News

  • Poonam Melwani QC and Belinda Bucknall QC feature in the Top 100 women in Shipping for 2019View More

    Fri, 21 February, 2020

    We are delighted that Poonam Melwani QC and Belinda Bucknall QC both feature in the Top 100 women in Shipping for 2019. Congratulations to them both!

    2019 was the year devoted to Women in the Shipping Industry: “Empowering Women in the Maritime Community” was IMO’s theme for World Maritime Day 2019. 

     

    Quadrant Chambers holds a pre-eminent position in the shipping market. We are top ranked as a set in Chambers UK and Global Editions and in The Legal 500 and were named Shipping Set of the Year in 2020 (Legal 500), 2019 (Legal 500) and 2018 (Chambers UK Bar). We are proud of our strong team of female shipping specialists in Nichola Warrender, Ruth Hosking, Caroline Pounds, Saira Paruk, Gemma Morgan, Natalie Moore, Stephanie Barrett, Claudia Wilmot-Smith and Emily McWilliams. 

    Poonam Melwani QC

    Poonam Melwani QC is a commercial silk who practises across the full spectrum of commercial, insurance, energy and shipping law, providing advisory and advocacy services. Praised as "...always in demand, she is as good on her feet as she is adept at mastering complex legal, factual and expert material...." (Chambers UK) Poonam has been ranked as a 'Leading Silk' over many years by the Legal Directories. She represents clients in a wide variety of jurisdictions and arbitral regimes including ICC, LCIA, LMAA and ad hoc, as well as English High Court Litigation, mainly in the Commercial Court and the Appellate Courts.

    Poonam’s clients want her for their “difficult cases” where innovative thinking and oversight of a large team, complex issues and mult-strands are necessary. In Commerzbank v Pauline Shipping [2017] 1 WLR 3497 Poonam successfully argued that asymmetrical jurisdiction clauses, prevalent in banking agreements, are exclusive jurisdiction clauses for the purposes of Brussels 1 Recast, an issue and judgment which has attracted widespread attention. She concluded the CSAV v Hin Pro Litigation [2015] 2 Lloyds Rep 1 (Court of Appeal) and [2015] 1 Lloyds Rep 301 where a new approach to damages for breach of exclusive jurisdiction clause was adopted.  Poonam recently concluded Latin American Investments v Maroil Trading involving joint venture shareholders of a fleet of vessels and complex allegations of breach of fiduciary duty, secret profits and fraud and where Poonam successfully obtained a WWFO of over US$60 million.  Poonam led an entirely new team in the action of Zumax v FCMB on the imposition of trusts/equitable obligations in the context of international bank transfers involving correspondent banks, successfully overturning the judgment entered against the bank, in a claim pleaded at over US$210 million.

    Poonam has also acted on an enormous amount of marine insurance work and significant re-insurance work. Cases include: The US$20 million reinsurance dispute of Beazley Underwriting Ltd v Al Ahleia Insurance Co [2013] Lloyds Rep I.R. 561 where Poonam successfully represented insurers and made new law and two recent confidential scuttling cases. 

    > view Poonam's full profile

    poonam.melwani@quadrantchambers.com

     

    Belinda Bucknall QC, Door Tenant

    Belinda Bucknall QC has practiced as a barrister, arbitrator and CEDR accredited mediator for some 30 years as a member of Quadrant Chambers, mainly in the fields of shipping and international trade. Belinda sat as a Recorder in Crime and as a Deputy High Court Judge in the Administrative and Admiralty Courts.

    Belinda is a very experienced arbitrator and frequently sits both as sole arbitrator and as a member of an arbitral panel.  In the commercial field she specialises in substantial disputes which involve areas of expertise such as negligent navigation, chemistry, explosion and fire, engineering, hypothermia, metallurgy, meteorology, naval architecture and personal injury.  In the field of salvage she has been appointed by the Committee of Lloyds in innumerable cases and by way of private appointment in a very large number of salvage and wreck removal cases.  

