Lawyers for the three former NatWest executives caught up in the Enron scandal have levelled an astonishing series of allegations against London solicitors representing the bank’s parent, RBS.

The London law firm working for RBS claimed to speak on behalf of prospective witnesses who were not even aware they were represented by the solicitors, according to a document lodged in a Texas court.

The allegations come in a motion filed by lawyers representing David Bermingham, Giles Darby and Gary Mulgrew, the so-called NatWest Three, who face fraud charges in Houston stemming from their involvement in the Enron scandal. The three want the Texas court to clear the way for people who worked alongside the trio to give testimony by video from the UK.

In January, the NatWest Three’s lawyers wrote to 36 potential witnesses – people who had worked with the three or who knew something of the deals which subsequently triggered the fraud accusations. The letters asked if the individuals would speak to lawyers for the three. They were sent via Travers Smith, the solicitors who work for RBS.

Travers Smith replied saying it represented all 36, and that all but one were not willing to be contacted.

The NatWest Three have already suggested that RBS put pressure on the 36 not to co-operate with the trio’s defence.

But now, lawyers of Bermingham, Darby and Mugrew have gone further. The motion says: “Several of the individuals covered by Defendants’ requests have informed defense cousel indirectly that they were unaware that they were represented by counsel, and had never authorized the RBS and RBC [Royal Bank of Canada, where the three also worked] lawyers to represent them.”

The motion continues: “Prospective witnesses additionally have indicated that they had never even been contacted by their purported lawyers before counsel for RBS and RBC represented, in writing, that these individuals had declined to speak with defense counsel.”

It goes on: “The Royal Bank of Scotland and the Royal Bank of Canada have… taken steps to prevent Defendants from securing the testimony of former colleagues that were involved in the transactions that are the subject of the Indicatment. RBS and RBC have assigned their corporate attorneys to “represent” in their individual capacities the vast majority of the individuals that formerly worked with Defendants, and who have direct knowledge relevant to the case.”

The publicly-available papers lodged in Texas do not provide any concrete evidence to back up the allegations that Travers Smith claimed to represent people without their agreement. A deposition has been lodged in support of the motion, but large chunks of it have been taken out of the version that has been made public. Matt Hennessy, who represents Giles Darby, said this weekend: “We do have evidence, but it is under seal, and we cannot discuss it.”

Travers Smith said it could not comment on a confidential client matter. RBS declined to comment.

The Three want five people to give evidence by video. They include John Burbidge, who is head of Royal Bank of Canada’s European and Asian operations and four others – Chris Learmonth, Allen Hing, Dai Clement and Paul Carpenter, who worked at Greenwich NatWest.

The following is the list of 35 of the 36 people whom lawyers for the NatWest Three tried to contact through Travers Smith:

Mandy Brett, Johnny Cameron, Paul Carpenter, Frank Canelas, Chris Clarke, John Cockell, Peter Commons, Michael Crosland, Patricia Dundee, James Esposito, Paul Fairbairn, Andrew Galloway, Stuart Gibson, Sheldon Goldfarb, Mikhail Gourevitch, Tom Hardy, Hugh Henderson Cleland, Allen Hing, Iain Houston, Kevin Howard, Andy Jameson, Sandra Pemberton, Gordon McCulloch, Sue Milton, Bill Morris, Sean O'Reilly, Chris Post, Iain Robertson, Steve Savage, Steve Sinacore, Carl Stewart, Peter Thompson, Lorraine Whillans, Jeremy Wright, Rodger [correct] Yeomans. The name of one person, who said they might co-operate, has been withheld.

(Published by Times Online, August 13, 2007)

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