PROFESSIONAL NEGLIGENCE LAWYERS’ ASSOCIATION
PROFESSIONAL NEGLIGENCE AND LIABILITY UPDATE
LEEDS CONFERENCE
6th November 2019 PROFESSIONAL NEGLIGENCE LAWYERS’ ASSOCIATION LEEDS CONFERENCE Wednesday 6th November 2019
0915–0945 Registration and Refreshments
0945–1000 PNLA Introduction by Steven Newdall – Managing Partner, Levi Solicitors LLP
1000–1045 Chair’s keynote address – “Loss of chance” Francis Bacon - Hailsham Chambers
1045–1130 “Clinical Negligence and Other Professional Negligence: Similarities and Differences” Simon Myerson QC – St Pauls Chambers & Byrom Street Chambers
1130–1145 Questions & Discussion Session 1145–1200 Refreshments
1200–1300 “Design Obligations of Construction Professionals” Ben Patten QC & Siân Mirchandani QC – 4 New Square Chambers
1300–1400 Lunch
1400–1445 “How to get the most out of your ATE provider” David Pipkin & David Chase – Temple Legal Protection Limited
1445–1530 “Witness Evidence – how to do it properly?” “Professional Negligence Litigation from the Claimant’s Perspective” Mark Harper QC – Kings Chambers
1530–1545 Questions & Discussion session 1545–1600 Refreshments
1600–1645 “Professional Negligence Costs Update” Dan Stacey – Hailsham Chambers
1645–1700 Chair’s closing remarks PROFESSIONAL NEGLIGENCE AND LIABILITY LEEDS CONFERENCE The Met Hotel, King Street, Leeds, LS1 2HQ Wednesday 6th November 2019 ATTENDEES (1 of 2)
Francis Bacon Hailsham Chambers London
Gemma Bowkett Cohen Cramer Leeds
Colin Carr Kevin Edwards Costs Ltd London
David Chase Temple Legal Guildford
Nathan Clay Blacks Solicitors LLP Leeds
Timothy Cockram Carson McDowell LLP Belfast
Chris Cooney Campbell Courtney & Cooney Surrey
Howard Elgot Parklane Plowden Leeds
Emma Farrell Levi Solicitors LLP Leeds
David Hall Cohen Cramer Leeds
Mark Harper QC Kings Chambers Leeds/Manchester
Robert Johnson Malcolm C Foy & Co Doncaster
Gareth Jones Jordans Solicitors Dewsbury
Michael Kilbane Hodge Jones & Allen Solicitors London
Peter Lees Squire Patton Boggs UK LLP Manchester
Kendal Litherland Shakespeare Martineau LLP Nottinghamshire
Katy Manley PNLA President Cheltenham
Siân Mirchandani QC 4 New Square London
Simon Myerson QC Byrom Street and St Pauls Chambers Leeds/Manchester
Steven Newdall Levi Solicitors LLP Leeds
Matthew Pascall Temple Legal Protection Limited Guildford
Ben Patten QC 4 New Square London David Pipkin Temple Legal Protection Limited Guildford
Hazel Puckering Levi Solicitors LLP Leeds
Ram Saroop RDC Solicitors Bingley
Ed Smith Levi Solicitors LLP Leeds
Dan Stacey Hailsham Chambers London
Paul Sykes Levi Solicitors LLP Leeds
Sarah Wardell Dentons UK & Middle East LLP Edinburgh
David Wingate We Solicitors LLP Manchester
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Temple Legal Protection and Temple Funding are authorised and regulated by the Financial Conduct Authority In partnership with INTRODUCTION - A Northern Round Up Steven Newdall Managing Partner Levi Solicitors LLP
PNLA Introduction Steven Newdall MANAGING PARTNER T. 0113 297 3152 E. [email protected]
Steven qualified as a solicitor in 1992 and since 2004 has combined his duties as Managing Partner of Levi Solicitors LLP with his role as head of the professional negligence team. He splits his time between the Leeds, Manchester and London offices. Over 25 Years of Litigation and Professional Negligence Expertise Steven is a vastly experienced commercial litigation lawyer who is recognised as one of the leading professional negligence lawyers in the country. He is a member of the Professional Negligence Lawyers Association. His expertise and success within the field of professional negligence cover claims against all manner of professionals. These range from solicitors and insolvency practitioners, to construction professionals and surveyors. Steven also has extensive experience of insurance indemnity policy coverage and policy application issues, particularly in respect of solicitors’ indemnity insurance policies. Outside of professional negligence claims, Steven deals with complex commercial issues including partnership and shareholder disputes and construction disputes. Notable Cases Steven has regularly litigated in both the High Court and Court of Appeal during his career with notable cases being: • Leslie v Farrar Construction Limited EWCA Civ 1041 • Halliwells LLP v NES Solicitors & Quinn Insurance P.N.L.R. 30 • Axa Insurance Ltd v Akther & Darby Solicitors EWCA Civ 1166 Francis Bacon Hailsham Chambers
Chair’s keynote address “Loss of chance” Francis Bacon
Call: 1988
Francis specialises in professional negligence, commercial insurance and commercial litigation. He has extensive experience in acting for individual claimants, lending institutions and professional indemnity insurers in obtaining interim remedies in London and overseas.
In 2017 Francis was named Professional Negligence Junior Barrister of the Year by Chambers & Partners. Francis has for many years been listed in the rst ranks of Professional Negligence barristers in Chambers & Partners and Legal 500. Legal 500 2019 rates Francis as “the outstanding professional indemnity junior at the bar and a silk in all but name.”
Professional negligence
Commercial law
Regulatory & disciplinary
Employment law
Media law Recent Developments in Loss of Chance
Francis Bacon Hailsham Chambers
This talk will focus primarily on loss of chance claims following the Supreme Court’s judgment in Perry v Raleys in February 2019, provide an overview of the issues which arose at the Supreme Court hearing in Cardiff in July 2019 in Edwards v Hugh James Ford Simey, questions to what extent the Supreme Court will grapple with the difficult public policy issues which often arise in loss of chance cases and give examples of the recent application of loss of chance principles in claims against solicitors and other professionals.
The restatement of established principles
Perry v Raleys [2019] PNLR 17 confirming the two elements to a loss of chance claim first set out 24 years ago in Allied Maples plc v Simmons & Simmons [1995] 1WLR 1602.
The Supreme Court’s approval of Kitchen v Royal Air Force Association [1958] 1 WLR 563 and the presumption in favour of the Claimant in loss of litigation opportunity cases in Mount v Baker Austin (A Firm)
Trial within a Trial
In Perry the Supreme Court commented on Hanif v Middleweeks [2000] Lloyd’s Rep PN 920 and overturned the Court of Appeal’s application of that case.
The difficulty in reconciling Perry with the Court of Appeal’s approach in Dixon v Clement Jones [2005] PNLR 6 with the Supreme Court’s decision. Cases where the Court has already determined a fair trial is not possible like Sharif v Garrett & Co (A firm) [2002] 1 WLR 1318
The relevance of events which arise before and after the Notional trial or settlement date
In Edwards v Hugh James Ford Simey the Supreme Court will have to grapple with the difficult public policy issues which arise when the true position is known at the actual trial date. The Supreme Court had to consider difficult cases like Charles v Hugh James Jones & Jenkins [2000] 1 WLR 1278, Dudarec v Andrews [2006] 1 WLR 3002 and Whitehead v Searle [2009] 1 WLR 549. Judgment is keenly awaited.
The application of the principles in Perry in recent cases.
Javed Waraich v Ansari Solicitors (A firm) [2019] PNLR 24 a claim relating to the allegedly negligent failure of Ansari to advise them to issue proceedings against Khan’s Solicitors within the limitation period for alleged negligence in handling an application on behalf of the Claimants for leave to remain in the UK. Full investigation of merits. Claimants failed to show that they had lost anything of value despite advice that the claim was a very good one cf Sharpe v Addison Lister [2004] PNLR 23
Moda International Brands Ltd v Gateley LLP [2019] PNLR 27. Detailed review of the underlying issues in this dispute arising out of negligent advice in drafting a participation agreement in relation to a property development in Nottingham. Correct approach to damages for loss of chance where counterparty to agreement called by Defendants cf Perkin v Lupton Fawcett [2008] PNLR 30. Cumulative approach to the evaluation of damages where there were multiple scenarios in the counterfactual world if solicitor had given correct advice.
In the matter of One Blackfriars Ltd (In Liquidation) [2019] EWHC 1516 (Ch) John Kimbell QC granted permission in an action for breach of duty against a company’s former administrators, for the addition of a head of loss concerning the lost chance of a corporate rescue which just scraped over the line.
Simon Myerson QC St Pauls Chambers & Byrom Street Chambers
“Clinical Negligence and Other Professional Negligence: Similarities and Differences” Simon Myerson QC
Called: 1986 Silk Date: 2003
0161 829 2100
Practice Overview PRACTICE AREAS Commercial Litigation Civil Fraud Employment Clinical Negligence Professional Liability Partnership Health and Safety Professional Discipline Defamation Public Law
APPOINTMENTS Attorney General's Provincial List (1992) Standing Counsel Inland Revenue (2000) Recorder (Crime, Class 2, Civil, Chancery) (2001) Qualified Mediator (2009) Bencher (Middle Temple) 2013
ASSOCIATIONS HSLA, CBA
Commercial Litigation Simon is experienced in all aspects of commercial litigation and has developed his junior practice in silk.
Concluded cases [email protected] 0161 829 2100 Catfoss Finance v Topdog: claim for conversion of hired goods settled at trial.
Dixon v S & N [2002] 4 Comp LR 484. Construction of Beer Order in a case in which the issue was whether the tenant had breached the terms of his tenancy agreement. First time the order had been the subject of judicial consideration.
Byrom Street Chambers T 0161 829 2100 12 Byrom Street F 0161 829 2101 DX: DX718156 Manchester 3 E [email protected] Manchester M3 4PP Page 1 of 6 Abbey Archway v Cooper. Construction of an option agreement for the sale of land in which there were 2 such options, both of which the Claimant purported to exercise and in respect of which the Defendant alleged undue influence.
Flowrite v Masternaut. £1,000,000 claim for breach of contract resulting from a failure to pay for goods supplied, the Defendant claiming that the goods were unfit for purpose.
Garforth Residential v Leeds City Council. Claim against local authority for failure to pay block grant involving construction of the National Assistance Act 1948.
TNT v Somerfield Stores Claim for loss of profits where extension of contract was conditional upon minimum sales figure being reached. Issue of whether figure was reached and whether, if not, the failure was manipulated by the Defendant.
Sample current cases
€30m claim for damages and conversion in connection with 4 yachts. Defending Commercial Court claim for breach of contract in relation to the contract's termination for non- performance. Defending £6m claim for company accused of deliberately misinforming insurers about financial information. Representing company directors in Tax Tribunal where HMRC seek penalties in respect of a declared tax avoidance scheme, which failed. Employment Simon has long experience in employment work, especially relating to improper use of confidential information and breach of restrictive covenants, but including advisory work on the implementation of new rules and regulations.
Concluded cases Menage v Nuffield. Claim by doctors wishing to decamp to new private hospital to be released from their contract of services with the existing provider.
Re F. Claim by a taxi company to restrain passing off relating to their name and the recruitment of existing employees by competing business set up by ex-employees.
Re Nuffield. Advice on application and requirements of new nursing homes regulations to large private supplier.
Re X: Advised serving police officer on whether disclosure of adverse judicial finding is compulsory or whether, in the circumstances, the Chief Officer is breaching the agreement for service. Officer reinstated in investigative capacity with disclosure accompanied by explanation of circumstances of finding.
CCC: Super-Injunction against employee, restraining disclosure of confidential information.
Sample current cases
Advising partner dismissed by partnership in claim including sex, religious and age discrimination. Representing respondent charity in claim by alleged employee whose [email protected] for services expired and 0161 was 829 not 2100 renewed. Personal Injury Simon has long experience in employment work, especially relating to improper use of confidential information and breach of restrictive covenants, but including advisory work on the implementation of new rules and
Byrom Street Chambers T 0161 829 2100 12 Byrom Street F 0161 829 2101 DX: DX718156 Manchester 3 E [email protected] Manchester M3 4PP Page 2 of 6 regulations.
Concluded cases Barnsley Footwear v Masters. Claim by company against former employee for account of profits arising from employee's new business. Issue as to precise status of Defendant, confidentiality of information and whether information legitimately acquired.
Menage v Nuffield. Claim by doctors wishing to decamp to new private hospital to be released from their contract of services with the existing provider.
Re F. Claim by a taxi company to restrain passing off relating to their name and the recruitment of existing employees by competing business set up by ex-employees.
Re Nuffield. Advice on application and requirements of new nursing homes regulations to large private supplier.
Re X: Advised serving police officer on whether disclosure of adverse judicial finding is compulsory or whether, in the circumstances, the Chief Officer is breaching the agreement for service. Officer reinstated in investigative capacity with disclosure accompanied by explanation of circumstances of finding.
Sample current cases Advising ex director on whether co-director's actions amount to repudiation of contract where key financial decisions made in absence of director and where financial information deliberately withheld. Clinical Negligence Simon has regularly acted for Hospital Trusts and doctors.
Concluded cases M v Calderdale and Kirklees Health Authority (formerly West Yorkshire Health Authority) [1998] Lloyd's Rep Med 157. Health Authority's delegation of care of patient under S1 NHS Act 1977.
Bancroft v Harrogate Health Authority [1997] 8 Med LR 398. Causation in cervical cancer.
Burke v Leeds HA [2001] EWCA Civ 51. What constitutes negligent advice in clinical care.
Sample current cases
Acting for Claimant in claim against hospital for cerebral palsy said to be caused by negligent treatment. Acting for Claimant in claim against hospital for cerebral palsy said to be caused by negligent treatment. Professional Liability Simon mainly deals with cases involving solicitors, barristers and accountants, often when professionals acts together to administer an estate or as part of a tax planning exercise. He has also acted in cases involving architects and surveyors.
Concluded cases Del Grosso v Payne & Payne [2007] EWCA Civ 340. Claim against solicitors for negligent advice regarding the purchase of a club. [email protected] 0161 829 2100
Singer v James Hay. Claim by beneficiary of pension fund against pension trustees, solicitor and accountants regarding pension planning and purchase of annuity.
Seddon v Egan. Acted for solicitor in a claim by client alleging failure to adequately advise on £3m deal to sell
Byrom Street Chambers T 0161 829 2100 12 Byrom Street F 0161 829 2101 DX: DX718156 Manchester 3 E [email protected] Manchester M3 4PP Page 3 of 6 commercial site subject to conditions.
Sample current cases
- Acting for charitable trustees regarding potential misuse of charitable funds by employees as sanctioned by professional advisers who were also trustees. - Right to Buy. Lead counsel for 11,000+ Claimants in negligence claim against solicitors acting for purchasers of council houses.
Professional Discipline Simon acts regularly for firms of solicitors being investigated by the SRA. He has advised other professions as diverse as accountants and probation officers, and has advised on the wording of professional rules and guidance, and the setting up of disciplinary proceedings. He has represented numerous police officers via the Police Federation. In December 2010 he completed a 6 year stint on the BSB Conduct Committee and resumed taking instructions for Barristers.
Concluded cases The Law Society v Waddingham & Ors [2012] EWHC 1519 (Admin): successfully defended solicitors the subject of SRA appeal that SDT's decision that clients not dishonest should be overturned.
Re T: Successfully argued that case against barrister should be dropped and recovered costs for Bar Mutual.
Re H & L. Representing firm of solicitors appearing before SDT in relation to charges brought arising from the COPD (Miners' Compensation) scheme. Bichard Inquiry. Acted for the Humberside Police Federation in the Inquiry into the Soham murders and made successful representations regarding comments in the Report.
