Colin David Russ Curriculum Vitae

Professional Negligence

• Scottish Mediation relating to a professional negligence claim by a very high-profile individual against their former architect for extensive design failings in a substantial hunting lodge constructed on the claimant’s Scottish estate. Settlement agreed and entered into at the mediation to bring to a close the long-running litigation.
• A major fire destroyed a huge warehouse and various high value equipment. The fire started when a vast pile of crisps self-ignited. Issues under consideration included technical evidence about the ambient temperature of recently delivered crisps, the vast size of the crisp pile – 30 feet high and covering half a football pitch – and warehouse maintenance issues.
• Multi-million pound professional negligence claim by client against his former Solicitors, a major UK and international law firm and leading counsel. Difficult and extremely protracted negotiations between the claimant, law firm, insurers and leading counsel, including consideration of reputational issues ultimately led to a high value settlement.
• A well-known public school’s claim against its insurance brokers and insurers arising from a very significant fuel oil leakage at the school’s premises which resulted in the school having to pay substantial environmental clean-up costs. The 3-party negotiation was complicated and protracted but ultimately settlement was achieved.

Construction Disputes

• Multi-party mediation relating to claims brought by the main contractor against the structural engineer who had joined to the proceedings the steel fabricator. The dispute related to major structural problems in the steel frame of 5 car showrooms erected in the different parts of the UK for a major automobile sales network and involving a premium car manufacturer. In one case, catastrophic failure of the showroom structure had occurred and fatalities had been only narrowly avoided. Extensive rebuilding and remedial works were required across all sites and the costs of these, together with a business interruption losses, were sought. The total claims were for in excess of £60m. The mediation involved consideration of complex contractual issues, expert evidence going to causation and two mediations within one as the structural engineer and fabricator sought to blame each other. Ultimately, an agreement was reached between the structural engineers and fabricator which then facilitated an agreement with the main contractor. The agreements were entered into on the day after a 15-hour mediation process. Very significant costs had already been incurred, however, the savings in future costs up to and including to trial amounted to circa £2.5m.
• Claim relating to defective Port gates constructed and installed by major UK construction business. Detailed consideration of extensive and complex expert evidence relating to the alleged defects and allegation that complete replacement of the vastly expensive port gates would be required. The very high value dispute was resolved a few days after the mediation during which time Colin had continued involvement direct with the parties to assist with the final agreement.
• Mediation in Scotland of a construction dispute arising out of the development of an airfield for use as a pipe storage yard. The issues involved allegations of major construction defects leading to extensive and hugely expensive remedial works and consequential losses. The Scottish proceedings involved detailed expert evidence and causation was a major issue in the heavily defended claim. £5.5m had been spent on remedial works and it was claimed that a further £2m of additional expenditure was required. Aside from contractual, causation and betterment issues, there was an issue around the defendant’s ability to pay a quantum finding and adverse costs, which together would have totalled nearly £10m. A creative negotiated settlement was achieved which provided for payment of a much-reduced sum, over an extended period. The provision of additional services on a discounted basis was also part of the settlement package.

Interest Rate Hedging Products (IRHPs)

• A substantial property investment business had brought a claim against its bank for multi-million pound losses, including consequential losses, arising from the alleged mis-sale of various Interest Rate Hedging Products (IRHPs). The mediation included detailed consideration of the claimant’s commercial interests and led ultimately to the complete re-structuring of its extensive and complicated banking facilities.
• One of around 40 mediations conducted over several years involving the alleged mis-selling of IRHPs by high street banks. This particular mediation involved the full gamut of claims, including COBs claims and was particularly bad-tempered and involved very significant cash flow payments made pursuant to 3 swaps (the IRHPs) and a very substantial consequential loss claim. As with many of these claims there was a backdrop of media interest. Following a succession of different types of meetings – full meetings of clients and lawyers, client only (with mediator) meetings and lawyer-to-lawyer meetings, a settlement was agreed and signed up to. The claim compromised had a headline value of several million pounds and costs of over £1m were saved as a consequence of the settlement.

