David Craig QC successful in Court of Appeal “double-dipping” case

20 May, 2016

David Craig QC, instructed by Linklaters, successfully acted for Glencore International Plc in the Court of Appeal in respect of a claim arising out of Glencore’s multi-billion pound merger with Xstrata. Xstrata’s former company secretary, Richard Elliston, was awarded damages in the High Court for Glencore’s refusal to pay him a “prescribed sum payment”, payable on a change of control, in circumstances where he had been paid a separate transaction bonus in respect of the merger but told that he could not take that bonus as well as the prescribed sum payment. Appeal judges allowed Glencore’s appeal holding that the Judge had: wrongly analysed Glencore’s case; failed to address key evidence in the case, including a crucial admission made by Mr Elliston in cross-examination; had come to a conclusion for which there was no evidence; failed to take into account key background material (including management incentive arrangements which had been voted down by shareholders); and, been naïve. This was a rare case, therefore, in which the Court of Appeal allowed an appeal on issues of fact, although the Court also held as a matter of law that where a condition was imposed upon an earlier gratuitous offer, acceptance could only be referable to the offer with the burden of that condition attached.

Download the Judgment in full here