Lloyd's Litigation Database

ARCHIVED FOR THE RECORD:

The following was the editorial comment on the Lloyd's Litigation Database home page as of August 28, 2005:

What's Going On Now?

Lloyd's has been out of the news in Europe (with trivial exceptions) and in the USA (except for brief mention in Texas and Utah papers of the enforcement-of-judgment actions). We've continued to monitor legal databases (Lexis/Nexis, Westlaw, Lawtel, Celex ...) for decisions and PACER for US enforcement of judgment actions in the federal courts. Private settlements, uncontested decedents' estates distributions under state law, and the fate of absconders generally escape our view. Still, there is a mass of data here, and former Lloyd's members and private researchers will find a wealth of primary material. To minimize the number of broken links, most documents have been archived.

What this Web site is for:

This site consists of a database containing all known published judgments and significant court documents relating to litigation between the Society of Lloyd's and the investors it recruited. It is provided as a free public service: the editor, "Crepulax", a qualified lawyer and legal writer, accepts no referrals from this site. While the site was conceived and built in the interests of the investors being pursued by Lloyd's, the documents are posted without alteration or interference of any kind whatsoever and without regard to whether or not they support one side or the other. Full citations are provided so that researchers and lawyers may easily have access to the originals.

In addition to purely procedural issues, the litigation covers three important matters: (1) private international law (conflict of laws): what jurisdiction shall hear the dispute and which country's laws shall apply; (2) whether counterclaims or setoffs (usually framed in terms of fraud or negligence by Lloyd's or its directors) may be asserted against claims by Lloyd's; (3) whether securities (financial services) laws apply. Other cases included here relate to cross-border enforcement of judgments and bankruptcy matters.

The most startling conclusion from reading the collected documentation — case reports, diplomatic correspondence, lobbyists' submissions, law review articles — is the politicization of what, a decade or two before, would have been addressed (in America at least) purely in securities regulation terms.

The failure of most Lloyd's investors to have their cases heard on the merits in the United States is an accident of history and politics. Defendant-friendly judges, judicial appointees of the Reagan-Bush era (this will only get worse with Bush II appointees), have made the federal courts more friendly to Lloyd's and other corporate interests: this is a political choice, and we remark on it as fact and not out of criticism. Not entirely unconnected with this is the accident of Supreme Court decisions responding to inappropriate use of antitrust, RICO and securities law claims, and a belief inherited from a few influential professors at Harvard, Columbia and elsewhere that "all legal systems, like all religions, are equally worthy of respect". A search in the U.S. Code ( http://www4.law.cornell.edu/uscode or http://www.gpoaccess.gov/uscode/index.html or http://uscode.house.gov/usc.htm ) for the phrase "contrary stipulations void" reveals that there are only three occasions where the Congress used this phrase in a statute, one of them being pre-dispute waiver of rights under the U.S. securities laws, most relevantly 15 U.S.C. § 77n. The Courts have held that notwithstanding this clear language, Lloyd's (and other sellers of securities) could force a waiver of such rights.

For those who profited at Lloyd's from passing off their own risks cheaply on newly-recruited investors do not deny their own good fortune: they deny any legally cognizable link between them and the aggrieved investors: for there were multiple layers between the two, staffed by independent contractors kept ignorant of the true facts. To read the proceedings of the Jaffray fraud trial is to see the "perps" stumble and stammer over the hard questions.

Whatever may be the outcome for particular investors in state courts (i.e., the West case), in the Jaffray fraud trial, or in bankruptcy courts (where about half the petitioners, American, Canadian and British have achieved a "fresh start"), the failure of the "System" to offer any remedy to more than 20,000 others is the inevitable result of the lobbyist spoils system of American and British politics today. That is, after all, the thrust of the Time Magazine articles linked here. What is surprising and worthy of examination by every law student — and this is the reason for this site — is that the British, American and Canadian legal systems have shown themselves, at least in extreme cases, susceptible to the same criticism leveled at certain less developed jurisdictions: the courts are reliable arbiters as between political equals, but not necessarily otherwise.