Alder Inquiry. Represented police officers in the IPCC inquiry into the death of Christopher Alder.
Cross Border. Represented 3 officers charged with various offences arising from the Cross-Border investigation.
Re H Probation Service. Advised Probation Service as to disciplinary routes open regarding officer who had failed to complete an adequate OASYS assessment with catastrophic results.
Sample current cases Representing firm of solicitors appearing before SDT in relation to charges brought arising from the COPD (Miners' Compensation) scheme. Advising Customs Officers regarding disciplinary proceedings brought after criminal charges were dismissed.
Partnership Simon regularly deals with partnership matters, usually involving the dissolution of professional firms, or misfeasance on the part of partners. He also has experience of franchise litigation.
Concluded cases [email protected] 0161 829 2100 Scargill v Crank. Claim for an account turning on issue of when the Partnership was dissolved involving close construction of Partnership Agreement.
Re Cheshire. Claim for breach of Franchise Agreement by local franchise holders of national firm, based on deliberate default of franchisor.
Byrom Street Chambers T 0161 829 2100 12 Byrom Street F 0161 829 2101 DX: DX718156 Manchester 3 E [email protected] Manchester M3 4PP Page 4 of 6 Thompson v Shackleton. Breach of Partnership in food business including claims of theft and fraud.
Re C. Claim by one partner against others for conspiring against him to force his retirement, including holding secret partnership meetings and refusing to provide proper access to information.
Sample current cases
Acting for partners in claim against ex-partner alleged to have breached accounting rules and procured resignation rather than expulsion by covering up those breaches. Acting for partner in claim that ex-partners falsified accounting position of firm in attempt to expel him from partnership and obtain existing assets when partnership dissolved. Advising solicitor on restrictive covenants and construction of contract as he attempts to extricate himself from his former partners. Advising solicitor on construction of interrelated Partnership/LLP/LMC Deeds and his entitlement as regards basic share and points. Health and Safety Simon deals with criminal cases, advises on the effect of accidents, and deals with civil claims involving damage to property.
Concluded cases R v Butters. Acted for employee directly responsible for fatal accident at Lightwater Valley in both the Inquest and the criminal proceedings.
R v Next. Prosecuted Next Plc for fatal accident in which employee abseiled from fork-lift truck with inadequate equipment and died when the rope paid out without stopping, causing a fall of about 30m.
Re E MAPPA. Advice on departmental enquiry after offender committed suicide when the subject of supervision.
R v Next plc. Prosecuted Next for fatal accident when lift inadequately specified and maintained.
Sample current cases
Representing 2,000 Claimants in claim against chemical company for allowing fire causing escape of toxic gas from its premises.
Defamation Simon has accepted defamation instructions since taking silk.
Concluded cases X v Y. Acted for Claimant in a case where Defendant making accusations of criminality and theft from friends. Settled for damages and costs.
Re Solicitors. Acted for 2 firms of solicitors accused in a script of an [email protected] BBC Radio programme 0161 829of 2100 assisting an offender. Script altered.
Levi v Bates ([2009] EWHC 1495. Acted for successful Claimant in action for libel against Ken Bates regarding the takeover and subsequent management of Leeds United.
Byrom Street Chambers T 0161 829 2100 12 Byrom Street F 0161 829 2101 DX: DX718156 Manchester 3 E [email protected] Manchester M3 4PP Page 5 of 6 Weston v Bates & Anor [2012] EWHC 590. Successfully represented Claimant before Master and Judge in Defendant's application for order that he had not been properly served in Monaco.
Levi & Anor v Bates & Ors [2012] EW Misc 9. Successful harassment claim, following on from the defamation action between the named parties.
Ontulmus & Ors v Collett & Ors [2013] EWHC 980. Successfully resisted strike out on basis that Claimants had no trading reputation in the jurisdiction.
Sample current cases
- Advising professional sportsman the subject of made up quotes in a newspaper article, which adversely affected ongoing contract negotiations. - Representing foreign businessman in libel claim against ex-customer and the customer's business/legal advisor, in which claim for lost business exceeds €4.5m. - Representing director of a company accused by US based journalist of being a fraudster.
Directory Comments "His commercial and Chancery expertise includes tax tribunal matters" Legal 500 United Kingdom 2015
"Is recognised for his expertise in commercial cases and a range of other civil matters " Legal 500 2014
"His practice encompasses criminal, civil and regulatory matters, and his financial crime expertise extends to covering insurance, advance fee, broking and tax frauds. " Chambers and Partners 2013 - Fraud Criminal
"'is exceptionally bright and an outstanding advocate'" Legal 500 2013 - Chancery and Commercial Litigation
"Has a heavyweight commercial litigation practice " Legal 500 - 2012
"Simon Myerson QC ... acted on the Asgha Holdings case, concerning an alleged pension and banking fraud on shareholders. In a strong vote of confidence in his abilities, his clients include legal professionals themselves accused of fraud." Chambers & Partners 2012 - Fraud: Criminal
"Simon Myerson QC has a heavyweight civil fraud, defamation and disciplinary practice." Legal 500 2011
""...very user-friendly and high-quality. He handles serious crime, criminal and civil fraud, regulatory work and commercial and professional negligence" [email protected] 0161 829 2100 Chambers and Partners 2010
Byrom Street Chambers T 0161 829 2100 12 Byrom Street F 0161 829 2101 DX: DX718156 Manchester 3 E [email protected] Manchester M3 4PP Page 6 of 6 Similarities and Differences Between Clinical Negligence Actions
and Other Professional Negligence Actions
1. Procedural
- Consideration of the specific protocol for each
- Consideration of time limits for each
- Applicability of lien in different cases.
- Court’s view on experts / joint experts
- Allocation and resourcing
2. Substantive
- Limitation
- Way in which Bolam is applied in each category, and the margin of understanding
afforded to the professional
- Recollection in the light of Gestmin
3. Legal Aid and funding
4. Damages and investment. Q&A Ben Patten QC & Siân Mirchandani QC 4 New Square Chambers
“Design Obligations of Construction Professionals” Ben Patten QC
Call: 1986 Silk: 2010
+442078222000 [email protected]
Clerk: Lizzy Stewart
+442078222032 +447912405153
My number one choice for advice on technical points, and someone who provides excellent strategic advice. - Chambers & Partners
Ben Patten QC's expertise lies in a range of commercial work, including construction disputes, professional liability claims, commercial litigation and insurance and reinsurance disputes.
Described as "calm under pressure and always willing to stick his neck out on a case" he acts for both claimants and defendants in the TCC, Commercial and Mercantile Courts, Queen’s Bench Division, Chancery Division and Arbitrations. He also appears in the Court of Appeal and in expert determinations, mediations and other ADR hearings.
Chambers and Partners has described Ben as greatly respected for his effective manner in court, "he has a very nice way of presenting an argument which appeals to judges hugely," and his 'good commercial instincts'. 'Peers are impressed by his skills as an advocate generally, and particularly note his strength in solicitor negligence cases' as well as the "incredibly calm," "persuasive" approach he demonstrates in his construction and professional indemnity work for a client base of developers, contractors and insurers. Previous editions says of him "You can throw anything his way and he will deal with it." "He has a mild and gentle manner with clients, but is determined and clear in his advice. He is also very effective as an advocate, as he's calm but good at focusing on the right issues and directing judges' attention to them." “Technically he's one of the best around. He is also highly responsive.” Ben is also rated as a leading Silk by the Legal 500.
Ben has also been described in the Directories as being “really at the top of his game”, “a top performer who has a very concise and effective drafting, advisory and advocacy style” and “a star of the future”. In 2009, the year before he took Silk, he was awarded Chambers and Partners Professional Negligence Junior of the Year.
A team player, Ben’s style is to roll up his sleeves and get involved. He has considerable experience of very substantial commercial litigation, including group actions and the larger TCC cases. He is relaxed and approachable, whilst at the same time being businesslike and tenacious in pursuing the best outcome for the client. He has a keen sense of the client’s commercial interests and can cut through the complexities of a difficult case to get to the heart of the issues.
Ben is the author of “Professional Negligence in Construction” [Spon] 2003, a co-editor of the Construction Professionals Chapter in "Jackson & Powell" and a co-editor of the Solicitors' Chapter in the Professional Negligence and Liability Looseleaf. He is also a frequent lecturer and author of legal articles. Ben is a member of TECBAR, COMBAR, the Professional Negligence Bar Association and the London Common Law & Commercial Bar Association. He has also been called to the Bar in the Republic of Ireland and Northern Ireland and has acted as an arbitrator.
Privacy Policy
4 New Square, Lincoln's Inn, London, WC2A 3RJ T: +44 20 7822 2000 E: [email protected] DX: 1041 London Chancery Lane Click here for a Privacy Policy for Ben Patten QC. Areas of Expertise
Construction & Engineering
“Eloquent and bright, very good in conference with clients.” – Legal 500, 2020
“A legal heavyweight, exceptionally bright and very impressive.” “He has a superb combination of construction and professional negligence expertise. He is exceptionally good, so easy to get on with, hard-working and dedicated.” “Very detail-oriented and a superb cross-examiner.” – Chambers & Partners, 2020
“Gets to speed quickly with the papers and excellent at drafting submissions.” – Legal 500, 2019
“Great to work with, very good with clients and commercially astute.” “He’s thorough and has a good cross-examination style.” – Chambers & Partners, 2019
Recognised as a Leading Construction Silk by both the Legal 500 and Chambers & Partners. Ben has very considerable experience in construction and engineering disputes. He has appeared in a wide range of cases in the TCC, Arbitrations, Adjudications and the Court of Appeal. He has been described in Chambers and Partners as being greatly respected by clients for being ‘”very easy to engage with and always provides sound commercial advice,” “he is amazingly calm under pressure, which gives the entire team confidence,” and for having a“way of presenting an argument which appeals to judges hugely,” and “incredibly calm,” “persuasive” approach; “a top performer who has a very concise and effective drafting, advisory and advocacy style“; “technically he’s one of the best around. He is also highly responsive”, “he is efficient, very clever and knows his stuff.” “He has the trust of judges: he never makes a bad point or overblows a submission.”
Recent and current cases include:
Acting for certificating architects in a claim brought by a number of purchasers. Acting for the employers of an auction mart in a dispute with the developer. Acting for architects and project managers in relation to a claim in respect of the renovation and development of civic premises. Acting for the Claimant in the groundbreaking vicarious liability case of Biffa Waste Services Ltd. v Maschinenfabrik Ernst Hese Gmbh, both at first instance in front of Mr Justice Ramsey and in the Court of Appeal (late 2008). The case is now the leading authority on the application of the control test for borrowed employees and of the extent of the application of the “extra hazardous acts” rule in Honeywill v Stein & Larkin. Acting for the defendant architects in the appeal to the Court of Appeal in Hunt v Optima, an appeal from Mr Justice Akenhead, which is the leading authority on duties arising from professional consultants’ certificates. Acting for specialist contractors against whom a substantial claim was made arising out of a fire on the Isle of Wight. Acting for employers in respect of a biogas installation in a claim against the contractor. Acting for a firm of contractors in a multi-party dispute concerning piling and ground improvement works for a superstore in Kent. Acting for consultants in respect of a claim concerning stone cladding to a building in the City of London. Acting for a firm of contractors on a dispute concerning variations, extensions of time and loss and expense claims in relation to a residential development in Kensington. Acting for a firm of contractors in relation to a dispute over delays to a large development at Southbank London arising from a diesel spillage. Acting for a demolition contractor in relation to an inter-related series of adjudications and part 8 disputes concerning contractual interpretation. Acting for PI insurers of engineers on a large construction project in Ireland (essentially construction of bridges). Acting for UK design and build contractors in adjudication proceedings concerned with plant producing car parts (the issues are engineering).
4 New Square, Lincoln's Inn, London, WC2A 3RJ T: +44 20 7822 2000 E: [email protected] DX: 1041 London Chancery Lane Recent and current international cases include
Acting for US contractors in a dispute concerning the construction of a gas pipeline in Nigeria. Acting for a Qatari developer in a dispute concerning a mixed use development in Doha. Acting for an international construction consultancy group in a dispute over project monitoring in the Caucuses. Acting for a Dubai based contractor in a dispute in the Dubai World Tribunal. Acting for US engineers in an arbitration concerned with a production plant in Germany where the critical issues concern tooling and engineering.
PFI and related fields
Experience in PFI and related areas:
Acting for a large contractor in a dispute with a hospital trust Acting for a trust in relation to a schools project covering a number of schools Acting for the provider of services transporting detainees to secure facilities, courts and hospitals Acting for a provider of supplies and other services to a local authority Acting for a national housebuilder in respect of expert determination concerning a joint venture Acting for a health trust in relation to a dispute with a supplier of outsourced services Professional Liability
“Excellent judgement and very easy to deal with.” – Legal 500, 2020
“He is very good at distilling the detail when there are reams of information to dig through, to move the case forward successfully.” “He is excellent: quick, confident and approachable. He has the ability to make complicated elements very simple.” – Chambers & Partners, 2020
“He is very forensic and takes points in a measured but persuasive way. Clients really respect and trust him.” “He’s a very clear advocate and an extremely courteous opponent, and you can tell the judge has real confidence in him.” – Chambers & Partners, 2020
“He has an encyclopaedic knowledge of the subject matter, coupled with a fantastic advocacy style. Like a university professor when he needs to be, but then a street fighter when that’s appropriate. Watching his advocacy was a masterclass.” “He is excellent on detail and provides good, practical advice.” – Chambers & Partners, 2019
“He provides strong and decisive advice” – Legal 500, 2019
Accountants, Auditors & Actuaries
Ben has acted in many claims against accountants and auditors, including claims for negligent audit work, negligent preparation, review and audit of management accounts and negligent advice (including negligent tax advice, both corporate and personal).
Recent and current work includes:
Acting for a claimant who was given incorrect advice over CGT and the benefits of moving his tax arrangements offshore. Acting for claimants against a firm of tax advisers, accountants and auditors concerning tax advice on corporate acquisitions with subsequent auditing advice and Inland Revenue investigations and action. Acting for claimants in a dispute with their former accountants concerning the taxation treatment of restaurant tips and the financial structures which might have been put in place so as to minimise the exposure of the business to national insurance contributions. Acting for accountants in a claim brought against them by former clients concerning advice in relation to foreign currency loans and the purchase of property bonds. Acting for claimants in a dispute with their former accountants concerning advice given in relation to a share sale transaction
4 New Square, Lincoln's Inn, London, WC2A 3RJ T: +44 20 7822 2000 E: [email protected] DX: 1041 London Chancery Lane and in particular the true and fair treatment of certain profits. Acting for auditors in a dispute with former clients concerning their failure to uncover fraudulent transactions undertaken by a former employee. Acting for a firm of solicitors against accountants in contribution proceedings in the context of a claim by former clients arising out of a share sale transaction. Acting for tax advisers concerning advice in relation to film finance schemes.
Construction Professionals
“He has been very impressive.” “He is good on paper, very concise and clear.” – Chambers & Partners 2019 – Professional Negligence: Technology & Construction
“A real stalwart in the field. What Ben doesn’t know about professional negligence isn’t worth knowing.” “A very clever, fast and impressive advocate. He is very crisp and develops a good rapport with the judge. He’s three jumps ahead.” – Chambers & Partners 2018 – Professional Negligence: Technology & Construction
Ben has very extensive experience of acting both for and against architects, engineers, quantity surveyors and project managers. He also has experience of acting for specialist construction concerns such as demolition contractors and contractors carrying out asbestos works where “professional liability” issues often arise. He appears regularly in cases involving construction professionals in the TCC and in Arbitrations. He has considerable experience of construction professional indemnity insurance issues and contribution disputes.
