Opt-out collective proceedings against Google

30 November 2022, London. A competition claim valued at up to £13.6 billion has been filed today at the Competition Appeal Tribunal (CAT) alleging serious anti-competitive practices against Google and its parent company Alphabet Inc. The claim alleges that Google abused its dominant position in the market for online advertising, earning super-profits for itself at the expense of the tens of thousands of publishers of websites and mobile apps in the UK.

Economic analysis produced for the claim suggests that Google’s market abuse may have reduced advertising revenues by up to 40% for some companies. The anti-competitive practices alleged in the CAT claim have already been the subject of multiple regulatory investigations in the EU, UK and USA and resulted in a €220m fine against Google from French competition authorities in June last year.

Toby Starr, a partner at City law firm Humphries Kerstetter, leading the claim, said: “Google’s misconduct in this matter is well known. The French authorities have fined the firm and multiple investigations are underway across the globe. However, none of these regulatory actions will do anything to compensate the UK publishers of thousands of websites and mobile apps who have lost billions in advertising revenue because of Google’s actions. The only way to recoup these losses is through a competition class action.”

The UK legal action is being brought in parallel with an EU claim, expected to be filed in Netherlands early next year. Both claims are being run with Geradin Partners, the specialist competition law firm which acted on behalf of publishers in the French competition authority investigation, as well as investigations pursued by the European Commission and the Competition and Markets Authority (CMA).

These competition investigations all focus on the same core facts. Google dominates the markets for ad tech services in the UK and across the world controlling up to 90% of the market in certain sectors. This allows Google to dictate terms, control pricing and, in some scenarios, enables it to favour its own platforms in the process by which advertisements are selected to be published. The claim against Google is being brought on behalf of 130,000 businesses publishing around 1,750,000 websites and applications in the UK, all of whom will have been impacted by Google’s alleged anti-competitive behaviour. The total loss to these businesses over the relevant period, 1 January 2014 to date, is estimated to be up to £13.6bn.

The competition claim is to be headed by former director of Ofcom, Claudio Pollack. He said: “The marketplace for online advertising is sophisticated, technical and highly automated. Advertising is sold in a fraction of a second in a process which is designed to match the product being advertised with the profile of an individual visiting a website. Third party platforms operate on both sides of the marketplace matching supply with demand and – in an ideal world – ensuring the market operates efficiently and effectively. Unfortunately, it is now well established that this market has developed in a way that is primarily serving Google.”

Mr Pollack will seek permission to act as the representative of the class of businesses alleged to have been damaged by Google’s actions. This type of legal action allows the class members to benefit from the claim without having to sue Google in their own name, a daunting prospect given the costs and the fact that many have little choice but to rely on the tech giant for their ongoing advertising revenue.

The claim in the UK is being run in parallel with a separate multi-billion Euro claim being pursued in the EU by Dutch law firm Stek, also with Geradin Partners. Both claims are funded by blue chip litigation funder Harbour and backed by economic analysis provided by independent firm Charles River Associates.

Professor Geradin, founding partner at Geradin Partners, said: “While the value of the claim we are bringing is substantial, we believe this matter is about much more than money. For years Google has been denying companies in the UK and Europe and beyond, including the local press and the publishers of community focused websites, the chance to earn a proper income by way of advertising. As well as bringing Google to account the parties who have lost out need proper compensation, something a CAT claim can achieve at no cost to those parties.”

HK wins summary judgment application in the Commercial Court

HK was in court last week on behalf of a client suing under the terms of a Settlement Deed which had been breached but which the defendants sought to argue did not extend to alleged claims in fraud and/or should be set aside on the basis of the “sharp practice” rule considered by Lord Hoffman in BCCI v Ali. HK pleaded and argued the case with Managing Partner James Russell appearing as Solicitor Advocate for the claimant, supported by Charlotte Flammiger and Hilary Baker.

HK won all grounds before the court. In addition to obtaining a money judgment of £2.5m, HK secured a declaration of non-liability on the part of our client in relation to alleged future claims which the defendants had raised but declined to bring within the present proceedings. HK successfully argued that such a declaration – a discretionary remedy which can be difficult to achieve on an interim basis – would serve a useful purpose because our client should not be put to the trouble of having to strike out future claims that should have been brought by way of counterclaim in the current litigation (a Henderson v Henderson argument). HK also persuaded the court, on a summary enquiry, that a default interest provision requiring the payment of simple interest by the defendants on the overdue settlement sums at 2.5% per calendar month, 30% annually, was not an unlawful penalty. This was an argument raised minutes before the hearing by the defendants in an apparent attempt to ambush the claimant.