The job of the lawyer is to guide the client in affairs so as to avoid legal surprises. One must conclude here that not through negligence or incompetence but through juridical surprise (cumulative decisions tipping the interpretation of statutes in favor of the corporate defendant) no such guidance was possible here, and Lloyd's investors — especially non-British, and more specifically American ones — were disadvantaged. (But all the investors, the British ones too, can reasonably complain that they were misled, and worse, by successive investigatory reports.) The law, to the surprise of many, is not there to do justice but rather to keep the peace. How disputes are settled really means less to the law than that they are settled.

Lloyd's is sui generis. It was given broad immunity from the law of the outside world not just because its directors managed to "buy" a private Act of Parliament, but because it had the trappings of its own justice system and a code of secrecy that has been compared to the Masonic. Part of the problem was that Lloyd's was not just an "investment", but a Club: one considered oneself privileged to be a member, even when profits were slim or nonexistent. To understand this, one must look at the Scientology cases for, like the Church of Scientology, Lloyd's is a notorious and vindictive litigant, jealous of its secrets. (An interesting sidelight, which we shall not pursue here, and which was briefly discussed in a Jewish Chronicle article in 1993, is that Jews, largely excluded from the British Establishment, joined Lloyd's perhaps more to join the "Club" than to make profits. Nearly all were assigned to losing syndicates, including Robert Maxwell, although he died (presumably a suicide, on the eve of his empire collapsing) before his Lloyd's debts caught up with all those other ones resulting from his own fraud.)

Of course, like any such organization, Lloyd's best maintained secrecy by having layers and cells. Few were aware of the truth; loyalty was assured among the large number of incompetent underwriters and managers totally incapable of making elsewhere the kind of money they were able to earn or skim at Lloyd's. Little skill was needed where an underwriter only had to follow the lead of a "lead underwriter". That the leader subsequently might lay off his risk, or reinsure his personal risk with personal stoploss or "facultative reinsurance" on his own or a neighboring syndicate would go unnoticed. The judgments published here in the cases against Feltrim, Gooda and Bullen say much about how that strategy worked and how the insiders were able to pass off their own risks cheaply on newly recruited investors.

It has been asked why European Union and European Convention of Human Rights law has not provided any useful remedy for Lloyd's investors. The ECHR provides limited protection in financial matters: relevant to the Lloyd's cases is Art. 6(1) (right of prompt access to a court), but the Strasbourg court is a conservative institution and the Convention remedy of uncertain applicability here. Appreciation of the relationship between English and European Union law demands an understanding of Britain's policy towards Europe since 1950, something which General de Gaulle understood only too well. When Britain did "enter Europe", it sold out its farmers and fishermen in exchange for a veto in financial services law and policy (among other things). Brussels never understood Lloyd's. And since it would be up to the British judiciary to refer any issue to Luxembourg (aside from a Commission action under competition law or, even less likely, insurance law) reliance by Lloyd's investors (isn't "Names" a cynical label?) on the EU for help is misplaced.

Lloyd's New York law firms have succeeded in clouding the eyes of bureaucrats generally, and most especially of the U.S. Internal Revenue Service (see the 1990 Closing Agreement) and the SEC (see the Regulation D prepared on behalf of the Members Agents by Lloyd's law firms — in which Lloyd's managed to befuddle the bureaucrats' notion of what was a security and who was the issuer).

There are some remarkable lessons to be learned all 'round from reading these cases. And instructive comparisons to be made with other great financial crises and frauds: BCCI, Maxwell, Barlow Clowes, the South Sea Bubble. The Barlow Clowes comparison is apt: here, as there, the promoters promised not riches, not easy wealth, but a "small profit from a low-risk investment". What Lloyd's investors never knew was that the risk was, in fact, horrendously great; the reward, if any, derisorily small. When I met with Sen. Kerry's staff in 1993, soon after the publication of the BCCI report, two things surprised me: (1) the staffers had read and understood the documents I'd sent on ahead (i.e., they were prepared), and (2) they saw instantly the similarity between Lloyd's and BCCI. Unfortunately I lacked the political clout without which, they frankly admitted, no Congressiional investigation was likely. Lloyd's lobbyists would see to that: the Names' counsel in the Roby case (the Proskauer Rose partner with whom I spoke) learned that lesson as well.

These case reports speak for themselves. That the legal systems of at least three countries have at so many turns re-interpreted law to protect the cheaters at the expense of the victims is a notable chapter in modern jurisprudence.