Recent and current cases include:
Acting for the defendant architect in the appeal to the Court of Appeal in Hunt v Optima, a case concerning professional consultant’s certificates Acting for the design and build contractor of a superstore where substantial settlement was alleged to have been caused by inappropriate vibro-replacement treatment. Acting for engineers in relation to their design review and checking obligations concerning soil nailed walls in a railway embankment. Acting for a claimant in a dispute with former project managers concerning advice in relation to letters of intent and contractual remedies. Acting for engineers in relation to a dispute concerning soil stabilization works in a transport infrastructure project. Acting for a project manager in relation to a dispute concerning advice concerning planning on a residential development. Acting for a claimant in a dispute with a multi-disciplinary practice of architects, surveyors and project managers in respect of the construction of a health centre. Acting for an architect in a dispute over the design and construction of an airport terminal. Acting for a claimant against M&E engineers in relation to the design of a heating and ventilation system. Acting for a firm of project managers sued in respect of the project management of restaurant fitting out works in central London. Acting for engineers in relation to a claim arising out of frozen ground affecting the construction of buildings erected on the site of a former cold storage unit. Acting for a lender in a claim against a project monitor.Acting for consultants in respect of a claim concerning stone cladding to a building in the City of London. Acting for specialist architects in relation to a claim concerning the restoration of a grade II* listed building and ancient monument.
Insurance Brokers & Agents
Ben regularly acts both for and against Insurance Brokers in relation to disputes arising out of coverage difficulties.
Recent and current cases include:
Acting for insurance brokers in a dispute with former clients arising out of a fire at warehouse premises where there was
4 New Square, Lincoln's Inn, London, WC2A 3RJ T: +44 20 7822 2000 E: [email protected] DX: 1041 London Chancery Lane insufficient public liability and business interruption cover. Acting for insurance brokers in a dispute with former clients arising out of a fire at commercial premises where the insurer avoided on the basis of non-disclosure. Acting for a construction contractor in a dispute with insurance brokers over the suitability of design liability insurance as a result of a decision by insurers that the contractor’s policy did not respond to damage arising out of certain design defects. Acting for insurance brokers in a dispute with a construction contractor concerning policy advice arising in the context of a claim by an injured employee of a sub-contractor. Acting for insurance brokers in relation to a dispute with former clients arising out of coverage issues in respect of a claim relating to consultancy services provided to M&E contractors working on a hospital project in Belfast.
Lawyers
Ben has extensive experience of appearing both for and against claimants and defendants in cases involving barristers and solicitors. He has acted in some of the largest and most important disputes concerning lawyers in recent years, including the TAG litigation and the Levicom case. He recently successfully defended Eversheds in a multi-million pound claim brought by Newcastle Airport, winning both at first instance and in the Court of Appeal. He has covered most aspects of lawyer’s negligence including claims arising from commercial, corporate and property transactions, claims arising from mortgage work and other aspects of lending transactions and claims arising from litigation. He has particular experience in disputes arising from, and difficulties arising in relation to, solicitors’ professional indemnity insurance and is experienced in dealing with dishonesty issues. He is a a co-editor of the solicitors chapter in the Professional Negligence and Liability Looseleaf.
Recent and current cases include:
Newcastle Airport v Eversheds Levicom v Linklaters Acting for a firm of solicitors alleged to have given inaccurate advice to a US based engineering consultancy, said to have resulted in a multi-million pound loss Acting for a firm of solicitors where the partner was issued with a witness summons to give evidence about client confidential matters in Young v Young Acting for solicitors in a dispute with former clients and a barrister concerning advice in relation to an appeal against a Customs and Excise ruling on alcohol. Acting for a barrister on a wasted costs application. Acting for the former partners of a firm of solicitors where a rogue partner was engaged in multiple mortgage fraud. Acting for a firm of solicitors involved in a dispute with former clients arising out of commercial litigation in relation to a complex web of business interests. Acting for claimants against their former solicitors in relation to advice concerning the purchase and development of a large block of land. Acting for a lender in relation to a dispute with a solicitor concerning a fraudulent commercial loan. Acting for a solicitor in a claim brought by shareholders in a company which was one part of a corporate joint venture advised by the solicitor. Acting for claimants in a dispute with their former solicitors concerning the disposal of substantial overseas business. Acting for a firm of solicitors jointly sued with Leading and Junior Counsel in respect of commercial litigation which was allegedly mishandled. Acting for solicitors in a dispute with clients about the alleged misappropriation of client funds. Acting for solicitors in a dispute over funding and alleged champerty and maintenance. Acting for a firm of solicitors sued by a company in respect of the losses sustained by reason of contracts drawn up by the solicitors on the instructions of one of the directors, which instructions were alleged to be unauthorised. Acting for a firm of solicitors, sued along with two other firms, in respect of alleged negligence in the conduct of substantial property transactions which were themselves said to be fraudulent transactions. Acting for solicitors in relation to alleged negligent advice concerning international litigation and arbitration in different jurisdictions and specifically freezing orders.
Surveyors & Valuers
4 New Square, Lincoln's Inn, London, WC2A 3RJ T: +44 20 7822 2000 E: [email protected] DX: 1041 London Chancery Lane Ben frequently acts both for and against surveyors and valuers in cases concerning all aspects of property valuation and particularly in cases relating to commercial lending and mortgage fraud.
Recent and current cases include:
Acting for lending institutions alleging fraud on the part of a valuer. A number of actions for substantial lending institutions against different surveyors alleging negligent valuation in respect of both commercial and residential loans. Acting for a firm of valuers which contained a “rogue” partner who was involved in a series of fraudulent transactions which led to a number of commercial lending institutions suffering considerable losses. Acting or claimants in relation to the allegedly negligent valuation of a development site. Acting for a firm of planning consultants in proceedings brought against valuers and planning consultants relating to the acquisition and development of waterside properties. Acting for claimants in a dispute with a valuer over the purchase of property suffering from subsidence. Acting for a commercial lender in a dispute with a firm of surveyors concerning the valuation of packages of flats for a “buy to let” club. Acting for a lender in relation to overvaluation of “buy to let” portfolios. Acting for property consultants in a claim concerning allegedly negligent advice on future values.
Financial Services Professionals
Acting for financial advisers in relation to investment advice given to two trusts, including investment advice concerning investment in Hedge Fund products, and claims brought by those trusts and/or the beneficiaries of the trusts. Acting for financial advisers in relation to investment advice concerning pension schemes and permissible investments. Acting for the insurers of a large Irish financial advisers concerning policy coverage and potential claims. Acting for claimants in a claim against mortgage brokers. Commercial Dispute Resolution
Ben has substantial experience of commercial litigation in the Commercial Court, the Mercantile Courts and in arbitrations. He has being involved in a number of share sale warranty disputes, sale of goods disputes, disputes concerning licensing agreements and disputes concerning employment and restraint of trade.
Recent and current cases include:
Acting for a printing concern in seeking injunctive relief against ex employees seeking to contact former clients whilst working with a competitor. Acting for a group of aviation companies facing debt claims arising out of service agreements and pension scheme arrangements pre-dating a share sale agreement. Acting for one of the joint venture partners in property joint venture in a dispute concerning the allocation of certain profits and losses. Acting for an engineering concern in relation to a dispute as to the meaning and effects of contracts between itself and a Swiss and a French concern in relation to the carrying out of certain works at a power station in the UK. Acting for the purchaser of a heating and electricity generating system in a dispute with the vendors of the system. Acting for solicitors in contribution proceedings against a bank in relation to losses sustained by their mutual clients. Acting for the leaseholder of a substantial office block in central London in respect of a delapidations claim. Acting for the contractor on a n expert determination in relation to a large government contract for services. Acting for the vendors of a construction business in relation to a share sale warranty claim. Insurance & Reinsurance
Ben is frequently involved in insurance disputes, both in the Commercial and Mercantile Courts and in arbitrations. Many of these disputes arise out of other areas of his practice and in particular he is experienced in disputes concerning Contractors All Risks policies and Professional Indemnity policies.
4 New Square, Lincoln's Inn, London, WC2A 3RJ T: +44 20 7822 2000 E: [email protected] DX: 1041 London Chancery Lane Recent and current cases include:
A claim by an employer contemplating proceedings under the Third Party (Rights Against Insurers) Act, for information concerning the contents and claims record of a contractor’s policy of insurance. An action by insurers against former assureds seeking declarations that the policy was avoided on grounds of fraud. A dispute between insurers as to which policy responded to a loss where the assured had claimed against both. A dispute between the designer of specialist TV and Film set staging and its public liability insurer on liability for claims by third parties arising out of the collapse of one of its structures. A dispute between a construction contractor and its CAR insurer concerning whether losses arising from claims made by the employees of a sub-contractor were covered by the policy. Acting for the insurer of a financial services provider in respect of a policy dispute. Acting for the insurer of engineers under a professional indemnity policy concerning coverage issues. Acting for consulting engineers on policy issues arising out of allegedly defective design in respect of two water treatment plants. Acting for professional indemnity insurers in respect of coverage disputes concerning allegedly fraudulent solicitors. Acting for CAR insurers in relation to coverage issues arising out of notification and “one claim” disputes. Property Damage
Ben has extensive experience in property damage cases
Acting for the claimant in Biffa Waste Services Ltd and Anor v Maschinenfabrik Ernst Hese GmbH both at first instance in front of Mr Justice Ramsey and in the Court of Appeal (late 2008). The case is now the leading authority on the application of the control test for borrowed employees and of the extent of the application of the “extra hazardous acts” rule in Honeywill v Stein & Larkin Acting for specialist contractors against whom a substantial claim was made arising out of a fire on the Isle of Wight.
Acting for an electrical sub-contractor in a very substantial multi-party case involving a fire at a retail park in Warrington Acting for a contractor in relation to asbestos contamination in industrial premises in Kent Acting for the CAR insurers of a major contractor in relation to flood damage at a hotel in Mayfair Acting for brokers in relation to a dispute over PL coverage in relation to damage to specialist pipework in an intensive care unit in Belfast International Arbitration
Ben’s main expertise lies in construction law and in particular in large construction projects with spin off financial claims. These include: gas pipelines; airport terminal buildings; office developments; airport runways; roads and bridges. He has experience in many different forms of construction contract and most commonly encountered construction issues, including: delay and disruption; variations; defects; certification and partnering. He is also experienced in issues concerning funding arrangements, guarantees and bonds.
Current and recent cases
National Infrastructure Development Co v BNP Paribas
In this case, which is one of a number actions taken by NIDCO to enforce standby letters of credit, Ben acted for the corporate construction arm of Trinidad and Tobago to enforce on-demand bonds to the value of nearly US$59 million. The defendant bank claimed (unsuccessfully) that it was not require to pay by reason of a Brazilian injunction. The case citation is [2016] EWHC 2508 (Comm).
S v H
4 New Square, Lincoln's Inn, London, WC2A 3RJ T: +44 20 7822 2000 E: [email protected] DX: 1041 London Chancery Lane This is a dispute between a US based turnkey manufacturer of specialist plant and a Swiss company concerning the design, installation and construction of a manufacturing plant in Germany. The legal issues concern contractual obligations, including responsibility for regulatory delays. The value of the claim is still being ascertained but the contract value is in excess of US$60m. The arbitration is conducted under ICC auspices (the law of the Contract is Swiss law). Ben acts for the US concern.
N v F
This was a very substantial dispute concerning a development project in Moscow. Ben acted as one of two leading counsel for one of the parties. The issues concern fraud, breach of fiduciary duty, contractual interpretation, causation and valuation. The claim was put at more than US$500m.
U v A
A series of disputes (some of which were referred to the LCIA) concerning a series of projects and related financial arrangements concerning the development of 8 tower blocks and a separate residential project in Doha, Qatar. The total quantum of the claims exceeded US$100m. Ben acted for the Qatari developer. There were three sets of related proceedings taking place in London and Doha. The Qatari and LCIA proceedings raised issues of contractual construction, bilateral obligations and commercial fraud. Proceedings before the Commercial Court concerned funding arrangements and claims by lenders against the developer. The issues in that claim concerned (1) forum; (2) proper law; (3) issues of agency and authority under Qatari law (4) compromise and ratification and (5) frustration/impossibility. The claim was for repayment of debt obligations in excess of $US35m.
T v N
Ben was engaged in a series of disputes (one of which has been litigated in the Dubai World Tribunal at the DIFC) between a Cypriot contractor and the developer of the Palm in Dubai. The issues concerned extension of time and claims for loss and expense. The value of the claims was very substantial.
E v A
Ben acted for an international construction consultancy concerning loans made to the developer of a mixed use development in Armenia. The allegations concerned project management and monitoring (in particular, alleged failure to detect mismanagement on the part of the developer and to identify likely cost overrun). The value of this LCIA claim was alleged to be in the region of US $25m. In addition to technical issues relating to the project, the issues of law concern the proper extent of a monitoring consultant’s duties and the role of contributory fault by the lender.
W v W
This was a dispute concerning the construction of a gas pipeline through Nigeria and other West African states. The contractor’s contract was terminated for alleged non-performance, although the contractor contended that the employer had failed to pay its contractual entitlements. The legal issues concerned the true construction of termination clauses, limitation on liability clauses and liquidated and ascertained damages clauses. More general issues concerned delays, extensions of time and defects. There were substantial practical issues concerning discovery from the parties’ different manifestations in a number of different jurisdictions. Approximate claim value $120m. Ben acted for the contractor.
4 New Square, Lincoln's Inn, London, WC2A 3RJ T: +44 20 7822 2000 E: [email protected] DX: 1041 London Chancery Lane SG v KT
This was a dispute brought by a UK dependency against a firm of architects over the design, project management and contract administration of a project to construct a new airport terminal building. Legal issues concerned conflicts of law and jurisdiction between the law of the dependency and the law of the reference and issues over enforcement of interim awards. The more general issue in the case concerned alleged design defects, design coordination between different members of the design team, inspection of contractors’ works, delay and reporting of cost overruns. Approximate claim value £15m. Ben acted for the architect.
C v P
This was a dispute concerning the adequacy of the design and construction of the concrete framework for a combined office and residential development in Dublin, Republic of Ireland. The legal issues concerned the proper interpretation of the contract as to the priority of contract documents and the meaning of the variations clauses. General issues concerned design responsibility, defects, extensions of time and loss and expense payments. Approximate claim value €6m. Ben acted for the contractor.
I v C
This is a dispute between an African construction company and a US based design and build contractor concerning the construction of two power generating plants in Liberia. The legal issues concerned alleged misrepresentation, the true meaning of the contract, causes of delay and entitlement to repudiate. The value of the claim was said to be just under US$10m. The arbitration is conducted under ICC auspices. Ben acts for the design and build contractor.
Ben acts as an arbitrator and mediator in construction disputes. He recently acted in a mediation between four parties in relation to a construction project in Northern Ireland. Mediation
Ben is an accredited mediator and has mediated a range of disputes including:
a dispute between a design and build contractor and its project architect; a dispute between a company and its former solicitors; a dispute between a contractor, its sub-contractors and its CAR insurers; a dispute between an employer and a design and build contractor; a dispute between two religious groups over the property of an unincorporated association.
In addition to mediation, Ben has acted as a conciliator under forms of contract made in the Republic of Ireland and Northern Ireland. He has a very “hands on” approach to mediation and likes to engage with the parties both before and (if appropriate) after the day of the mediation so as to ensure that the parties have the maximum prospect of achieving benefit out of the mediation. Qualifications & Memberships
B.A. (Oxon) (First Class) Dip Law (City), Called to the Irish Bar in 1998, Called to the Bar of Northern Ireland 2014 Publications
Certainty in Certification – [2014] 9 JIBFL 620B
4 New Square, Lincoln's Inn, London, WC2A 3RJ T: +44 20 7822 2000 E: [email protected] DX: 1041 London Chancery Lane The decision of the Privy Council in Fairfield Sentry v Migani is of considerable importance to funds which employ certification mechanisms. It will also be of note in relation to instruments employing market-based triggers, for example convertible loan notes. Here we discuss the implications of the decision for certification and those responsible for issuing such certificates.
