Tchenguiz lawyers rapped for lengthy written arguments in documents appeal

Three months after he settled his £100m claim against the SFO, Robert Tchenguiz has renewed a bid to use 22 documents disclosed during the proceedings to be used in separate litigation in Guernsey. The Court of Appeal has reserved judgment on the issue, but has released a short judgment criticising Tchenguiz’s lawyers for serving a lengthy second skeleton argument only a week before the appeal. Jackson LJ allowed Tchenguiz’s lawyers to rely on certain paragraphs of the supplementary document, but ruled that, whatever the outcome, they should not be entitled to recover their costs of preparing either it or the initial skeleton argument. He said: “The rules governing skeleton arguments for use in the Court of Appeal are set out in paragraph 5 of Practice Direction 52A and paragraph 31 of Practice Direction 52C. Paragraph 5 of Practice Direction 52A states that the purpose of a skeleton argument is to assist the court by setting out as concisely as practicable the arguments upon which a party intends to rely. The paragraph goes on to require that the skeleton argument should be concise; it should both define and confine in the areas of controversy; it should not include extensive quotations from documents or authorities. Turning to Practice Direction 52C, paragraph 31 requires that the skeleton argument should not normally exceed 25 pages. “These rules exist for a serious purpose, namely to enable the Court of Appeal to deal with its business in a timely and efficient manner. In the present case, there has been substantial non-compliance on the part of the appellant. The appellant’s initial skeleton argument was prolix and it ran to 47 pages. The appellant now seeks to serve a supplementary skeleton argument 34 pages long, accompanied by an appendix which is 15 pages long.” He said that there is a substantial degree of overlap between the two skeleton arguments, and that the sensible course would have been to prepare a substitute skeleton argument, which complied with the rules, as soon as practicable once permission to appeal had been granted. He continued: “There would then have been a single skeleton argument, compliant with the rules, which set out concisely and helpfully the points which the appellant wished to argue. That did not happen. Instead, one week before the hearing, the appellant served a lengthy supplementary skeleton argument.” In the decision under challenge – made only days before the announcement of the settlement at the end of July – Eder J refused Tchenguiz permission the 22 documents to be provided to counsel in Guernsey to be admitted in evidence in the ongoing case of Investec and another v Glenalla Properties Ltd and others. Describing those proceedings, he said: “In summary they relate to certain arrangements described as ‘intercompany loans’.” He said that a trial took place in June 2012, and in December 2013 Lieutenant Bailiff Sir John Chadwick held that the intercompany loans which Investec Trust (Guernsey) Ltd (ITGL) had carried out gave rise to valid loans between ITGL and two other entities referred to as Glenalla and Thorson in the sums of approximate £62.7m and £80.6m respectively; that there was no loan agreed between ITGL and another entity referred to as Oscatello, but instead Oscatello had a valid claim in restitution against ITGL in the sum of approximate £39.4m; that ITGL was personally liable to these companies; and that ITGL was nevertheless entitled to be indemnified from the Tchenguiz Discretionary Trust (TDT) assets for these liabilities. Appeals have been brought by both ITGL and by Rawlinson & Hunter S.A., trustee of the TDT. Tchenguiz and ors v The Director of the Serious Fraud Office Court of Appeal (Jackson, Sharp and Vos LJJ) 13 October 2014 Catherine Newman QC and John Robb (instructed by Stephenson Harwood) for the claimants Pushpinder Saini QC and James Segan (instructed by Slaughter & May) for the defendant Khawar Qureshi QC (instructed by Laytons LLP) for the intervener