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In the course of research for the Bar section of this special report, information was collected about groundbreaking innovative cases. Here our legal correspondent describes four of the cases.
Case study one: The Republic of Zambia v Meer Care & Desai and others
”A template for the fight against corruption in Africa” is how recent civil litigation by the Zambian government against former president Frederick Chiluba and four associates in London’s High Court was billed.
The groundbreaking case, which made use of videolink facilities so that proceedings could be watched in Lusaka, certainly brought results. In May, after hearings spread over four months, Mr Justice Peter Smith ruled that the former president and his associates – who declined to participate in the trial – had conspired to misappropriate $46m from the country’s coffers. Some of that money, he also found, was laundered through two English law firms – Meer Care & Desai, and Cave Malik.
The case could be brought in the English courts because money had passed through accounts in London, and the jurisdiction was at the centre of the alleged wrongdoing. Matters were complicated by ongoing criminal proceedings against the defendants in Zambia, but careful ”ring-fencing” was put in place to protect their position, including holding the trial itself in private. The judge has also stressed that the burden of proof in the civil proceedings was lower than that which will be required in the criminal case.
British authorities, meanwhile, played a role in some of the evidence gathering, through the ”mutual legal assistance” system, and some of the legal representation was done on a ”pro bono” basis.
Afterwards, Hilary Benn, the UK’s international development secretary until last week’s reshuffle, described the result as a ”historic victory” and suggested that monies recovered could now be invested in the Zambian people’s future.
There, though, is the fly in the ointment: the legal victory came just weeks after Zambia had failed to see off a claim brought against it by a so-called vulture fund – Donegal – after the country defaulted on sovereign debt which the fund bought at a big discount. However, Zambia’s lawyers did succeed in getting the award reduced to $15.5m, compared with the $55m claimed.
Case study two: William Majrowski/Helen Green
These were two cases that threw a fresh spotlight on workplace bullying, and succeeded in opening up a new legal front for potential victims.
The breakthrough was achieved by William Majrowski, a former administrative employee at a big London hospital who claimed to have been intimidated by his manager. This treatment, he suggested, was fuelled by the fact that he was gay.
Mr Majrowski, however, did not sue for negligence or breach of contract; rather, he brought a claim against the hospital under the 1997 Protection against Harassment Act, which was originally designed as an anti-stalking law.
Application of anti-harassment law to an employment situation was contentious and a lengthy legal tussle ensued. But last year, the House of Lords ruled that employers could be held vicariously liable for any harassment caused by workers in the course of their employment.
Helen Green’s case – which involved persistent bullying by co-workers at Deutsche Bank that led her to suffer two nervous breakdowns – then did much to publicise dangers of overly aggressive workplace behaviour, for both employees and employers.
In fact, the former company secretary won her case by arguing a conventional personal injury-type claim. The anti-harassment grounds were also invoked, but in the event not needed. But it was the size of Ms Green’s victory, which resulted in an award topping £800,000 mainly to compensate her for the loss of a City career, that garnered widespread media attention. Bullying, as an issue, was, at least temporarily, back on the front burner.
Case study three: Consumers’ Association v JJB Sports
This is the first class action-style claim brought on behalf of consumers over anti-trust breaches in the UK – or, indeed, Europe. In it, Which?, the consumer organisation, is flexing new legal powers which allow it to launch a ”representative claim” for damages on behalf of consumers – in this case, people who bought certain replica football shirts sold by JJB Sports in 2000 and 2001.
An investigation by the Office of Fair Trading has already determined that these shoppers were overcharged because a cartel was operating which fixed the prices of the shirts. JJB Sports was one of a number of businesses involved, and it has already been fined by the competition watchdog.
The sums at stake in the case are relatively modest and only 130 consumers had signed up with Which? when the claim was formally submitted to the Competition Appeal Tribunal in March this year, although an estimated 1m overpriced shirts were sold.
Nevertheless, the case is being very closely watched because it could be the first to establish how a damages regime for competition abuses will work. Controversially, Which? has asked not just for compensatory damages, but also for exemplary or restitutionary damages.
On the other hand, the case could simply settle. A preliminary hearing, originally scheduled for April, was postponed and Which? has said publicly that it hopes to reach an agreement out of court. If so, competition lawyers will have to wait a little longer for that all-important first antitrust damages claim to come to court.
Case study four: Anti-discrimination tax litigation
When accountants and lawyers realised that the EU’s anti-discrimination principles meant that certain domestic tax policies in member states might be capable of challenge, they set in train a slew of litigation which continues to this day.
In the UK alone, the legality of levying advance corporation tax was successfully contested more than a decade ago. More recently, there have been fights over the regimes covering corporation tax and franked investment income, and the controlled foreign company legislation.
The Treasury has been forced to fight a rearguard action, changing policies and closing loopholes to preserve as much of the corporate tax take as possible - although some more carefully nuanced judgments by the European Court of Justice, Europe’s top court, have made its task somewhat easier of late.
One of the many strands of this litigation finally to come to a resolution recently was the test case brought by Deutsche Morgan Grenfell over how far claims to recover unlawfully-levied ACT could be backdated. After a long legal fight, the Law Lords upheld a High Court judge’s ruling that the normal six-year limitation period for bringing a claim against HM Revenue & Customs did not begin to run until the ”mistake of law” was discovered by the claimants.
With about 60 other international companies standing in the ”group” claim spearheaded by DMG, that decision could cost the tax authorities hundreds of millions of pounds.
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