Jackson & Powell, Professional Liability [2017], co-editor of Chapter 9, Construction Professionals
Professional Negligence and Liability, co-editor Chapter 9, Solicitors
4 New Square, Lincoln's Inn, London, WC2A 3RJ T: +44 20 7822 2000 E: [email protected] DX: 1041 London Chancery Lane
Powered by TCPDF (www.tcpdf.org) Siân Mirchandani QC
Call: 1997 Silk: 2019
+442078222000 [email protected]
Clerk: Dennis Peck
+442078222040 +447912405149
An excellent advocate – tenacious and extremely detailed, identifying potential problems and arguments even before they arise - Legal 500
Siân Mirchandani QC has established a broad commercial practice encompassing construction/engineering, professional liability claims, insurance and disciplinary claims in court proceedings, arbitrations and adjudications.
Siân has a particular interest in disputes involving construction, IT, technical and scientific elements and this has led to a strong construction/engineering practice and wide ranging experience in regulatory and experimental product testing claims.
Prior to her successful first application for silk in 2018, Siân was recognised as a Leading Junior by the directories for Construction, Professional Negligence and Disciplinary.
In Legal 500, 2019 Siân is described by her clients as “an excellent advocate – tenacious and extremely detailed, identifying potential problems and arguments even before they arise” and “tremendously bright, has a tenacious eye for detail, and brings a new level of strategic thinking to the table”.
In Chambers & Partners, 2019, Siân has been commended for her approach to her cases: “She is very competent and thorough and hits the right points in the right places”, “extremely responsive wherever she is and whatever the time zone. She has a very reassuring demeanour that instils confidence all round”, “proactive, helpful” and “someone who prepares the case very well”.
Who's Who Legal, 2019 says: "Siân Mirchandani QC is recognised for her superb professional negligence practice."
Winner of Chambers & Partners 'Professional Negligence Junior of the Year' 2015. Previous directory comments from clients have included “My default senior junior” “She can cut through the complex very quickly” and She’s very strong on complex matters.” and“She really gets into the detail and owns a case”. Clients have described Siân as having “a sharp mind and excellent attention to detail”, and reported that “she is excellent – very pleasant to deal with and extremely robust and effective for her clients.” and “a very effective, hard-working practitioner with an eye for detail and the ability to present a highly persuasive argument” and “The great thing about her is that on every occasion her advice is strong, firm and consistent, which allows us to get an excellent settlement.” and “Very bright, robust, dedicated and thorough”.
Siân has wide and considerable experience of professional liability claims, including claims against accountants and auditors, architects, building inspectors, engineers, financial services professionals, insolvency practitioners, insurance brokers and agents, lawyers (solicitors and barristers), surveyors and valuers, receivers, land management agents, farm management agents, estate agents, clinicians and veterinary surgeons. Siân is a TECBAR accredited adjudicator.
Siân also has considerable experience of professional disciplinary tribunals (particularly architects and building inspectors),
4 New Square, Lincoln's Inn, London, WC2A 3RJ T: +44 20 7822 2000 E: [email protected] DX: 1041 London Chancery Lane arbitrations, adjudications and mediations. Having qualified from Cambridge University as a veterinary surgeon in 1992, Siân worked in academic and general practice as a veterinary surgeon before coming to the Bar and joining Chambers in 1998.
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Professional Liability
“Provides easy to understand advice in a timely fashion.” – Legal 500, 2020
“She has always impressed and will thrive in silk.” “She knows the case inside out and backwards, and works incredibly hard.” – Chambers & Partners, 2020
“She is extremely intelligent and quick to grasp the points in a case, providing both legal and commercial advice. She is extremely approachable and is able to deal with difficult instructing clients with calmness and professionalism. Working with her is a pleasure.” – Chambers & Partners, 2020
“She is tremendously bright, has a tenacious eye for detail, and brings a new level of strategic thinking to the table.” – Legal 500, 2019
“She is very competent and thorough and hits the right points in the right places.” “Extremely responsive wherever she is and whatever the time zone. She has a very reassuring demeanour that instils confidence all round.” – Chambers & Partners, 2019
“Siân Mirchandani QC is recognised for her superb professional negligence practice.” – Who’s Who Legal, 2019
Siân has considerable experience of claims involving professionals of all types. With her professional and scientific background, Siân relishes cases which involve scientific aspects or technical issues, and this has led to a strong practice in the Technology & Construction Court with instructions from a wide range of construction professionals including: architects, structural engineers, civil engineers, building surveyors, approved inspectors and project managers.
Siân has become known for adopting a commercial and problem solving approach which has led to instructions from employers, contractors and sub-contractors, and this ‘pure construction’ work complements her continuing construction professionals’ practice.
Siân has particularly developed a practice involving claims arising from design and construction of farm or agricultural buildings, where the combination of her veterinary background and her experience in construction claims as well as professional liability claims has given her clients a considerable advantage.
In recent years Siân has been involved in defending a number of high value claims against major firms of valuers in cases involving commercial properties packaged as ‘tax efficient’ investments in Germany, Denmark and the UK via securitisation transactions. These cases involved valuations using yields and estimates of rental income for hotels (K/S Lincoln et al v CBRE Richard Ellis); factory outlet centres (Capita Alternative Fund Services & Matrix Securities v Drivers Jonas); a large multi-use warehouse and department store in Germany (Titan Europe 2006-3 Plc v Colliers International UK Plc); a group of commercial buildings in London (Whitetower 2006-3 Plc v Colliers International UK Plc); a group of four substantial office buildings near the Tower of London (LRC Holdings v BNP Paribas).
Siân is regularly instructed on behalf of barristers and solicitors being sued by former clients who value her thorough and quick forensic analysis, followed by clear strategies to bring the claims to an early resolution. Recently Siân has pursued successful applications to strike out secondary litigation on the grounds of collateral attack on a prior court’s decision (Ahmed v Clive D Wood;
4 New Square, Lincoln's Inn, London, WC2A 3RJ T: +44 20 7822 2000 E: [email protected] DX: 1041 London Chancery Lane Allsop v A Barrister). Siân is currently defending the conveyancing solicitors who acted on a development of a nursing home, where clients ‘bought’ an interest in individual care suites; and is also defending the conveyancing solicitors who acted for purchasers of ‘off plan’ holiday homes in Cape Verde. Both cases involve groups of claimants bringing tens of claims.
Siân has wide ranging experience of acting on claims for and against accounting professionals for failure to advise on appropriate tax strategies. One recent case involves the accountant’s failure to advise a commercial waste business to apply for Research & Development allowances against tax.
Apart from the main fields of professional liability, Siân has also been involved with claims concerning agricultural land agents’ negligence and estate agent’s negligence.
Siân particularly enjoys cases in all areas of her practice which involve working alongside solicitors, and other professionals, as part of an interchangeable team, dealing with vast amounts of documentation, e-disclosure, or claims involving large numbers of sub- claims and group actions.
Siân has experience of using electronic databases and e-documents, rather than conventional paper documents, and has been involved in an e-disclosure exercise in a major construction claim arising from a housing estate.
Lawyers
Siân has acted in a very wide variety of lawyers’ negligence claims, including lost litigation and other ‘loss of a chance’ and ‘package of rights’ claims (acting for and against both solicitors and barristers) including:
Defending solicitor appointed as arbitrator from challenges under sections 24, 33 and 68 Arbitration Act 1996 & allegations of partiality.
Ahmad v Wood [2018] PNLR 28 –striking out certain allegations for abusive collateral attack, which resulted in the claim value being dramatically reduced Right to Buy ‘case managed’ litigation – a large scale case managed litigation involving thousands of firms of solicitors. Siân acted for one of the Major Defendants, facing thousands of claims arising from their role as conveyancing solicitors acting for council tenants exercising their ‘Right to Buy’. The litigation ended in discontinuance by the Claimants at the start of trial. AIB Group (UK) Limited v Mark Redler & Co Solicitors [2014] UKSC 58 – Supreme Court decision which confirmed that causation of loss must still be proved in a claim for equitable compensation for breach of trust, and the recoverable loss is confined to the loss actually caused by the breach of trust. Arthur J.S. Hall v. Simons [2002] 1 AC 615 – House of Lords’ decision which considered the question of when an attack on a previous court’s decision was an impermissible ‘collateral attack’. This led to the abrogation of barristers’ immunity from suit, a victory for Sian’s clients (the defendant solicitors), who following this decision are now able to pursue a contribution from the barristers they had instructed.
Sian’s wide ranging experience of lawyers’ negligence claims includes:
Pursuing strike out of claims by former clients against barrister acting in an unfair dismissal and discrimination claim Pursuing strike out of claims by former clients against solicitors acting on their ancillary relief claims alongside their divorce Acting for the claimant Government agency against lawyers advising and conducting disciplinary matters against teachers Multi-claimant litigation arising out of a failed development scheme in Cape Verde (re. Sambala) – defending the conveyancing solicitors from claims by purchasers of holiday homes ‘off plan’ Multi-claimant litigation arising out of a failed development scheme for a care home with assisted living apartments in Northamptonshire – defending the conveyancing solicitors. Incorrect advice on planning permission requirements Claims arising out of mismanagement of adjudication proceedings. Loss of litigation / under settlement
4 New Square, Lincoln's Inn, London, WC2A 3RJ T: +44 20 7822 2000 E: [email protected] DX: 1041 London Chancery Lane Scope of solicitor’s duty to client when more than one professional advisor. Collateral attacks on existing judgments Wasted costs applications
Sian’s recent cases are profiled below.
Cases
• AIB Group (UK) plc v Mark Redler & Co Siân acted on behalf of the defendant solicitor at all levels. The case upheld that causation of loss must still be proved in a claim for equitable compensation for breach of trust, and the recoverable loss is confined to the loss actually caused by the breach of trust.
• Defending a firm of solicitors Defending a firm of solicitors for allegedly negligent advice on renewal of a mixed residential/commercial lease.
• Defending various solicitors Defending various solicitors instructed on a wide or limited basis for alleged negligence in ancillary relief settlements and consent orders following divorce.
• Lenders’ claims against solicitors Lenders’ claims against solicitors for failing to report irregularities on mortgage funded property purchases
• Various claims involving alleged conveyancing errors Various claims involving alleged conveyancing errors
• Various claims against solicitors and barristers Various claims against solicitors and barristers acting and advising on matrimonial/ancillary relief matters including issues over pension sharing, company valuations, inadequate disclosure; contact disputes; consent order terms, agreements and Court’s approval
• Claim against a large commercial firm Claim against a large commercial firm for alleged errors in drafting of settlement agreement
• A claim concerning negligent advice
A claim concerning negligent advice to administrative receivers on sale of assets
• Siân Mirchandani QC Acting for a barrister sued following unsuccessful claim in ET. Pursued strike out for collateral attack on Tribunal Decision.
Accountants, Auditors & Actuaries
Accountants, auditors & actuaries
Siân has wide ranging experience of acting for and against accountants, auditors and tax advisers (particularly high net worth individuals’ tax deferral and avoidance schemes involving film finance, or other bespoke investment products).
Siân has acted for and against accountants including the following cases:
4 New Square, Lincoln's Inn, London, WC2A 3RJ T: +44 20 7822 2000 E: [email protected] DX: 1041 London Chancery Lane Acting for accountants alleged to have negligently prepared accounts for a dissolving partnership Acting against accountants alleged to have failed to advise correctly about ‘research & development’ tax relief for a waste management company In a lost litigation case against accountants for negligent advice on payment of VAT for EU cross border business activities, resulting in company insolvency Acting against accountants who advised a ‘Lloyds name’ negligently about tax mitigation Acting on the disclosure exercise for the Chase Manhattan Bank v HIH Insurance The various pieces of this litigation, which centred on particular ‘film slates’ came to involve teams from
Cases
• Acting for accountants Currently acting for accountants alleged to have negligently prepared accounts in the context of a farming partnership dissolution.
• Acting on a high value ‘lost litigation’ Currently acting on a high value ‘lost litigation’ case involving underlying accountants’ negligent advice for payment of VAT for cross borders’ business activities leading to company insolvency.
• Professional disciplinary proceedings Professional disciplinary proceedings arising out of allegedly negligent advice on tax planning
• Acting for various accountants Acting for various accountants on negligent tax advice allegations.
• Acting on behalf of a former Lloyds’ name Acting on behalf of a former Lloyds’ name in a claim against accountants for negligent tax mitigation advice
• Chase Manhattan Bank v HIH Insurance The various pieces of this litigation, which centred on particular ‘film slates’ came to involve teams from many of London’s largest firms of solicitors, and included an enormous disclosure exercise.
Financial Services Professionals
Sian has experience of claims against independent financial advisers, including:
Recently acted for defendant financial advisers in a secure capital bond mis-selling claim. Claims involving tax avoidance schemes involving film finance Pension mis-selling claims. Investment mis-selling and client mis-classification claims Insurance mis-selling claims. Acting on an appointed representatives’ claim brought under the Commercial Agents(Council Directive) Regulations 1993 against the represented insurers.
Sian’s recent experience includes acting on a claim concerning alleged misadvice on a tax avoidance scheme involving film finance.
Insurance Brokers & Agents
Sian has acted for a number of the prominent insurance broking practices. She has also represented clients against their former insurance brokers in claims concerning selling unsuitable products, failing to advise of necessary products, failure by broker and/or client to give material disclosure to insurer; claims concerning a chain of brokers: introducing, producing, placing brokers, and their respective liabilities to insured and insurer. Sian is often instructed in multi-party disputes where both insurers and brokers are defendants.
4 New Square, Lincoln's Inn, London, WC2A 3RJ T: +44 20 7822 2000 E: [email protected] DX: 1041 London Chancery Lane Sian’s experience in this area includes the following cases.
Cases
• Acting for a ship owner against insurance broker Acting for a ship owner against insurance broker for misplacement of risk via an introducing broker and failure to advise of a premium warranty clause.
• Acting in a trial concerning an insurance broker Acting in a trial concerning the insurance broker’s role as agent for passing on information relating to a claim and advising client as to whether an “event” within the policy had occurred.
• Advising a leading insurance brokerage Advising a leading insurance brokerage on a potential claim arising from a dispute over premium refund on a hotels’ package commercial combined insurance policy.
• A claim involving insurers’ avoidance A claim involving insurers’ avoidance due to breach of ‘deep fat frying’ warranty where breach was due to nature of construction of the building housing the restaurant business.
• A dispute amongst brokers A dispute amongst brokers in the broking chain over obligations to review incorrect policy documentation for a property portfolio.
Surveyors & Valuers
Sian is regularly instructed to act on behalf of surveyors and valuers, and has recently been defending a number of claims brought by lenders, as well as pursuing valuers when acting for lenders and solicitors in claims arising out of mortgage transactions.
Sian has a full range of experience of:
Claims brought by lenders Claims concerning overvaluation of properties including farms and commercial valuations based on rental income and yield. Structural survey claims, e.g. failure to detect defects; failure to detect and advise on additional parts; failure to advise of need for additional specialist surveys; failure to advise property based on red shale foundations; property development overvaluations. Claims involving new build properties involving NHBC and other ‘structural’ guarantee policies of insurance
Sian has been instructed in a large number of high value claims against valuers, and is familiar with the valuation methodologies in commercial property valuation for investment purposes and lending practices involved in securitisation transactions and portfolio lending. Sian was instructed in high value claim brought by a securitisation vehicle ‘SPV’ concerning the valuation of a commercial property in Germany and has recently been instructed in another high value claim concerning the valuation of a portfolio of London commercial properties valued at c. £1.5b.
