“presumably at the end of the day, yes, Abu Dhabi would [do] whatever was necessary, must have been what they thought.”
“We were put under considerable pressure by your Lordship to get a move on. … If your Lordship had wanted us to do it on a much longer basis, taking every single one of these points at length, perfectly prepared to do it, that is why I said at the end: we are not abandoning anything, I am adopting everything that is in our pleadings… Now, if I am wrong to do that I amperfectly happy to go back and start some of it again.”
“MR POLLOCK: Yes, because the Bank knew from every day from licensing onwards, and indeed from pre-licensing, that this was a dangerous institution that was not properly supervised and, therefore, ought not to be there. If I make that point good, then it must follow that in failing to revoke they were acting wrongfully. If I do not make that point good, it does not arise.”
“No decision has been taken. All one has is Mr Cooke's untrue assertion, put forward out of the blue in February, that the Concordat defined it, which was now being toned down although we would say still misleadingly so, because either someone had pointed it out or Mr Cooke may well have thought himself that by the time the next meeting took place a lot of people would have read the Concordat.”
“When you come to look at the way he formulates it at the next meeting, he retracts it and says no, it was not defined. So someone has come to him and says: no, you are wrong. What he does is he goes to the line and says it may not have been defined but it was implicit…..it may mean that he was flying a kite and people did say no, you cannot do that.”
“… the Committee is agreed that the country of incorporation rule should continue to prevail except in obvious cases where the major part of a bank’s business is conducted in another centre and where the supervisory authority of the country of incorporation and the supervisory authority of the country which is the principal place of business both agree that parental responsibility should be taken over by the latter.”
“MR POLLOCK: The Claimants also submitted in opening that if Mr Cooke said that the Concordat defined the parent country as the place of incorporation, he did so knowing that statement to be untrue. This allegation is not withdrawn. If on the other hand, and as now seems likely, he said or intended to convey that the parent supervisor would normally be found in the bank’s place of incorporation, this would not have been a knowingly untrue statement. In the latter case, the claimants would not allege that Mr Cooke was deliberately setting out to mislead his fellow supervisors as to the terms of the Concordat. The Claimants’ case is that it appears from the terms of the record of the meeting that Mr Cooke was, first, raising for consideration with his fellow supervisors a problem of which he was acutely aware, namely that unless a fellow supervisor had access to a Bank’s management and principal operations, he would almost certainly be incapable of carrying out adequate and effective supervision of that bank, and, second, proposing a method of dealing with the problem, which meant that there would be no presumption of supervisory responsibility for a bank incorporated in another country unless the supervisor in question had specifically agreed to assume responsibility. Mr Cooke knew that his proposal, if adopted, would minimise any pressure on the Bank to take responsibility for the supervision of BCCI or, for that matter, any other bank similarly circumstanced for which it did not wish to take responsibility. MR JUSTICE TOMLINSON: So you are not alleging that he deliberately set out to mislead them? MR POLLOCK: I hope I made it plain. We say that if he did say that the Concordat defined, yes. If, as we think it likely on the documents, he did not – but until Mr Cooke gives evidence about that what can one say? But your Lordship is quite right, we are saying it now seems likely he simply intended to convey that the parent supervisor would normally be found in the Bank’s place of incorporation, no, he did not set out to mislead them. There it is. That is what I have said. We have tried to make it as clear as possible. If Mr Cooke comes into the witness box and says, “No, no, what I said was quite clear, I said the Concordat defines, explicitly defines, the parent country as the place of incorporation,” well, then I would cross examine him on the basis that could not have made that statement knowing it to be true. MR JUSTICE TOMLINSON: And that he was intending to mislead thereby? MR POLLOCK: Well, yes, my Lord. MR JUSTICE TOMLINSON: Dishonestly intending to mislead? MR PLLOCK: Why does one make an untrue statement? MR JUSTICE TOMLINSON: Right, thank you very much, Mr Pollock.”
“Of course what we all assume is that in the ordinary case, in the vast majority of cases, the place of incorporation will be the place where you look to find the parent supervisor because that is where you will find headquarters, management, records, head office and all the rest of it.”
“…..the Committee is agreed that the country of incorporation rule should continue to prevail except in obvious cases…..”
“they were worried that if they told the Governor the truth … they would find themselves moving at very considerable speed towards the idea that they had to go to Abedi and say, “You move your headquarters here in the sense of your top, legally incorporated bank, we take over full consolidated supervision, or else we close you down, that is your choice.”
“Given that you have had a decision, this decision would have – approach it this way – had to be taken by a very large number of people, including a couple from the legal department, Mr Cobbold and his colleague, because they had all sat down on 16th December and talked this through at some length, …” (ii) On Day 108, the Court queried how that allegation was to be understood, given that it appeared from Miss Montgomery’s submissions the previous day that no “malign motives” were to be ascribed to Mr Thompson. The answer, after some wriggling, appeared to be that perhaps there was another meeting after the one in the diary at 11.30am, although Mr Pollock had of course said that Mr Lynas’ subsequent note reflected the sense of that meeting, or at least Mr Lynas’ understanding of it. (iii) The necessity for the Claimants to postulate an inner circle of conspiracy, from which Mr Cobbold, Mr Thompson and (Miss Montgomery said) “possibly”
“they were worried that if they told the Governor the truth … they would find themselves moving at very considerable speed towards the idea that they had to go to Abedi and say, “You move your headquarters here in the sense of your top, legally incorporated bank, we take over full consolidated supervision, or else we close you down, that is your choice.”
