serlecourt

Welcome to Serle Court’s Annual Case Review of 2022. In the year in which we have gradually and thankfully returned (on the whole) to court hearings in person, barristers at Serle Court have continued to appear in some of the biggest and some of the most interesting cases across our wide field of commercial chancery law. We hope you will enjoy reading about the range of legally complex and factually fascinating cases which members of Serle Court have been involved in 2022.

Eleven barristers from Serle Court acted in one of the largest trust claims ever litigated in any jurisdiction in Wong v Grand View Private Trust Company Ltd & Ors Judgment was handed down in June 2022 ([2022] SC (Bda) 44 Com) following a six-month remote trial in 2021. Dakis Hagen KC (assisted by Emma Hargreaves and Stephanie Thompson) acted for the plaintiff, Richard Wilson KC and Prof.Jonathan Harris KC (Hon.) (assisted by James Weale, Adrian de Froment and Charlotte Beynon) acted for the counterclaiming defendant, and Jonathan Adkin KC (assisted by Adil Mohamedbhai and Tim Benham-Mirando) acted for the five defendant trustees. Other than one claim brought by the plaintiff against one of the five defendant trustees, the Court dismissed all the claims brought against the five defendant trustees. The judgment determined novel issues including the meaning of the statutory requirement that the purposes of a purpose trust be sufficiently certain to enable the trust to be carried out and the reception of the Statute of Frauds 1677 into British Virgin Islands law. Consequential issues were determined by a judgment in August 2022 ([2022] SC (Bda) 60 Com). Both judgments are now under appeal to the Bermuda Court of Appeal.

In Grand View Private Trust Co Ltd & Anor (Respondents) v Wong & Ors [2022] UKPC 47, Dakis Hagen KC, Emma Hargreaves and Stephanie Thompson acted for the appellants in the first appeal; Richard Wilson KC, James Weale and Charlotte Beynon acted for the appellant in the second appeal; and Jonathan Adkin KC and Adil Mohamedbhai acted for the respondent in both appeals. In one of the most important trusts law judgments in recent years, the Privy Council unanimously allowed the appeals and held that the exercise of a power adding and excluding beneficiaries was void on the basis that it was inconsistent with the purpose for which the power was conferred.

John Machell KC (assisted by John Eldridge) appeared for the successful Guernsey appellants before the Privy Council in ITG Ltd v Fort Trustees Ltd [2022] UKPC 36. The landmark appeal – which was heard by a panel of 7 at the same time as the Jersey appeal in Equity Trust (Jersey) Ltd v Halabi – concerned fundamental issues relating to trustees’ rights of indemnity, including, in particular, how successive trustees share an inadequate trust fund.

Jonathan Adkin KC, Zahler Bryan and George Vare act with counsel from other chambers for the Republic of Mozambique in Mozambique v Credit Suisse & Ors; VTBC & Ors v Mozambique, one of The Lawyer’s Top 20 Cases of 2023, in which the Republic brings multi-billion dollar claims against entities in the Credit Suisse group, the Privinvest group and others. These high profile proceedings concern an alleged enormous international fraud said to have been perpetrated on the Republic to secure its entry into sovereign guarantees purportedly to secure funding for maritime protection and tuna fishing supply contracts. In 2022, the High Court handed down judgments on issues including the disclosure obligations of a foreign state where documents are held by that state’s courts ([2022] EWHC 157 (Comm)), pleading obligations in the context of a bribery claim ([2022] EWHC 429 (Comm)), disclosure obligations of a foreign employer over employees’ personal emails ([2022] EWHC 3054 (Comm)) and privilege against self-incrimination ([2022] EWHC 3094 (Comm)). The case is listed for trial in October 2023.