She is a leading junior for this area of work having been instructed in the main cases which are now cited in this area that are outlined below.
Cases
• K/S Lincoln; K/S Chesterfield; K/S Wellingborough v CB Richard Ellis Hotels Ltd Coulson J, in the successful defence of claims concerning hotel valuations brought by Danish property owning vehicles.
• Capita Alternative Fund Services & Matrix Securities v Drivers Jonas A claim concerning valuation of a factory outlet centre in Kent.
4 New Square, Lincoln's Inn, London, WC2A 3RJ T: +44 20 7822 2000 E: [email protected] DX: 1041 London Chancery Lane • Titan (Europe) 2006-3 plc v Colliers The Court of Appeal overturned the decision of Blair J (reported at [2014] EWHC 3106, (Comm)), that the defendant valuer had negligently overvalued a large commercial property in Germany, for the purpose of inclusion in a portfolio of loans to be securitised by Credit Suisse. For a more detailed note on this case, written by instructed counsel, please click here.
Construction Professionals
Sian has a particular interest in claims involving technical and scientific knowledge and this has led to a strong construction and engineering practice. Sian regularly appears in the TCC. Sian has also acted for and against construction professionals in a wide range of construction disputes including arbitrations and a range of adjudications.
Examples of Sian’s work in this area are outlined below.
Cases
• Defending claim against project architect Defending claim against project architect by developer of a town centre, multi-purpose shopping centre, residential, leisure complex involving complex limitation and other issues arising from alleged design defects and failures to detect upon inspection.
• Acting on behalf of town planning consultant Acting on behalf of town planning consultant in a claim concerning a failed application for residential development.
• Acting for architect in claim Acting for architect in claim concerning design and planning of large scale developments of armed forces’ personnel accommodation.
• Defending a claim against the Housing Association Defending claim against Housing Association arising out of planning of roads, walkways and services in a new sheltered housing development.
• Claims concerning design and mismanagement of application for planning permission Claims concerning design and mismanagement of application for planning permission leading to delays and consequential losses in development and refurbishment of listed building.
• Acting for engineer in claim Acting for engineer in claim for allegedly negligent design and installation of duct system in a fire simulation building.
• Acting for architect in claim Acting for architect in claim concerning design and construction of nursing home.
• Acting for uninsured architect in claim Acting for uninsured architect in claim concerning construction in breach of planning restrictions which led to enforcement action.
• Acting for an architect in a claim Acting for uninsured architect in claim concerning construction in breach of planning restrictions which led to enforcement action.
Veterinary Surgeons
Experience of acting on claims against veterinary surgeons, and in defending such claims and in disciplinary matters. Particular experience of claims concerning food production animals; milk production and milk losses; equine loss or amenity value claims; loss of opportunity (prize money in racing, show jumping).
4 New Square, Lincoln's Inn, London, WC2A 3RJ T: +44 20 7822 2000 E: [email protected] DX: 1041 London Chancery Lane Disciplinary
“Her calm and authoritative manner inspires confidence in clients.” – Legal 500, 2020
“Well organised, with a good understanding of clinical issues in cases.” – Legal 500, 2019
Siân has a significant practice in defending professionals before professional disciplinary bodies, including ARB, RIBA, ACCA, ICAEW, RICS. Sian is a former member of the Disciplinary Panel for the Council of the Inns of Court which is concerned with barristers’ conduct and service issues, and was also part of a working party advising the RCVS and drafted the RCVS’ current guidance on the roles of expert witnesses.
Siân has advised on and appeared many times before ARB panels defending architects against a range of complaints including: failure to maintain professional indemnity insurance; letter of engagement or appointment issues; failure to administer the contract; contractual issues; retrospective fees; claims on householder’s building insurance and CAR policies, etc
Cases
• Defending an architect before the RIBA Defending an architect before the RIBA on charges of breach of copyright and supplanting resulting in no sanction.
• Defending architects Defending architects following complaints regarding project management of domestic residential construction or renovation projects, as a preliminary to a civil court claim, with the result the claim has not been pursued at all.
• Successfully defending a veterinary surgeon Successfully defending a veterinary surgeon before the disciplinary panel of the RCVS.
• Successfully appealing a decision Successfully appealing a decision of the examination body of the RCVS in relation to post-graduate qualification.
• Defending accountants before the ACCA Defending accountants before the ACCA, on a number of claims arising out of allegedly negligent tax advice re. domicile; alleged falsification of dates on company return documents.
• Defending an insolvency practitioner Defending an insolvency practitioner before the ICAEW on various claims arising out of an administration. Construction & Engineering
“Tenacious, with a sharp and incisive legal mind.” – Legal 500, 2020
“She always gets straight to the key legal points. She provides good, clear written advice and is excellent on her feet. She has a well-earned and deserved reputation as a construction specialist.” – Chambers & Partners, 2020
“An excellent advocate – tenacious and extremely detailed, identifying potential problems and arguments even before they arise.” – Legal 500, 2019
“Proactive, helpful” and “someone who prepares the case very well.” – Chambers & Partners, 2019
Siân has wide experience of advising and acting for employers, contractors and sub-contractors in disputes brought in the London and regional Technology and Construction Courts, as well as Northern Ireland including:
Acting for the 80 plus Claimant flat owners in a London tower block against the developer and contractor for losses due to a cladding installation which did not have fire retardant properties, in breach of the building regulations, and the Defective
4 New Square, Lincoln's Inn, London, WC2A 3RJ T: +44 20 7822 2000 E: [email protected] DX: 1041 London Chancery Lane Premises Act 1972 Advising employer on early termination of long term maintenance contracts Defending contractor’s claim against specialist screed flooring sub-contractor relating to design responsibility issues for floor installed in a care home. Defending Employer’s claim against contractor for design defects relating to glass façade and M&E installation at a tertiary education college. Contractor’s claim against sub-contractor installing flooring to a building constructed for the London Olympics: NEC3 contract, issue over whether the adjudication clause was effective. Claims arising from detachment of cladding panels from university buildings where installation design had been amended on site Contractor’s claims against employer for non-payment and repudiation following internal offices fit out contract Contractors’ claims against employers in large scale construction and re-furbishment contracts concerning government department and educational buildings. Contractor’s claims against project manager following discovery of defects in demountable buildings in various schools. Acting for housebuilder in respect of a group action pursued by home owners arising from defective piling on a large housing estate. Employer’s claims for early termination of multi-year NEC3 Term Service Contracts Employer’s claim against project manager and main contractor in construction of process plant including design, management and delay issues. Employer’s claim against designer, project manager and contractor for negligent design and construction of a commercial showroom. Employer’s claim against specialist contractor for excessive noise resulting from plant installation for a swimming pool complex. Developer’s consequential claims against a series of architects for planning breaches in construction of new care home Developer’s claims against consulting engineers arising out of the heating installation for a multi-unit residential development Defending warranty and other claims brought against architect – designer of a multi-use commercial City centre development Defending counterclaim against architect brought by housing development company alleging oversized properties were designed
Residential
Considerable experience of residential construction disputes advising and acting for employers, architects, contractors and sub-contractors involving: Failures to advise on guarantees and certificates on a recently refurbished building Failures to comply with design brief Planning breaches resulting in enforcement action Overrun on costs Disciplinary actions following complaints Disputes arising in construction of new replacement building following fire destruction of original listed building
Adjudications
Considerable experience with adjudications including: Defending civil engineers facing claim for failure to detect a live drain across a housing estate construction site. Defended a claim by a developer against the employer’s agent for calculation errors in certificates Delay and claims for expense and loss of profit arising from alleged loss of contracts for construction and refurbishment of tertiary education buildings Claims brought by liquidator following contractor’s insolvency Acting for large contractor against subcontractor concerning final account following the installation of a flue gas desalination plant at a power station. Multiple disputes referred to single adjudicator. Passing claims down chains of adjudications following total destruction of a bespoke wooden building by fire
4 New Square, Lincoln's Inn, London, WC2A 3RJ T: +44 20 7822 2000 E: [email protected] DX: 1041 London Chancery Lane Claims brought by M&E main contractor against sub-contractors and consulting engineers Claims brought by steelwork contractors against consulting engineer/designers for underscale design in a supermarket building Claim by interior fitting out sub-contractor against contractor based overseas
Insolvency context:
Advising insurers of insolvent main contractor on joinder to the construction dispute to pursue an active defence whilst reserving insurers’ defences under the insurance policy. Advising insurers of architect on pursuit of Part 20 contribution proceedings against sub-contractor via assignment of cause of action from contractor (in liquidation) Advising large contractor on pursuit of claims under the Third Party (Rights Against Insurers) Act 1930, against a concrete subcontractor (for defective slipform design, delay and expense) following sub-contractor’s insolvency Acting for insurers facing claim under 1930 Act following explosion and fire at steel fabrication plant Advising and acting for insurers seeking to join action brought against insured following insolvency Advising and acting for excess layer insurers in defending claim under Third Party (Rights Against Insurers) Act 1930, arising from construction of a supermarket
Specialist & unusual buildings:
Advising insurers on a claim due to knotweed contamination of a construction site by a ground clearance contractor Employer’s claim against planning and design architect for failure to advise adequately on budget for a ‘Grand Design’ type conversion of a dis-used water tower. Employer’s claim against design architect following delays and budget overrun on premier league football training facility Acting for a waste recycling company in a claim concerning recovery of payments made to a Dutch company for construction of a waste recycling plant following its insolvency. Advising a Japanese plant engineering company in respect of claims proposed against the project manager and contractors for an engineering project based in Eire. Employer’s claim against contractor and architect for negligent design and construction of a swimming pool complex (arbitration and adjudication) A claim by a farmer against a local authority landlord concerning the negligent farm design by a farm designer engaged by the local authority Acting for design and build contractor (and insurer) in a claim concerning deficient installation of cow cubicles resulting in injury, lameness and loss of production. Defending developer’s claim against architect arising from window design for high-end beachside property Acting for sub-contractor (M&E) in defence of claim for indemnity arising out of alleged flue fire in a completely wooden residential building
Fire, flood nuisance, subsidence & Rylands & Fletcher
Advising insurers on routes of recovery following failure to install fire stopping and cavity barriers in a newly refurbished aparthotel development Advising insurers on routes for recovery following failure of cavity barriers to contain fire in newly built and refurbished building Advising insurers on investigations and routes for recovery following catastrophic gas boiler explosion in block of flats in Kensington Advising insurers on claims arising from spread of fire following pipework soldering by metalwork sub-contractor Advising and pursuing claims by insurer under Contractors’ All Works policy following fire during refurbishment of a nightclub Advising insurers on routes of recovery following fire in fast food restaurant Advising insurers on routes of recovery following fire in wooden building housing a restaurant Advising and pursuing claims following Buncefield explosion Acting for designing mechanical engineer defending a claim by M&E contractor following fire in back up power system installed during commercial property refurbishment
4 New Square, Lincoln's Inn, London, WC2A 3RJ T: +44 20 7822 2000 E: [email protected] DX: 1041 London Chancery Lane Advising insurers on claims following explosion of a food waste digester Numerous subrogated tree root subsidence claims brought by household contents’ insurers, including Tree Preservation Orders, planning permission application and appeal from decision. Numerous subrogated claims by residential household insurers against contractors: Following poor installation of sanitary ware leading to leak claims. Of adjoining construction of housing estate where re-profiling led to water run-off and inundation of adjoining houses.
Cases
• Elaine Naylor & Ors v (1) Galliard Homes LTD (2) Roamquest LTD (3) Galliard Construction LTD (2019) Acting for the 80 plus Claimant flat owners in a London tower block against the developer and contractor for losses due to a cladding installation which did not have fire retardant properties, in breach of the building regulations, and the Defective Premises Act 1972.
A claim form had been issued to protect the limitation position, the court stayed the proceedings for four months to enable the pre- action protocol process to be completed and extended time for service of the particulars of claim. Commercial Dispute Resolution
Siân undertakes a wide range of commercial work, including general and international commercial litigation, personal and corporate insolvency, commercial contractual claims. Siân has experience of pursuing freezing injunctions and pre-action disclosure applications.
Siân recently defended a software developer and two companies against claims of alleged overcharging, fraudulent misrepresentation and deceit, procuring or inducing a breach of contract and conspiracy to injure by unlawful means.
Examples of Siân’s work in this area are included in the cases section below.
Cases
• Advising on claim for alleged negligence Advising on claim for alleged negligence in conduct of laboratory testing as part of a pharmaceutical product licence application; pursuit of lost opportunity to obtain pharmaceutical product license; loss of market lead.
• Defending farm food supplier in a claim Defending farm food supplier in claim for alleged contamination of animal feed leading to herd deaths and loss of profit.
• Defending farm nutrition adviser in a claim Defending farm nutrition adviser in claim for allegedly negligent advice about feeding to a pedigree closed herd.
• A claim for recovery of payments A claim for recovery of payments made to a Dutch company for waste recycling plant, following the Dutch company’s insolvency.
• A claim against US events lighting company A claim against US events lighting company for recovery of fees due to a consultant engaged to assist in acquiring contracts for the Olympic Games at Athens 2004.
• A fraud claim against property development company A fraud claim against property development company arising out of avoidance of sale on contracts for apartments.
• A dispute concerning liability of insurers A dispute concerning liability of insurers under the Third Parties (Rights Against Insurers) Act 1930.
4 New Square, Lincoln's Inn, London, WC2A 3RJ T: +44 20 7822 2000 E: [email protected] DX: 1041 London Chancery Lane • A dispute under the National House Building Council ‘Buildmark’ scheme A dispute under the National House Building Council ‘Buildmark’ scheme.
• A claim for damage to business A claim for damage to business following disruption of telecommunications’ cables.
• A claim for consequential losses and damage A claim for consequential losses and damage caused by supply of defective cattle feed.
• Advising Scottish Power plc Advising Scottish Power plc in respect of injunctive proceedings brought by new occupier Property Damage
Siân has considerable experience of commercial claims, particularly claims involving fires and destruction of commercial and residential property (and contents). Alongside her insurance and reinsurance practice, Siân is regularly instructed in insurers’ subrogated claims following fires.
Current and recent cases are included below.
Cases
• Advising insurers On routes for recovery for claim involving failure of cavity barriers in newly built and refurbished building leading to fire spread.
• Advising supplier Of electronic components used in emergency vehicles on claims arising from fire in a vehicle, including negotiating ‘joint defence’ agreement with US manufacturer.
• Advising insurers Advising insurers of a management company on investigations, routes of claim and pursuit of subrogation following a gas boiler explosion leading to severe damage to a block of flats in Knightsbridge.
• Advising insurers Advising insurers on a spread of fire claim.
• Advising and defending insurers Advising and defending insurers of a supplier of medical equipment implicated in a residential fire involving dependency claims under the Fatal Accidents Act 1976 and building and contents’ claim, as well as international product liability and warranty claims against the manufacturer.
• Advising and defending insurers Advising and defending insurers under a Contractors’ All Works policy following a fire during refurbishment of a leisure club.
• Advising two separate arms of the same multi-national insurance company Advising two separate arms of the same multi-national insurance company as to the meaning and operation of design and operator error exclusions following damage of a food waste digester due to process ‘run away’ leading to over pressurisation damage.
• Advising a local authority’s insurers Advising a local authority’s insurers on expert technical evidence obtained following a fire in a garage that implicated a
4 New Square, Lincoln's Inn, London, WC2A 3RJ T: +44 20 7822 2000 E: [email protected] DX: 1041 London Chancery Lane converted minibus as the cause of the fire, involving claims ‘up the line’ against manufacturers, suppliers and installers of the wheelchair lift fitted to the vehicle.
