Representing the general partner of two private equity funds in the Court of Session

We represented the general partner of two private equity funds, constituted as Scottish limited partnerships (SLP), in the Court of Session where a decision was required to determine the parties' rights and obligations under several inter-related contracts.

The dispute arose when one of the partners in the SLP was said to have breached his fundamental obligations of confidentiality under each of the agreements and so forfeited any right to the substantial carried interest payments which he would otherwise have been entitled to receive. With a question over whether the Scottish or English courts had jurisdiction to determine the dispute, parallel proceedings were also raised in England. The matter was of considerable importance to the clients because of the potential financial and reputational risk to their business should there be disclosure of confidential information.

Key highlights

• Liaising closely with both the clients and the solicitors in London who were representing related entities, dealing with a myriad of disputes arising out of the alleged breach of confidentiality, including in the High Court in England, arbitration and tribunal proceedings. 
• Representing the clients at a full evidential hearing arranged at short notice in the Commercial Court in the Court of Session to determine the preliminary issue of whether the Scottish or English courts were appropriate to deal with the dispute, to avoid duplication of effort and expense.
• Managing the preparations for the hearing at very short notice, ensuring that all necessary evidence (provided in affidavits and documents) as well as detailed written submissions, were available in good time.

Outcome

Following the hearing, but in advance of a written decision being issued by the Commercial Court judge, agreement was ultimately reached between the parties on all issues outstanding. We advised in conjunction with the London solicitors, on the terms of settlement, which involved implementation over a period, with strict confidentiality obligations imposed as well as waiver and clawback provisions to ensure the highest likelihood of compliance.

The outcome accommodated our clients' primary objectives, maintaining confidentiality in relation to the alleged prior breaches and addressing concerns about future conduct.