23rd March 2001 - Report of Meeting with Leading Counsel

Date:       Friday, 23 March
Time:      10.00am
Location: Wilberforce Chambers, 8 New Square, Lincoln's Inn, London, WC2A 3QP.

Attendees:

Nicholas Warren, QC, Wilberforce Chambers
Tom Lowe, QC, Wilberforce Chambers
Jeremy Lever, QC, Equitable Members Action Group
Adrian Howard-Jones, Equitable Members Action Group

Report prepared by Adrian Howard-Jones 25 March 2001.

Preamble.

The Society agreed to seek independent advice on legal questions following persistent requests from the Equitable Members Action Group. The Society announced its intention to proceed with seeking advice in a letter for public release issued on 11^thJanuary 2001.

"Some members have asked whether the House of Lords' decision can be amended. Our legal advice is this is not possible. However, to reassure members that all avenues are fully explored we are arranging for further independent legal advice on this question." 

The Equitable Members Action Group does not represent any particular faction of the membership of the Equitable, but has a concern that there will be uncertainty as to the eventual ownership of the with profits fund until all major arguments and claims have been heard. EMAG wishes the Society to consider the major arguments arising from the different sectors of the membership, so that it is possible to determine a safe legal basis for the onward management of the fund. The Society has not as yet agreed to the full scope of clarification requested by EMAG, but none the less EMAG welcomes the clarification of the issues now in view in the Societies instructions to Leading Counsel. These instructions are reproduced below.

Instructions To Leading Counsel

1. Leading Counsel is asked to advise in writing solely on the following:

(i) whether the House of Lords decision is binding on non-GAR policyholders;

(ii) whether the Arguments give rise to the possibility of the House of Lords decision being "reversed" or otherwise reopened now that the Order made by the House of Lords has been perfected;

(iii) if so, by what procedure such 'reversal' would be explored.

(iv) the prospects of such a step succeeding.

2. Leading Counsel's instructions have been extended to include:

(v) whether the non-GAR policyholders have a claim that their own contracts with the Society prevent the Society from throwing the costs of meeting the GARs on to the non-GAR policyholders in determining their asset share and bonus allocation;

(Ref. A.Dunbar by E-mail Thu 15/03/01 10:43)

(vi) whether the House of Lords' decision (assuming that it is otherwise conclusive) precludes that argument now being taken.

(Ref. A.Dunbar by E-mail Thu 15/03/01 10:43)

7. Vanni Treves Chairman of the Equitable has advised leading Counsel that he should not feel limited by his instructions.

(Ref. A.Dunbar by E-mail Fri 16/03/01 11:29)

3. Before preparing his opinion, Leading Counsel is asked to consider:

(a) whether he wishes either the Society and EMAG to make written comments on the points made by the other to Leading Counsel;

(b) whether Leading Counsel would find any utility in inviting observations by third parties (and in particular the representative GAR policyholder, Mr Hyman, through his solicitors if they are willing to provide such comments) on the Arguments.

4. If Leading Counsel is minded to request either of (a) or (b) he is asked to contact Mr Kerr or Miss Leslie of Instructing Solicitors. In any event, if Leading Counsel has any points he wishes to raise in relation to this Case, or generally, again he is asked to contact Mr Kerr or Miss Leslie of Instructing Solicitors.

4. The Society has made it clear that EMAG is to be free to communicate directly with leading Counsel to the extent necessary to ensure that all relevant arguments that EMAG wishes to make can be considered.

(reference letter from Alistair Dunbar of ELAS to Adrian Howard-Jones dated 19^thJanuary 2001).

6 The Society has stated that the opinion will be published as soon as it is available.

The Meeting.

It was foreseen that a meeting would be helpful at a stage before Leading Counsel Nicholas Warren QC has finalised his opinion. The aim of such a meeting would be to assist Leading Counsel with a preliminary review of argument so that it would be possible to draw attention to other points not yet brought into consideration in the formation of the final opinion.

The meeting started just after 10.00 a.m and lasted for just under three hours. Vanni Treves was present for the start of the meeting, but had to leave for another appointment.

A discussion took place at the outset of the meeting covering the issue of confidentiality. EMAG accepts without reservation that no matter which in any way impedes or anticipates any conclusions as to Leading Counsel's opinion can be reported. On the other hand EMAG exists in order to provide relevant information for its members and so it was agreed that an outline report might be prepared and that this would only be published after it had been viewed and accepted by Leading Counsel.

The meeting was lead by Nicholas Warren QC. He presented a preliminary list of questions that needed to be resolved. The items on this list were discussed and EMAG, The Society, and DWS all contributed with points of information or related issues. The format of the meeting was sufficiently flexible to permit the introduction of other points where they touched on the main argument and a number of issues were introduced in this way. Both DWS and EMAG were requested to provide additional information in different areas.

Nicholas Warren confirmed that he had commenced work on 7^thMarch and would now be working on the opinion on a full time basis. He introduced a colleague Tom Lowe QC who was to assist him in the work. ELAS agreed to this arrangement. The opinion will be completed within April, will first be made available in summary, and then will be followed by a detailed written argument that is likely to be of some length.

The question of the interchange of information between the Society and EMAG was raised. Leading Counsel stated that he could see no major areas of difficulty in an interchange taking place, but acknowledged that there might be particular documents that should not be copied. This was a question then left to be resolved between DWS, EMAG and the Society. In separate discussions after the meeting DWS indicated that with the exception of a limited amount of information that might, for example, be confidential to Hyman, that there was little which could not be viewed by EMAG. And it was thought that any such information would not be of essential importance to the argument. EMAG's position is similar. There are letters from individual policyholders within the EMAG submission, which we are not free to release to the Society. EMAG is prepared to provide a suitably reduced copy of the EMAG submission for the use and information of the Society. DWS requires formal instruction from the Society before providing copies of data, but Alistair Dunbar of ELAS has been consulted, and will, as EMAG understands, facilitate an exchange of information.