HK was awarded indemnity costs and an interim payment of 65% of its total bill.

The case is a good example of how HK’s practice can offer effective Higher Court advocacy services on an in-house basis, resulting in highly efficient representation.

HK ranked as leading firm 2023 by Legal 500

Humphries Kerstetter has consolidated its position as a leading firm in the latest Legal 500 survey of clients and others. Senior Partner, Kris Kerstetter, was individually recognized as a “leading lawyer” in commercial litigation with other partners being noted for their work in commercial disputes and banking litigation. The firm received strong testimonials, being described as a “Magic Circle quality in a boutique setting, with a partner-led approach that leads to very high-quality representation.”

Humphries Kerstetter acts for successful party in high profile private equity dispute

Humphries Kerstetter acted for one of the successful defendants in BRG NOAL GP S.à r.l. & Anor v (1) Stefan Kowski & (2) Bastian Lueken [2022] EWHC 867 (Ch) (see judgment here), in which the High Court stayed English proceedings (on forum non conveniens grounds) and dismissed an injunction application seeking to restrain foreign proceedings.

The Claimants sought urgent interim injunctive relief requiring the Defendants to halt Luxembourg proceedings brought by Luxembourg companies (in whose ultimate parent company the Defendants were minority shareholders). In resisting the injunction application, the Defendants each made an application under CPR Part 11 that the Court should not exercise its jurisdiction on forum non conveniens grounds as Luxembourg was the appropriate forum for the dispute. The matter was heard at a three-day hearing before Joanna Smith J, with substantial factual and Luxembourg foreign law expert evidence filed by the parties.

Having weighed up the various factors (which included considering the governing law of the contractual arrangements under Rome I), Joanna Smith J agreed that the appropriate forum for the dispute was Luxembourg and ordered a stay of the English proceedings.

Although strictly that was the end of the matter, the Court also addressed (obiter) the Claimants’ anti-suit injunction application which rested on the alleged validity and enforceability of an agreement not to sue in the form of a contractual undertaking (the validity and enforceability of which was denied by the Defendants and which in any event they said had not been breached).

The Court considered the appropriate test to be applied in an anti-suit injunction application of this nature: ‘serious issue to be tried’ or a ‘high probability’ that the undertaking was valid and enforceable. After reviewing the authorities, the Court agreed with the Defendants that the correct test in the circumstances was whether there was a ‘high probability’ that the undertaking was valid and enforceable. Emphasis was placed on the English court having confidence in the validity of an agreement not to sue before interfering with foreign proceedings: “Anything less than the “high probability” test on the facts of this case would not give proper weight to the need for comity, nor would it address the need to establish that the foreign proceedings are in some way oppressive or vexatious” (Joanna Smith J at [111(xi)]).

Having failed to establish a high probability that the undertaking was valid, the Claimants’ anti-suit injunction was dismissed.

Humphries Kerstetter, acting for the First Defendant, instructed Ben Strong QC and Patricia Burns of One Essex Court. The Claimants were represented by McDermott Will & Emery LLP (instructing Philip Marshall QC of Serle Court).

Contacts: Jo Pearson, Amy Arbuckle and Dino Muratbegovic.

Insolvency regulator proposed

Today’s decision by the Insolvency Service to work towards the introduction of a truly independent regulator for the insolvency profession is as welcome as it is overdue.  As was laid bare in the recent Parliamentary report, Insolvency Reform, produced with the support of Humphries Kerstetter, the insolvency industry has suffered from a lack of regulatory oversight for too long.

While many Insolvency Practitioners continue to uphold the very highest standards they are let down by too many of their peers who not only engage in misconduct but, until now, have done so in the knowledge they are highly unlikely to be called to account. A robust, independent regulator is the first step to calling rogue practitioners to account and improving standards across the industry.

