A High Court judge has said there was no reason “at all” why a defendant in a €20m arbitration had to use the Bar and being unable to find counsel at short notice was not a good reason not to participate in the hearing.
Mr Justice Andrew Baker was ruling in a case involving an Italian energy company which, having dismissed its legal team shortly before the arbitration hearing, claimed it could not find new barristers to present its case in the two weeks it was then given to do so.
He said Meta Energia took the view that it would not participate in the hearing “unless it could be represented by leading counsel”.
Given the “substantial sums at stake”, the judge said he would not criticise the company “for preferring, if possible” to have a QC, but it was “not arguable” that it was essential.
“There was no evidence to support a finding that the defendant could not have been well represented by junior counsel with relevant expertise and experience.
“Secondly, there was no reason why the defendant had to use the Bar at all. The claimant was not doing so, its case was run for and at the hearing by a team from Clifford Chance.”
The judge said that if Meta Energia’s new solicitors, Grande Stevens International (GSI), “did not have the experience or size to take the case on without external, specialist, help for the hearing”, the law firm “had a City of London full of highly skilled and experienced international arbitration practitioners, not just the Bar, within which to seek out co-counsel”.
The court heard in Shell Energy Europe v Meta Energia SpA  EWHC 1799 (Comm) that Meta Energia applied to set aside an order of Teare J granting Shell leave to enforce the arbitration award of €19.7m plus interest and costs.
Meta Energia “participated fully in the arbitration until the last stage” until, on 19 September 2019, with the two-day final hearing of the arbitration set for 25-26 September, it dismissed its solicitors and counsel, “despite having confirmed as recently before that as 11 September 2019 that they would be attending the hearing and presenting the case for the defendant”.
Andrew Baker J went on: “It is said that the defendant, acting by its chief executive Mr Molinari, dismissed the original legal team because it was not satisfied with the way it had pursued or presented the defence.
“However, no serious attempt was made to identify, and no attempt at all was made to evidence or justify, the respects, if any, in which the defence pleaded and pursued in the arbitration should, or even could, have been improved or different.”
GSI said it contacted “a number of barristers’ chambers to enquire as to counsels’ availability for the adjourned hearing, “despite the adjournment, it remained difficult to find counsel with adequate availability to prepare for and attend the hearing”.
Andrew Baker J said “some further details” were given, including “some advice given by one leading counsel” that he did not think he would have enough time to prepare fully.
The judge said “this evidence falls well short of its intended mark, which was to persuade the court that the defendant had no choice but to cease participating on the merits.
GSI attended the final hearing only to make “a brief submission asserting that the defendant was unable to present its case” before withdrawing.
“The arbitrators, as is clear from their award, gave careful and anxious consideration to whether it was just and appropriate to continue. They concluded on proper, reasonable and sufficient grounds that it was.”
The judge noted that “the Clifford Chance team properly did all they could, based upon the defendant’s written submissions on the merits, to ensure that the arbitrators were reminded of points of substance raised against the claimant”.
Andrew Baker J dismissed Meta Energia’s application and confirmed Teare J’s order.