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Commercial Litigation

We have a wealth of experience in dealing with high-value, complex and heavily contested commercial litigation cases. A number of our cases have been selected over the years by The Lawyer as being in their top 20.

PCB is the only firm which appeared in the top 10 in a report dated 2017 by Premonition, a leading data analytics firm on the basis of win-rate ratio in both the Commercial Court and the Chancery Division (2014-2016). Trevor Mascarenhas was one of only 9 solicitors in England identified by Who’s Who Legal as a Thought Leader in Litigation in 2019. Our work is also recognised by the Legal 500, which describes Anthony Riem, Trevor Mascarenhas, Nick Ractliff and Jon Felce as “highly rated”.

Most of our cases are international in scope, where main or ancillary proceedings may be taking place in other jurisdictions. There may be also issues of jurisdiction or the application of foreign law. Types of claim vary from supply chain disputes, to shareholder and joint venture disputes, and professional negligence claims.

Some of our more substantial or high profile instructions include:

  • A Privy Council case, that is now the leading authority on the scope of claims for rectification of a company’s share register
  • Claims for in excess of US$200m by a listed company against former directors for breaches of fiduciary duty in relation to alleged misappropriation of company assets and the making of secret profits
  • The defence of a US$100m+ unfair prejudice petition
  • The defence of a director alleged to be responsible for misrepresentations in a prospectus of a listed company that collapsed with losses of £200m to investors
  • Obtaining injunctions to prevent dealings with shares in breach of pre-emption rights
  • Advising Lloyds Banking Group shareholders on claims arising from the merger with HBOS
  • Acting for a listed company in bringing claims for breach of fiduciary duty against former directors
  • Acting for a former director of a professional football club in defending allegations of breach of fiduciary duty
  • Acting for claimants in relation to proceedings for negligence and breach of fiduciary duty against a city firm of solicitors in relation primarily to losses caused by a corporate transaction for the purchase of shares in an Italian company

Selected Case Summaries

The Commercial Court has today given judgment in favour of PCB’s client, Mr Dmitry Tsvetkov, who was defending a claim brought under a guarantee by his former business partner, Rustem Magdeev. At the centre of the case was a Graff diamond franchise, established by Mr Tsvetkov, and invested in by Mr Magdeev.

The case was unusual because whilst the claim was based on a written document, being the guarantee, the successful defence was based on establishing that the parties had entered into two oral agreements, pursuant to which various payments had been made by which the loan underlying the guarantee had been repaid.

The defence was successful because Mrs Justice Cockerill DBE was persuaded that the circumstances of this case were such “the documentary record cannot be regarded as entirely reliable” with the result that “less weight is placed on such documents as signed contracts than is usual in this Court”.

PCB acted for private equity firm ACON in a claim for a US$4m payment upon exiting its investment in an energy company. ACON had been part of a consortium of private equity firms that had invested, but was unhappy with the way in which its fellow investors wished to manage the company. It therefore negotiated an exit which involved the return of its US$100m investment and an additional payment of US$4m on the fulfilment of a condition that the energy company would not suffer a penalty from its lenders. The defendant claimed that the condition was not fulfilled saying that certain terms that the lenders had imposed upon the energy company amounted to a penalty within the meaning of the condition. PCB succeeded in persuading the Court that the interpretation of the condition contended for by the defendant was wrong, and obtained judgment for US$4m.

PCB acted for Mr Walid Giahmi in successfully challenging the jurisdiction of the English court. The case was one of a series of claims and threatened future claims against Mr Giahmi and a number of major Western banks, alleging that investments were made by the Libyan Investment Authority (“the LIA”) with those banks due to Mr Giahmi paying bribes to LIA employees. PCB persuaded the Court that the LIA had seriously breached its duty of full and frank disclosure when it obtained permission to serve him out of the jurisdiction, in particular because it had failed to draw the Court’s attention to the relevant test for limitation and the related evidence tending to show that the LIA could not satisfy that test. Indeed, the Court was persuaded that the LIA had no reasonable prospect of satisfying the test and the claims were therefore time-barred.
PCB’s defence on behalf of 33 respondents to a €1bn claim culminated in PCB’s clients being awarded indemnity costs. The Claimants’ case had collapsed after 4 days of a 6 week trial, but the Judge considered he was in a position to assess in broad terms the reasonableness of the pursuit and the manner of presentation of the proceedings, to determine in all the circumstances already apparent to the Court whether the case was such as fairly and properly to be characterised as “out of the norm”. He concluded that this had been high-risk litigation, aggressively and very expensively pursued and that it was taken out of the norm by factors including (1) the pursuit of serious allegations of commercial impropriety which were suddenly abandoned without explanation; (2) the changing nature and inconsistencies in the case; and (3) the publicity attending the case.  