    > view Belinda's full profile

  • Quadrant Chambers is sponsoring the Networking Drinks at C5 Fraud & Asset Tracing and Recovery Geneva 2020View More

    Thu, 20 February, 2020

    Quadrant Chambers is once again sponsoring the networking drinks at C5 Fraud Asset Tracing & Recovery in Geneva on 5th & 6th March.

    Quadrant's Emily Saunderson will be speaking on the panel for "From Facial Recognition to Fraud: The Rise of the Lex Technologica and its impact on Financial Crime", at 9:15 on Friday 6th March.

    Paul Downes QC, Ruth Hosking, Nicola Allsop and Simon Oakes are also representing Quadrant Chambers the event this year.

    Paul Downes QC

    Paul is recognised as a formidable advocate and cross-examiner who is presently instructed in some of the hardest-fought pieces of commercial, fraud, banking and finance-related litigation at the bar. The directories rank him as a leading silk for Commercial Fraud, Banking & Finance, Commercial Dispute Resolution, and Financial Services. He is described as “incredibly astute”, “a terrific cross-examiner” and “brave and dogged”. His advocacy is likewise praised as “powerful”, “phenomenal” and “fearless”. Before coming to the Bar, Paul was an assistant examiner in the Accountancy and Banking Law examinations for the Chartered Institute of Bankers. Paul lectured in Accountancy at Stourbridge College (1985-1987), preparing bank employees for their Associateship examinations and was a consultant to Barclays Bank (1988-1993) advising on the training of staff in Accountancy (and other subjects) also for the Associateship examinations. Paul’s fraud practice has particular emphasis on disputes with a heavy accountancy element, including the manipulation of company accounts, departure from fundamental accounting concepts; the failure of company accounts to give a true and fair view, unlawful dividends, company valuations, and shareholder disputes.

    • T v A (2020): acting on $600m fraud claim in SIAC arbitration arising out of company takeover where allegations of stock manipulation and profit falsification are made. Advising on cross-border aspects of a multi-jurisdictional dispute across Singapore and Malaysia Courts and arbitral process.
    • Sheffield United v UTB LLC (2019): acting for Sheffield United Limited in their dispute with Saudi Prince HRH Abdullah Mosaad Al Saud over the ownership and control of Sheffield United Football Club, including allegations of a tortious conspiracy and unfair prejudice under section 994 of the Companies Act 2006.
    • N v RBS (2019): acting for the claimant in a claim against the bank in relation to the wrongful freezing of its bank accounts under the provisions of the Proceeds of Crime Act 2002. A case listed by The Lawyer magazine as one of the top 20 cases of 2019.
    • West Ham United v E20 (2018): acting for the premiership football club in their dispute over the use of the London Stadium; including the successful appeal of the Order of Norris J in the Court of Appeal on the scope of litigation privilege.
    • St Vincent General Partner v Robinson (2018): a fraud claim in relation to the dishonest sale of €30m of development land in Poland at an undervalue tainted by bribes and an unlawful act conspiracy.
    • King v Primekings (2020): a claim in fraud arising out of a share sale and purchase agreement relating to a major provider of security services in the UK, and follow-on litigation relating to allegations of bribery.
    • Re OL and OC (2017): Advising on the fraudulent use and marketing of a leading cryptocurrency.
    • Takeda v Fougera (2017): acting for the sellers in a commercial dispute arising from a €9.6bn takeover of Danish Pharmaceutical giant Nycomed, and a dispute over the construction of an indemnity in relation to Danish withholding tax.

    To view Paul's full profile, please click here.

    paul.downes@quadrantchambers.com

    Ruth Hosking

    Ruth’s practice encompasses the broad range of general commercial litigation and arbitration. Her particular areas of specialism include shipping, civil fraud, private international law and commodities. She undertakes drafting and advisory work in all areas of her practice and regularly appears in court and in arbitration, both as sole counsel and as a junior. Ruth also accepts appointments as an arbitrator (both as sole and as part of a panel).

