Jonathan Gaisman QC

In the banking and financial sector, Jonathan Gaisman has acted for the Royal Bank of Scotland and four former directors (including Fred Goodwin) in defence of the claims brought against them by shareholders who subscribed to the 2008 rights issue. He also advised shareholders of Northern Rock, in relation to their rights against HM Government arising out the nationalisation of the bank under the Banking (Special Provisions) Act 2008. He was retained in 2009 to appear in the Supreme Court in Deutsche Bank v Highland, a (subsequently compromised) dispute concerning the sale and subsequent decline in value of US real estate collateralised debt obligations. He acted in a Commercial Court trial acting for Calyon Bank against a Polish aircraft manufacturer in relation to a dispute over FX derivatives. Jonathan Gaisman acted in Luxe v Midland, a case which concerned a disappointed buyer’s right to seek proprietary remedies in an international context against the proceeds of sale of a Ukrainian steel group, where it was alleged that the seller had wrongfully sold to a subsequent buyer at a higher price.  He acted for the majority shareholders of First Investment Bank of Bulgaria in the expedited trial of a dispute between shareholders in relation to an IPO of the bank’s shares. Among many other investors’ claims, he acted for ANZ Bank in relation to common law and FSMA claims against it by investors arising out of loss in value of Russian investments. His role in the massive Barings trial involved a detailed analysis and critique of the bank’s management, operational systems and conduct of derivatives trading. He has also acted in relation to the collapsed Millennium hedge fund and has advised Hermitage Capital Management.

In the entertainment field, Jonathan Gaisman acted for BBC Worldwide in a claim brought by it in relation to the exploitation of its archive of rock music. He represented Chris Blackwell in defending a claim brought by Steve Winwood for a shareholding in Island Records. The Disney group is another recent client. He advised Peter Lim in relation to his bid to acquire Liverpool Football Club.  He was appointed ICC arbitrator in relation to a dispute about the broadcasting of Premier League football in Africa.

Jonathan Gaisman is acting for Petrosaudi Oil in a dispute with PDVSA concerning a Venezuelan drilling contract, and he recently persuaded the Court of Appeal to over turn a decision of the Commercial Court, which had injuncted Petrosaudi from claiming under a standby letter of credit on the grounds of fraud. Jonathan Gaisman acted for Gulf Keystone in successfully defending the claims brought against it by Excalibur, in relation to oil concessions in Kurdistan. The four month trial involved the construction of a collaboration agreement,  issues of oil exploration practice and finance, and a host of exotic facts in dispute. Thereafter, he acted for a major European utility company in an arbitration about the consequence of breach of a confidentiality agreement in relation to Kurdish Gas Concessions. In both cases, the policies of the Kurdish Regional Government were to the fore. Jonathan Gaisman has acted in numerous disputes concerning North Sea oil fields.

Jonathan Gaisman acted for the Royal Bank of Scotland and four former directors (including Fred Goodwin) in defence of the claims brought against them by shareholders who subscribed to the 2008 rights issue. He acted for Gulf Keystone in the Commercial Court claim brought against it by Excalibur Ventures, in relation to Kurdistan oil blocks. He also recently acted in another Kurdistan energy dispute, this time a major arbitration relating to the consequences of breach of confidentiality agreements concluded in respect of two large gas fields. He also acted for the corporate trustee of the IBM (UK) pension fund in its successful claim in the Chancery Division against IBM to rectify the terms of a 1983 pension trust deed (and later deeds), establishing the right of active members to retire before 63 without actuarial reduction and without employer consent.  Jonathan Gaisman assisted Axiom Mining in its dispute with Sumitomo over nickel prospecting rights, in the Courts of the Solomon Islands.  Other clients have included Peter Munk, the directors of Northern Rock and (in relation to their Russian investments) Hermitage Capital Management and Bill Browder. He has been involved in litigation arising out of the Chancery Lane tube crash; he has acted for Total in relation to a Turkish pipeline dispute; he has appeared in the Administrative Court on an application for judicial review, seeking to prevent the disclosure of a confidential document to the FSA. The Buncefield explosion case, in which he acted for the lead claimants, is among other things, the leading modern authority on public nuisance.

Insurance and reinsurance have always been a core area of Jonathan Gaisman’s practice. He acted for Hiscox in the FCA test case concerning the impact of COVID-19 on business interruption insurance policies, heard in the Supreme Court in November 2020. He has also recently acted in a total loss case in which wilful misconduct has been found against the owners of the “Brillante Virtuoso”, who faked a Somali pirate attack on the vessel in order to defraud insurers. The many insurance cases in which Jonathan Gaisman has appeared include Kuwait Airways’ claim arising out of the theft of its aircraft after the Iraqi invasion, which went to the House of Lords, Bonner v Cox, the Aon 77 energy cover litigation, which established, among other things, that general duties of careful underwriting are not to be implied into excess of loss reinsurance contracts, the Glencore v Metro litigation, Decorum v Atkin, where he acted on a successful yacht insurance claim brought by a Russian oligarch, as well as countless other appearances for insureds, insurers and brokers.

Jonathan Gaisman has appeared a in a large number of Bermuda Form arbitrations under New York law, covering matters as diverse as Ford sports utility vehicles, malfunctioning weed-killer, Prozac and the Savings & Loans debacle. He regularly appears in English law-governed insurance and reinsurance arbitrations on topics such as the PA LMX spiral, the collapses of Arthur Andersen and Worldcom, KPMG US’s tax shelter vehicles, the operation of the Cuban sugar market, the damage caused by Californian forest fires, Indonesian coal exports, as well as more technical reinsurance issues. He has acted in a number of political risks disputes. Cases include a dispute with the ECGD in relation to the Venezuelan oil industry, and advising in relation to the insurance aspects of disputes involving the Tchenguiz brothers and the Madoff Ponzi scheme.

