SDT 'very troubled' by allegations against Clifford Chance, Excalibur ruling reveals
Full judgment in closely-watched case highlights Tribunal concerns over regulator's charges against CC
January 02, 2018 at 11:17 AM
5 minute read
The Solicitors Disciplinary Tribunal (SDT) was "very troubled" by the scope of the allegations of misconduct made against Clifford Chance (CC) and partner Alex Panayides in the closely-watched Excalibur case, the tribunal's full judgment has revealed.
The firm and Panayides were each fined £50,000 by the SDT last month for their conduct in the case, having admitted they were guilty of three charges relating to the funding of the litigation.
In its full judgment, published on 21 December, the SDT said: "The Tribunal was very troubled by the character of the allegations in the Rule 5 Statement [the charge sheet produced by the Solicitors Regulation Authority].
"There were, surprisingly, no allegations of lack of integrity, recklessness nor acting contrary to the Principle 6 of the SRA Principles 2011 (behaving in a way that maintains the trust the public places in you and in the provision of legal services), which the Tribunal would normally expect to see in cases of this nature."
CC and Panayides both accepted their fines last month after admitting that they had "conducted litigation in the High Court under a conditional fee agreement… which was unlawful and unenforceable".
As part of the outcome, negotiated between March and September this year, CC and Panayides also agreed to pay £29,100 each to the SRA to cover its costs.
The full judgment reveals that the SDT initially declined to approve a statement of agreed facts and outcome put forward by the SRA, CC and Panayides in October. The parties then held a private hearing before a differently constituted tribunal in November and the SDT then approved the statement.
The long-running Excalibur case centred around a $1.6bn claim brought by Excalibur Ventures, an aspiring oil exploration firm, against two US oil companies, backed by a group of litigation funders including a UK entity called Psari Holdings, which was controlled by Greek shipping magnates Adonis and Filippos Lemos.
CC's role for Excalibur attracted scrutiny after it emerged that Panayides' father had been chairman of one of the Lemos family's ship management companies, while his brother was a "longstanding and trusted" employee of a Lemos family company.
In the full judgment, the tribunal expressed particular concern over the allegation that Panayides sent a preliminary evaluation of the case to Psari Holdings without informing them that a director of Excalibur had prepared the first draft.
In their defence, CC and Panayides argued that the partner had reviewed and amended the first draft, "such that he was satisfied that it fairly and accurately reflected the views of himself and Client A's legal team". They also said that even if they had told Psari Holdings, the client would probably have sought confirmation that the draft accurately reflected CC's views.
On this point, the SDT said: "The tribunal was concerned that the charges brought against each respondent provided no scope to examine whether it was proper for solicitor to allow his/her client to write an assessment of the merits of the client's case for the purpose of obtaining third-party funding at all, irrespective of the amount of such funding and whether the solicitor agreed with the assessment or not.
"The tribunal was of the view that this approach would trouble both the profession and the public if they had knowledge of it."
The tribunal also raised the question of whether the approach to preparing the preliminary evaluation – going to a director of the client rather than seeking an independent opinion – constituted a governance failure at CC.
The firm argued that the evaluation did represent Panayides's "genuine views of the case". It also stressed there was no allegation of this nature put forward by the SRA and the tribunal could only consider what was alleged.
The tribunal also asked the SRA why it not not put forward allegations of harm, despite the fact the funders had to issue proceedings to secure compensation for their losses.
In response, the SRA said it did not "positively assert that harm was caused, but nor did it asset there was no harm caused… the allegations were serious enough in themselves without it being necessary to assert that any harm was caused".
Despite its concerns, the SDT acknowledged it could not go beyond the SRA's allegations.
The SRA launched a formal investigation into CC over its role in the case more than two years ago, with the magic circle firm turning to Clyde & Co for advice. The regulator was represented by Capsticks partner Daniel Purcell, who instructed Chloe Carpenter of Fountain Court.
Ashurst partner Edward Sparrow advised Panayides, with Roger Stewart QC and George Spalton of 4 New Square as counsel, while Clydes partner Fergal Cathie instructed Fountain Court's Richard Coleman QC and Craig Ulyatt for CC, for which general counsel Chris Perrin took a lead role.
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