Humphries Kerstetter Partner, Toby Starr, said: “This is a very encouraging update from Government and shows they have been listening to concerns that have been circling the industry for some time. While there are a lot of details to be hammered out, some of the measures already announced are certainly key to a fairer regime in the future: the new regulator will be independent, will have jurisdiction over both firms and IPs and will be able to offer to redress to third parties who may have suffered as a consequence of any wrongdoing. It is now important the Government and industry to come together to ensure these measures are implemented in a robust and practical manner, without being watered down.”

With the proposal for a new independent regulator under consultation until March 2022 it is imperative that all parties work together to  ensure the final outcome meets the requirements of the UK’s global economy. It is also vital that the redress mechanism proposed by Government as part of this reform offers real justice to those who have suffered because of insolvency misconduct. Humphries Kerstetter will continue to work with all parties, including those in Parliament, to do what we can to bring real about real, positive change in the sector.

Humphries Kerstetter represents Core VCTs Shareholder Action Group in battle with former managers and former liquidators

City law firm Humphries Kerstetter is representing shareholders in a group of venture capital trusts known as Core VCTs. The shareholders, the Core VCTs Shareholder Action Group, are battling to bring multi-million pound claims against the former managers of the AIM-listed business, Walid Fakhry and Stephen Edwards.

The Core VCTs Shareholder Action Group comprises around 40 active shareholders, but the wider shareholder base includes thousands of individuals. In a story published in The Times today, Investors sue over ‘cheap’ asset sales, the newspaper named a number of high profile investors in the company. These include former England and Chelsea football captain John Terry, Sir Roy Gardner, former chairman of Manchester United, Lord Neuberger, former head of the Supreme Court, and the businessmen Sir Adrian Montague and Lord Grimstone of Boscobel.

In the latest twist in the case, a London insolvency court last Friday gave the company and the Core VCTs Shareholder Action group until 20 December 2021 to ratify the legal action. The shareholder vote is being managed by the new liquidators to the Core VCT companies, Menzies.

James Russell, partner at Humphries Kerstetter, said: “We have been aware of this case for some time and were independently concerned that shareholders’ interests are liable to be prejudiced by the unusual course of the liquidations to date. We had no hesitation in agreeing to act when asked to represent shareholders and the Core VCTs Shareholder Action group in court at short notice. If necessary, the Action Group will instruct HK to represent it at future hearings in relation to the defendants’ threat to use their voting rights to try to block the claims against them.”

The claims brought by Menzies insolvency practitioners allege dishonesty and intentional wrongdoing by the former management and also name previous liquidators as defendants.

In a 15 March 2019 judgement in the case, dealing with the restoration of the Core VCTs companies to the register, Mr Jeremy Cousins QC said: “I am satisfied that the evidence before me demonstrates that there are serious issues to be investigated in respect of the management of the Companies, and the conduct of their liquidations.” As reported by The Times the Managers and the former liquidators deny any wrongdoing.

General Meetings of the Companies are to be held on 20 December 2021 at the offices of Menzies LLP, 1st Floor, Lynton House, 7-12 Tavistock Square, London, WC1H 9LT. Interested parties can find further information at www.corevctsshareholderaction.com.

Autumn in court for HK

Humphries Kerstetter represented clients in three court hearings and an international arbitration over the past week this November, with associates developing their skills as trial lawyers in two High Court summary judgment hearings, a CCMC and a final international arbitration hearing. The hearings all involved remote video technology and electronic bundles and one involved simultaneous interpretation during cross-examination with participants in multiple locations worldwide. Commenting at the end of a sustained period of effort in support of clients and the court and arbitral processes in two of the cases, associate Amy Arbuckle said: “Exacting as it has been, the skills acquired to provide effective representation in a hearing setting are great for every part of my development as an advocate and strong litigator and there is a lot of satisfaction at the end of the process”.

HK ranked as leading firm 2022 by Legal 500

Humphries Kerstetter is ranked as a leading firm for 2022 in the latest Legal 500 survey of clients and others. Mark Humphries was recognised as a leading individual lawyer by an entry in Legal 500’s “Hall of Fame”, other partners are noted for their work in commercial disputes and banking litigation and the firm won collective praise as a “first class team of litigation specialists”.

HK and APPG on Fair Business Banking launch insolvency report

HK and the APPG launch Resolving Insolvency: Restoring confidence in the system with an event at the Houses of Parliament. The accompanying press release can be read here. The APPG report addresses the market for insolvency practitioner appointments and conflicts of interest and makes recommendations for change.

