“They think it’s all over – it is now!”  Wayne Rooney’s claim against leading tax silk collapses

27/09/22

Negligence claims against Jonathan Peacock KC, due for trial in January 2023, have collapsed.

For those suffering from déjà vu, this is the second of two separate actions (backed by the same commercial litigation funder) against different leading tax silks. In both cases the claimants were groups of wealthy individuals who had invested in film-based tax avoidance schemes; in both cases the defendant was a silk who had advised the promoter of the schemes, rather than the investors; and in both cases the promoter had shown the silk’s advice to investors, together with warnings that they should take their own advice.

• The first claim, against Andrew Thornhill KC, began in 2018 and was dismissed by Zacaroli J in March 2022 after a 4 week trial (see here). Permission to appeal has been granted by the Court of Appeal and the appeal will be heard in March 2023.
• The second claim, against Jonathan Peacock KC, was brought later and progressed separately. The claimants included a number of well-known footballers (including Wayne Rooney), City figures and Magic Circle solicitors. It was heading for trial in January 2023 until Zacaroli J’s judgment came out in McLean v Thornhill, which seriously undermined the Peacock claimants’ case on all main issues (duty, breach and causation).

At that point the Peacock claimants refused to serve witness statements or do anything else to progress the action. Instead they applied to stay their claims and adjourn the trial pending the Thornhill appeal.

At a hearing in July 2022, the claimants argued that the trial risked rehearsing the same arguments as would be heard in the Thornhill appeal and should therefore be postponed. Mr Peacock argued that factual differences meant that he was in an even stronger position than Mr Thornhill, and pointed out that the claimants had refused to confirm that they would abandon their claims against him if the Thornhill appeal failed.  

The designated trial judge, Fancourt J, accepted Mr Peacock’s arguments and dismissed the application on 20 July 2022 (see [2022] 7 WLUK 292). The Westlaw link is here.

Faced with the failure of their attempt to postpone the trial, an imminent deadline for witness statements, a security for costs application against the funder and the powerful judgment in Thornhill, the Peacock claimants bowed to the reality of their situation. They agreed not only that their claims would be dismissed but also to pay a substantial sum in costs to Mr Peacock’s insurers, the Bar Mutual. As the Bar Mutual has publicly stated, its view is that these claims should never have been brought.