Rupert Reed KC acted for the claimant in the trial of claims in professional negligence against Mishcon de Reya LLP in respect of its advice on a ‘build arounds scheme’ in what is now the ‘Park Modern’ Development on the Bayswater Road. This case was one of The Lawyer’s Top 20 Cases of 2022. The judgment is one of the leading decisions on the application of Manchester BS v Grant Thornton [2021] UKSC 20

In Chandler v Wright, Daniel Lightman KC, Charlotte Beynon and Tim Benham-Mirando represent Mr Chandler, one of the former directors of the BHS group of companies, in proceedings brought by the liquidators claiming some £163 million for alleged wrongful trading and misfeasance. In an important judgment handed down in August 2022 ([2022] EWHC 2205 (Ch); [2022] Bus LR 1510) in which he allowed Mr Chandler’s appeal against the decision of Deputy ICC Judge Schaffer (Re BHS Group Ltd [2022] 2 BCLC 145; [2022] BCC 457), Edwin Johnson J reaffirmed that causation and quantum are essential elements of a cause of action under section 214 of the Insolvency Act 1986, as they are for breach of duty claims under section 212, and that it is essential for liquidators to plead these elements. He further held that, given the scale of the claims and complexity of the BHS litigation, it is not acceptable for a case on the date of knowledge for the purposes of a claim under section 214 to be left “at large” on the pleadings. The six-week trial of this claim is due to start in November 2023 and is one of The Lawyer’s Top 20 Cases of 2023.

Re The Will of His late Royal Highness Prince Philip, Duke of Edinburgh, Guardian News and Media Ltd v (1) The Executor of HRH the Prince Philip, Duke of Edinburgh and (2) HM Attorney General [2022] EWCA Civ 1081. The issue was as to the publicity, if any, appropriate to the making of an order sealing up the late Duke of Edinburgh’s will. The Duke’s executor had obtained an order that his will be sealed up. The hearing was attended only by representatives of the executor and the Attorney General. The Guardian appealed against the decision for the application to be heard in private. The Appeal was dismissed. Asking for submissions from the media would have generated significant publicity and conjecture, which would have been contrary to the need to preserve the dignity of the sovereign and to protect the privacy of the royal family. William Henderson, led by Sir James Eadie KC, represented HM Attorney General.

Nicholas Harrison and Jonathan McDonagh appeared for the successful appellants in Município de Mariana v BHP Group [2022] EWCA Civ 951, by which the Court of Appeal permitted one of the largest group actions ever commenced in this jurisdiction to proceed, and in doing so set out important guidance for the conduct of large scale, multinational litigation. The claim is brought by more than 200,000 Brazilian victims of the Fundão Dam disaster. The appeal concerned issues of abuse of process, forum non conveniens, and Article 34 of Brussels Recast. A subsequent decision of O’Farrell J, [2022] EWHC 330 (TCC), has set down trial to commence in April 2024, where the issues concerning BHP’s liability will be determined.

Ruth Jordan and Thomas Elias were instructed by Callenders, The Bahamas, as part of a team (including Fred Smith KC from Callenders), in an appeal to the Privy Council in the matter of Responsible Development for Abaco (RDA) Ltd v Christie The appeal concerned the appropriateness of orders for security for costs made against those who bring environmental judicial review claims against the Government, in light of concerns that such claims might be stifled.

James Weale acted for the successful claimant in a probate trial before the High Court in June 2022, in which the Court set aside three disputed wills: Speakman v Muir [2022] Lexis Citation 1487

The case is a rare example of a successful will challenge being made on the ground of fraudulent calumny.

In IsZo Capital LP v Nam Tai Property Inc (7 April 2022) Jack J (BVI), John Machell KC acted for the successful ancillary claimant in a claim concerning allegations of conspiracy, dishonest assistance and change of position.

John Machell KC acts for the trustee and Emma Hargreaves for two of the beneficiaries in PJSC National Bank Trust v Mints. In the English proceedings, two Russian banks advance heavily contested claims for fraud against members of the Mints family, and also make claims against the trustee of a Cayman trust in relation to the proper construction of the trust instrument and under s.423 of the Insolvency Act 1986. In a recent decision ([2023] EWHC 118 (Comm)), Mrs Justice Cockerill has given a judgment that deals with various issues arising from the fact that one of the claimants is sanctioned.