Rob Javin-Fisher promoted to partnership

We are delighted to announce the promotion of Rob Javin-Fisher to Partner with effect from April 2021.

Rob joined HK as of counsel in November 2018 having spent over 11 years at Herbert Smith Freehills including stints in their Moscow and Tokyo offices. Rob’s practice is predominantly focused on international arbitration across a range of sectors but he also conducts cases before the English courts and advises on a broad range of dispute resolution matters. Since joining HK in November 2018, Rob has worked on a number of high profile matters including for Anoto AB and Anoto Limited as claimants in IPEC proceedings concerning copyright infringement and related issues, an international arbitration under the LCIA Rules for high net worth Russian businessmen in claims relating to the sale of a substantial Russian business, and an international arbitration under the LCIA Rules for a large multinational manufacturer in relation to claims and counterclaims for breach of a distribution agreement in Malaysia.

Managing Partner, Kristopher Kerstetter commented: “I am delighted to welcome Rob into the partnership. He has exceeded expectations on every level and made a great contribution to the firm. I have been particularly impressed with his ability to earn clients’ trust through his technical ability, hard work and commitment since he joined us. I look forward to continuing to work with him to grow the firm’s arbitration practice in the years to come.”

Rob’s promotion brings the firm’s partnership to 7 partners following the addition of Joanna Pearson to the partnership from Simmons & Simmons earlier in the year.

HK defends FX derivative claim by Goldman Sachs

HK is acting for one of the largest winemakers in the world, Spanish company Jose García Carrión, in defence of proceedings brought by Goldman Sachs International against JGC in the Commercial Court in London. The claim, which is for approximately $10m, relates to two leveraged FX transactions which GSI contracted with JGC’s disgraced former finance director in 2020. The claim involves complex issues of capacity and authority under Spanish and English law and expert evidence in relation to the nature of the underlying transactions, which JGC contends were purely speculative and fell outside its corporate purpose. JGC is counterclaiming for payments made under the products and return of sums retained by GSI by way of collateral for the transactions in the value of €3.5m. HK partner James Russell has instructed Max Mallin QC and Tara Taylor of Wilberforce Chambers. GSI is represented by Latham and Watkins and James Duffy of Fountain Court Chambers.

Humphries Kerstetter works with parliamentary group on review of insolvency industry

The All-Party Parliamentary Group on Fair Business Banking, supported by Humphries Kerstetter, is to conduct an in-depth investigation into standards in the UK insolvency profession. The work is aimed at building on and supporting governmental studies into regulation and standards in the industry, including the ongoing review of the regulatory system for the industry. As part of its six-month project the APPG has already called for evidence from the main players in the industry including the major accountancy firms, the regulatory bodies and the Insolvency Service. The APPG is now asking for anyone else with information about conduct and standards in the corporate insolvency world to submit information for consideration in any final report.

Kevin Hollinrake MP, Co-Chair of the APPG, stated: “A properly functioning insolvency industry is key to any successful economy. In recent years there have been a number of high-profile failures in the insolvency industry. The APPG has also received its fair share of complaints about the system. This is why we thought now would be a good time to conduct our review, identify any failures and suggest practical ways they might be addressed.”

Given the nature of the APPG a key focus of the investigation is likely to be on the relationship between insolvency practitioners and the lending institutions that have the power to appoint them. The APPG has received a number of complaints from business owners that the current system does not do enough to protect their companies when they have fallen into insolvency. Avenues for redress in this area are limited in practice with no independent regulator or ombudsman in place to oversee the industry and very high hurdles in place for anyone seeking to obtain justice through the courts.

James Russell, partner at Humphries Kerstetter, said: “All industries have stories of individuals or companies behaving badly. The insolvency profession is no different. But this needs to be put into proper context. As a City law firm we have seen conduct that falls below what should be expected. What we are interested in exploring is whether such behaviour is indicative of a wider, systemic problem.  If these problems are endemic, we look forward to working with the APPG to find ways to address them for the benefit of the insolvency industry and the wider economy.”

As part of the research phase of the investigation the APPG is sending out a call for evidence. Anyone who feels they have information relating to corporate, rather than individual, insolvency which might be relevant to the investigation is invited to email ben.bracciano@parliament.uk setting out a brief summary of the matter.