The preceding paragraphs were originally written in 2000. We have now seen that cynical manipulation of accounts, skimming off of profits, shifting risk and otherwise enriching management at the expense of outside investors is not unique to Lloyd's or to Britain. And, interestingly, British firms and the British Government are expressing concern that they may be subjected to the full force of the Sarbanes-Oxley Act -- imprisonment of top executives for cooking the books.

Lloyd's, Enron, WorldCom, Global Crossing, Imclone… they all are made of the same cloth: arrogance, greed, dishonesty (but the perpetrators have redefined "honesty" and "integrity" in such away that they are accountable for their conduct only to their own inner circle). Politicians are so beholden to that sort of modern Robber Baron that we should not expect any real change. The authors of this site certainly do not expect any. What we have done is to facilitate the scientific examination of the great Lloyd's Robbery so that the damage done to the legal system, and to the supposed system of investor protection — and the particular gapin cross-border investor protection — as well as the misuse of diplomacy may be scrutinized.

— Crepulax

-------------------------------------------------

COMMENTARY:

A commentary on the litigation as I see it now.

Read the Edelman judgment: whether you like the outcome or not (you won't, unless you are one of our readers who works for Lloyd's) it is well reasoned and states the law as it stands today in the United States.

For over a decade investors in Lloyd's have been trying to litigate on the merits, exhausting every strategy that has come to mind by way of defending against claims by Lloyd's — mainly for reimbursement of Central Fund outlays and for Equitas reinsurance premiums. With a very few notable exceptions, the investors have lost every case that Lloyd's has chosen to fight, whether in the Queen's Bench Commercial Court in London, in the Court of Appeal or the House of Lords, or in Australia, Canada and the state and federal courts in the USA.

Lloyd's has lost a few cases due to lawyers' errors (of strategy or of procedure). They have abstained from a substantial number of cases, mostly in U.S. Bankruptcy Courts and in state probate courts (which, in the USA, handle insolvent estates and adjudicate contested claims against estates and certain trusts), where they thought the facts were unfavorable or were (in the early days) unwilling to risk submitting to the jurisdiction of the U.S. courts.

At this point, almost all the American litigation consists of enforcement of foreign (English) judgments under the Uniform Foreign [Country] Money-Judgments Recognition Act or, in states where that uniform law has not been enacted, by way of "comity", or in bankruptcy court, or in actions against transferees for "transfers in fraud of creditors". You can find many of these cases in the Yellow Section of this page, and among the PACER federal court dockets.

The only cases that have come to light, after exhaustive research, where creditors have been unable to enforce a foreign judgment in the U.S. courts have been where the judgment is procedurally defective, such as Attorney General of Canada v. Gorman, 2003 N.Y. Misc. LEXIS 1609 (Civil Ct., Queens Co. 2003) (I visited the court and have inspected the file and I agree with the judge's conclusion, suspecting that the defendant had "sewer service" in both Canada and the U.S.—the process server is unlikely ever to have properly served her). Or the case raises as U.S. constitutional issue (free speech): Bachchan v. India Abroad Publications, Inc., 154 Misc. 2d 228, 585 N.Y.S.2d 661 (Sup. Ct. N.Y. Co. 1992) and Telnikoff v. Matusevitch, 347 Md. 561, 702 A.2d 230 (1997) (First Amendment issue; denying enforcement of English libel judgments).

The Turner and Edelman decisions make it unlikely that constitutional issues can help U.S. Lloyd's-judgment debtors. Not only can't they be phrased so as to shock the conscience of an American judge who does not really understand or care how English law operates in the vacuum of no written constitution, but no U.S. judge is likely to revisit the issue, even if an offer of contrary proof is made. (Since 2002 there has been a effective bill of rights in the Human Rights Act 1998; whether an art. 6(1) claim of the sort I am about to outline would work is doubtful, for the same reasons.) But constitutional arguments are the only ones left. (The only other defense is one that should have been undertaken a decade ago by every affected Lloyd's investor: asset protection, including absconding if necessary. But it is not in the character of the average Lloyd's investor to flee, and few were willing to believe, as I have from the beginning, that there was no "magic bullet" to save them. My strategy in 1992 and beyond was to avoid an English judgment at all costs, and if that failed to move assets at once and wait out the statute of limitations (4 or 6 years in most U.S. jurisdictions; in California arguably 7 years, or 4 years from the date of Lloyd's judgment).

