Gregory Mitchell QC

This will generate an increase not only in domestic work but especially in international work. English law and jurisdiction is very widely chosen by international businesses for contracts of many different kinds. There is a great deal of international work for English lawyers and the specialist Bar is very well placed to expand its share of a growing market. I hope to see an increase in my fields of banking and insolvency.

Are there any particular areas of international banking work that you think might increase?

History is repeating itself and we are seeing a return of the swaps litigation of the 1980s. There are large numbers of swaps and other derivatives made by international corporations, governments and local governments with enormous values, under which English law and jurisdiction were chosen. Market loss has occurred due to the “credit crunch” and some counterparties are seeking to avoid their contractual obligations to make payment by relying upon the strict English ultra vires doctrine, in support of an argument that they lacked capacity to make the swaps and thus the swaps made are void. Similar arguments succeeded in Hazell v Hammersmith London Borough Council [1992] 2 AC 1. Of course the victory may sometimes only be a pyrrhic one because the parties will usually be required to give restitution of the benefits received. In Haugesund & Narvik v Depfa Bank & Wikborg Rein & Co [2010] EWCA Civ 579 the Court of Appeal split on the question of whether the strict English ultra vires doctrine is applicable to a foreign corporation under whose own law there is no such doctrine. This issue may be decided by the Supreme Court. Haugesund is the first case in what could be a substantial growth area in litigation. 

What effect might the Court of Appeal decision in JP Morgan Chase Bank v Springwell Navigation Corp have on banking litigation?

The case arose out of the Russian debt crisis of 1998. The claimant alleged that the bank had been negligent in the investment advice that it gave and had made misrepresentations. The bank denied negligence and relied upon contractual disclaimers of liability for misrepresentation. The judge held that the bank owed no duty of care and that the disclaimers made were effective against the customer. This decision has been upheld by the Court of Appeal (see [2010] EWCA Civ 1221). The decision is an important precedent and is likely to make the choice of English law more attractive than some of its rivals such as New York law. Historically the English courts have tended to be quite protective of banks and most claims of negligence against banks have failed.

You were instructed in Ram Media v Ministry of Culture of the Hellenic Republic. What impact do you think Lord Justice Jackson’s proposals, if in force, would have had on the case?

This was a David and Goliath contest between an insolvent English company litigating on the basis of full conditional fee agreements (CFAs) against a State. Ram Media was a small English company which contracted with Greece to hold the Fifpro World XI Awards in Athens in 2006. Greece refused to meet its payment obligations and the TV gala ceremony was cancelled a few days before it was due to be held and Ram became insolvent. Ram was ordered to give security for costs and did so by arranging After the Event (ATE) insurance. Ram succeeded at trial and in the Court of Appeal and obtained judgment with an order for costs covering the full CFA uplift and the ATE premium. The Greek Government failed to pay on the judgment and so it was necessary to devise an enforcement strategy. Enforcement in Greece was unattractive because the English costs orders might not be enforced by the Greek Courts. The judgment and costs orders were enforced in England by obtaining an order under CPR 72 attaching monies received by Deutsche Bank London from Greece via the ECB which were to be used to pay interest under Greek Government bonds. The enforcement strategy required a detailed analysis of how such monies were likely to be transferred so as to catch the monies between receipt by Deutsche Bank as agent for Greece and payment out to bond holders. 

As a result creditors – including artists and technicians who had worked hard on the TV gala ceremony – received a dividend of 96p in the £. Justice was done. The case is a good example of how the CFA regime provides access to justice. If the proposals made by Lord Justice Jackson in his review on costs had been in place then it is unlikely that the case could have been brought. A balance has to be struck between the interests of access to justice on the one hand and protecting defendants from having to pay costs plus the CFA uplift plus the ATE. I come down on the side of access to justice.

Guy Hewetson, LPA Legal, interviewed Gregory Mitchell QC