Charles Fussell & Co LLP instructed in billion-pound multi-jurisdictional dispute

Charles Fussell & Co LLP has been instructed to act for the Thirteenth Defendant in a fifteen-party multi-jurisdictional claim brought by the Federal Government of Nigeria.

The case concerns OPL 245, an oil prospecting licence first granted by the Nigerian government in 1998 to Malabu Oil and Gas. Following a change in government, the licence was rescinded and re-awarded to a Nigerian subsidiary of Shell PLC. A dispute then arose between Shell and Malabu as to the true ownership of the OPL 245 licence, which was purportedly resolved by way of a settlement agreement in 2006. However, Malabu then sought to sell part of its interest in the licence, which was ultimately acquired by Shell and ENI, an Italian oil company, in a series of transactions using the Nigerian government as an intermediary in 2011 (the “2011 Agreements”).

The Federal Government of Nigeria now seeks to recover the monies paid from Shell and ENI to Malabu as part of the 2011 Agreements on the basis that the purchase price was not paid for the benefit of the Nigerian people but instead comprised bribes, kick-backs and other unlawful benefits to then-government officials and others, including high level executives within the Shell and ENI companies.

Charles Fussell & Co LLP acts on behalf of Energy Venture Partners Limited, a company which was initially hired by Malabu to source a purchaser for part or all of its interest in the OPL 245 licence. EVP has already successfully brought proceedings in respect of the transaction against Malabu and was awarded $110 million for work carried out as an introducer, but the Claimant now suggests that EVP was in fact part of a corrupt scheme to facilitate the bribes and kickbacks it alleges against the Shell and ENI defendants.

The Defendants are currently seeking to challenge jurisdiction on a number of grounds. The application is expected to be heard later this year.

Charles Fussell & Co LLP turns 12 years old

Charles Fussell & Co LLP is delighted to celebrate its 12th birthday as an independent boutique litigation firm.

Since being founded in 2007 by Managing Partner Charles Fussell, the firm has grown from strength to strength. Since 2009, the firm has consistently been involved in at least one of the Lawyer Top 20 cases, including

  • Berezovsky v. Abramovich

  • JSC BTA Bank v. Ablyazov

  • DAAR Al Arkan v. Al Refai

  • Peak Hotels & Resorts v. Tarek Investments

  • Libyan Investment Authority v. Goldman Sachs

  • Libyan Investment Authority v. SocGen

  • Bluewaters Communications Holdings v. Ecclestone.


Charles Fussell & Co LLP is delighted to participate in the forthcoming London Commercial Circuit Court seminar on 27 March 2019

The London Commercial Circuit Court forms a significant part of the firm’s practice and the firm is pleased to contribute to the effective working of the Court through Simon Winter’s membership of the Court’s user group. Simon was invited to become a member of the group on its formation by the judge in charge, now Mr Justice Waksman

Charles Fussell and Co LLP recognised in the 2018 edition of the Legal 500 rankings

Charles Fussell and Co LLP is pleased to be recognised in the 2018 edition of the Legal 500 rankings.

We are pleased that the 2018 edition of the Legal 500 rankings have listed the firm in the dispute resolution rankings. The firm is recommended for both the substantial litigation cases handled and the firm’s partners are recognised individually for their ligation skills.

Charles Fussell & Co LLP is 'capable of managing litigation of a much larger size than might be expected given the size of the firm'. The rankings note that our firm’s practice acts ‘predominantly for claimants in commercial disputes, fraud and professional negligence.’

The rankings recognise Charles Fussell as 'a very shrewd lawyer, with a great tactical overview of litigation'. Simon Winter is 'a very good and experienced tactician'.

 

Charles Fussell & Co LLP succeeds in setting aside transactions designed to defraud creditors

We acted for the successful claimants in an unusual case concerning transactions designed to defeat the claims of judgment creditors.  The judgment is available via BAILLI  and has attracted comment from a number of sources.