I am not going to set out here in detail the arguments, but these are the issues:

¶ Retroactive (ex post facto) legislation. Backdated laws are allowed for taxes and in very limited other cases; otherwise vested interests are protected in U.S. law. There are several Supreme Court decisions setting out the framework.

¶ Lloyd's had been delegated lawmaking power by Parliament and wrote its own laws for the benefit of itself and its insiders. One will need to show why this issue could not have been raised successfully in England.

¶ Lloyd's contrived to deprive its investors of the right of setoff or of arbitration, the very basis under which the Roby, Riley and Bonny cases were dismissed. In no case except that of Jeremy Lyons was there ever an arbitration hearing; that Lyons lost his case does not make Lloyd's promises to the American courts in the cases of other investors any less hypocritical.

The sole exception to enforcement of foreign judgments is public policy, but that is a red herring. The only circumstance in which public policy will prevent enforcement of a foreign judgment is when it rises to the level of constitutional prohibition, as above. The trouble is that judges routinely invoke the exception to demonstrate that they have listened to the arguments of the losing party and rationally dismissed them.

A court of first instance (trial court) is not likely entertain constitutional arguments; it's an appeal court strategy. Of course an appeal may require a supersedeas bond unless the defendant is a pauper.

Protective strategies include following Asil Nadir to the Turkish Republic of Northern Cyprus, where no English or American judgment will be enforced solely out of comity; following O.J. Simpson and Bowie Kuhn to Florida and investing one's assets in an expensive homestead (this may not work for aliens who do not have long-stay visas; and unlike homesteads annuities, once an exempt asset in Florida, now have a 4-year fraudulent-transfer period). The new Bankruptcy Code amendments need not concern the Lloyd's investor who makes sure that all debts except Lloyd's are paid promptly.

Liability for unpaid capital for shares was once a significant public-policy issue in the United States, see Paulsen and Sovern, "Public Policy in the Conflict of Laws, 56 Colum. L. Rev. 969 (1956) and the turn-of-the-century English case, Allen v. Gold Reefs of West Africa Ltd., [1900] 1 Ch. 656. Public policy defenses don't seem effective anymore, and that's a pity. And I don't recall seeing in any of the American Lloyd's-investors cases any discussion of the ample case law on the subject.

Several of my correspondents and collaborators have expressed astonishment that, unlike some of the bankers who called in farmers' loans and foreclosed on their property and the crooked securities dealers who churned their customers' accounts and wiped them out, no Lloyd's insider or lawyer has met with violence. This says, I suppose, something positive about the equanimity of the typical victim of Lloyd's.

Crepulax

What's New:

Judgment in Lloyd's v Lee & Silversmith et al. added, August 20. See yellow section below.

Judgment in Borgers case on appeal (9th Circuit, due process issues) added, August 15.

See the very recent Fuerst case and the docket and many important documents, posted July 31. These enforcement-of-judgments cases, resulting in judgments for Lloyd's in the millions of dollars and court-ordered examination of the debtors in the search for assets and possible fraudulent conveyances, highlight the political nature of the Lloyd's litigation: as I was told in 1992 by a senior London solicitor, the British Government made the survival of Lloyd's and its victory in over its investors in the courts a matter of overriding national interest. Never forget: the courts do not exist to "do justice"; they exist to promote (1) their own institutional interest, (2) national stability and (3) more or less the status quo.

Many key Lloyd's cases have now been annotated with hot links to cases cited by the judge. Internal links are picked up by Google within a few weeks, and you can search effectively within this site (including cases not listed on this page or otherwise indexed on the site) by including the delimiter « site:www.uniset.ca » in your search criteria.

European Parliament makes progress in Lloyd's case

The European Parliament has received the green light to take the Commission to court over its failure to answer questions about the Lloyd's of London case, Sir Robert Atkins MEP, deputy leader of the Conservatives in the European Parliament and delegation spokesman on the Parliament's petitions committee, said on June 29. Click here for full story.

Added June 24: decision of Bankruptcy Judge Judith A. Boulden dismissing the Harmsen case (involuntary bankruptcy case brought by Lloyd's against one of its U.,S. investors; also docket and many downloadable documents. This case was affirmed on appeal, 310 B.R. 188 (B.A.P. 10th 2005).

