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Practice Summary

Kenneth MacLean is a highly experienced advocate and adviser practising across a broad range of commercial litigation and arbitration disputes.  Practice includes shareholder disputes, civil fraud claims, banking and finance litigation, jurisdiction challenges, competition claims and high profile professional negligence disputes. He is admitted as a member of the bars of Anguilla and the British Virgin Islands and he has also practised as a member of the Bar of the State of New York. He is a member of the ICC and the Premier League Disciplinary Panel.  Kenneth is recommended in Chambers UK and The Legal 500.  He is fluent in French and has a working knowledge of German. 

"Really lasered in on witnesses' different areas of weakness, and had thought carefully about how to expose them." "Has firm and well-reasoned views, and gives clear guidance." Chambers UK 2018 - Commercial Dispute Resolution

'He gives sensible, no-nonsene, commerical advice.' 'He's a fierce advocate and a good cross-examiner.' Chambers UK 2017 - Commercial Dispute Resolution

'Excellent. He has a lot of gravitas and is nice to work with. Judges listen to him and take him seriously'. 'A legal luminary excelling not only in law, but also in his approach, attitude and temperament'. Chambers UK 2016

RECENT CASES INCLUDE

(1) Cephalon Inc (2) Teva Pharmaceuticals USA Inc - v - (1) C P Pharmaceuticals Limited (2) Wockhardt UK Holdings Limited (3) Wockhardt Limited (a company incorporated in India) [2017]  For Defendants in a 5 week Commercial Court trial of claims of economic duress, intimidation and conspiracy relating to the manufacture of an anti-cancer drug.

Tatneft v Bogolyubov & Ors [2016] EWHC 2816 (Comm)
For on the Defendants on successful applications for reverse summary judgment and the discharge of a $380 million worldwide freezing order. The claim was brought by a major Russian oil company against four high-profile Ukranian individuals and involved allegations of fraud and breaches of the Civil Code of the Russian Federation.

Re Charterhouse Capital Limited, Arbuthnott -v-Bonnyman & Ors [2014] EWHC 1410 (Ch)
Kenneth MacLean Q.C successfully defended the respondent members of the leading private equity specialists Charterhouse Capital against the Petition brought under section 994 Companies Act 2006 by a former partner who alleged that amendments to the company’s articles to introduce a drag right over his shares was unfairly prejudicial conduct and sought an order that his shares be purchased for tens of millions more than the existing offer price. Following a 27 day trial, the Judge rejected the petitioner’s complaints that the amendments to the company’s articles were invalid either under the common law principle of Allen v Gold Reefs of West or on the basis of the statutory jurisdiction. The court also followed the approach of the Privy Council in Citco v Pusser’s Limited and rejected the approach of the High Court of Australia in Gambotto v WCP Limited in considering the validity of amendments to articles which introduced drag rights.

Alfa Telecom Turkey v Cukurova Finance International 
Kenneth MacLean Q.C. acted for Cukurova throughout its marathon and ultimately successful seven-year multi-billion dollar battle for control of Turkcell, the largest mobile phone company in Turkey in which Cukurova was opposed by the Alfa Group of Russia. The action has resulted in six decisions of the Privy Council ([2009] UKPC 19, [2012] UKPC 20, [2013] UKPC 2, [2013] UKPC 20, [2013] UKPC 25, [2014] UKPC 15).   The case concerned Alfa’s attempts to rely on the novel remedy of appropriation over financial collateral introduced into English law by the Financial Collateral Arrangements (No2) Regulations 2003 and Directive 2002/47/EC on financial collateral arrangements so as to secure a controlling interest in Turkcell on Cukurova’s default under a loan agreement in 2007.

In January 2013 [2013] UKPC2 the Privy Council allowed Cukurova’s appeal from the decision of the Eastern Caribbean Court of Appeal (July 2011)  and held that Cukurova was entitled to recover its shares from Alfa on compliance with terms to be set by the Board for relief from forfeiture. This was an important and ground-breaking decision on the extent of the equitable jurisdiction to relieve against the forfeiture of property in the context of secured lending and the novel remedy of appropriation over financial collateral. In a follow-up decision [2013] UK PC 20 the Privy Council has set the financial terms on which Cukurova was entitled to relief from the appropriation of its shares by Alfa. Shortly afterwards, the Privy Council issued a further order varying the terms of relief in Cukurova’s favour in response to attempts by Alfa to thwart redemption by Cukurova.

This decision represents the most in-depth examination of the principles concerning the equitable jurisdiction to relieve against forfeiture of mortgaged property and the effect of tender of payment by a debtor on a creditor’s entitlement to interest for at least 50 years. The result of the Board’s judgment on the terms of relief was that Cukurova was permitted to reacquire its shares at a price more than US$1 billion more favourable to it than the result contended for by Alfa.

McKillen -v- Misland & Ors [2013] EWCA Civ 781
This case concerns a dispute between Mr Paddy McKillen and companies associated with Sir Frederick and Sir David Barclay over the ownership and control of Claridge’s, the Connaught and Berkeley hotels. Kenneth MacLean Q.C. successfully defended the Barclay interest companies against proceedings brought by Mr McKillen under section 994 of the Companies Act 2006 alleging that his rights as a 36% shareholder of the hotels’ holding company, Coroin, had been unfairly prejudiced and seeking buy-out relief against the Barclay interests and the other shareholder, Mr Derek Quinlan.  Following an expedited trial lasting 30 days David Richards J dismissed Mr McKillen’s claims under the section 994 Petition and a related action for damages for conspiracy and procuring breach of contract [2012] EWHC 2343.

 The Court of Appeal unanimously upheld the trial Judge’s dismissal of Mr McKillen’s section 994 Petition in its judgment dated 3 July 2013.  The Court held that Mr McKillen had failed to establish any of the cumulative requirements of a section 994 petition and that the Barclay interests had not acted in violation of Mr McKillen’s pre-emption rights nor in breach of an express obligation of good faith. As in the court below, Kenneth MacLean Q.C. led the respondents’ successful opposition to Mr McKillen’s claims [2013] EWCA 781.