Commercial Contracts

• The parties were a well-known global manufacturer/retailer and their worldwide logistics supplier whose long-standing contract had been terminated at short notice. There were numerous contractual claims and counter-claims, many relating to the calculation of invoices rendered over a period of years. The documentation, contractual and correspondence between the parties, was substantial and great efforts were needed to help the parties focus on the key issues and have a productive negotiation around those issues. This proved possible and ultimately a concluded settlement was achieved. The combined budgeted costs to trial exceeded £2m.
• 2-day mediation involving a College and 3 local education authorities. The dispute revolved around the level of and basis for payments due from 3 separate education authorities to a specialist land-based Further Education College for pupils with special educational needs entering into full time study programmes. There was a long and difficult history to the dispute and the 4-party mediation proved to be highly emotive for both the local authorities trying to cope with pupil/parent concerns and extreme financial constraints and the College whose very existence was under threat. Over the course of 2 days (separated by one week during which discussions continued by telephone) a resolution addressing the nature of the students placed, the courses to be made available and payments to be made, was eventually agreed and subsequently documented with all 3 authorities. The outcome was a major achievement in that it enabled the authorities to keep within their approved budgets and at the same time provided certainty and financial security for the College and guaranteed the availability of courses for existing students as well as the new intake for the years ahead. The success of the mediation also encouraged an Assistant Chief Executive (of one the County Councils involved in the process) to sign up for and subsequently participate in the CEDR 6-day Mediator Training Course.
• A College had entered into seven separate agreements relating to the leasing of various capital equipment. Subsequently the College closed and the cause of action was taken up by the local education authority (being the County Council). The Claimant sought to recover substantial sums (c.£700k plus interest and costs) on the basis that in entering into the agreements the College had acted ultra vires and in breach of the Education Act 2002 which precluded “borrowing” without consent of the Secretary of State. The claim was fully defended and weeks away from trial. A previous mediation (with a different mediator) had failed. The mediation proved to be a “text book” mediation and included an extended and very productive plenary session, which led in short order to productive negotiations leading to a concluded, signed settlement agreement. The significant trial costs were saved and, more importantly for both parties, the airing in a public forum of sensitive issues and risk of a potentially precedent-setting judgment – was avoided.

Shareholder/Partnership Disputes

• Mediating s459 dispute and related claims involving various family property investment companies with underlying asset value of £20m.
• A particularly complex minority shareholder action where the mediation statements ran to 60 pages and the mediation bundle to 3 lever arch files. Preparation was extensive and needed to be meticulous to facilitate detailed reality testing with each of the main protagonists. There were numerous allegations of unfair prejudice involving a plethora of factual and legal disputes. The nature of certain allegations led to involvement of insurers and a multi-party mediation which after 14 hours of mediation ultimately achieved a concluded settlement and the purchase of the minority shareholding for a multi-million payment. The saving in legal costs for the parties following successful settlement following the mediation exceeded £1m.
• Acting as mediator in bitter inter-company dispute between equal shareholders including alleged breaches of confidentiality and diversion of business opportunities.
• Mediating the division of various shareholdings (valued at £9m) in private investment companies where ownership in the hands of 3 shareholder/directors and their respective partners.