Many cases have been re-formatted and renamed; recent opinions have hot-linked to references when the cited case is available on this server. Please be patient regarding temporarily broken links — you can speed up the repair process if you let us know if a link is down.

Society of Lloyd's v. Henderson (UNO case), judgment of May 11, 2005 added

Many older cases added; some broken links repaired; most UK and US cases checked and some new versions added in HTML format – Mar. 28, 2005. N.Z. & Added April 12, 2005 (Yelllow section): Reinhart and Edelman enforcement of judgment opinions added; Harmsen involuntary bankruptcy (filed by Lloyd's and rejected by both the Bankruptcy Court and the Bankruptcy Appellate Panel)

Ian Hay Davison affidavit in relation to Society of Lloyd's v. Henderson

Bloomberg, Apr. 6, 2005: "Lloyd's 2004 Profit Falls 28% After Hurricane Claims"

Business Insurance, Mar. 14, 2005: Lloyd's settles with Central Fund insurers

Daily Telegraph

— Mar. 15, 2005: Hiscox derides FSA for inept and petty dithering

— Mar. 15, 2005: Lloyd's profits take Ç?1Ö2323m hit after September 11 settlement

— Feb. 19, 2005: "Although his father wanted him to follow a medical career, Stephen Catlin quit dentistry as the Lloyd's bug bit"

— Jan. 24, 2005: Equitas attacks US asbestos law

Independent (London),

— Sunday, March 13, 2005: "Ex-Lloyd's Boss Backs Names in Legal Case" (Ian Hay Davison)

— Sunday, Jan. 30, 2005: Lloyd's Names close to Ç?1Ö230m payback win

— Sunday, Jan. 23, 2005: The 'Dummy Agent' and the Names who could not say 'no'

— Sunday, Jan. 23, 2005: Equitas fears bankruptcy over $140bn US asbestos settlement

— Sunday, Jan. 16, 2005 -Three articles:

— Business View: The bad old days of insurance are not ancient history

— Legal fight looms over '20 years of regulatory failure at Lloyd's'

— MEPs call for action on Lloyd's scandal

Link to site on State Liability for violation of European Law (Francovich)

Text of Lloyd's Act and Bye-laws added, Sept. 12, 2004

Lloyd's enforcement of judgment cases in the USA: see especially the Blackwell docket. We have obtained from the court and posted all the major substantive documents from this action, which granted summary judgments to Lloyd's against Southern California investors for millions of dollars. (Some files are quite large: Ted Grippo's "Declaration", which set out the Names' arguments but which failed to influence the court, is 371 pages (15.3 MB). To download it cost us about $25 on PACER; it's free for you to download here.)

Society of Lloyd's v. Bennett & others, Utah enforcement of judgment summary judgment case: docket and all available case documents added, Sept. 15, 2003. This case is typical of many recently brought throughout the U.S. against investors in Lloyd's to enforce English judgments, chiefly for premiums paid by Lloyd's to Equitas under the R&R settlement, notwithstanding those investors' refusal to agree to the settlement or to the reinsurance. See, for example, Society of Lloyd's v. Mullin and Society of Lloyd's v. Hudson. Note that Lloyd's has intervened aggressively in bankruptcy, decedents' estate and property transfer proceedings. Yet, it has made mistakes and missed some deadlines; also it has tactically abstained where it deemed the judge "unfriendly" or otherwise risked setting adverse precedent.

YOUR COMMENTS ARE WELCOME. We try to check for broken links, but limited resources make occasional lapses inevitable. Tell us, and we'll fix it!

A note for those now under siege: It isn't the aim of this Web site to practice law or to give legal advice. (You should not expect a lawyer-client relationship to exist when you aren't paying for it.) This is a repository of primary law for the use of lawyers, scholars, librarians and researchers. The rapidity and consistency with which Lloyd's has won cases suggests that it has political support beyond any promoter and seller of investment securities in history. About half of those who sought bankruptcy protection in the U.S. have had Lloyd's claims discharged. Others have engaged in asset protection, taking advantage of statutes of limitation to frustrate Lloyd's, where state law permits. (But pay attention to fraudulent transfer law and transferee liability: see the Bankruptcy Page for a few pertinent, salutary cases.) A few have taken flight, or gone to sea (the Turkish Republic of Northern Cyprus is a nice and congenial retirement spot, and as Asil Nadir has found, out of reach of the UK courts). For those who choose to stand and fight, the battle is difficult, expensive and uncertain. Lloyd's has spent millions in legal fees and in buying political influence to have the laws interpreted in ways helpful to it and to have the interests of its defrauded investors ignored.