Joanna Pearson joins Humphries Kerstetter

We are delighted to announce that Joanna Pearson became a partner in the firm on 1 January 2021. Jo joins us from Simmons & Simmons where she spent 21 years in the International Dispute Resolution Group, including as a partner since 2011. From 2015 to 2018, she was a resident partner in the firm’s Singapore office and has also worked in Hong Kong. Jo’s practice focuses mainly on international dispute resolution in the financial institutions, wealth and asset management sectors and internal and regulatory investigations. She will be linking up again with HK partner Christopher Braithwaite who was a partner in Simmons & Simmons for many years.

Letters of request judgment

Judgment was handed down yesterday in favour of the firm’s client dismissing the respondents’ application to set aside orders obtained without notice for oral examination of a witness and the production of documents under section 2 of the Evidence (Proceedings in other Jurisdictions) Act 1975 and CPR 34.17 to 34.21. The case was noteworthy for its examination of the rules relating to non-disclosure and oppression – arguments mounted by the respondents following the initial grant of orders – and provides useful guidance on applications for deposition orders and orders to produce documents under the Hague Convention for use in proceedings in other jurisdictions, in this case US proceedings for enforcement of an arbitration award.

Christopher Braithwaite and Kristopher Kerstetter’s full article can be read here.

Remote trial decision

In a widely-reported decision on COVID-19 and remote trials, the court dismissed an application for an adjournment of the trial on grounds relating to the pandemic, holding in Re One Blackfriars Limited [2020] EWHC 845 (Ch) that the trial would proceed on a fully remote basis. The case is a helpful summary of the relevant rules and notes that the Remote Hearings Protocol and the Coronavirus Regulations permit travel, such as to a place equipped with a high-quality video link to give evidence or for counsel to do so to make submissions, and employees of a remote trial service provider to travel to any location (including a witness’s home) to assist with the set-up and oversight of the operation of a remote trial technology. In this case, the judge noted that the litigation was between well-resourced, sophisticated parties with excellent legal teams.

HK fees reasonable and modest, rules court

In Hencap (West Country) Limited v (1) Anton Alexander Palmer (2) Ashleigh Julia Ball the defendants had made an application to vary or, alternatively, stay a judgment issued in favour of the claimant, the firm’s client. The judge dismissed the defendants’ application and awarded our client its full costs, noting that Humphries Kerstetter’s rates were reasonable and that our fees were “modest by city standards”.

HK receives instructions to act in group claim on behalf of Win River investors

Humphries Kerstetter are representing investors in Win River Limited and Win River Developments Limited, companies of which Mr Simon Whittley (also known as Mr Simon Whittley-Ryan) is a director, in claims relating to missed interest payments and the return of investment capital.

The intention is to secure a funding arrangement for investors in the Humphries Kerstetter litigation group to pursue these claims.

There is a limited window of opportunity for investors in Win River Limited and Win River Developments Limited to join the existing group and pursue these claims. If you wish to join, all you are required to do at this stage is to complete and submit this form.

HK secures win in LCIA Arbitration

HK has secured a victory for its clients in defence of LCIA arbitral proceedings relating to the sale of a substantial Russian business. The award included costs, which were substantially secured by a successful application for security for costs made by HK at an earlier stage of the claim.

HK conducted the advocacy in-house with partners James Russell and Kris Kerstetter supported by Rob Javin-Fisher (of counsel). The Claimant was represented by a large international law firm and counsel.

HK returns to court in amendment application

At a reconvened hearing after an earlier partial judgment against amendment under Section 35 of the Limitation Act 1980 and CPR 17.4(2), HK secured amendments to particulars of claim in an action against former administrators of a property company. The judge, referring to a recent summary of the law in Essex County Council v UBB Waste (Essex) Ltd [2019] EWHC 819 (TCC), held that amendments should be permitted to allege that existing pleaded breaches led to the lost chance of a solvent recovery.

HK secures summary judgement and injunction for Anoto

A team from HK led by Kristopher Kerstetter, assisted by Rob Javin-Fisher and Erika Saluzzo, has secured summary judgement on behalf of Anoto against City Soft Limited and one of its directors.

