Legal Business

Climate change trumps arguments as Leigh Day halts Heathrow’s third runway

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Dispute resolution DAC BeachcroftLeigh Day

Controversial plans for building a third runway at Heathrow Airport run the risk of being abandoned after campaigners led by Leigh Day proved victorious in the Court of Appeal today (27 February).

The case involved five separate claims against the Secretary of State for Transport, who had been pursuing the policy of creating an invidious third runway at Heathrow Airport. However, the policy was deemed unlawful following a successful appeal which rested on novel arguments around the runway’s potential impact on climate change.

‘The main sensitivity of the case was the Paris Agreement,’ Leigh Day partner Rowan Smith, who successfully represented environmental campaign group Friends of the Earth, told Legal Business. ‘We argued successfully that the international agreements made under the Paris Agreement had to be considered regarding the runway. The court emphatically overturned the previous decision.’

In the High Court, challenges to the multibillion-pound scheme were rejected as it was deemed the then transport secretary Chris Grayling had sufficiently considered the environmental concerns in the policy.

However, residents, local councils, environmental groups and London Mayor Sadiq Khan all brought judicial reviews of the government’s decision on the scheme. Moreover, the arguments around the government’s commitments under the Paris Agreement – which unites multiple nations in a commitment to combat climate change – proved to be more persuasive than was initially expected by the unsuccessful parties.

‘In our case we think they were wrong on competition grounds,’ Heathrow Hub representative and DAC Beachcroft partner Christopher Stanwell told Legal Business. ‘That’s why we will be seeking permission to appeal it.’

Heathrow Airport is also among those seeking to appeal the decision at the Supreme Court, though the government has confirmed it would not be appealing – making any potential reversal of the decision more challenging.

The dispute brought together an array of legal advisers. Heathrow Airport was represented by Bryan Cave Leighton Paisner partner Tim Smith while Arora Holdings was represented by CMS Cameron McKenna Nabarro Olswang partners Ashley Damiral and Caroline Hobson. DAC Beachcroft’s Stanwell instructed Brick Court Chambers’ Robert O’Donoghue QC and Emma Mockford as well as No5 Chambers’ Martin Kingston QC.

Meanwhile, The Mayor of London’s in-house team instructed Blackstone chambers’ Ben Jaffey QC and Flora Robertson among others, while Leigh Day instructed Matrix chambers’ David Wolfe QC and Landmark Chambers’ Andrew Parkinson for Friends of the Earth.

thomas.alan@legalease.co.uk

Legal Business

‘Don’t start a war you can’t win’: High Court throws out SRA’s Leigh Day misconduct appeal

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Litigation Leigh Day

The High Court has dismissed an appeal by the Solicitors Regulation Authority (SRA) which challenged the decision to exonerate Leigh Day of misconduct related to the Iraq War.

Last June, the Solicitors’ Disciplinary Tribunal (SDT) cleared the firm and three of its lawyers accused of pursuing false damages claims of torture and murder made by Iraqi civilians against British troops in the region. The SRA appealed that decision.

However Lord Justice Davis, Justice Foskett and Justice Holgate today (19 October) dismissed the appeal against senior partner Martyn Day, partner Sapna Malik and assistant solicitor Anna Crowther, on the basis that ‘dissatisfaction on the part of the SRA with the outcome of the very protracted hearing… cannot of itself ground a successful appeal.’

The judgment added that the SRA’s appeal related to the SDT’s ‘findings of primary fact’ but ‘either there were no errors of law on the part of the tribunal or any errors were not material to the conclusion on each allegation.’

It also noted the overwhelming amount of ‘documents and transcripts’ and ‘extremely lengthy “skeleton arguments”’ the court had to deal with: ‘the costs thus far have become simply enormous.’

Following the ruling, Day commented: ‘We are both pleased and relieved by today’s findings. The investigations and prosecutions have been ongoing for many years and my greatest regret is that it has diverted me from doing the human rights work that I love. I am very pleased that today’s judgment will enable me to put my full energies back into that work.’

An SRA spokesperson said: ‘We note the judgment, and will review it over the coming weeks.’

Iain Miller, regulatory partner at Kingsley Napley, told Legal Business: ‘Don’t start a war you can’t win. Leigh Day bravely fought it on all fronts and they won, so they will be rightfully delighted.’

