Kenneth MacLean KC

Emmerson International Corporation & Ors v. Mikhail Abyzov & Ors;
Acting on behalf of a number of defendants purportedly joined to and served with claims in this very heavy litigation. The underlying dispute relates to an alleged joint venture between Mikhail Abyzov and Viktor Vekselberg, in relation to power generation assets in Russia. Mr Abyzov’s primary claim is for c.$900 million.

Phones 4U Ltd (in administration) v EE Limited & Ors
For the Claimant in an Article 101 TFEU claim against EE, Vodafone and O2 and their parent companies arising from alleged cartel conduct between those companies that caused the claimant to cease trading.

Bilta (UK) Ltd & Ors v (1) RBS plc and (2) Mercuria Energy Europe Trading Ltd  [2020] EWHC 546 (Ch)
For Defendants in a 6-week trial of dishonest assistance claims arising out of carbon emissions allowance trading said by the claimants to have been carried on pursuant to a €100 million missing trader.

Tatneft v Bogolyubov & Ors [2016] EWHC 2816 (Comm) [2020] EWHC 623 (Comm), [2019] EWHC 1400 (Comm), [2018] 4 W.L.R. 14, [2017] 1 All E.R. (Comm) 833
For 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 Ukrainian individuals and involved allegations of fraud and breaches of the Civil Code of the Russian Federation. Leading judgments have been handed down on matters including strike out / summary judgment, security for costs and amendments.

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.