Anoto developed the world’s first ever system for converting handwritten text into a digital form through using a matrix of microdots that can be embedded into documents so as to enable a digital pen to track its position on the page. Anoto enlisted HK to help secure the integrity of its distribution network when it learned that City Soft was using its intellectual property without authorisation. Anoto claimed in the proceedings amongst other things that City Soft infringed its copyright in using Anoto’s dot pattern technology and software development kits. City Soft claimed to be a licenced distributor of Anoto’s through a series of contracts with third parties which was disputed by Anoto. The case was heard in the Intellectual Property Enterprise Court on Anoto’s application for summary judgment.

The Court sided with Anoto and granted declaratory and injunctive relief as well as an inquiry as to damages. The Court also awarded Anoto its costs up to the full level of the applicable caps in the Intellectual Property and Enterprise Court.

Joonhee Won, CEO of the Anoto group, noted: “This was an important strategic result for Anoto which makes clear that Anoto will take the steps necessary to prevent unlicensed use of our innovative technology and products and that the Court will protect Anoto’s rights in this regard”. We are delighted to have secured this result at a relatively early stage of the proceedings for Anoto.

Humphries Kerstetter has again been identified as a Leading Firm in the Legal 500

The firm is cited as a niche City litigation, arbitration and investigations practice that is “responsive, decisive and authoritative”. Senior Partner Mark Humphries is acknowledged as an “outstanding litigator” and Kris Kerstetter, Christopher Braithwaite and James Russell are also recommended.

HK signs up to the Pledge for Equal Representation in Arbitration

Humphries Kerstetter has signed the Pledge for Equal Representation in Arbitration, which brings together leading arbitration practitioners, institutions and corporations in an effort to recognise the under-representation of women in this area of law and to address it through practical steps for the future. The pledge has recently reached the milestone of 3000 signatories including law firms, chambers, arbitral institutions and corporations.

Firm Expansion

Hot on the heels of the appointment of Toby Starr as a new partner of the firm in September, Humphries Kerstetter appointed Russian- and Ukrainian-speaking solicitor Nataliya Gerko on 5 November and has today (19 November 2018) welcomed Rob Javin-Fisher from Herbert Smith Freehills. Rob joins Humphries Kerstetter in the new position Of Counsel, recognising his senior litigation and arbitration experience. The team now boasts 16 experienced dispute resolution lawyers, many of whom are solicitor-advocates, working in 12 different languages on a wide range of commercial cases before the English commercial court, Court of Appeal, LCIA and a range of further arbitration institutions and centres for our global and UK-based clients. Our new office space at 92 Fleet Street has been rapidly taken up and put to good use.

Hot 100 Career Quiz: Mark Humphries

Senior partner Mark Humphries appeared in The Lawyer Hot 100 for breaking the traditional law firm model with Humphries Kerstetter.

What’s your most vivid memory from being a trainee?

An early morning call to my principal by the RSPCA warning him that a warrant was being issued for my arrest on charges of cruelty to animals. I had been asked to oppose an application by a mortgagor for a second suspension of a warrant of possession of a hotel and had got lucky, flicking through the notes in the Green Book and discovering a jurisdiction argument that prevented the suspension being granted. I then took possession of the hotel on behalf of the private mortgagee, evicted the guests, shut off the services and changed the locks. What I had not realised was that there was a tank of tropical fish somewhere in the hotel and that they needed electricity to survive. Of course the threat of arrest receded when the full facts were revealed.

Who has been the most influential person in your career? Why, and how have they helped you?

Bill Park, former senior litigation partner of Linklaters. As a very junior associate Bill asked me to represent him in court in a case called Haarhaus v Law Debenture arising from his chairing of an important noteholders’ meeting at Wembley. I had arrived at Linklaters a year earlier with a rather unusual experience of articles involving almost daily appearances in courts and tribunals, sometimes with several interim hearings on the same day. After representing Bill in a week-long hearing the judge decided that the case was important enough to give judgment in open court.

This gave rise to a problem because, as a solicitor, I had no rights of audience in open court. The judge’s grant of permission and the subsequent reporting of the case set me on a course that later resulted in my involvement in spearheading the move towards rights of audience for solicitors and a career involving trial and appellate advocacy in the civil courts.

To read the whole article, visit The Lawyer’s website.