Carey Street Investments (in liquidation) & Anor v Brown and Equity Trust (Jersey) Ltd: Hugh Norbury KC and Dan McCourt Fritz are continuing to defend an offshore corporate services provider against allegations of dishonest breach of fiduciary duty in relation to the intra-group transfer of properties . The trial is due to commence at the end of February 2023.

PIFSS v Al Rajaan & Ors: Hugh Norbury KC continues to act for the Kuwaiti state pension fund in a $800m+ claim against multiple defendants arising out of the alleged bribery of the former Director General of the fund.

Jonathan Adkin KC and Charlotte Beynon represented the fourth defendant and Philip Marshall KC and Simon Hattan represented the fifth defendant in successfully resisting the claimant’s appeal to the Court of Appeal, and its application for permission to appeal to the Supreme Court, against the first instance judgment allowing their clients’ jurisdiction challenges. James Mather continues to act for the Pensee Foundation, one of the other defendants to the claim.

Hugh Norbury KC is leading Tim Benham-Mirando in Jinxin v Aser Media Pte Ltd & Ors, a deceit and conspiracy claim for $661 million in relation to the sale of a leading global sports media agency. The alleged fraud relates to the acquisition of media rights in Italian Serie A and FIFA World Cup football matches. Following a 3-day CMC ([2022] EWHC 2431 (Comm)), the Court considered the reliance on decisions by foreign bodies (known as the rule in Hollington v Hewthorn) and a novel application for a split trial. The claim is now listed for a 21-week trial in 2025. In a further judgment (in which Tim appeared unled), the Court also considered how far employees can claim privilege over documents held on an employer’s servers ([2022] EWHC 2856 (Comm)).

In Equity Real Estate (Bracknell)

Ltd v Patel & Ors, Justin Higgo KC, Stephanie Thompson and Andrew Gurr continue to act for five SPVs who are the alleged victims of a complex property fraud. Following disclosure from third parties under the Bankers Trust and Norwich Pharmacal jurisdictions, the SPVs have commenced claims in the Chancery Division against thirteen defendants for breach of fiduciary duty, unlawful means conspiracy, dishonest assistance and knowing receipt, which will be set down for trial in 2024. Jonathan Adkin KC and Adil Mohamedbhai acted for three of the defendants.

In Trafalgar Multi Asset Trading Co v Hadley & Ors, Justin Higgo KC, assisted by Jamie Randall and Mark Wraith, continues to act for the benefit of numerous small pension holders to recover the proceeds of a complex pension fund fraud from multiple defendants who conspired with the fund managers to misappropriate fund assets, and from professional third parties who failed to take steps to prevent the frauds. The Court of Appeal granted judgment on Trafalgar’s bribery claims in December 2022 and Trafalgar’s claims against the principal defendants will be tried in the Chancery Division in March 2023.

James Mather and Max Marenbon are acting for the petitioner in Re Coinomi Ltd [2022] EWHC Civ 3178 (Ch), a joint venture dispute concerning the ownership of a cryptocurrency wallet business and alleging misappropriation to offshore companies of valuable cryptocurrency assets. The case raises important issues as to the appropriate relationship between an unfair prejudice petition and a derivative claim.

Dan McCourt Fritz, Tim BenhamMirando and Andrew Gurr continue to act for the claimant in İşbilen v Turk & Ors The proceedings involve allegations of fraud, breach of fiduciary duty and undue influence arising out of complex dealings with the claimant’s assets by her former advisor over a number of years.

In March 2022, the claimant obtained search, imaging and inspection orders in support of disclosure obligations aimed at locating and tracing assets ([2022] EWHC 572 (Ch); [2022] EWHC 697 (Ch)) and has subsequently obtained permission to use documents identified through the search in support of foreign proceedings ([2022] 12 WLUK 299).

Sophie Holcombe (led by Clare Stanley KC) appeared for the claimant in East-West United Bank v Gusinski [2022] EWHC 3056, successfully resisting a strike out application of proprietary claims to money that was held in a solicitor’s client account and was represented to be earmarked for the claimant. The claimant further alleges that the defendants conspired to improperly avoid paying the debt owed to the claimant. Partial strike out of the claimant’s conspiracy claims was also successfully resisted.