Linklaters criticised for alleged errors in professional negligence claim over Arsenal share sale

The details of former Arsenal shareholder Lady Nina Bracewell-Smith’s professional negligence claim against Linklaters have been laid out in a new High Court filing, which suggests that the law firm’s errors played a part in her decision to sell her shares to the club’s current majority owner, US businessman Stan Kroenke.

The magic circle firm and big four accountants Deloitte are being sued by Bracewell-Smith over their advice relating to the sale of her 15.9% stake in the Premier League club to Kroenke’s company KSE in 2011.

In a particulars of claim form, filed on 31 January, Bracewell-Smith alleges that Linklaters was negligent and in breach of its duty of care in relation to advice given on loan notes she received in exchange for her stake in the club.

It goes on to claim that, but for the errors by both Linklaters and Deloitte, which allegedly exposed her to capital gains tax liabilities, she “would not have sold her Arsenal shares to KSE but rather would have sold them to Alisher Usmanov (or some other purchaser)”.

Kroenke now owns a 67% stake in the club, with Russian businessman Usmanov holding 30%.

The Linklaters lawyers referenced in the claim are former partner Ian Bagshaw and associate Stuart Boyd, both of whom have since left the firm. Bagshaw, who left in 2013, is now global co-head of private equity at US firm White & Case, while Boyd joined Kirkland & Ellis in 2016 after making partner at Linklaters in 2013.

The claim states that the sale of Bracewell-Smith’s shares “would be liable to capital gains tax (CGT) on a remittance basis in the event that the disposal took place in exchange for non-qualifying corporate bonds sited outside the UK”.

However, the loan notes were instead registered and the register held at the London offices of Clifford Chance (CC) – KSE’s advisers on the deal. According to the claim, siting the loan notes in the UK meant that if Bracewell-Smith ”as an English tax resident, redeemed the loan notes, she would have been liable to pay CGT on their full value”.

The claim states: “Linklaters should not have settled the documents and advised the claimant [Bracewell-Smith] to sign them unless they were sure that the documents satisfied any and all requirements for the loan notes to be non-qualifying bonds sited outside the UK.”

Bracewell-Smith alleges that she was not adequately informed of what she describes as “the error as to the location of the register”, with the filing stating that she was not told until 5 July 2011, despite an email being sent by Boyd to CC on 26 May 2011 requesting that KSE relocate the register of the loan notes outside of the UK.

The document states: “It is to be inferred that Linklaters and Deloitte deliberately chose not to inform the claimant of the true position and of their breaches of duty to her.”

While Linklaters and Quinn Emanuel Urquhart & Sullivan subsequently attempted to persuade KSE to remove the register from the UK, their attempts were unsuccessful, prompting Bracewell-Smith to move to Monaco. In order to reduce her tax exposure, the filing states that she has to be non-resident in the UK for six consecutive tax years, leaving her based outside the UK until April 2019 at the earliest.

Bracewell-Smith claims that she has incurred losses of more than £10m as a result of the loan note error, as well as incurring costs of £1,249,815 for her move to Monaco and more than £400,000 in fees to professional advisers that she would not have required had the loan notes been sited outside the UK.

She is also claiming general damages for the “distress and inconvenience” she has suffered as a result of her relocation, which has impacted on her ability to return to the UK to visit friends and family.

West End firm Gordon Dadds is acting for Bracewell-Smith.

Two years after selling her stake in the club, Bracewell-Smith said that she “deeply” regretted selling to Kroenke, in tweets which have since been deleted. Arsenal’s regular lawyers at Slaughter and May acted for the club on the 2011 sale.

Linklaters, White & Case, Deloitte, Boyd and Kirkland all declined to comment.