On the matter of costs, which sit at about £9m, Miller said: ‘Given how much factual evidence was involved and how long the hearing was, it ranks up there with a big civil commercial case. To that extent, it’s not surprising.’

Leigh Day and its lawyers were represented by Clyde & Co partner Fergal Cathie, who instructed Fountain Court Chambers’ Patricia Robertson QC and Paul Gott QC.

The SRA has been ordered to pay Leigh Day’s costs, although exact amounts are yet to be decided.

Cathie told Legal Business: ‘I am sure that the SRA will be reflecting carefully on the outcome of this case, and learning some lessons from the experience. Hopefully we will see a more proportionate approach being taken to future prosecutions.’

The SRA was advised by Russell Cooke, which enlisted Fountain Court Chambers’ Timothy Dutton QC and Nick Daly, 39 Essex Chambers’ Andrew Tabachnik QC and 11KBW’s Heather Emmerson.

tom.baker@legalease.co.uk

Legal Business

A Day of contrasts: SRA formally files appeal in misconduct claim as Leigh Day launches unequal pay case against Tesco

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Litigation Leigh Day

There was good news and bad news yesterday (7 Feb) for disputes shop Leigh Day, first announcing an ambitious equal pay claim against Tesco, that could see the supermarket giant pay out £4bn in compensation to its workers. But the firm was later brought back down to earth by the Solicitors Regulation Authority (SRA), which revealed it would formally appeal a decision that acquitted three of Leigh Day’s lawyers of misconduct.

The Tesco pay controversy relates to an alleged discrepancy in hourly rates between the retailer’s male and female staff. Leigh Day argues that in the company’s predominantly male-dominated distribution centres, staff can earn in excess of £11 an hour, while workers in more female-dominated Tesco stores are paid around £8 an hour.

The action is being led by employment specialist Paula Lee, who contends that ‘an inherent bias has allowed store workers to be underpaid for many years’. The firm has already started submitting claims to the Employment Tribunal, with the belief that around 200,000 Tesco employees have been affected by the pay discrepancy.

Leigh Day has confirmed that the claim will not be backed by a third party funder and that each claimant will make their own individual claim, rather than form a class action.

But the fanfare abruptly ended when the SRA announced its intention to rekindle its dispute against Leigh Day and three of its lawyers: co-founder and name partner Martyn Day, partner Sapna Malik and assistant solicitor Anna Crowther.

In June 2017 the Solicitors Disciplinary Tribunal (SDT) had cleared the Leigh Day trio of allegations of pursuing false damages claims of torture and murder made by Iraqi civilians against British troops in Iraq.

The SRA had originally brought proceedings before the SDT in 2016 after the completion of the £31m Al-Sweady public inquiry. The inquiry explored allegations of unlawful killing and ill treatment of Iraqi nationals by British troops in Iraq in 2004.

The case was the longest trial ever heard before the SDT, lasting seven weeks in total with more than 200 individual allegations made against the individuals and the firm.

A spokesperson for Leigh Day said: ‘we remain confident in the decision reached by the SDT in June last year, but naturally uphold the rule of law, and therefore, if the SRA choose to appeal the verdict of the SDT that is entirely a decision for them.’

tom.baker@legalease.co.uk

Legal Business

SDT clears Leigh Day and three of its lawyers in high-profile Iraqi claims misconduct prosecution

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Legal regulation Leigh Day

The Solicitors’ Disciplinary Tribunal (SDT) has today (9 June) cleared Leigh Day and three of its lawyers accused of professional misconduct relating to allegedly pursuing false damages claims of torture and murder made by Iraqi civilians against British troops in Iraq.

The three partners, co-founder Martyn Day, partner Sapna Malik and assistant solicitor Anna Crowther, alongside the firm at large, were found not guilty of all 20 allegations against them and their handling of claims brought against the Ministry of Defence.

The Solicitors Regulation Authority (SRA) brought proceedings against the lawyers before the SDT last April. The allegations arose after the close of the £31m Al-Sweady public inquiry into allegations of unlawful killing and ill treatment of Iraqi nationals by British troops in Iraq in 2004.