HK acts on multi-million pound claim in relation to landmark Southbank development

Humphries Kerstetter has been instructed by the liquidators of One Blackfriars Limited, the previous developer of the high profile London tower One Blackfriars, in relation to a multi-million pound claim against the former administrators of the company. Counsel are Simon Davenport QC, Tom Poole and Dan Lewis of 3 Hare Court.

The claim relates to the sale of the development site at an alleged undervalue in October 2011 by joint administrators appointed by the principal secured lender, RBS. The site was sold without a valuation on terms which sustained a large loss for the junior secured and unsecured creditors but saw RBS and the syndicate lenders paid out in full.

The substance of the claim is that the defendants, who are insolvency practitioners at accountancy firm BDO, effectively acted as bank receivers rather than administrators pursuing their principal statutory objectives. It is pleaded that, amongst other matters, they acted misfeasantly in engaging CBRE – who had previously advised RBS directly in relation to its wish to dispose of the site – as sole marketing and sale agent.

The site was sold for £77.4m without the benefit of an enhanced planning consent which was advised to be achievable by the company’s planning consultants. Further, the sale contract did not contain any overage provisions or conditionality. Shortly after exchange of contracts CBRE made a revised planning application on behalf of the purchaser, St George, which was granted. 18 months later St George ascribed a value of £232m to the site in its accounts.

The claim is being vigorously defended by insurers for the former administrators. The defendants first brought an application seeking to force early service of the particulars of claim and subsequently opposed the claimants’ application for permission of the court to commence proceedings. In so doing, the defendants took the novel position that an application by licensed insolvency practitioners for permission to bring insolvency proceedings against former officeholders must be supported by expert evidence served at a pre-action stage or it would otherwise amount to an abuse of process. Both applications failed.

The most recent judgment can be found here. The Judge held that the claims had a “proper foundation” and granted permission for them to proceed to trial. The judgment clarifies the law in relation to the commencement of insolvency proceedings by officeholders and the attendant evidential requirement. A fuller analysis of the judgment can be found here.

HK nominated for Boutique Firm of the Year in The Lawyer awards

HK is pleased to have been nominated for Boutique Firm of the Year at The Lawyer awards, to be held in late June 2018. This is the third consecutive year that the firm has been nominated in this category, reflecting the continued success and growth of the firm in the field of complex commercial disputes.

Mark Humphries listed in The Lawyer Magazine’s “Hot 100” 2018

Humphries Kerstetter is pleased to report that its senior partner, Mark Humphries, has been listed in The Lawyer Magazine’s “Hot 100” 2018. The directory gathers together “the most daring, innovative and creative lawyers” over the past year and states that the firm is “fast-becoming the place with the expertise for specialised big ticket litigation”.

HK LLP moving to Fleet Street

HK LLP will occupy the top two floors of 90 – 94 Fleet Street from 1 March 2018. The new premises are approximately twice the size of HK’s existing Furnival Street offices. The extra space will permit additional and better client facilities and accommodate the firm’s projected expansion to beyond 20 fee earners by the end of the next financial year. The move enables HK’s steady recent growth to continue, whilst the firm remains at the heart of legal London and close to the courts.

HK LLP secures early victory for Simmons and Simmons

Humphries Kerstetter successfully represented Simmons & Simmons LLP in proceedings in the Commercial Court in London in which the court gave summary judgment in favour of Simmons & Simmons on a claim made against it for declaratory relief. This was an unusual case where a firm of solicitors was joined as a defendant to proceedings against its client arising from its representation of that client. See [2017] EWHC 3097 (Comm).

Settlement with Locke Lord (UK) LLP

Humphries Kerstetter has successfully settled a funded claim on behalf of 48 investors against the law firm Locke Lord (UK) LLP on confidential terms. The claims were primarily for damages for fraudulent misrepresentation in connection with a private placement of shares which was alleged to be a Ponzi scheme. Locke Lord (UK) LLP has recently been fined £500,000 by the Solicitors Disciplinary Tribunal, the largest fine ever issued at tribunal.

Legal 500 recommendation

Humphries Kerstetter has been recommended in the Legal 500 2017 as a “first class, niche practice with enviable, high-quality City work”. Mark Humphries provides “excellent, strategic advice” and Kristopher Kerstetter and Christopher Braithwaite are also highly rated.