We acted for clients who had a strong contractual claim against a solicitor (“Mr Shone”) running a litigation funding vehicle incorporated as a limited partnership in Bermuda but run from an office in Singapore as an investment fund.

The clients had noticed serious irregularities in the accounts of the fund vehicle and, through sheer persistence, had forced Mr Shone to agree to buy them out personally.  Mr Shone’s liability to the clients under their contracts with him was around USD 2,400,000.  Unknown to the clients (at the time), they were not alone in their concerns and, under pressure on all sides, Mr Shone effectively abandoned his post as general partner of the fund. 

In the course of investigations, it became clear that Mr Shone had exploited delays in consular service in Singapore (which is required by the laws of that state and which he had obliged the clients to undertake by conspicuously failing to provide an address for service in England and Wales) to dissipate nearly all his assets to his supposedly-estranged wife (“Mrs Shone”) and to disappear to Bali in Indonesia with his girlfriend, a self-described “glamour model” and “male menopause therapist”.

Leaving aside the exotic facts, the importance of the case lies in the fact that a team led by Simon Winter, with support from Oliver Cox (who has now left the firm), obtained on 12 February 2015 one of the most draconian remedies available from the English Court, namely a worldwide asset freezing injunction not only against Mr Shone but also against Mrs Shone on the basis of the jurisdiction established in an authority known as Chabra.  Further (and very unusually) we persuaded the Court to allow service by alternative methods on both husband and wife and to allow delay in service to allow ancillary proceedings to be brought in Malaysia to preserve a valuable piece of real estate for potential enforcement there, both of which involved a significant exercise in logistics.   

This case is an important example of how this firm can deliver results for clients of the kind much larger practices could deliver but at a level of cost which made the case economically viable for the clients.  A larger practice could easily have spent more than the claim was worth.

Mrs Shone opposed the claim at every turn, instructing first Stewarts Law LLP then Benchmark Solicitors LLP, and tried and failed to discharge the freezing injunction on 18 June 2015.  Judgment was entered against Mr Shone on 24 July 2015 and against Mrs Shone on 20 May 2016.

That judgment is of general public importance and is a relatively rare High Court claim dealing with the application of Section 423 of the Insolvency Act 1986.  That section gives the Court the power to set aside transactions designed to defeat the claims of creditors.  The case is out of the ordinary in that it concerned unusually high-value transfers brought not by an insolvency practitioner but by some of the creditors affected themselves.

Daniel Saoul of 4 New Square acted as Counsel throughout.

Charles Fussell & Co LLP instructed to act in banking dispute

Charles Fussell & Co LLP is acting for VTB Capital plc (“VTB”) and the Bulgarian Telecommunications Company (“BTC”) in a dispute with Royal Bank of Scotland plc (“RBS”) over the ownership of €15 million held by an escrow agent.

Following a capital restructuring of the group of which the Bulgarian Telecommunications Company was a part in 2012, €15 million was placed in escrow against certain liabilities, including tax liabilities and claims under competition law in Bulgaria.  Both VTB and BTC now maintain such liabilities have arisen and have asserted claims to the sums held in escrow.  RBS has disputed the claims and the escrow agent has applied to Court to resolve the dispute.

Dr Christopher Harris of 3 Verulam Buildings has been appointed as Counsel.

Hogan Lovells International LLP act for RBS and Sidley Austin LLP act for the escrow agent.

The case is ongoing.

Success in the Court of Appeal

Porter Capital Corporation v. Zulfikar Masters [2016] EWCA Civ 5

Following a lengthy trial (so long ago as 2013), Charles Fussell & Co LLP is pleased to announce that our client has enjoyed significant success on appeal.

We acted for our client in the defence of a claim by a US factoring company, Porter Capital Corporation (“Porter”), under a guarantee made under Connecticut law by the client of the debts of a pharmaceutical business in the USA in which he had made a substantial investment. That business had gone into insolvency in the USA and Porter made a claim under its guarantee. The underlying factoring agreement was difficult to understand and Porter’s actual factoring practice over a number of years had differed from what that agreement appeared to provide.