The SDT held regular case management hearings and then an open court hearing which took place between 24 April and 2 June this year, before three panel members. The SDT will publish its full reasons for its findings that the allegations were unfounded in 12 weeks.

It will not disclose documents on the case but the public can apply to the SDT to obtain a recording of the hearing.

Martyn Day said that he was pleased that the result confirms the view that Leigh Day ‘did not act improperly or dishonestly in these legal claims against the Ministry of Justice’.

‘For nearly 40 years I have battled on behalf of the ordinary man and woman in this country and abroad to ensure they get access to justice not least when they face the might of British multinationals or Government,’ Day said in a statement.

‘I am very pleased that I and my colleagues can now get back to doing the work we love,’ he added.

Kinsley Napley partner Iain Miller who specialises in regulatory issues for the legal sector, said he does not see a ‘lasting impact’ on Leigh Day’s business arising from the SDT proceedings.

‘Whether those in political circles will be satisfied by today’s result is a different story,’ he emphasised.

‘It will be interesting to see if this strengthens the hand of those calling to hand more disciplinary powers to the SRA,’ he said.

Fergal Cathie, the Clyde & Co partner who acted for Leigh Day in the case, told Legal Business,that ‘one of the fundamental issues in the case concerned the role of lawyers in the administration of justice; essentially whether it is for lawyers to judge whether their clients are telling the truth, or whether this is something for the courts to decide.’

The case is the longest trial ever heard before the disciplinary tribunal, lasting seven weeks in total, with more than 200 individual allegations against the individuals and the firm. Legal Business understands that pleas ran over 100 pages.

The SDT is responsible for determining allegations of misconduct against solicitors and law firms.

Timothy Dutton QC and Nick Daly of Fountain Court Chambers represented the SRA, instructed by partner Paolo Sidoli of Russell-Cooke Solicitors.

Patricia Robertson QC and Paul Gott QC of Fountain represented Leigh Day, as instructed by partner Fergal Cathie of Clyde & Co.

Georgiana.tudor@legalease.co.uk

Legal Business

Tribunal rules against Uber as Leigh Day takes on DLA Piper in landmark employee rights case

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Litigation DLA PiperLeigh Day
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Uber has said it will appeal after it lost a key tribunal case which saw Leigh Day take on DLA Piper in a landmark employment rights claim.

Leigh Day represented Uber drivers on a case calling for drivers to be entitled to national minimum wage and basic holiday pay in a ruling that could affect tens of thousands of drivers. The tribunal ruled the drivers are not self-employed and are entitled to basic employee rights.

The human rights specialist firm acted for the drivers in the case brought by the GMB Union. Lawyer Annie Powell represented the drivers, instructing Thomas Linden QC of Matrix Chambers.

DLA advised Uber on the case, with a team led by UK head of employment Adam Hartley and including Jonathan Ollivent, who is secondment with from DLA. DLA instructed Littleton Chambers David Reade QC to act for the ridehailing company.

The action was launched on 19 July and heard over six days. The Central London Employment Tribunal heard cases brought by the GMB Union.

The claim against Uber could have wide implications for a range of workers in industry sectors in what has become known as the ‘gig economy’. There are as many as 30,000 Uber drivers in London this year, according to Uber’s chief executive. Leigh Day said the drivers had claimed Uber had acted unlawfully by deducting sums from drivers’ pay.

Uber, whose legal team is led by GC Powerlist member Matt Wilson (pictured) is facing another legal battle with Transport for London (TfL) over the latest guidelines brought in for private hire cars that would introduce stricter rules on the company. Hogan Lovells partner Paul Dacam instructed Blackstone Chambers’ Tom de la Mare QC to advise on the challenge. TfL is being represented by its in-house team and instructed Martin Chamberlain QC of Brick Court on the matter.

Uber regional general manager Jo Bertram said: ‘Tens of thousands of people in London drive with Uber precisely because they want to be self-employed and their own boss. The overwhelming majority of drivers who use the Uber app want to keep the freedom and flexibility of being able to drive when and where they want. While the decision of this preliminary hearing only affects two people we will be appealing it.’

matthew.field@legalease.co.uk

Read the full judgment here.