New claims against Visa and Mastercard

Humphries Kerstetter has been instructed by a number of leading retailers and local authorities, including a major supermarket, in a new round of competition law claims against Visa and Mastercard. The claims, which are worth in excess of £350m, relate to so-called “interchange” fees levied by Visa and Mastercard over which merchants have no control. Humphries Kerstetter has significant experience in interchange litigation and has previously been instructed by Tesco and WH Smith. The claims are substantially different to those previously advanced by other claimants and are being funded by Therium Capital Management, with whom Humphries Kerstetter is working on a portfolio of cases.

Mark Humphries raising funds for immunotherapy research

Immunotherapy research is a form of alternative cancer treatment that is little known in the UK but has a good track record in other countries. On 18 March 2017 Mark Humphries will be walking from Porto to Sanitago de Compostela covering a distance of 260km in memory of his late wife Anne Humphries and with a view to raising funds for immunotherapy research in the UK. Donating to the research in this field could improve survival rates, reverse cancers and save lives. We would greatly appreciate any contributions to this cause.

Please see the attached for further details.

Tesco settlement with Visa

Following the 2015 settlement of Tesco’s interchange claims against MasterCard, Humphries Kerstetter has settled Tesco’s interchange claims against Visa. The firm continues to act for WH Smith and a number of other companies making claims for allegedly unlawful overcharges of interchange fees in breach of competition law.

Humphries proposes to halve the costs of civil and commercial litigation

Mark Humphries comments on the Centre for Policy Studies report on the cost of civil and commercial litigation. See his commentary here.

The Lawyer’s Top 20 cases for 2016

Humphries Kerstetter is acting in two of the Top 20 cases for size and impact in the English High Court selected by The Lawyer magazine. Both the Interchange litigation in which Humphries Kerstetter is acting for Tesco Stores Limited and WH Smith group and the professional negligence action in which Humphries Kerstetter is acting for Khanty-Mansiysk Recoveries Limited against Forsters LLP were selected by The Lawyer for inclusion in the list. The Lawyer said: “This is going to be a bumper year for the UK disputes market, with the High Court gearing up to host some of the most high-value and headline-grabbing litigation matters in a decade“.

Humphries Kerstetter acting for WH Smith

Humphries Kerstetter is acting for WH Smith High Street Limited and other WH Smith companies in connection with substantial claims against MasterCard and Visa in the interchange fee litigation in which the firm also acts for Tesco Stores Limited and other Tesco group companies.

Humphries Kerstetter issues substantial professional negligence claim

Humphries Kerstetter is acting for Khanty-Mansiysk Recoveries Limited in a professional negligence claim against Forsters LLP claiming damages in excess of £70 million.

Humphries shortlisted for Lawyer of the Year award

Mark Humphries has been named in the Modern Law Awards shortlist in the Lawyer of the Year category, the results of which are to be announced at a ceremony on 19 November 2015.

Humphries Kerstetter LLP successfully obtained the quashing of a decision of the Secretary of State in the Planning Court

Humphries Kerstetter LLP, acting for Old Hunstanston Parish Council in an application under section 288 of the Town and Country Planning Act 1990, obtained the quashing of the decision of the Secretary of State for Communities and Local Government granting planning permission for an affordable housing development. Lang J refused permission to appeal.

Old Hunstanton Parish Council -v- Secretary of State for Communities and Local Government and others [2015] EWHC 1958 (Admin).

Tesco settlement with MasterCard

Humphries Kerstetter LLP has settled the claims brought by Tesco Stores and other Tesco group companies against MasterCard in the bank interchange fee litigation. The firm continues to represent the UK’s largest retailer in ongoing claims against Visa.

Humphries Kerstetter short listed for Boutique Firm of the Year, City Award

Humphries Kerstetter LLP has been included in The Lawyer’s short list for this year’s Boutique Firm of the Year – City Award, the results of which are to be announced at the awards ceremony on 23 June 2015.

Tesco summary judgment success

Humphries Kerstetter LLP defeated a summary judgment application by MasterCard in the ongoing banking interchange fees litigation.

Tesco Stores Ltd and others -v- MasterCard Inc. and others [2015] EWHC 1145 (Ch).

Award for advocacy

Mark Humphries of Humphries Kerstetter LLP received the Highly Commended Award for Solicitor Advocate of the Year at The Law Society’s Excellence Awards 2014.