• Advising and defending household insurers Advising and defending household insurers of residential property adversely affected by run-off of water from adjoining re- profiled building site, resulting in severe inundation of the property. Insurance & Reinsurance
Sian has wide ranging experience of advising and acting for both insurer and insured on claims concerning policy construction and coverage issues. As part of her insurance brokers’ negligence practice Sian is often instructed in claims where the insurer is the co- defendant, following avoidance of a policy.
Sian’s recent cases and experience of claims in this area are included below.
Cases
• Advising professional indemnity insurers Advising professional indemnity insurers on a successful claim for reimbursement under a Minimum Terms policy from an insured for material non-disclosure and late notification.
• Acting for excess layer insurers Acting for excess layer insurers who successfully avoided cover and a claim under the Third Party (Rights Against Insurers) Act 1930 in a multi-million pound multi-party insurance dispute arising from the construction of a supermarket
• Advising on proposed wording of policies for public liability Advising on proposed wording of policies for public liability in public houses and nightclubs, advising on vicarious liability claims.
• Advising and acting for insurers Advising and acting for insurers of domestic and commercial properties on claims raised, accepting and declining cover, policy repudiation in public liability, fire, explosion and domestic insurance situations, including subsidence and tree root claims.
• Claims concerning legal expenses insurance Claims concerning legal expenses insurance, conditional fee agreements and success fee uplifts, pursuit policies and premiums and material non-disclosures to insurers leading to insurers accepting cover in respect of undisclosed liabilities.
• Acting in a variety of multi-party disputes Acting in a variety of multi-party disputes concerning film finance insurance (contingent expenses insurance and time variable contingent policies).
• Acting in claim for payment Acting in claim for payment under health cover plan concerning reference to the Insurance Ombudsman.
• Advising insurers Advising insurers on a ‘spread of fire’ claim.
• Advising insured on claim Advising insured on claim for undersettlement and errors in loss adjustment following a flood claim.
• Advising professional liability insurers Advising professional liability insurers on wholesale declinature of cover due to dishonest structural scheme. Chancery
4 New Square, Lincoln's Inn, London, WC2A 3RJ T: +44 20 7822 2000 E: [email protected] DX: 1041 London Chancery Lane Sian has experience of a variety of chancery matters. These include the cases below.
Cases
• Advising and acting for Trustees Advising and acting for the Trustees of the Independent Living Funds (1993 and the Extension Fund), in matters concerning the interpretation of the founding trust deeds, drafting of new trust deed, claims against local authorities and clients for recovery of overpayments.
• Pursuing an extended Grepe v Loam order Pursuing an extended Grepe v Loam order (Ebert v Venvil) to restrain a persistent litigant-in-person from issuing further proceedings out of High Court, County Court, Bankruptcy Court, including defending defamation claims.
• Acting for mortgagees on enforcement of mortgages Acting for mortgagees on enforcement of mortgages.
• Application for committal to prison for contempt. Application for committal to prison for contempt.
• Acting in landlord and tenant claims Acting in landlord and tenant claims (both residential and commercial). Qualifications & Memberships
Siân is a member of the Professional Negligence Bar Association,the Society of Construction Law, COMBAR, TECBAR, the Chancery Bar Association and the London Common Law & Commercial Bar Association. She is a Committee Member of the Technology and Construction Court Bar Association (TECBAR).
Education
M.A. Vet M.B. (Cantab.) Dip. Law (City) Publications
Surveyors and Valuers chapter of Professional Negligence and Liability 1 September 2018
4 New Square, Lincoln's Inn, London, WC2A 3RJ T: +44 20 7822 2000 E: [email protected] DX: 1041 London Chancery Lane
Powered by TCPDF (www.tcpdf.org) Design Liability & Professional Negligence- Architects’ Liabilities post Grenfell
Siân Mirchandani QC Ben Patten QC 6 November 2019 PNLA Leeds
1
The Cladding Problem
2
Cladding and Insulation
3 The Building Regulations
The Building Regulations 2010 B4(1) required compliance with Approved Document B, Fire Safety 2006 “12.5 The external envelope of a building should not provide a medium for fire spread if it is likely to be a risk to health or safety. The use of combustible materials in the cladding system and extensive cavities may present such a risk in tall buildings. External walls should either meet the guidance given in paragraphs 12.6 to 12.9 or meet the performance criteria given in the BRE Report Fire performance of external thermal insulation for walls of multi storey buildings (BR 135) for cladding systems using full scale test data from BS 8414-1:2002 or BS 8414-2:2005….. Insulation Materials /Products 12.7 In a building with a storey 18m or more above ground level any insulation product, filler material (not including gaskets, sealants and similar) etc. used in the external wall construction should be of limited combustibility (see Appendix A)…..
4
The Standards
. Appendix A - Materials of “limited combustibility” defined in Appendix 7 by reference to (i) a particular European standard and (ii) materials capable of passing certain tests . But Diagram 40 appears to show buildings or more than 18m having lower combustibility requirements . And Approved Document B says that there may other ways of proving compliance …. Various different guidance including that provided by Building Control Alliance (Guidance Note 18) which includes a holistic approach and NHBC 2016 guidance which suggests a more relaxed approach Some manufacturers and suppliers claim their products are compliant Unclear which parts of the wall cladding other than insulation are actually caught Building Inspectors sign off construction which does not contain materials which meet the specific tests
5
Compliance post Grenfell
• Department for Communities and Local Govt circular 22 June 2017 - use only limited combustibility materials
• Building Control Alliance Guidance Note 18 revised – any departure from limited combustibility must be rigorously tested
• Hackitt Report leads to revisions to Approved Document B
• Zero risk attitude adopted by the construction industry and insurers
6 Potential Litigants
The Tenant The Freeholder The Developer The Contractor (traditional or design and build) The Cladding Sub-Contractor (who may be a consultant) The Building Inspector The Architect
And don’t forget those with interests; PI Insurers, NHBC and similar development insurers, Lenders, Parent Companies, Government etc etc
7
The Architect’s Duties
8
Duties to the Client and similar
Contractual duties to • The Developer; • The Design and Build Contractor after novation; • Third Parties by collateral warranty (the Freeholder, its Lenders, the Developer post novation, its Lenders) Rare quasi contractual duties to Tenants – certificates in the form of duty of care agreements Invariably its a duty to act with the skill and care to be expected of a reasonably competent architect. No absolute duty to achieve a particular standard Not simply design: it applies to design coordination and inspection also
9 Tortious Duties
A co-extensive tortious duty of care to all contractual counterparties eg (i) a Client (ii) any Beneficiary of a collateral warranty.
May be important for limitation reasons
But absent an assumption of responsibility, no duty of care to Third Parties (eg a Tenant): without physical damage no duty and even a dangerous building is not a building with physical damage
In practice no duty to anyone who actually relies upon the Architect without a contract (eg the Contractor, a Tenant etc)
10
Statutory Duties
The Architect cannot breach Building Regulations (breach is only committed by someone who constructs the building)
In any event ,neither the Regs nor the Construction Design Management Regulations ground a cause of action
But under the Defective Premises Act 1972 the Architect may owe a statutory duty to persons with interests in the dwelling
Its not a straightforward piece of litigation …..
11
Defective Premises Act 1972
Section 1 “(1) A person taking on work for or in connection with the provision of a dwelling (whether the dwelling is provided by the erection or by the conversion or enlargement of a building) owes a duty— (a) if the dwelling is provided to the order of any person, to that person; and (b)without prejudice to paragraph (a) above, to every person who acquires an interest (whether legal or equitable) in the dwelling; to see that the work which he takes on is done in a workmanlike or, as the case may be, professional manner, with proper materials and so that as regards that work the dwelling will be fit for habitation when completed.” (2) A person who takes on any such work for another on terms that he is to do it in accordance with instructions given by or on behalf of that other shall, to the extent to which he does it properly in accordance with those instructions, be treated for the purposes of this section as discharging the duty imposed on him by subsection (1) above except where he owes a duty to that other to warn him of any defects in the instructions and fails to discharge that duty.
12 Rendlesham Estates Plc v Barr Ltd [2015] 1 WLR 3663
(i) Each individual flat, together with its balcony, constituted a separate dwelling within the meaning of the DPA; (ii) The common parts did not form part of any particular dwelling. However, the construction of the common parts and constituted work carried out for or in connection with the provision of a dwelling applied; (iii) When considering whether a flat is fit for habitation, its condition is to be considered at the date when the work was completed (i.e. the end of any relevant defects liability period); (iv) Whether or not a flat is fit for habitation is to be judged by reference to the standards current at the time when it was built; (v) A risk of failure within the design life of the building of a structural element of the dwelling, which exists at the date of completion (whether known about or not), may make the dwelling unfit for habitation.
13
Was the Architect in Breach ?
14
Breach of Section 1 of the DPA
Likely: the Architect is (i) “a person taking on work for or in connection with the provision of a dwelling” (ii) unlikely to be a person falling within 1(2) and (iii) likely to have a causal role in rendering the dwelling unfit for habitation (if it is unfit). But not all cladding failures will give rise to actions by all owners of dwellings. There may be a breach of the Regs but the dwelling may still be sufficiently safe to may it fit for habitation. This is particularly important for (i) blocks with differing types of cladding (ii) lower floor flats and (iii) blocks with sprinklers and other systems.
15 Breach of the Bolam Duty
This is difficult: • a large number of reputable architects approved the use of combustible materials; • arguably they were all wrong: not a Bolam issue at all because not a question of professional practice; • arguably Edward Wong v Johnson [1984] AC 296 applies; • arguably each case could turn on its facts, but bear in mind Adams v Rhymney Valley [2001] PNLR 4 errors in method don’t matter if the result was within the band permitted by Bolam (a competent result trumps an incompetent way of getting there)
But the real question may be causation
16
Causation Problems (1)
Is it just a question of design ? What happens if the Client has a choice ? Is competent advice: (1) “under the Regs you must not use combustible insulation” (2) “under the Regs there is some doubt over combustible insulation; you should be cautious but its your decision” (3) “the Regs are unclear, there is a risk they exclude combustible insulation but you will almost certainly get the Building Inspector to sign off” ?
Difficult issue in law as to whether an Architect can defend on the basis of the least onerous advice she could have given
17
Causation Problems (2)
. Is the cladding the cause of the loss ? . In cases where there only issue is cladding, it obviously is . But in many (if not most) cases there are other problems discovered when the cladding is investigated . These are often much more serious – particularly wholly inadequate cavity barriers – it is often these defects that render cladding unsafe, as opposed to non-compliant . In those circumstances, does the Architect cause the loss (replacement of all exterior cladding) ? . Is all of the loss within the Architect’s scope of duty ?
18 Limitation, Contribution and the Likely Shape of Claims
19
Limitation
The DPA has a strict 6 year period from either completion, or the end of the defects liability period Appointments may be executed as deeds (usual in substantial projects) but otherwise 6 years Ditto most collateral warranties Limitation in tort likely to be 3 years from date of knowledge Many potential claims may now be statute barred Most claimants have one or more standstill agreements in place
20
Contribution
. The Architect may be sued directly: e.g. D&B Contractor sues both cladding Sub-Contractor and Architect . But usually claimants have more direct and stronger claims against others: the Developer must succeed against the Contractor who must succeed against the Sub-Contractor because each is in breach of the Regs which is an automatic breach of contract. . Architects are most likely to be brought in for contribution eg: Tenants sue Developer who sues Contractor who seeks contribution from Architect . There are no limitation issues in contribution – thus (in the right case) the Architect’s liability under the DPA will be material
21 How will these claims be decided ?
. Possibly haphazardly – like the Lenders claims pre SAAMCO . Possibly in structured litigation in the TCC (although this presents considerable challenges ) . Possibly by the uncoordinated consensus that everyone should wait for a few test cases . There are a large number of complicating extraneous factors, not the least of which is the usual presence of complaints about other defects One thing is clear: no liability on the part of Building Inspectors: The Lessees and Management Company of Herons Court v Heronslea Ltd and Others [2019] EWCA Civ 1423
22
WATCH THIS SPACE or better still, contact Sian Mirchandani QC Ben Patten QC Four New Square
23
4 NEW SQUARE LINCOLN’S INN LONDON WC2A 3RJ WWW.4NEWSQUARE.COM T: +44 20 7822 2000 DX: LDE 1041 E: [email protected]
24 David Pipkin & David Chase Temple Legal Protection Limited
“How to get the most out of your ATE provider” David Pipkin Director Underwriting Division
David has spent over 30 years as a Legal Executive specialising in personal injury litigation. Initially, he was a claimant litigator pursuing leading industrial accident and disease cases. As an Associate at Davies Arnold Cooper for over a decade he managed a team of lawyers and acted for defendants in personal injury and general insurance litigation. In this role, he became involved in the early development of the ATE market, assisting the ABI in their involvement in the Court of Appeal test cases such as Callery v Gray. As the London representative for FOIL he was involved in the liability insurers’ approach to ATE and worked with the government and judiciary in several key consultations. He was a member of the CILEX National Council for over 15 years and was CILEX President in 1995/6. This diversity of experience means that he brings an exceptional knowledge of the practice of law and the management of a law practice to Temple’s customers. His hands-on involvement at a high level of both sides of legal disputes means that he is able to give our customers advice beyond an expert evaluation of the probability of success of a case.
E: [email protected] T:01483 514423 David Chase Deputy Underwriting Manager
David is the Deputy Underwriting Manager in Temple’s Commercial Department who partners with solicitors and brokers to provide litigation (ATE) insurance and funding solutions to businesses and individuals. Having started his career in ATE insurance in 2006 at FirstAssist, David gained experience in litigation funding as an analyst at Burford Capital, before joining Temple Legal Protection in late 2013. Having worked for over 12 years in this evolving market. David has worked with many of the leading law firms in the British Isles. He has extensive and varied experience in risk analysis, case management and long-term relationship management. One of David’s specialisms is his management of our fully-delegated schemes. In his role as Deputy Underwriting Manager, David considers a very wide variety of non-injury litigation including all types of commercial litigation, group actions, professional negligence cases, insolvency actions and contentious probate. He combines strategic activities – evaluating developments such as the impact of ADR on the commercial litigation sector – with expert underwriting in order to assist customers in making efficient and timely use of our litigation (ATE) insurance and funding products.
E: [email protected] T:01483 514424 1
How to make the most out of your ATE provider
6th November 2019
David Pipkin, Underwriting Director David Chase, Deputy Underwriting Manager
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Jonny Bairstow
Effective partnerships enable sharing of risk
3 Effective partnerships enable sharing of risk
• Timing is everything when choosing your partner
• Review your route to market, are you going round the houses?
• Take time to build a relationship with your provider
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Look at the bigger picture
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Look at the bigger picture
• Increase client awareness (by use of a client guide)
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Protect your client from ruin
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Protect your client from ruin
• Could your client afford to lose their house or their business if they are uninsured?
• Insurance cover should be for the opponent’s costs and own disbursements, check the terms
• If the case loses, filling in the claim form will be time well spent
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9 Ask for a tailored service
• Work with your provider to obtain the best solution for the risk(s)
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Is the case in the right place?
11
Is the case in the right place?
• Are you now reasonably able to assess the merits?
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• Are you close to issue but up against it in terms of meeting the limitation date?
• Start your search for insurance and funding as soon as possible
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Meeting is often beneficial
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Meeting is often beneficial
• Ask for a one-hour training / roundtable session from your provider
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15 Don’t be wrong-footed
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Bridging the funding gap
• How can disbursement funding get cases going quicker
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Even up the odds
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Solid and steady wins the race
21 Solid and steady wins the race
• Check who provides the insurance capacity for the litigation, who are the Insurer named on the insurance policy, are they UK based?