Legal Business

Record length SDT hearing expected for Leigh Day solicitors under fire for British Army claims

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Legal regulation Leigh Day
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Partners from Leigh Day are set to face a seven week Solicitors Disciplinary Tribunal hearing over claims that the British Army unlawfully killed and tortured Iraqi civilians.

The Solicitors Regulation Authority (SRA) is prosecuting Leigh Day senior partner Martyn Day, partner Sapna Malik and assistant solicitor Anna Crowther. Timothy Dutton QC of Fountain Court Chambers leading is leading for the SRA.

The case will start from the first available date from March 6 next year. The hearing is likely to be one of the longest-running cases in the tribunal’s history. According to the tribunal’s most recent annual report, last year the tribunal heard two cases that ran an unprecedented 16 days long.

The charges date back to the five-year Al-Sweady inquiry into civilian claims of abuse by British soldiers in 2004 during the Iraq War. The inquiry was concluded in 2014 when chairman Sir Thayne Forbes declared many of the claims were false or exaggerated.

In the report, Forbes said the most serious claims ‘have been found to be wholly without foundation and entirely the product of deliberate lies, reckless speculation and ingrained hostility’.

Human rights firm Leigh Day has repeatedly said it stands behind its work with Iraqi claims in relation to abuse. Day and Malik are facing prosecution by the SRA on charging prohibited fees of up to £75,000, failing to provide the correct documents and personally endorsing the allegations. In total the SRA is bringing to the tribunal 19 allegations against the pair.

Leigh Day said in a statement: ‘We have now been served with a formal set of charges based on some 30 files of material. Our legal team has now started the process of reviewing all that evidence. The matter is now formally before the tribunal so it would not be appropriate for us to comment further.’

Last week a High Court judge ruled the firm was negligent in its duty of care to thousands of victims of a toxic waste spill after failing to secure their £30m settlement. Leigh Day has said it will look at appealing the decision.

matthew.field@legalease.co.uk

Legal Business

Leigh Day considers appeal after being found negligent in £30m toxic waste spill claim

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Litigation Leigh Day
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A High Court judge has ruled Leigh Day was negligent in its duty of care to thousands of victims of a toxic waste spill after failing to secure their £30m settlement.

The firm failed to ensure that 6,600 victims, including claimant Sylvie Aya Agouman, of the 2006 incident received compensation after millions of pounds were lost to corruption by local officials.

The case stems from a toxic spill in 2006, when a Trafigura ship allegedly unloaded toxic materials in the port city of Abidjan, which were then dumped by a local company.

A hundred thousand people sought medical attention and 15 people died after exposure to toxic fumes. Leigh Day represented 30,000 of the victims and secured a settlement from Trafigura in 2009.

In judgment at the Royal Courts of Justice yesterday (16 June), Mr Justice Andrew Smith said: ‘Leigh Day were under a duty to exercise reasonable skill and care to make safe arrangements for receiving the settlement sum, for safeguarding it pending distribution.

‘The type of loss that was suffered was that, as a result of Leigh Day not taking proper steps to protect the settlement sum from being acquired dishonestly by third parties making claims to it, Ms Agouman (and apparently other Trafigura claimants in her position) did not receive her due. In my judgment, the loss was of exactly the kind that would be contemplated as the likely result of breach of the duty.’

Leigh Day said in a statement it was considering appealing the ruling as the firm does not believe it fell short of its professional stands.

‘We fought hard to gain compensation for all 30,000 of our clients and we were devastated when some of the monies were misappropriated,’ a Leigh Day spokesperson said. ‘We did our damnedest to recover the monies resulting in the great majority of our clients having received their compensation.’

Late last year Leigh Day also came under fire when two lawyers were referred to the Solicitors Disciplinary Tribunal over claims relating to the torture and murder of civilians by the British army during the Iraq war.

Senior partner Martyn Day – who also acted in the Trafigura settlement – and partner Sapna Malik face prosecution by the Solicitors Regulation Authority on whether £75,000 payments to the firm were made improperly.

