Benedetti v Sawiris and Ors: Simmons & Simmons in UK Supreme Court Victory

25 Jul 2013

Simmons & Simmons have advised April Holding and OS Holding in their successful defence of a multi-million euro claim brought against them and others by the Italian businessman Alessandro Benedetti, in relation to the acquisition in 2005 of Wind Telecomunicazioni S.p.A., Italy’s third-largest mobile operator and second largest fixed-line operator.

Mr Benedetti alleged that April Holding and OS Holding, together with Naguib Sawiris, the prominent Egyptian businessman and politician, and his company Cylo Investments Ltd, were in breach of contract in relation to services provided by him during the acquisition, which saw April Holding and OS Holding become the majority owners of Wind Telecomunicazioni through their shareholdings in Weather Investments II SARL, which acquired Wind Telecomunicazioni from ENEL at a price of euro 12.2 billion. Mr Benedetti’s services during the acquisition largely involved introducing the buyers to ENEL and facilitating the acquisition process. During the course of the acquisition, Mr Benedetti and/or companies controlled by him were paid amounts exceeding euro 71 million.

In his original claim in the High Court, Mr Benedetti alleged that the defendants between them were contractually indebted to him in an amount equivalent to one third of the value of the acquisition price. At first instance, Mr Benedetti was awarded damages exceeding euro 75 million but was ordered to pay the defendants’ costs. On appeal, the Court of Appeal absolved April Holding and OS Holding of any liability to Mr Benedetti, and substantially reduced the damages owed to Mr Benedetti by the other defendants, with costs against Mr Benedetti. Subsequently, on appeal to the Supreme Court, Mr Benedetti reduced his damages claim to euro 300 million.

Immediately prior to the Supreme Court appeal hearing, Mr Benedetti unconditionally withdrew his appeal against April Holding and OS Holding. Following the hearing of Mr Benedetti’s appeal, a five-strong panel of the Supreme Court, comprising Lords Neuberger, Kerr, Clarke, Wilson and Reed, unanimously dismissed Mr Benedetti’s appeal and allowed the other defendants’ cross-appeal. As a result, none of the Defendants is liable to Mr Benedetti for any damages. The Supreme Court’s decision can be viewed in full here.

The Simmons & Simmons team was led by Dispute Resolution partners Ian Hammond and Jayne Bentham, assisted by Paolo Caldato. Kirkland & Ellis acted for Mr Sawiris and Cylo Investments. Adrian Beltrami QC appeared for April Holding and OS Holding, while Kirkland & Ellis instructed Laurence Rabinowitz QC, Richard Hill QC and Gregory Denton-Cox.

Commenting on the litigation, Ian Hammond said: “We are delighted to have advised April Holding and OS Holding in their successful defence of these proceedings, arising out of a highly complex multi-party claim. The case involved the preparation of substantial witness and documentary evidence, and raised interesting questions in relation to, amongst other things, the doctrine of unjust enrichment and the principle of free acceptance.”

 

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