usually a prison sentence. The sentencing judgment is currently being transcribed and will be shared when available.
Daniel Scott was instructed by Rob Green of Curzon Green Solicitors and acted for the successful Claimant.
Court of Appeal hands down judgment in Virgin Media v NTL Pension Trustees II and others
The Court of Appeal handed down judgment this morning in Virgin Media v NTL Pension Trustees II and others, the industry-wide, significant appeal relating to the operation of s.37 of the Pensions Schemes Act 1993 and the Occupational Pension Schemes (Contracting-out) Regulations 1996, and the meaning of “section 9(2B) rights” in that legislation.
Lord Justice Nugee gave the judgment of the CA (Lady Justice Asplin and Lord Justice Peter Jackson agreeing). The CA dismissed the company’s appeal and upheld the conclusion of the first instance judge, Mrs Justice Bacon. After a review of the legislative provisions and their purpose, the CA held that “section 9(2B) rights” include future rights to pension benefits that a member could continue to earn (as well as past service rights). Therefore, the requirement for actuarial confirmation and the sanction of voidness under s.37 PSA 1993, absent such confirmation, applies to all amendments to the rules of a contracted-out scheme in relation to section 9(2B) rights (covering both past and future rights).
Jennifer Seaman appeared for the Trustees (who were neutral), instructed by Eversheds Sutherland International.
Court of Appeal hands down judgment in British Broadcasting Corporation v BBC Pension Trust Ltd
The Court of Appeal has today handed down judgment in British Broadcasting Corporation v BBC Pension Trust Ltd [2024] EWCA Civ 767.
Michael Tennet KC and Edward Sawyer acted for the BBC, instructed by Linklaters. Brian Green KC and Joseph Steadman acted for the Trustee, instructed by Slaughter and May.
The Court considered the scope of a fetter on the scheme amendment power in the BBC pension scheme and upheld the Judge’s conclusion that it prevented the power from being used to change future service benefits for Active Members unless certain conditions were satisfied.
The judgment of Lewison LJ includes the most recent consideration at appellate level of the principles applicable to the interpretation of pension schemes.
Court of Appeal gives judgment on meaning of “ceases to own” in context of capital allowances legislative regime
Commissioners for HM Revenue and Customs v Altrad Services Limited [2024] EWCA Civ 720
Jonathan Davey KC has received judgment from the Court of Appeal in an appeal concerning a claim for capital allowances in respect of expenditure on plant and machinery.
The Court of Appeal held that, applying the Ramsay principle (WT Ramsay Ltd v Inland Revenue Commissioners [1982] AC 300) and relying on the Supreme Court’s decision in Rossendale Borough Council v Hurstwood Properties (A) Ltd [2021] UKSC 16, on a purposive construction of section 61 of the Capital Allowances Act 2001 the statutory requirement, as a necessary condition of being eligible for the tax allowances, that the relevant person “ceases to own” the assets in question was not met in circumstances where, as part of a tax scheme, the taxpayer disposed of the assets only briefly before almost immediately reacquiring them, as had always been planned. The Court of Appeal considered that such a scenario did not constitute cessation of ownership “as a matter of ordinary language, and in a real and practical sense” as the legislation required (at [82]).
Accordingly, the Court of Appeal decided the appeal in the Appellants’ favour, overturning the Upper Tribunal’s decision ([2022] UKUT 185 (TCC)) to the contrary and agreeing with the decision of the First-tier Tribunal ([2020] UKFTT 62 (TC)). Jonathan Davey KC, David Milne KC and Barbara Belgrano (Pump Court Tax Chambers) act for the Appellants; Jonathan Peacock KC and Edward Hellier (11 New Square Chambers) act for the Respondents.