Leigh Day instructed Bond Dickinson and Jamie Smith QC of 4 New Square while Agouman was represented by Jacqueline Perry QC and Andrew Bershadski of 2 Temple Gardens, instructed by Harding Mitchell.

matthew.field@legalease.co.uk

Legal Business

VW emission scandal: City claimant firms gear up for diesel-rigging case affecting 1.2m UK cars

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Litigation Leigh DaySlater and Gordon
legal-business-default

Claimant firms Slater & Gordon and Leigh Day are gearing up to represent what could be thousands of European car purchasers after Volkswagen (VW) admitted to rigging diesel engine emission tests in the US and Europe.

In what could be one of the largest automaker scandals in recent history, Porsche-maker VW, which has brands such as VW Golf, Beetle and Passat under its belt, confirmed 1.19m VW vehicles have been affected in the UK alone, of which more than 500,000 are VW passenger cars, and nearly 400,000 are Audi.

According to VW, only diesel vehicles with EA 189 EU5 engines are affected in the UK.

Earlier this month, VW confirmed it would recall up to eleven million vehicles that cheated tests involving its diesel engines – which will likely result in regulatory inquiries, criminal investigations/prosecutions, and shareholder class actions on both sides of the Atlantic.   

German prosecutors have also launched an investigation into the former chief executive of Volkswagen Martin Winterkorn, who recently stood down, as a result of the diesel emissions-rigging scandal.

In a letter to VW, Leigh Day product liability specialist Bozena Michalowska-Howells, said: ‘Whilst we welcome the news that repairs will be undertaken to upgrade the affected cars to comply with EU Nitrogen Dioxide emission standards, such repairs may result in reduced fuel efficiency and increased CO2 emissions which in turn may impact upon the Vehicle Excise Duty payable and other associated costs. Our clients are also very concerned about the impact of the use of defeat devices on the re-sale value of their cars.’

Slater and Gordon head of litigation Jacqueline Young added: ‘More than 500 people have contacted Slater and Gordon in the past few days to register their interest in signing up to a group action against Volkswagen. We have called on VW to urgently provide clarity on exactly the extent of the problem. VW must also come clean about how long the practice has been on-going and who within the executive authorised or condoned this practice.’

Jones Day partner Johannes Perlitt, who quit Clifford Chance (CC) after 14 years to join the US firm in March last year, is understood to have taken a large chunk of the defence work. While at CC, Perlitt advised VW on its combination with Porsche to create the Integrated Automotive Group.

Long-time adviser Clifford Chance, which represented VW and Volkswagen Group of America Finance, on the issuance of $2.8bn of bonds by Volkswagen Group of America Finance in May this year – led by partner George Hacket – has not been instructed as defence counsel at this stage. Freshfields Bruckhaus Deringer and Quinn Emanuel Urquhart & Sullivan are also understood to be in the process of pitching for VW work in the UK.

In the US, Quinn Emanuel has teamed up with consumer rights firm Hagens Berman to file a class action complaint in Los Angeles’ federal court against VW and its US subsidiary, for cheating emissions tests, falsely advertising its vehicles and defrauding consumers.

Kirkland & Ellis, was instructed in the US after VW was initially under investigation by the US Environmental Protection Agency (EPA) for breaching the Clean Air Act, with environmental partner Stuart Drake understood to be representing. Washington DC-based Drake specialises in Clean Air Act related litigation and has represented companies whose products are subject to air pollution control regulation by the US EPA and various State government agencies. Some of Drake’s automotive-sector clients include General Motors Corporation and Toyota Motor Corporation.

Germany headquartered VW has already set aside around $6.5bn for expected costs relating to the scandal, although the company is expected to face penalties of up to $18bn.

VW said in a statement: ‘Step by step, affected customers will be contacted, with details of a process to get their vehicles corrected in the near future. In the meantime, all vehicles are technically safe and roadworthy. Under the action plan, the Volkswagen Group brands whose vehicles are affected will present the technical solutions and measures to relevant responsible authorities in October.’

jaishree.kalia@legalease.co.uk

Legal Business

200 judges claim discrimination over UK government’s planned pension cuts

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Legal affairs Leigh Day
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Some 200 judges have taken the first step towards suing the UK government, claiming that changes to the judicial pension scheme that will cut the amount paid to those born after 1 April 1957 are discriminatory.