Real Estate

• The mediation involved a large number of professional negligence claims brought by the purchasers of off-plan leasehold properties (rooms in hotel and student accommodation developments) against their former solicitors. Substantial deposits had been paid by the purchasers which meant that if the developers were fraudulent (as proved to be the case) the losses would be very significant. The company behind the deposit protection bond was part of the scam and hence the deposits were lost in their entirety. There were in several hundred individual claimants who fell into different groups with different factual and legal claims (covering 6 separate developments) and were represented by 4 separate claimant firms. The defendant Solicitors were separately represented as were their insurers. Issues included causation, limitation, loss of a chance, aggregation and quantum. After an 11-hour, mediation various settlement agreements were ultimately entered into to bring all claims to an end. The claims had totalled well in excess £10m and the costs to trial would have exceeded £2m.
• 2-day mediation involving 2 separately represented groups of claimants pursuing multi-million pound claims arising out of a property development fraud. The professional negligence claim against the claimants’ former Solicitors involved 7 firms of Solicitors, 2 insurers and 100s of individual claimants from across the world. Agreements were reached at the conclusion of the second day of mediation.
• 27 hours of unbroken mediation to conclude settlement of multi-party property dispute, which had been litigated for the previous 15 years.
• Mediation of a dispute between a University and Premiership Football Club. This pre-action mediation related to the terms on which a university providing specialist sports-related courses was entitled to occupy and use land held under a headlease by a very high-profile premiership football club. The dispute related to whether the underlease could be validly terminated by the football club and also involved complex political and PR issues. Just one of the fiercely debated issues related to the nature of certain courses being provided and whether they were permitted under the terms of the underlease. The mediation became extremely protracted and involved orchestrating a series of commercial discussions with clearly defined agendas through which progress was ultimately made. By 4.00am, after 18 hours of mediation, an ‘in principle’ agreement had been reached which essentially revolved around an agreement to vary the underlease in a number of key areas. This was subsequently documented over the following days during which Colin remained involved to assist with bringing the matter to a conclusion. As well as achieving resolution of a difficult and politically sensitive dispute, potential very adverse publicity for both parties was avoided.
• Substantial claim (£20m) for losses arising from alleged breach of confidence, which had resulted in property developer losing control of major retail development scheme.

Intellectual Property

• £250k claim by individual against local authority for breach of copyright and IP rights, relating to multi-media tourist attraction involving development costs of £25m. Legal aid costs of £350k were a complicating factor in achieving settlement. Innovative settlement achieved, which involved parties working together on new project.
• Mediating alleged wrongful termination of worldwide distribution agreement (worth $3m) involving dispute over intellectual property rights and where injunctive relief had been obtained.

Financial Services

• Claim against former Finance Director for breach of statutory duties/negligence. The claimant company had suffered losses of around £1.5m arising from a fraud perpetrated by an accounts clerk (subsequently imprisoned for fraud). The company had brought a claim against its former FD for failing to adequately supervise the fraudster, signing a number of blank cheques and failing to operate online banking safety mechanisms, which would have prevented the fraud. The claims were defended on various grounds including that the FD had acted honestly (and on the facts) reasonably throughout and should be afforded the protection of s1157 of the Companies Act. The Claimant was a family business and there were difficult and very emotional dynamics. Notwithstanding following various client only meetings which needed to be closely supervised and guided, a resolution was achieved. In addition to the cost savings, the potential for adverse reputational, all issues were avoided for all parties.
• Claim by very high worth and internationally renowned individual against his bank for failing in their contractual obligation to retain a safe deposit box containing personal items with an alleged value of c.£100m. Extensive expert evidence relating to provenance, culture and value formed part of the mediation documentation. The bank defended on the basis that the claimant was part of a fraud which had led to the unauthorised removal of the safe deposit box. A very difficult negotiation was ultimately successful and a settlement entered into to conclude the mediation.
• Claim by premiership football club against its bankers for allegedly wrongly paying away substantial sums. The club had been targeted by a criminal gang undertaking a large-scale fraud. It was alleged that the fraud had only been possible due to the involvement of bank personnel, something adamantly denied by the bank. A trial would have involved disclosure and detailed consideration of the bank’s highly confidential fraud prevention capabilities. A hard-fought negotiation ultimately led to resolution.

Employment Disputes

• Mediating high profile sports employment dispute involving leading figure in the sport and the national organisation.
• High value claim by senior, long service individual against former employer bank for alleged breach of employment contract. Confidential settlement achieved, vast saving in costs and avoidance of potentially devastating adverse publicity.