I hope this collection of cases and documents proves helpful. A word of warning: beware of following false prophets who in the past have often be co-opted by Lloyd's, and beware of lawyers who tell you what you want to hear rather than an informed judgment based on the reality of the cases published here. Above all, watch out for theories supported only by a single case and not by a consistent body of law.

The sad conclusion from reading these cases and the law review articles criticizing them has to be that immense political pressure and the intimidating force of City and Wall Street law firms has been brought to bear on the US and English and Canadian legal systems with predictable results. Aside from the West case brought by Earle Hale, Esq., a few dozen Chapter 7, 11 and 13 bankruptcy cases brought in the US by various debtors, virtually all the cases have gone Lloyd's way. Few Lloyd's investors took heed after the Roby case, or learned from the experience of Kissell (Bankr. N.D. Ill. 92B16589) or Scheinuk (Bankr. E.D. La. 93B11134) or Lyons (Bankr. S.D. Fla. 95B22606, a/p 95B1343). (The American Names Association Web site includes a chart of Names whose Lloyd's involvement was discharged in bankruptcy, it is not, however, either accurate or up-to-date.) By not protecting their assets in the decade 1991-2000, and in relying on what has proved to be a hopeless decade of litigation and defense that was bound to fail once Lloyd's ability to enact its own legislation was recognized by the courts, most Lloyd's Names left themselves and their property at Lloyd's mercy. The investors who accepted and paid for the R&R settlement are not free of Lloyd's either: they depend upon the solvency of Equitas and the willingness and ability of corporate trades in Lloyd's to support the Central Fund in the future.

What should be most obvious from reviewing these cases and the financial histories of Names is this: any married couple where both spouses became Names, investors in Lloyd's, were clear victims of a scam by insiders, using, with or without their connivance, members agents, and with the clear support of the British Government. But where's the smoking gun? Without a freedom of information act we may never find it. Plausible denial is the word.

No insider would have been so ignorant and foolhardy to allow his spouse to join, thus completely exposing their joint and separate assets to Lloyd's and greatly limiting the opportunity for defensive manœuvers. This suggests gross cynicism on the part of members' agents who allowed and encouraged couples to join together in what clearly must have been a search for prestige and exclusivity rather than wealth. Perhaps it was the aura and mystique that caused couples to join together: but no insider, well aware of the risks and the lies, would have made that mistake.

In many of the cases here, the Lloyd's investor has been his/her own worst enemy: demanding a silver bullet, refusing to follow the lawyer's advice, either on establishing residence in a debtor-friendly jurisdiction (Florida comes to mind, even though the 2005 revisions to the U.S. Bankruptcy Code make bankruptcy less of a practical solution than it once was) or creating facts that would help preserve a case that eventually was dismissed. Those who single-mindedly worked on defending their assets, and considered offensive litigation only as a speculative effort for compensation, did best. With all due respect to Sally Noel, theatrics are as useless against Lloyd's as they are against the Mob. There's no use attacking the sheriff or bailiff when he comes to foreclose: by then it's too late. There's no use gifting all one's property away on the eve of judgment, or later. Selling all one's assets and absconding from England with the proceeds on the eve of being made bankrupt is an "offence" under the Insolvency Act. For this reason, English solicitors are wary of giving asset protection advice: pre-bankruptcy planning is a more developed art in the United States.

One last point: the Law is not there to "do justice". It is there to keep the peace. Lloyd's investors should not have been surprised that the complexity of the Lloyd's system made it possible for insiders to skim off money with no redress for the investor-victims. Lloyd's status as a quasi-governmental organisation, the political influence of its insiders, the unfettered sovereignty of Parliament and the historical inability of the English legal system to deal with financial frauds have made the current situation all but inevitable. And the accident of U.S. Supreme Court precedent, the early unfavorable judgments in the American Lloyd's cases and the failure of the SEC to act account for the investors' failure to obtain redress from the U.S. courts.

— Crepulax