It had been necessary to make wide-ranging disclosure requests of Porter and to involve a forensic accountant simply to understand how the claim had been calculated. To complicate matters further, the factoring agreement was made under the law of the state of Connecticut. Although that law is broadly similar to English law, there is a crucial difference in that the courts of that state will, unlike English courts, admit (in certain circumstances) evidence of performance of contracts as an aid to interpretation, which became a major source of contention at the trial. The case had gone to trial in 2013 and one aspect of the first instance decision has been widely-reported: the trial judge refused to impose pre-emptive sanctions for any failure to make a payment on account pursuant to his judgment.

We successfully persuaded the Court of Appeal to stay execution of that payment until the conclusion of the appeal.

The matter finally reached the Court of Appeal in December 2015 after an earlier hearing was cancelled because of lack of judicial personnel to hear the appeal. Lord Justice Davis expressed concern that the matter had taken so long to be heard – a concern which will no doubt be familiar to other practitioners.

The Court of Appeal overturned a number of aspects of the first instance judge’s decisions in our client’s favour, in particular relying on expert evidence of the law of Connecticut to defeat Porter’s claim for compound interest. All of these factors are likely to have a very significant impact on the final outcome. The payment on account remains stayed.

Iain Pester (formerly of 11 Stone Buildings, but now of Wilberforce Chambers) represented the client at first instance and on appeal.

Success in the Mercantile Court and Court of Appeal

Walsham Chalet Park Limited, trading as The Dream Lodge Group v. Tallington Lakes Limited [2015] EWHC 2083 (QB)

Following last year’s appeal (which we have previously reported) on a significant point of procedural law in this case, Charles Fussell & Co LLP is pleased to announce that it has taken the case to trial and won. The case concerned what should have been a short-lived dispute between two companies who used to operate a joint venture but fell out acrimoniously in February 2012. Most of the issues between the parties were matters of simple accounting under a simple contract which could and should have been resolved by agreement without the need for legal proceedings.

Unfortunately, however, the Defendant was represented throughout by a director who (as the trial judge found) was “apt … to lose perspective completely when an issue is raised and then descend into quite unnecessary vitriol with those who do not agree with him”. Not content with taking every conceivable point, he made wild allegations against everybody involved in the case.

He wrote insulting emails to us, which ranged in tone from the mischievous (comparing us to characters in well-known sketch shows and ostriches, in each case helpfully including photographs) to the seriously unpleasant and unprintable. When presented with the Claimant’s disclosure, he accused us of criminal conspiracy to fabricate evidence.

He also accused our client of orchestrating a curiously half-hearted campaign of intimidation against him personally. He said this included acts of criminal damage to the gates outside his home and the sending of a cryptic email containing the word “Capet”, which he construed as “kaput” and therefore a veiled threat to him and his family – on the basis that our client’s managing director was born in 1961 and was therefore familiar with terminology from the Second World War. The trial judge found this allegation to be “bizarre and baseless”.

Notwithstanding this barrage, a team led by Simon Winter of Charles Fussell & Co LLP patiently martialled the facts and rebutted all the Defendant’s allegations. We instructed first Daniel Saoul of 4 New Square and then Michael Buckpitt of Tanfield Chambers to represent the Claimant in Court.

Ultimately, and after no fewer than seven lengthy pre-trial hearings (including one in the Court of Appeal), the Claimant succeeded on every significant issue at trial and the Defendant has been ordered to pay substantial damages, additional damages under Part 36 of the Civil Procedure Rules – for having failed to beat a pre-trial offer of settlement – and costs on the indemnity basis.

The Defendant applied for permission to appeal and a stay of execution – twice, once on paper and once orally. Both such applications were dismissed.