Under the New Judicial Pension Scheme (NJPS) – that was brought out in April this year – judges born after 1 April 1957 will be moved out of the current final salary scheme and placed into the new system that could see them receive a package worth up to two-thirds less than their fellow judges. NJPS will see High Court judges able to receive a career average pension of around £80,000 per year if they have served for 20 years or more.

The Lord Chancellor and the Ministry of Justice (MoJ) have been accused in a claim issued last week of three counts of discrimination on age, gender and ethnicity grounds because the judges keeping the existing pension package are mainly male, white and older in age, while young and female judges and judges from minority ethnic backgrounds make up a higher proportion among those being forced to opt out.

Representing the 200 judges is personal injury, employment and human rights-focused firm Leigh Day, with employment and discrimination specialist Shubha Banerjee leading. ‘This is a case of discrimination because the younger judges have been asked to leave the pension scheme,’ she said. ‘There are a large number of female judges and judges from a black and minority ethnic background within this younger group.’

However, according to the MoJ, schemes like the ‘equal merit provision’ – which was launched last year – have improved the diversity of the judiciary. A MoJ spokesperson said: ‘We are committed to providing an affordable, flexible, sustainable and fair judicial pension scheme. The new scheme brings judicial pensions into line with other public services whilst ensuring judges still receive a good pension. Judges aged 55 and over have been given transitional protection as they have less time before retirement to make financial and lifestyle adjustments.’

Littleton Chambers’ Damian Brown QC commented: ‘Proportionally, there will be more white males in the legal profession that were born 1 April 1957. But the government has been trying to change pensions and move away from the final salary pension scheme for years. Whilst I wouldn’t be best pleased if it was happening to me, I can’t say I’m surprised.’

‘I think it is unlikely that they’re [the government] doing this to disadvantage women from ethnic minorities,’ added Edward Fitzgerald QC at Doughty Street Chambers. ‘I would have thought the real point is that it is objectionable to have a retrospective change, especially if you have signed up to a career and have been promised something. But if the indirect effect [of the new scheme] is discriminatory, then that too is objectionable.’

jaishree.kalia@legalease.co.uk

Legal Business

A £55m settlement: Hogan Lovells and Leigh Day shake on Shell payout to Nigerian village

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Litigation Hogan LovellsLeigh DayShell
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Royal Dutch Shell, advised by Hogan Lovells, will pay £55m to 15,600 Nigerian fishermen after a three-year legal battle over two oil spills.

Leigh Day partners Martyn Day and Daniel Leader secured the substantial environmental settlement to the African community, having launched a £300m lawsuit in 2012 which was set to go to trial at the High Court in May this year.

Shell will distribute £35m to individuals affected by the spills with a further £20m going to the fishing community. The deal marks the first time affected individuals have been compensated directly, with the Anglo-Dutch energy giant set to pay £2,200 into the bank accounts of everyone in the Bodo community, southern Nigeria, affected by the spills in 2008 and 2009.

Shell instructed Hogan Lovells litigator John Meltzer, who created and then ran the firm’s renowned product liability group for 15 years until 2013. Meltzer had instructed Charles Gibson QC and Geraint Webb QC of Henderson Chambers, with Day instructing Richard Hermer QC of Matrix Chambers.

The Trans-Niger Pipeline has suffered an incidence of operational oil spills between 2006 and 2010 at a rate 133 times greater than the European average. Leigh Day argued that Shell allowed oil to pump into the creek for six weeks before fixing a broken pipeline and, even then, that Shell took over a month to repair the weld defect in the pipeline. The second spill occurred in December 2008, also as the result of equipment failure, and was not capped until February 2009.

Day said that ‘whilst we are delighted for our clients’, the firm found ‘it deeply disappointing that Shell took six years to take this case seriously and to recognise the true extent of the damage these spills caused to the environment and to the those who rely on it for their livelihood’.

He added: ‘We hope that in future Shell will properly consider claims such as these from the outset and that this method of compensation, with each affected individual being compensated, will act as a template for Shell in future cases in Nigeria and in the other countries in which it operates.’

Chief Sylvester Kogbara, chairman of the Bodo Council of chiefs and elders, said: ‘We are hopeful that the clean-up of the Bodo environment will follow suit in no distant time.’

tom.moore@legalease.co.uk