• Does your provider have “A rated” capacity?
• Is the provider FCA regulated?
• Do they have a proven reputation over time – do they listen to their client’s needs and also pay a claim when the case loses?
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Questions?
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The experts in legal expenses insurance In partnership with 23 Mark Harper QC Kings Chambers
“Witness Evidence – how to do it properly?”
“Professional Negligence Litigation from the Claimant’s Perspective”
MARK HARPER QC
Year of call: 1993 Year of silk: 2016
Qualifications: Downing College, Cambridge – Law MA Hons (1989 – 1992), Hardwicke Scholar (Lincoln’s Inn)
Clerked by: Gary Young Harry Young
AREAS OF EXPERTISE: Banking & Finance Arbitration Company Commercial Litigation Insolvency Partnership Professional Negligence Real Estate Litigation Sport
Chambers UK
Profile
Mark is a member of the Business and Property team in Chambers. As evidenced by his ranking in Chambers & Partners as a leading silk across 6 practice areas, he is viewed (by peers, solicitors and clients) as the “complete all-rounder” being equally adept at all aspects of the advocate’s role which he couples with tactical/strategical acumen and an affable and approachable style. His skills and reputation as a robust cross-examiner mean that he is particularly sought after for trial work.
Mark appears regularly in the Court of Appeal, High Court and in Arbitrations.
Year of Call: 1993
Year of Silk: 2016
Areas of Expertise
Banking & Finance
Throughout his time at the Bar, Mark has regularly advised and acted on behalf of a number of major banks and finance providers in relation to Banking Litigation to the extent now that he is regarded as one of the leading silks outside London in this area of work. His practice in this regard encompasses (among other things) all issues relating to security enforcement (including challenges to the validity of the security), security rectification and completion, title defect resolution, restitution (in particular recovery of payments by mistake), fraud, guarantees, bills of exchange, consumer credit and professional negligence in the context of the bank/customer relationship.
Significant Reported Cases
Conroy v Kenny [1999] 1 WLR 1340 (unenforceable money-lending contracts)
Arbitration
Company
As an adjunct to his Company Litigation practice, Mark is regularly instructed to provide advice on matters relating to the internal conduct of the affairs of companies and other limited entities including issues surrounding the proper convening and conduct of meetings, reduction of share capital, removal of director/shareholders, alterations to Articles of Association, Shareholder Agreements. Significant/Reported Cases
Zavarco Plc v Nasir [2017] EWHC 2877 – entitlement to forfeit shares allotted on incorporation
Acting on behalf of Sheffield United Plc in relation to their reduction of share capital.
Commercial Litigation
Mark regularly provides representation and advice on litigation proceeding in the Chancery Division, Commercial Court, Mercantile Court and Technology & Construction Court with his expertise in this area including agency, company litigation (including shareholder disputes and claims against directors/fiduciaries), confidential information, contract disputes, employer/employee post-termination disputes, insurance, restraint of trade and sale of goods.
Significant/Reported Cases
Wootliff v Rushton-Turner & others [2017] EWHC 3129 – unfair prejudice petition considering whether or not a joint venture company was a quasi-partnership and whether or not removal and/or dilution of shares was unfairly prejudicial conduct
Wootliff v Ruston-Turner & others - jurisdiction under s996 Companies Act 2006 wide enough to include a payment of compensation by the Company to the Petitioner for wrongful dismissal.
Brian John Harris v Microfusion 2003-2 LLP & others – representing the C (being the representative of a group of investors in a Film Partnership LLP) in seeking permission to bring common law derivative claim against the operators of the LLP. Permission granted at first instance for 2/3 claims with issue to be considered by the CA in 2016
MTC (UK) Ltd v Sir Bradley Wiggins [2014] – represented Sir Bradley in defending the claim brought by his former management company for alleged breach of contract in terminating the management agreement and an account of commissions/payments due.
Houlgrave v Houlgrave and Beaconsfield Footwear Limited -Mark acted as junior to Lesley Anderson QC representing the Claimant in 2012 (one of the largest claims to be heard on the Northern Circuit).The claim alleged that the Claimant was deceived by the Defendants to sell his shares at below market value thereby enabling the shares to be sold there-after for their true market value. The claim involved a consideration of the circumstances in which one shareholder/company can be a fiduciary to an excluded shareholder/director. The trial lasted 8 weeks (Norris J)before compromising.
Sikorski v Sikorski [2012] EWHC 1613 –unfair prejudice petition and the circumstances in which a breach of a shareholders agreement could found such a petition and the circumstances in which relief other than a share-purchase order would be appropriate
Proactive Sports Management Ltd v Rooney & Others [2010] EWHC 1807 (QB) (restraint of trade in the context of an agreement between football player and agent)
Proactive Sports Management Limited v Rooney [2011] EWCA Civ 1444 - (acting for Wayne Rooney (lead by Paul Chaisty QC) in successfully upholding the first instance decision that his Image Rights Representation Agreement was an unreasonable restraint of trade).
Quinn v CC Automotive Group Ltd (t/a Carcraft) [2010] EWCA Civ 1412 – apparent authority and the issue of the knowledge on the part of the person dealing with the apparent agent which will prevent them from relying upon the apparent authority
Office of Fair Trading v Miller [2009] EWCA (Civ) 34 (committal proceedings in the context of breaches of Stop-Now Orders)
Nigel Fryer Joinery Services Limited v Ian Firth Hardware Limited [2008] EWHC 767(Ch) (issues of repudiation and compensation entitlement under the Commercial Agents Regulations)
Forrest & Sons Limited v CGU Insurance Plc [2006] Lloyd's Rep. I.R. 113(variation of risk, alterations, disclosure in relation to insurance contract)
First Quench Retailing Limited v Whitbread Plc [2004] EWHC 366 (Ch)(rectification of commercial contract)
Fortman Holdings Ltd v Modem Holdings Ltd [2001] EWCA Civ 1235 (construction of accelerated payment(s) clause)
Insolvency
Mark regularly provides advice and representation in relation to all issues arising out of corporate and personal insolvency with particular emphasis on (a) contentious proceedings in relation to allegations of misfeasance, transactions at an undervalue, preference and transactions to defraud creditors; (b) challenges to the appointments and/or decisions of office holders; (c) income payments orders in the context of personal bankruptcy and (d) suspension of discharge in the context of personal bankruptcy. This aspect of Mark’s practice also includes Company Director Disqualification and Public Interest Winding Up with him building on the experiences he had whilst acting for the Secretary of State for in excess of 12 years.
Significant/Reported Cases Darren Neil Masters v Barclays Bank Plc [2013] EWHC 2166(Ch) -jurisdiction to hear a bankruptcy petition under the Insolvency Act1986s265(1)(c)(ii) in respect of a debtor ordinarily resident in Florida in connection with aircraft financing agreed within the jurisdiction.
AG (Manchester) Ltd (formerly Accident Group Ltd) (In Liquidation), Re [2008] EWHC 64 (Ch); (acting for former Finance Director of the Accident Group in relation to Directors Disqualification Proceedings)
Secretary of State for Trade & Industry v Thornbury [2008] BCC 768 (Crown Debts allegation in Directors Disqualification Proceedings)
Customs & Excise Commissioners v Anglo Overseas Ltd [2004] EWHC (Ch) 2198 (disputed winding up petition in relation to unpaid excise duty claimed from innocent guarantor following "slaughtering" of consignments)
Secretary of State for Trade & Industry v Gill & others [2006] BCC 725 (Directors Disqualification Proceedings arising out of insolvency of World of Leather and Uno)
Secretary of State for Trade & Industry v Gill & others [2005] BCC 24 (amendments in Directors Disqualification Proceedings)
Partnership
Mark has developed a leading practice in the area of partnership law (as recognised by his recommendation in this field in Chambers & Partners). His practice in this area involves advice and representation in relation to all aspects of partnership law (including the applicability of Equality Legislation in the context of partnership disputes) and he is a regular "port of call" for professional partnerships in the North West (or individual partners within such partnerships) when advice is needed in connection with partnership matters, in particular exclusion of partners, breakdown in relationships between partners and the protection of partnership assets consequential upon the same.
Professional Negligence
Mark has considerable experience of providing advice and representation to both Claimants and Insurers in relation to professional negligence claims involving solicitors, accountants, financial advisers, and surveyors. This practice involves a considerable amount of work concerning the mis- selling of financial, investment and tax-saving products and schemes including products such as alternative invest markets, unregulated collective investment schemes, film schemes, environmental/eco tax saving schemes, endowment purchase schemes etc.
Significant/Reported Cases
Redstone Mortgages Ltd v B Legal Ltd [2014] EWHC 3398– Mark has (together with Paul Chaisty QC) acted and provided advice to the Claimant I (where the Claimant was the transferor of sub-prime mortgages) in 4 x test professional negligence claims against the solicitors who were responsible for perfecting the security and who alleged that their obligations had been circumscribed by a course of dealing with the transferee and the presence of title insurance
Real Estate Litigation
As represented by his reported cases Mark has experience of property litigation in a variety of areas
Significant/Reported Cases
Lavelle v Lavelle [2004] EWCA Civ 223 (presumption of advancement)
Russell v Finn [2003] EWCA Civ 399 (right of way and the construction of the extent of the dominant land)
Mulvaney v Gough [2003] 1 WLR 360 (CA) (easement - enjoyment of garden)
Halstead v Manchester City Council [1998] 1 All ER 33 (interest on CPO compensation)
Sport
Mark's Dispute Resolution Practice (see above) involves sports related disputes and his experience in this regard is illustrated by his representation of Sir Bradley Wiggins and (with Paul Chaisty QC) of Wayne Rooney in their disputes with their former management companies (see under Commercial Litigation). Mark's practice also encompasses providing advice and representation in relation to (a) proceedings before Sports Tribunals; (b) arbitrations; (c) challenges in the Courts to the disciplinary decisions of Sporting Bodies (including applications by disciplined clubs to be reinstated to competitions or leagues); and (d) contractual disputes between players and clubs etc. Significant/Reported Cases
Mark acted for Michael Turl in successfully opposing the appeal by the FA that challenged as unduly lenient the fine imposed on him by a Regulatory Commission following his admission that he breached Regulation 4.3 of the Owner and Director Test Regulations by providing a false declaration
Cardiff City v Barnes & others – currently acting for Carly Barnes in defending a claim brought against her in her capacity as a football agent arising out of the fall-out between Cardiff City and Malky Mackay and Iain Moody. Listed for trial in London Commercial Court in October
MTC (UK) Ltd v Sir Bradley Wiggins [2014] – represented Sir Bradley in defending the claim brought by his former management company for alleged breach of contract in terminating the management agreement and an account of commissions/payments due.
Proactive Sports Management Ltd v Rooney & Others [2010] EWHC 1807 (QB) (restraint of trade in the context of an agreement between football player and agent)
Proactive Sports Management Limited v Rooney [2011] EWCA Civ 1444 - (acting for Wayne Rooney (lead by Paul Chaisty QC) in successfully upholding the first instance decision that his Image Rights Representation Agreement was an unreasonable restraint of trade).
Bolton Wanderers FC v Middlesborough FC - Premier League Arbitration in relation to fees due following transfer of Michael Ricketts and construction of words "live Sky Games" in a transfer contract.
Hemmingborough Cricket Club v Yorkshire & District Senior Cricket League - acting on behalf of the League in opposing an application for an injunction and a claim for damages following the decision by the League to exclude the Club from the competition pursuant to the disciplinary procedures of the League.
Hunslett Warriors Amateur Rugby League Football Club v (1) National Conference League and (2) British Amateur Rugby League - acting on behalf of the Leagues in successfully opposing an application for an injunction by the club to be reinstated in the Leagues following their demotion pursuant to the disciplinary procedures of the Leagues.
A.J. Sullivan v St. Helens RFC -acted on behalf of the player in this contractual dispute with his club over an entitlement to a testimonial bonus.
Denis Betts v Wigan Rugby League Football Club - acted on behalf of the player/coach pre-litigation in a contractual dispute with his club.
Memberships
Chancery Bar Association
Northern Chancery Bar Association
Northern Circuit Commercial Bar Association
Recent Reported Cases
Buckingham Homes Ltd v Rutter & Others [2019] EWHC 1760 (Ch) – successfully acted for the defendant directors in defending a claim that they had breached their statutory duties by selling a property as opposed to retaining and developing it
Re Audas Group Litd [2019] EWHC 2304 (Ch) – successfully acted for the petitioner in establishing that he had been unfairly prejudiced as the majority shareholders had dismissed him when acting in bad faith and/or for improper purpose, had not offered him fair value for his shares and had managed the company post his exclusion without complying with the terms of the Shareholders Agreement
Zavarco Plc v Nasir [2017] EWHC 2877 – requirement for subscriber shares of €36 million to be paid in cash and the interaction between sections 584, 593 and 594 CA 2006
Philbin v Davies [2018] EWHC 3472 – setting aside a statutory demand presented on the basis of the alleged shortfall debt under a consumer loan where the agreement was subject to an unfair relationship challenge and there was a claim that the security had been sold at an undervalue.
Re Capital Funding One Limited (in Administration) [2017] EWHC 3567 – issue as to what were the applicable repayment terms under a loan and therefore whether or not Administrators had been validly appointed
Utilise TDS Ltd v Neil Davies & others [2016] EWHC 2127 – whether or not an implied term reserving the Cs’ rights to proceed with claims against other defendants was to be implied into a contract of settlement
Publications
“Can I have my deposit back please” (insolvency position where consumer deposits are used to fund insolvent companies) [2014] 6 CRI 225 “Fiduciary Duties owed to the excluded shareholder” (with Lesley Anderson QC) Law & Financial Market Review January 2013
Qualifications and Awards
Downing College, Cambridge – Law MA Hons (1989 – 1992)
Hardwicke Scholar (Lincoln’s Inn)
Recommendations
Chambers UK 2018
"Mark is astute and commercial, as well as being dependable and widely admired."
"Very calm, level-headed, approachable and methodical. He's forceful without being aggressive."
"He has excellent commercial awareness and, having seen him in court, he is an exceptional advocate." "He is very organised, clear and a very nice chap."
"An impressive advocate who is highly approachable, very practical and structured in his thinking and gives sensible commercial advice with no waffle."
"He's very thorough, personable and incisive. An excellent advocate who focuses on the key issues."
Legal 500 2018
‘He has a great bedside manner with clients.’
Legal 500 2017
‘A team player throughout the litigation process.’
Chambers UK 2017
"The speed at which he can turn things round is incredible. He is a great advocate who is quick at thinking on his feet, and his way with the judiciary is great." "He is fantastic."
"His reputation is excellent and he gives a first-rate service to clients." "He is very pragmatic, very user-friendly and very good on his feet."
"He's always a very safe pair of hands - excellent and good with clients, he is short and succinct in his advice, which goes down well." "He's a class above most and very good on his feet before a judge."
"An excellent trial advocate who excels at tough cross-examination." "He's always a very safe pair of hands. He's excellent, good with clients, and short and succinct in his advice which goes down well."
Chambers UK 2016
"Technically excellent."
"A safe pair of hands and very commercial."
Recent work: Represented Travel Counsellors against Barclays Bank in claims alleging the mis-selling of an interest swap product and the improper deduction of 'fees' from accounts.
"An extremely capable lawyer and a very hard worker. He leaves no stone unturned in seeking out the detail of a matter and is confident in his own abilities. He has the hallmark of quality."
"Forthright, exceptionally commercial and gets straight to the nub of the issue - exactly what the clients want."
Chambers UK 2015
"He's pragmatic and very user-friendly, and his advocacy is also excellent."
"When you see that you're against him your heart sinks." "He's an astute tactician. He doesn't sugar the pill, and clients certainly appreciate that."