Jonathan Gaisman is a very experienced advocate in all forms of arbitration, and litigation connected with arbitration. He has been retained by the Russian Federation in relation to attempts by Yukos to enforce arbitration awards made in the Hague. He spent much of 2014 engaged in LCIA abirtration, acting for a major European utility company concerning the consequences of breach of confidentiality agreements in relation to gas concessions in Kurdistan. He was Counsel in Westacre v Jugoimport, a Court of Appeal authority on the effect of bribery and fraud on the enforceability of an international arbitration award. He has appeared a in a large number of Bermuda Form arbitrations under New York law, covering matters such as Ford sports utility vehicles, malfunctioning weed-killer, Prozac and the Savings & Loans debacle. He has regularly appeared in English law-governed insurance and reinsurance arbitrations on topics such as the PA LMX spiral, the collapses of Arthur Andersen and Worldcom, KPMG US’s tax shelter vehicles, the operation of the Cuban sugar market, the damage caused by Californian forest fires, Indonesian coal exports, as well as political risks disputes and more technical reinsurance issues. He successfully argued in the Commercial Court the case of B v S, which decided that the Scott v Avery provision in the FOSFA 54 arbitration clause prevents a claimant in arbitration from applying to the Court for a freezing injunction.

Conflicts of laws and jurisdiction disputes have always been a speciality. He has recently appeared in a 3 day jurisdiction dispute, acting for VTB against Sberbank. Jonathan Gaisman was brought in to appear in the Supreme Court in Deutsche Bank v Highland, a dispute (subsequently compromised) concerning the interaction of anti-suit injunctions and non-exclusive jurisdiction clauses. He has argued issues of renvoi in the “WD Fairway” trial, and points on articles 22 and 23 of the Brussels I Regulation in Calyon v PZL. He has long experience of jurisdiction disputes, such as the “Bergen”, the “Rewia”, Youell v Kara Mara (an anti-suit injunction case), Source v TUV Rheinland (a case involving the application of the Brussels Convention to a dispute concerning the provision of soft toys from China), IP Metal v Ruote Oz, (a metal traders’ dispute) and the “Nile Rhapsody” (a case where the Judge managed to find an oral exclusive jurisdiction agreement).

Jonathan Gaisman acted for the successful auditors in two of the largest audit negligence trials, Barings and Equitable Life. Barings raised wide-ranging issues of audit negligence, corporate governance and technical banking and derivatives practice; the decision established auditors’ rights to rely on management fault not just as contributory negligence, but as altogether breaking the chain of causation between audit fault and loss to the company; the case also established the right of auditors as company officers to rely on what was then section 727 of the Companies Act 1985 to relieve them of liability. Jonathan Gaisman has appeared in disciplinary proceedings before the JDS. He recently acted for Ernst & Young who succeeded on appeal in overturning findings of want of objectivity and independence that had been made by the first instance JDS tribunal.  He acted for Swiss Bank Corporation in the lengthy (and unsuccessful) action by NRG against its actuaries, accountants and advising bank arising out of a company take-over. He acted for the Names in the Gooda Walker action, in which Lloyd’s underwriters were found liable for negligent underwriting. He acted for the lead claimants in the Buncefield litigation in which negligence in the operation of Total’s Hemel Hempstead petrol tank farm and resulting foreseeable damage were alleged and ultimately admitted. He acted for Cattles Plc in its claims against PwC for audit negligence, alleging misstatement of impaired loans in its financial statements.  He was retained by KPMG in relation to a dispute with the AADB over the powers of the latter to call for documents, under the disciplinary scheme, from accountants acting in the capacity of insolvency practitioners. Most recently, he appeared for KPMG in relation to their successful resistance to an application by the liquidators of Carillion plc for pre-action disclosure of audit working papers.

From the early 1980s, with the “New York Star” and the “El Amria” as well-known early appellate cases, shipping has been a core area of Jonathan Gaisman’s practice. He has recently acted in a total loss case in which wilful misconduct has been found against the owners of the “Brillante Virtuoso”, who faked a Somali pirate attack on the vessel in order to defraud insurers. He acted in the Court of Appeal for Fiona Trust in its long running dispute with Yuri Nikitin, in relation to the Commercial Court’s award of $60m damages on a cross-undertaking in damages. In 2009, he argued two expedited trials in the Commercial Court concerning the Boskalis vessel “WD Fairway”, a case which raised questions of abandonment and subrogation in the context of a CTL, as well as issues under section 423 of the Insolvency Act 1986. A third trial in 2010, involving the same vessel, raising questions in relation to an assured’s entitlement to interest on the CTL, was settled during final speeches. Jonathan Gaisman argued the “Kriti Palm”, a case in which the Court of Appeal was persuaded to overturn a finding of deceit against Caleb Brett made by the trial judge, and which raised wide issues on the duties of international cargo inspectors and the status of their certificates. Jonathan Gaisman argued the “Berge Sisar” in the House of Lords, which is the leading authority on the Carriage of Goods by Sea Act 1992. Other House of Lords shipping cases in which he has appeared are the “Boucraa” (on the retrospective power of the power of arbitrators to dismiss claims for want of prosecution, under the Courts and Legal Services Act 1990) and the “Antonis P Lemos” (on the application of the Admiralty jurisdiction to claims in tort). Jonathan Gaisman has frequently advised on both sides of P&I Clubs’ disputes with members.