Misfeasance in Public Office: Tschenguiz claims
Brian was briefed to represent Vincent Tschenguiz and his brother Robert Tschenguiz in their ground-breaking claims for damages against the Serious Fraud Office. The case raised issues of misfeasance in public office, wrongful arrest and false imprisonment, trespass, breaches of the Human Rights Act, and malicious prosecution. The case was due to commence in October 2014, but was settled by the SFO shortly before the trial commenced: Rawlinson and Hunter Trustees v Director of the Serious Fraud Office
Breach of confidence and breach of directors’ duties
Brian acted for the defendant company and its directors in a trial brought by the claimant company for breach of confidence and breach of directors’ duties. The claims were all dismissed with indemnity costs: Richmond Pharmaceutical v Chester Overseas Limited  EWHC 2692 (Ch)
Conflicts of interest and competition law
Brian led a team of 6 counsel in a claim for an injunction in the South African High Court brought by a former client against accountants KPMG and the Competition Commission of South Africa, arising out of the latter’s appointment of KPMG as adviser to a Market Enquiry in the client’s field: Netcare Hospitals (Pty) Limited v KPMG Services: judgment 22 August 2014
Resistance to enforcement of an Arbitration Award
Brian acted for the defendant to an Arbitration Award attempting to resist enforcement of the Award in the BVI:Belport Development v Chimichanga Corp judgment 6 February 2014
• In Chester Overseas v Jorg Taubel and Others, Brian acted for the minority shareholders in a s994 (unfair prejudice) application against the majority, for winding up or purchase at a fair value. The action was settled by the majority agreeing to purchase the minority at a fair value, and he acted for the minority in the valuation proceedings before a valuer. (The counterclaim by the defendants then proceeded for breach of confidence and breach of fiduciary duties then proceeded, and is reported: Richmond Pharmacology v Chester Overseas  EWHC 2692 (Ch).
• Brian is currently engaged in an inter-shareholder dispute about the value of shares in a company owning a hotel in the Caribbean is under consideration. He acted for the claimant alleging breach of warranties given to the purchaser of shares in the company. The loss is alleged to be the reduction in value of the shareholding, as a result of the breaches: Barthelmy Holdings v Duet Group Limited. The trial is scheduled for 2019.
• Dimitri Garkusha v Ashot Yegiazarian and others BVIHCMAP2015/0010: This is a shareholder dispute between two Russians being conducted in the BVI courts. He acted for the Claimant, Mr Garkusha who claims, inter alia, delivery of his shares in a company controlled by the First Defendant.
• In Belport Development Limited v Erturk Deger, Chimichanga Corporation and another: Brian acted for the Turkish defendants who were being sued for breach of the shareholders agreement between them and the Claimant (Belport, an English-owned company). The dispute between the 50-50 shareholders in a project to develop a new Port in Turkey. The matter was referred to arbitration (ICC) and was heard by three arbitrators in London. The claim alleged fraud, breach of contract and various other causes of action, claiming damages of $450m plus interest, said to be the value of the shares they had lost. After losing on liability, the claimant’s claim for damages proceeded, and after hearing expert evidence from both sides, the claimant was awarded a mere $35m plus interest. No reliance was placed by the Tribunal on the evidence of the Claimant’s expert accounting witness, who Brian had cross-examined on behalf of the defendants.
• Merlin Mineral Resources v Kermas Limited CLAIM NO: BVIHCV (COM) 2011113 and 14: This was a claim by minority shareholders for breach of the shareholders’ agreement between a Hong Kong company, a BVI company (Kermas) and a company owned by South African individuals. The company was engaged in the exploration and development of a nickel mine in Burundi, Africa. The shareholders fell out and the minority commenced an arbitration in South Africa. They also sought freezing injunction relief in the BVI. They then abandoned the arbitration in South Africa, and commenced proceedings for the same relief in the BVI, seeking further freezing injunction relief. After appearing in various interlocutory applications concerning expert evidence, disclosure and so on, Brian appeared for Kermas at the trial in the BVI. Kermas was successful in its defence, and the claim was dismissed with costs. The Court accepted the Defendant’s contention that an important document on which the Claimant relied was a forgery. Although the issue of valuation thus fell away, he was very involved, from inception, in the question of the valuation of the shares said to have been promised, and prepared extensively on that issue.