"He is quietly and efficiently effective." "He is very quick at spotting the issues and distilling them down into simple advice and action."
Chambers UK 2014
"He always gives a consistent performance in court. He is softly spoken, measured and always gets on with judges - that's how he wins cases."-
"He provides a superb all-round service, combining strong technical skills with a personable approach. He is regarded as one of the best in his field in commercial litigation."
"He is very bright and effective – I would not hesitate to instruct him."
Legal 500 2014
"A must-go-to junior counsel"
Chambers UK 2013
“Mark Harper is a barrister with a strong commercial chancery practice. He focuses largely on unfair prejudice petitions. According to one interviewee: "You can drop him into any situation and he will rise to the challenge."
“Mark Harper receives praise for his "strong advocacy skills." He is especially adept at cross-examination as "he is able to identify and exploit weaknesses in his opponents to great effect. "He has notable expertise in matters such as shareholder and commercial disputes, professional negligence cases and restraint of trade matters”
“Mark Harper who is sought out by instructing solicitors for his experience in the asset finance sector. He is recommended “ WITNESS EVIDENCE – HOW TO DO IT PROPERLY
Mark Harper QC – Kings Chambers
1. There is currently a working group looking at whether or not the rules on and approach to witness statements should be reformed. All options are under consideration from dispensing with them all together to pre-hearing depositions. 2. Disclosure1 and witness statements (and the consequential time and cost involved in preparing and dealing with the same) have long been identified as factors that have a detrimental impact on the efficient and speedy disposal of litigation and thereby undermine the jurisdiction’s position when considered against the competing claims of jurisdictions such as New York, Singapore and Continental Europe.2 3. There is a real concern amongst the judiciary and the profession that sight has been lost of the purpose and function of witness evidence and therefore witness statements and that there is a fear of preparing and relying upon concise statements. See the following extract from the Law Gazette 10.05.19 “Witness statements set for reform”:
“Commercial Court judge Mr Justice Andrew Baker, who is involved in a working group currently looking at reform of witness evidence, addressed the conference in a personal capacity. He said that while witness statements could be a useful introduction to the factual case a party would be aiming to prove at trial, he did not read such statements believing them to be the evidence that a witness would actually be capable of giving at trial if called to do so. ‘It may surprise you to learn that by in large, the judiciary have a working knowledge and understanding of the research about human memory and its fallibility,’ he said.
Baker noted that if witness statements were shortened, this would not necessarily make them less expensive, and parties would still have a ‘legitimate’ desire to set out a more detailed exposition of their factual case. ‘The real question is, does that have to be done somewhat artificially, through the mouth of a witness, rather than in some different form?’ he asked.”
4. The fallacy that the longer and more detailed the witness statement the better is exposed by the fact that the truth and reliability of a witness and their evidence is
1 Reform being trialled in the B&P Courts – CPR 51U 2 Law Gazette “Witness Statements set for reform” 10.05.19
1 never judged by the quality of their written evidence but the quality of their oral evidence. A good cross-examination of a witness will be founded on the documents and take the witness away from the “comfort blanket” of their witness statement only referring to the same to compare and contrast or to identify blatant errors/ridiculous statements. 5. The issues that are being considered by the working group and that have provoked the consideration of reform can inform the proper presentation of witness evidence even if reform is not forthcoming. However before doing that a refresher of the basics is a good idea: a. CPR 32.2(1) – where a fact needs to be proved by the evidence of witnesses it is to be proved by oral evidence from a witness in respect of whom a witness statement has been served (CPR 32.4); b. CPR 32.4(1) – the witness statement should contain the evidence that the witness would be allowed to give orally; c. CPR 32.4(2) – the oral evidence should only be addressed to the facts that need to be decided by oral evidence at trial. d. An obvious but overlooked starting point for the preparation of a witness statement is the mandatory provisions of CPR 32.8 and PD32 paragraphs 17 – 20; e. CPR 32PD paragraph 18.1 – own words; f. CPR 32PD paragraph 18.2 – knowledge and sources of knowledge; g. CPR 32PD paragraph 19.2 – chronological sequence of events being dealt with AND each paragraph confined to one distinct subject/portion of subject 6. Beware the “confirmatory” witness statement!! If a witness is confirming what another witness has said be clear as to what parts of the evidence they are confirming and their source(s) of knowledge for the same. 7. If you have multiple parties or witnesses – don’t have each witness statement go over the same events unless a particular witness has a different role in or perspective/recollection of those events. 8. The issues raised in the working group on witness statement reform:
2 a. A witness statement should be in the witness’s own words;3 i. This is present – see above; ii. Ought to avoid the use of witness statements to advance legal submissions, points of procedure and commentary on documents. These are not matters upon which a witness can give oral evidence; iii. However, it is difficult to police as a witness statement will inevitably be somebody else’s words as the person taking the statement will have to take instructions, interpret them and then express them in a witness statement. b. A witness statement should set out details of the deponent’s extent and quality of their recollection of the events that they are giving about and how this recollection has been assisted. i. It is fundamental to know precisely what a witness can recall aided, what recollections have been assisted and by reference to what documents a recollection has been assisted. It ought to focus the minds on the function of witness evidence and limit witness statements to those disputed factual issues that the witness is able to give evidence on. ii. In this regard a witness puts themselves in the best position of recollecting events if they are provided with and can review the disclosed documents that relate to the events they are seeking to recollect as opposed to “cherry picked” documents. c. Witness evidence should only address those allegations in a case that cannot be proved by documentary evidence. i. There is a lot of support for this as it leads to time saved in cross- examination, more focus in the trial on judicial consideration of documents independently of cross-examination and should avoid crafted witness statements commentating on the documents; ii. However –
3 Final Woolf Report (1996) p130 recommended a statement to this effect in each witness statement unless there is a specific reason why it cannot be done
3 1. How do you decide what issues can be proved by documents? 2. If there is an issue then there will obviously be competing views of what the documents say or how they should be interpreted. 3. Understanding of a document can be informed by oral evidence as to relevant circumstances. 4. Time taken up and costs incurred pre-trial in deciding these issues at a time when the Court is not informed enough to be able to determine any dispute iii. Lesson – think to what extent does a witness need to deal in a witness statement with a document? If the document speaks for itself then shouldn’t need to deal with it. If it’s ambiguous, incomplete or potentially in conflict with what the witness recalls he/she may want to deal with it. d. Useful for parties at CMC (especially when disclosure issues are being considered) to agree those issues in dispute that will be addressed by witness evidence. Good idea for a witness statement to identify at the outset the factual issues that he/she is going to address and insofar as the witness statement goes beyond that, why it is considered that that evidence is or could be relevant. 9. Way Forward: a. What are, by reference to the list of issues in the case, the issues in the case that need to be addressed or proved by witness evidence? b. Have these identified and agreed at the earliest opportunity and by or at the CCMC – will help with the Court then understanding the extent of the work involved for costs budgeting. c. In relation to those issues: i. What person(s) can or will need to give oral evidence? – in this regard bear in mind the fact that adverse inferences can be drawn from the failure to call a witness who could have been expected to have given evidence on an issue. ii. Can the same person give evidence on all issues? iii. Is it necessary for anyone else to provide such evidence?
4 iv. What is their evidence on those issues? v. Is there any need to give evidence on anything else? d. Consider directions limiting numbers of witnesses or length of witness statements.
MARK HARPER QC
Kings Chambers
24 October 2019
MANCHESTER LEEDS BIRMINGHAM 36 Young Street 5 Park Square Embassy House Manchester Leeds 60 Church Street M3 3FT LS1 2NE Birmingham B3 2DJ DX:7181889MCH3) DX:713113(LEEDS PKSQ) DX:13023(BIRMINGHAM) Tel: 0845 034 3444 www.kingschambers.com Fax: 0845 034 3445
5 Professional Negligence Litigation from the Claimant’s Perspective
Mark Harper QC
The below is an outline that will be expanded upon during the oral presentation
“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”
“To know your enemy, you must become your enemy”
Whilst litigation should not be viewed as or in fact be akin to a war, the above quotations from The Art of War by Sun Tzu are apt to illustrate the approach which should be adopted to preparation for any litigation but in particular professional negligence litigation from the point of view of the claimant. This is especially in circumstances where the aim of any litigation should be to manoeuvre your client into the best and strongest position from which they can control the outcome of the litigation by an acceptable consensual resolution.
No litigation can be prepared for or embarked upon without first knowing what the claimant wishes to achieve – the strategy is dovetailed to the desired outcome(s). For example; experience of professional negligence litigation dictates that claims that are not settled after a proper protocol process/shortly after close of pleadings will, in all likelihood, proceed to trial (see below). To this end a claimant needs to be clear at the outset as to what their commitment to the litigation is. If it is to proceed to trial unless a certain level of offer is made, then the strategy can be devised accordingly as well as consideration given to the means of ensuring that the claimant can financially achieve this. To this end therefore “know yourself” before a claim is intimated or litigation is commenced.
The nature of the defendant in such litigation (i.e. professional indemnity insurer – (“PII”)) and how they will operate are key factors. Unless your strategy is targeted on these factors then it is unlikely that you will achieve a consensual resolution efficiently or speedily or at all. As with all insurers, the PII are in the business of risk. Defending claims brought against their insured is a foundation of their business as is ensuring that claims are not accepted or compromised without robust testing. They ordinarily have “nothing to lose” by backing advice that they have been given that (e.g.) they have a 60% chance of successfully defending a claim as opposed to settling the claim for less than they would be ordered to pay if their defence is unsuccessful. It is important that claimants appreciate this from the outset. Save in exceptional circumstances a PII is unlikely to get “cold feet” as a case progresses to trial.
The PII will take decisions based on professional advice. If a decision is taken to defend a claim and that defence is unsuccessful then the PII needs a chain of accountability as to the making of the decision and the reasons why. The key for the claimant’s team is appreciating this and informing their strategy accordingly (i.e. “know the enemy”). The aim has to be to present the claimant’s case (especially during the protocol period) in such a way that it becomes difficult for the defendant’s legal team to advise the PII that a defence has good prospects of success or that it would be worth proceeding with the same in the context of an offer from the claimant to settle. There is nothing easier for a PII than a situation where the defendant’s legal team reports that they (for example) cannot understand how a claim is being put legally/evidentially or even if the claim is made out how any loss and damage has been suffered.
To this end when the claimant embarks on complying with the protocol it needs to have the claim in a state of readiness that subject to reviewing any response from the defendant would be ready to commence and progress on directions through to a trial. To this end you need to know and be able to communicate to the defendant:
• The witness and documentary evidence that will be relied upon in establishing the facts relevant to the claim; • The documents you would expect the defendant to be considering and disclosing as part of its assessment of and response to the claim; • Any expert evidence required to plead and allege liability; • The chain of causation; • The loss and damage suffered and the calculation of or an indication as to the same together with setting out the steps that will be required to calculate the same.
There has to be a “front-loading” of work and costs. If a compromise is not achieved, then this will assist the claimant in progressing the claim efficiently and speedily through directions. Also, such costs will be incurred and therefore immune from being challenged or interfered with as part of costs management.
Once the claim is sent you await the response. Be realistic when requests are made for further time in which to consider and respond. You are not going to get progress on resolving the claim if the PII has not been able to take advice on, assess and provide its response to the claim.
When you receive the response and there are questions raised by the defendant (e.g. they don’t understand an aspect of the claim, they need further information etc) then remember the above quote and “become your enemy” – if you were acting for the defendant would you have the lack of understanding or need the information requested? In any event ask the question – what’s the harm in providing the same? It shows you are in command of the claim and able to respond as opposed to being seen not answer because you cannot. Again consider your strategy – if you want to manoeuvre the parties to an early negotiation then clearly answering requests for information will assist in that regard. Importantly if you are not going to answer a request state why you are not going to.
“By failing to prepare, you are preparing to fail”
Benjamin Franklin Q&A Dan Stacey Hailsham Chambers
“Professional Negligence Costs Update” Dan Stacey
Call: 1996
Dan Stacey is a senior junior barrister who specialises in professional indemnity and costs litigation. He has been rated in the main directories for many years for both professional negligence and costs and he has appeared in numerous reported cases in the High Court, Court of Appeal and Supreme Court (including Page v Hewetts and Grondona v Stoffel). “Bright, articulate and a great team player … he is good on his feet. Very relaxed as an advocate; he always seems completely unfazed. He has a really nice style and gets good results” Chambers UK 2019. “A pleasure to work with. He is superb on his feet, gives excellent advice on paper and in conference, and he’s always got time to speak. He is a very friendly, switched-on, clever guy” “A lawyer who gets up to speed quickly and is calm and effective throughout” Chambers UK 2018. He is a co- editor of the latest (4th) 2019 edition of Friston on Costs and edited the Security for Costs chapter. He also provides advice and advocacy in areas related to his main areas of practice, including insurance and banking disputes, and regulatory and SDT matters.
Professional negligence
Costs litigation
Commercial law PROFESSIONAL NEGLIGENCE
COSTS UPDATE
The talk focuses upon the costs issues which arise regularly in the conduct of a professional negligence action, particularly where there have been recent developments in the case law or regulatory requirements. It does so from the perspective of the issues frequently faced by a busy professional negligence practitioner (drafting retainers; budgeting; disclosure applications; difficult clients) and aims to help in avoiding elephant traps or (from another perspective) to take advantage of those who have tumbled unaware into the trap (or traps!). Particular topics covered are:
• Ensuring the retainer/CFA covers the right Defendant Law v Liverpool CC [2005] EWHC 90020 Malone v Birmingham Community NHS Trust [2018] EWCA Civ 1376
• Funding/Budgeting Proportionality: Barts Health NHS Trust v Salmon (HHJ Dight, London CC, 17.1.19). Damages Based Regulations - coming back to life in 2019? Indemnity costs and disapplication of budgets.
• Pre-Action Disclosure How to get hold of the file; and how to resist disclosure. Higgins v TLT [2017] EWHC 3868 (Barling J) Hanley v JC&A Solicitors [2018] EWHC 2592 (Soole J) Lien vs. CPR 31.16
• Security for costs ATE insurance. Or Deed of Indemnity? Premier Motorauctions v PWC [2017] EWCA Civ 1872 SARPD Oil International Ltd v Addax Energy SA & Anor [2016] EWCA Civ 120 at par. 49. Infinity v Khan Partnership (Deputy Master Arkush, May 2019)
• CPR Part 36 Withdrawal of offer made in error: CPR 36.10(3). Evans v Royal Wolverhampton Hosp [2015] 1 WLR 4695
• The Risks of Termination If you get it wrong, you don’t get paid a penny Underwood, Son & Piper v Lewis [1894] 2 QB 306
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Richard Buxton v Mills-Owen [2010] 1 WLR 1997 SRA v Howell-Richardson (14.11.18)
• Payment on account of costs Why not ask for the whole lot? Can apply at trial or on acceptance of Part 36 Offer: Global Assets and others v Grandlane Developments [2019] EWCA Civ 1764 Illingworth (a Minor by his Litigation Friend) v Hull & East Yorkshire Hospitals NHS Trust (25 February 2019, HHJ Graham Robinson) 80/90% of the budget frequently ordered: Cleveland Bridge v Sarens [2018] EWHC 827 (TCC)
• Costs orders against non-parties Where the party to litigation can’t pay Insurers – Travelers v X; Giambrone/AIG Europe [2019] EWHC 34 Third party funders. Death of the Arkin cap – see Davey v Money [2019] EWHC 997 (Snowden J)? Applications for wasted costs – Willers v Joyce [2019] EWHC 2183. (Express waiver of privilege from the client on terms that will not enforce any costs order against them?) Dan Stacey Hailsham Chambers 24th October 2019
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Chair’s closing remarks