    Ruth has a busy general commercial litigation practice encompassing advisory and advocacy work across a broad range of commercial disputes including: claims for inducing breach of contract, unlawful means conspiracy, deceit & misrepresentation, breach of warranty and restitution claims. She regularly appears in the full range of courts and tribunals and her commercial practice includes private international law as well as international and domestic contracts.

    Ruth has a client-friendly approach to litigation and is happy to advise on urgent matters out of hours and at short notice. She adopts a collaborative approach to litigation, involving clients, experts and her instructing solicitors in progressing cases to trial or arbitration. She is ranked as a ‘Leading Junior’ in the latest editions of Chambers UK and The Legal 500. Praise given includes “Her legal advice is practical, accurate and straight to the point”; “she hits the nail on the head every single time” and “she has an impressive ability to construct arguments”. She is a meticulous advocate who combines rigorous analysis of detail with a common sense commercial approach.

    Prior to coming to the bar Ruth studied for an LLM in commercial & corporate law specialising in restitution, corporate insolvency, conflict of laws and marine insurance at UCL; and was a visiting law tutor at King’s College London teaching tort (including economic torts) from 2001-2002.

    To view Ruth's full profile, please click here.

    ruth.hosking@quadrantchambers.com

    Nicola Allsop

     

    Nicola specialises in civil fraud, insolvency, company law (particularly shareholder disputes) and banking litigation. Nicola’s practice has a strong international element; she was called to the Bar of the BVI in 2012, in the Cayman Islands in 2016 (limited admission) and many of her cases raise crossborder and jurisdictional issues. Nicola has a wealth of trial experience both as sole counsel and as part of a team. Notable cases include the Weavering litigation which occupied her throughout most of 2016 and concerned a claim against the Fund’s Cayman auditors arising out of a large-scale fraud perpetrated by the Fund’s founder Magnus Peterson; a 10-week fraud trial Sita v Serruys; a series of matters arising out of the collapse of the Arch Cru Fund;
    and a long-running shareholder dispute involving the Barclay Brothers and the affairs of Coroin Limited, the owner of Claridges, the Berkeley and the Connaught.

    Nicola is recommended as a leading Junior for Commercial Litigation in the Legal 500.

    Cases include:

    • Natixis SA v Marex Financial Limited v Access World Logistics (Singapore) Ltd [2019] 2549 (Comm) – acting on behalf of a warehouse company in Commercial Court proceedings in a case involving forged warehouse receipts and wider allegations of fraud.
    • Crown Holdings (London) Limited [2019] EWHC 3302 (Ch) – sole counsel for the joint liquidators of the Crown companies following their collapse as a result of a multi-million pound foreign exchange scam.
    • Tetronics (International) Ltd v HSCB Bank Plc [2018] EWHC 201 (TCC) – instructed by the Bank in a performance bond case concerning the fraud exception.
    • Kentucky Fried Chicken (Great Britain) Limited v Palmer and others (2016) - sole counsel for a major fast food chain in its claim for injunctive relief and damages arising out of a fraudulent scheme.

    To view Nicola's full profile, please click here.

    nicola.allsop@quadrantchambers.com

    Emily Saunderson

    Emily is a general commercial practitioner specialising in civil fraud and banking. She has particular expertise in pre-emptive protective measures including freezing injunctions and search orders, Norwich Pharmacal and Bankers Trust orders as well as tracing and asset preservation orders. She has experience of injunctive relief involving Bitcoin and has advised on the challenges that cryptocurrencies present in fraud claims. Before becoming a barrister, Emily spent six years as a journalist covering the global derivatives markets.