Banking & finance
Brian has an extensive practice of advising in banking matters, and acts both for and against banks in the UK and abroad. More recently he has:
a. acted for a Canadian bank in proceedings in London regarding a guarantee for a subsidiary, and the appointment of a receiver (Gentra Limited v BPO Properties)
b. acted against a bank in litigation arising out of PPI selling and the Consumer Credit Act (Harrison v Blackhorse)
c. advised in a potential group action arising out of the Banking credit crunch events
- Harrison v Black Horse Ltd  EWCA Civ 1128
- Commercial First v Atkins: mortgage claim subject to Consumer Credit and other defences
- Prospective group actions arising out of credit crunch and collapse of banks
- BTA Bank v Ablyazov (2009- 2010), claim by Kazakh Bank against its former chief executive
- Office of Fair Trading v Abbey National Plc and others  EWHC 875 (Comm): trial regarding overdraft charges and fairness under the UTCCA
- Advised OFT in connection with Credit Card default charges, leading to OFT Guidance in April 2006
- Three Rivers District Council and BCCI v Bank of England [2004 – 2005]. Acted for Bank of England
- Shamil Bank of Bahrain v Beximco Pharmaceuticals Ltd  1 WLR 1784 choice of law, Islamic banking
Commercial dispute resolution
Brian has been involved in the past year in various cases in England and abroad, including:
- Belport Development v Chimichanga (ICC Arbitration: 2013)
- Incolabs (Pty) Ltd v SSL International: Ending of distribution contract in foreign country
- Merlin Mineral Resources v Kermas Ltd: shareholders’ dispute re mining company
- Chester Overseas Limited v Richmond Pharmacology: unfair prejudice petition
Competition and consumer protection
- The Medicaments Reference, (2001)Represented the Director-General of the Office of Fair Trading in the successful application to remove Resale Price Maintenance on over-the-counter medicines
- Argos and Littlewoods v The Office of Fair Trading; acted for the OFT in various applications, and the trial regarding Chapter 1 price fixing  CAT 24;  All ER (D) 203 (judgment on liability). Court of Appeal
- Argos and Littlewoods v The Office of Fair Trading  CAT 13 judgment on penalty
- Advised OFT on Credit Card Default charges, leading to settlement with credit card companies, and tobacco retailing
- Bookmakers Afternoon Greyhound Races v Amalgamated Racing: Acted for Defendants in abuse dispute between race-courses and bookmakers  EWHC 1978 (Ch)
- Bookmakers Afternoon Greyhound Races v Amalgamated Racing: counterclaim for alleged cartel  EWHC 2688 (Ch)
- Harrison v Black Horse Ltd EWCA Civ 1128; selling of PPI policies; claim against bank for “unfair relationship” (s140A Consumer Credit Act)
- Advised regarding dispute with OFT regarding retirement villages conditions of sale
Fraud: civil (and bribery)
Brian has acted in the two largest civil fraud cases of recent years: Tajik Aluminium, and BTA Bank v Ablyazov. He has been involved in many aspects of the law, raised in those cases. In addition, he has acted in arbitrations in this field. He has also acted for the defendant in a recent trial in the BVI where the claim was held to have been fraudulently brought. He is currently representing parties in an international arbitration where both sides are making extensive allegations of fraud.
- Merlin Mineral Resources v Kermas Ltd. (BVI High Court: fraud claim and breach of shareholders agreement)
- BTA Bank v Ablyazov: claims by Bank against former chief executive
- TadAZ v Ermatov and Ansol. Acted for Defendants in largest commercial fraud claim ($540m) to come to trial in the Commercial Court. 2005 – 2008. Settled end 2008
Freezing Injunctions, witness summonses and disclosure of documents; privilege:
- JSC BTA Bank v Shalabayev  EWHC 2915 (Ch)
- JSC BTA Bank v Ablyazov: freezing orders, restriction of information to solicitors,  EWHC 2840 (Comm),  All ER (D) 160
- JSC BTA Bank v Ablyazov EWHC 3267 (Comm): maximum sum orders
- JSC BTA Bank v Ablyazov:  EWHC 90 (Comm),  All ER (D) 68 (Feb) freezing orders and risks to third parties
- JSC BTA Bank v Ablyazov:  EWCA Civ 1125: disclosure of documents and privilege against self-incrimination
- Tajik Aluminium v Ermatov and others EWCA Civ 1218 (CA) (witness summons, arbitration)
- Tajik Aluminium v Ermatov and others  EWHC 2241 (Ch) (discharge of freezing order)
Brian has acted as an arbitrator in several disputes involving international parties, both under LCIA and ICC jurisdiction, and in South Africa. In the last year he has been involved in:
- Merlin Mineral Resources v Kermas Limited: Arbitration in South Africa regarding shares in nickel mine in Burundi, covering company law, shareholders’ agreement and mining law. Shareholder dispute with allegations of fraud.
- Belport Development v Chimichanga Corp: Arbitration under Swiss law regarding port in Turkey. Dispute between joint venture parties and shareholders in joint company. Extensive allegations of fraud.
Frequently appeared as counsel in international (ICC and LCIA) arbitrations, under English law and foreign legal systems, for example Russian, Tajik and Azerbaijan law in a Swiss arbitration
Jurisdiction and conflict of laws
Brian regularly advises on conflict of law issues, including enforcement of foreign judgments, relevant law disputes in contract and tort and unjust enrichment cases. Notable cases which have involved actual litigation include:
- Bell Group Finance (in liquidation) v Gentra Limited
- Tajik Aluminium v Ermatov: challenge to jurisdiction by Part 20 Defendants: judgment of Commercial Court: EWHC 2374 (Comm)
- Ansol v Rusal: jurisdiction challenge in computer hacking case: judgment of Commercial Court  EWHC 2545 (Comm)
- Connelly v RTZ Corporation [1998 AC 354 (HL);  2 WLR 251(CA): acted for RTZ in forum non conveniens proceedings: clam by employee of foreign subsidiary against English parent company. House of Lords
- Lubbe v Cape Plc  CLC 1559
- Afrika v Cape Plc 1 WLR 1545 (HL);  2 Lloyd’s Rep. 283. House of Lords. Acted for Cape Plc in forum non conveniens proceedings: group action by thousands of foreign claimants alleging asbestos injuries