Handling leading cases

Hywel Jenkins talks about his participation in a leading case.
“When the trainee who handed over the seat to me explained that one of the matters I would be working on involved the FSA investigation into Sir Philip Watts, the former Chairman of Shell, my interest was immediately engaged. I was already aware of the Shell reserves scandal to some extent from national media coverage and looked forward to the prospect of being involved in such a high profile case involving serious charges of market abuse.

“The Herbert Smith team had been working on the matter for around 18 months prior to my involvement, and had seen a few trainees come and go. However, they quickly made sure that I felt part of the team.

“My first task was to read the detailed written submissions that had been made by both the FSA's enforcement team and Herbert Smith, then review part of the mountain of documents underpinning the case. This was essential in order to get a grasp of the facts and to understand the evidence that each side was seeking to rely on. My next step was to familiarise myself with the procedures involved in the FSA bringing an enforcement action. As a regulatory action, this was quite different to the litigation that I had learnt about at law school. What’s more, the process itself had recently undergone substantial changes. The fact that my supervisor was an expert in the field helped me pick up the necessary details rapidly.

“Of course, the media portrayal of what had happened only told part of the story. It soon became apparent that the public version did no justice to the complex reality of the events leading up to Shell restating the level of its oil reserves.

“During my involvement, our work on the case centred on preparation for a hearing before the FSA's Regulatory Decisions Committee (RDC). Our part of the advocacy was performed by one of the QCs in the new advocacy group, as well as my supervisor. This meant I could experience what it was like to prepare for an oral hearing in which we would have to put our case. This involved covering a vast amount of material in a relatively short time. Our advocates had to combat the view of the case that the FSA's investigating team had formed, and try to paint the broader picture of what happened, explaining what people were thinking at the time rather than with the benefit of hindsight.

“As well as researching some of the more technical legal points we also had to ensure that the advocacy team were on top of all relevant facts. Even ‘small’ tasks such as preparing a bundle of the key documents were vital (and no mean feat when asked to select the core material from thousands of emails, reports and witness interviews). One of the most demanding pieces of work I undertook was researching for and drafting part of the further written submissions we were making. This involved combining an element of advocacy with assisting the RDC by pointing them towards the relevant evidence.

“Ultimately we were successful before the RDC who decided our client had no case to answer. It was very satisfying to be a member of the team that achieved this victory and it is one of the reasons I decided to qualify back into the dispute resolution division. I feel confident my experience in this matter will be helpful to me in my new role as an associate.”