“Given that you have had a decision, this decision would have – approach it this way – had to be taken by a very large number of people, including a couple from the legal department, Mr Cobbold and his colleague, because they had all sat down on 16th December and talked this through at some length, …” (ii) On Day 108, the Court queried how that allegation was to be understood, given that it appeared from Miss Montgomery’s submissions the previous day that no “malign motives” were to be ascribed to Mr Thompson. The answer, after some wriggling, appeared to be that perhaps there was another meeting after the one in the diary at 11.30am, although Mr Pollock had of course said that Mr Lynas’ subsequent note reflected the sense of that meeting, or at least Mr Lynas’ understanding of it. (iii) The necessity for the Claimants to postulate an inner circle of conspiracy, from which Mr Cobbold, Mr Thompson and (Miss Montgomery said) “possibly”
“Having said this, we would not wish you or the Liquidation Committee to make the mistake of believing that there can be any genuine comparison between your clients’ legal costs and the Bank’s costs. There are a number of reasons why the Bank’s legal expenses are greater than your clients’, the most important of which is the fact that the Bank had to respond fully and accurately to each and every allegation made by your clients whether in its pleaded case, in its “Criticism Documents” or in the oral submissions made at trial by Mr Pollock QC. Numerous allegations were made by your clients, without any apparent regard to whether or not they were supported by the evidence or whether or not they were consistent with other allegations which your clients were making. These allegations were often of the most serious kind, accusing Bank officials of acting dishonestly. The allegations were constantly changing and the case pursued by your clients at trial was not the case that your clients had pleaded. It was a necessary consequence of all of this that the Bank had to consider (and where necessary investigate), both by reference to contemporary documents and the recollection of the witnesses, all these allegations so that they could be accurately and fully answered. The burden placed on the Bank in having to respond carefully and painstakingly to countless vague and unparticularised allegations was a direct consequence of the way in which your clients put their case and inevitably added very considerably to the costs incurred by the Bank. More particularly, there are a number of specific ways in which the burden of this action was borne by the Bank rather than by your clients, only the most obvious of which are set out below: 1. Witness statements: Your clients served no witness statements. The Bank served statements for 23 witnesses, many of considerable length, including two which were over 1,000 pages long. We enclose a list of those statements at Table D. The statements covered events over a period of 20 years. It was a massive exercise to identify the documents over 20 years relevant to each witness, then to provide each witness with the documents so that they could go through them and then to take them through not only the chronology as revealed by those documents but also through the relevant allegations in the 1,135 page Particulars of Claim. All of this was necessary prior to having meetings (often very many) with the witnesses which led to the production of draft statements which were themselves the subject of much detailed work as the witnesses reviewed and revised their statements at further meetings with the legal team until they were satisfied that the statements were, so far as possible, accurate. Further we then had to keep witnesses informed throughout the trial as yet further allegations were made. 2. Defence: The Bank had to undertake a very considerable exercise in the preparation of its Defence in order to correct the selective and misleading impression given by the 1,135 page Particulars of Claim, in which unparticularised allegations were scattered – rather in the same way that new unpleaded allegations were scattered by Mr Pollock during the course of the trial – in the hope that some would hit a target. The Bank had to respond to all such allegations and therefore had to deal with every single misleading allegation and omission in its Defence, which ran to no less than 2,250 pages of pure text. 3. Bank’s disclosure: Since the trial comprised, in effect, an inquiry into the conduct of the Bank and its officials, the Bank’s documents naturally formed the core of the Trial Bundle which comprised 192 lever arch files, as set out in Table E. Indeed 86% of the documents referred to at trial were disclosed by the Bank. It was a massive exercise for our firm to give disclosure of hundreds of thousands of documents and then to respond to various requests from you for yet further disclosure. It takes virtually no time to make these requests and yet a great deal of time to respond to them. Of course, we accept that the lawyers on your side had to read the documents that were disclosed but so did the lawyers on the Bank’s side who were not themselves directly involved in the disclosure process. 4. Liquidators’ disclosure: Although the Liquidators also provided a considerable volume of disclosure, the Bank quickly took the view that this was very largely useless – both in terms of its relevance to the case and the impenetrably poor way in which it had been listed and disclosed – and consequently made very few requests for further disclosure from the Liquidators. The way in which it was listed, by special dispensation of the Court and at your request, was very largely by box or file, thereby saving an enormous amount of time. Indeed, one of our assistants memorably looked into one box of disclosure to find that it only contained a broken chair leg. Moreover, the disclosure which was given by your clients seems in many cases to have been prepared by Deloittes, not your firm and, as we have said, we do not know whether you have included their costs in your£38 million figure. Furthermore, they had reviewed a large volume of BCCI’s core documents and tagged these for disclosure in the Three Rivers case whilst reviewing those documents in the course of other earlier major litigation which they initiated, notably against the auditors and Bank of America, thus no doubt resulting in a saving of the costs which would otherwise have been attributable to the Three Rivers case. 5. Trial: At trial the Bank had to respond at great length to the submissions made by Mr Pollock QC in opening your clients’ case. Given the partial, inaccurate and misleading submissions made on behalf of your clients it was necessary to address the court for 119 days by reference to the documents in the trial bundle, many of which had never been drawn to the court’s attention. In relation to these oral submissions Mr Justice Tomlinson observed to Mr Stadlen QC on 2 November: “You addressed me at enormous length on the documents in this case, as a result of which I had a far better understanding than I might otherwise have had …”
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