Ferrero accused in hazelnut fraud

By Anthony Reuben Business reporter, BBC News

Ferrero uses large quantities of hazelnuts for its confectionery

The talk around the High Court's Chancery Division was about the legal battle over whether the ambassador had, actually, been spoiling his guests.

And for those in on it, the joke was, well, "excellente".

But sadly for fans of the much-quoted 1980s television advertisement, that was not the matter being heard.

The case at the court is indeed against Ferrero, the company behind Ferrero Rocher chocolates as well as Nutella spread and Tic-tacs.

But there is no challenge to the quality of the confectionery.

Seven years after the event, a fraud case involving two major banks, Ferrero, and the world's biggest supplier of hazelnuts, is finally nearing its conclusion.

Switched nuts

By February 2002, Bank of Tokyo Mitsubishi and Belgium's KBC Bank had lent 22.8m euros ($29.6m; £20.3m) to the Turkish hazelnut supplier Baskan Gida.

The banks thought that the money would be used to buy hazelnuts from growers and would then be repaid by companies such as Ferrero paying for them.

Instead of the money for the hazelnuts going to Baskan Gida it would go directly to the banks.

But by the time Ferrero came to buy the nuts, they were bought not from Baskan Gida, but from another company called Aksu Gida.

The banks allege that all of the assets, including the hazelnuts, had been transferred to Aksu Gida and another company called Baskan Yuksel.

This left Baskan Gida as "a worthless shell", the court heard, although it is hard to tell if the lawyers involved have spotted the pun.

As a result, the banks only got about 2m euros of their money back.

The banks allege that Ferrero was involved with the switch, and indeed that it authorised it, but the Italian company denies that.

Another defendant, Shabbir Abidali, is accused, along with two companies with which he worked, of being involved in the switching of the assets, and he also denies the allegations.

Seven other defendants are named, but they have either not turned up for the proceedings or are companies in liquidation.

The judge could still find against them, but it is unlikely that the banks would be able to get a significant amount of money from them.

'Hardly a masterpiece'

The case finally began before Mr Justice Briggs last October and a judgment is expected in May or early next month.

"It is obvious that the Ferrero defendants were very well aware of what Baskan Gida was doing... but were prepared to put their commercial interests first on the basis that they thought that the prospects of anyone ever discovering the truth were so small as to be discountable," the counsel for the banks submitted.

But the counsel for Ferrero reached a very different conclusion.

"The picture the banks seek to paint is of a Ferrero, which paid vast sums of money to assist a fraud by Baskan Gida, in return for a hazelnut mountain for which it had no use and five years of litigation for which it had no wish."

"Even painted impressionistically, as the banks have sought to do, it is hardly a masterpiece."

Mr Abidali's lawyers say that the hazelnuts that were transferred were not even the ones on which the bank loans were secured.

Lengthy case

In a nutshell, it is a complicated case by any standards.

Turkey grows 70% to 75% of the world's hazelnuts

The opening arguments submitted by the banks and the two defendants run to a total of more than 500 pages, including extensive discussions of the state of the Turkish hazelnut market and how hazelnuts are priced.

The case has called on the expertise of a Queen's Counsel (QC) and two other barristers for the claimants, a QC and two other barristers acting for Ferrero and another barrister acting for Mr Abidali, not to mention the solicitors involved and what the submission for the banks described as a "painstaking investigation".

The case was in court for a total of 84 days.

But the action in London is not the only one - there is also a case underway in Italy.

Price of litigation

A jurisdiction battle earlier in the process decided that the fraud case should be heard in London while the contractual dispute takes place in Italy.

London is relevant to the case because the loans made to the Turkish hazelnut supplier came from the London branches of the two banks and one of the defendant companies, Indo Mediterranean Commodities, which is in liquidation, was based in London.

Taken over the seven years of this case, with an extremely long hearing in London and a parallel trial in Italy, the cost of the legal action will be astronomical.

Indeed, well-informed sources have suggested that if the legal costs of the banks, Ferrero and Mr Abidali were added together, the total would not be far off the 22.8m euros at the centre of the case.

Proceedings in the Italian case included a recent estimate of Ferrero's costs alone of 11m euros.

Under such circumstances, when the verdict comes, the awarding of costs may become the most important part of the ruling.