PCB acted for the third defendant in successfully obtaining security for costs in relation to this multi-million dollar dispute. The Claimant was resident in Russia and there was evidence before the Court as to the difficulties in enforcing an English costs order in Russia. The Court considered that the correct approach was to make a single order of a substantial amount of security to reflect the real (but small) risk of non-enforcement and greater (but less financially extensive) risk of increased cost and delay. That meant that the defendants would be covered for the financial risk of the more likely aspects of increased cost and delay. There would not be full security in respect of the costs of the action, but the amount ordered would go some way to covering and guarding against the risk of non-enforcement.

PCB acted for the 9th to 42nd respondents in this €1bn claim brought by the liquidators of a Greek Telecommunications company against private equity interests under s423 of the Insolvency Act 1986. The litigation had originally been brought in the US, but was stayed on forum grounds at a relatively late stage in favour of England. The consequence was that at an early stage of the English proceedings, the parties agreed that the disclosure given in the US proceedings should stand as disclosure in the English proceedings. Subsequently, the liquidators sought that the respondents should undertake additional searches for documents. However, in view of the agreement previously reached, the evidence as to the careful steps taken in the US proceedings to ensure appropriate searches were undertaken for documents and the lack of any evidence that there were missing documents likely to be found, the Court declined the liquidators’ application.

PCB acted for the defendant in proceedings brought against him and a BVI company in which he was the sole shareholder, alleging breach of contract in failing to issue shares in the BVI company to the claimants and seeking rectification of the share register. PCB successfully challenged the jurisdiction of the BVI Court at first instance. When this was overturned on appeal, PCB persuaded the Privy Council to grant permission to appeal and succeeded on that appeal. The Privy Council declined to follow the English Court of Appeal authority on which the Claimants relied in holding that the procedure for rectification of a company’s share register did not enable the court to determine prior questions of contractual obligations in respect of the issue of those shares. Accordingly, there was no rectification claim against the company to which its shareholder could be joined as a necessary or proper party. Further, the Privy Council held that the fact that the dispute was about shares in a BVI company did not make the BVI the appropriate forum to hear the dispute.

PCB acted for the claimant casino in obtaining judgment for dishonoured cheques and resisting the defendant’s multi-million pound counterclaim. The defendant alleged that he had a gambling problem that the casino was aware of and that he should have been excluded from the casino. The Court rejected his evidence at trial and found in favour of PCB’s client on the proper construction of the Gambling Commission’s codes of practice.

PCB acted for the claimants in obtaining permission to serve the proceedings alleging deceit, conspiracy and dishonest assistance on the defendant out of the jurisdiction. The defendant challenged the jurisdiction, alleging that he was not properly served, that England was not the appropriate forum and that there was no reasonable prospect of the claim succeeding. All of those arguments were rejected by the High Court. On appeal, the Court of Appeal rejected the forum argument but set aside service on the basis that the defendant had not been properly served and it was not appropriate for service to be validated retrospectively. PCB persuaded the Supreme Court that the case raised issues of general public importance such that permission to appeal should be granted, before ultimately winning the appeal. This is now the leading case on alternative service out of the jurisdiction.

PCB acted for the respondent director of a BVI company. Proceedings in the BVI in respect of ownership of shares in the company were ongoing, the director being based in England. The Claimants sought to obtain an injunction against the defendant under s25 of the Civil Jurisdiction and Judgments Act 1982 in support of the BVI proceedings to prevent him from permitting expenditure by the company on the BVI litigation (to which it was a party). PCB successfully opposed the grant of such relief on the basis that there was no substantive claim alleging wrongdoing in respect of that expenditure, that there was no threat that required the grant of injunctive relief, damages would be an adequate remedy and were such relief to be granted it could obstruct or hamper the management of the case by the BVI Court.

PCB acted for the claimants in a US$25m claim against a city firm of lawyers alleging professional negligence and breach of fiduciary duty. PCB made an application for extensive electronic disclosure at a time when there was little case law as to when electronic disclosure should be provided. The defendant solicitors alleged that all electronic communications would have been printed and put into hard copy files and that the costs of restoring back-up tapes would be substantial, making the exercise wholly disproportionate. PCB was however able to persuade the court that some electronic searches should be undertaken, which ultimately led to critical evidence being uncovered.

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