    Emily is recommended in the latest edition of Chambers & Partners, which describes her as having “a razor-sharp mind and a prodigious work ethic” and says “her ability to review, analyse and interrogate vast quantities of information is remarkable.” She is recommended as a leading junior in banking and finance and financial services by the Legal 500, where she is described as “a meticulous litigator” who is “very good at pinning down the key points.”

    • UTB LLC v Sheffield United Limited [2019] EWHC 2322 (Ch), acting as junior counsel for the defendant in a shareholder dispute concerning the ownership of Sheffield United football club. The case involved allegations of unlawful means conspiracy and bribery.
    • N v RBS [2019] EWHC 1770 (Comm), acting as junior counsel for the claimant in proceedings resulting from RBS freezing N’s accounts further to the Proceeds of Crime Act 2002.
    • E v R & others (2014-2015), acting for the claimant in proceedings brought by an insurer against its agent, involving a lengthy tracing process, several freezing orders, and allegations of fraud, dishonest assistance, knowing receipt and unlawful means conspiracy.
    • Stokors v IG Markets Ltd [2013] EWHC 631 (Comm), acting as junior counsel for the defendant in a €120m claim involving allegations of dishonest assistance and knowing receipt.

    To view Emily's full profile, please click here.

    emily.saunderson@quadrantchambers.com

    Simon Oakes

    Simon’s commercial practice focuses particularly on banking & financial services and complex fraud cases. He has appeared in some of the most significant banking and fraud cases of the last decade. For example, after acting in Graiseley, he has been instructed in many cases involving allegations of FOREX manipulation and LIBOR benchmark manipulation. He also has significant regulatory experience, having acted both for and against regulators (such as the FCA and Pensions Regulator), and acted as part of a team of FCA Redress skilled advisers.

    • Several ongoing high value shareholder disputes, including allegations of fraudulent misrepresentation, including KAS No.8 v Estera Trust & Others [2019] 10 WLUK 65.
    • Several ongoing multi-million pound commercial deceit claims against Bank of Scotland and/or Lloyds Banking Group, including allegations of benchmark manipulation and breaches of duties of good faith.
    • Aldersgate & Ors v Bank of Scotland & Anor [2018] EWHC 2601: Commercial Court claim in excess of £100 million, alleging fraudulent and negligent misrepresentation arising out of LIBOR manipulation. The case also involved a ground-breaking interlocutory application by the defendant, attempting to withdraw pleaded admissions of findings by global regulators.
    • Viavi v Shannan & Others [2018] EWCA Civ 681: a significant dispute about the validity of deeds, the principle in Re Duomatic, and estoppel by deed.
    • Hockin v Royal Bank of Scotland in the High Court: a £55 million Financial List banking case concerning interest rate products and the bank’s Global Recovery Group (‘GRG’), and involving issues of misrepresentation, LIBOR manipulation, unlawful means conspiracy and implied duties of good faith.
    • The LIBOR test case of Graiseley Properties Ltd v Barclays Bank Plc, Deutsche Bank AG v Unitech Global Ltd [2013] EWCA Civ 1372, in the Court of Appeal and in the High Court.

    To view Simon's full profile, please click here.

    simon.oakes@quadrantchambers.com

  • Quadrant Chambers recommended in Chambers Global 2020View More

    Mon, 17 February, 2020

    Quadrant is delighted to to have received 47 individual recommendations across 3 practice areas in Chambers Global Edition 2020, with 42 of our barristers recommended. 

    We feature as a recommended set in the following areas:

    Leading Set - Commercial Dispute Resolution - Quadrant Chambers is frequently instructed in commercial cases around the world ....Solicitors report that “the set makes a real effort to get to know you, and ensures it meets your demands.”

    Leading Set - Energy & Natural Resources - "...notable barristers engaged in disputes arising in the energy and natural resource sector" ...handle significant international arbitrations and attract instructions from several oil majors."

    Leading Set - Shipping & Commodities - "a fantastic group of barristers who really serve their clients well." ...  "home to a large number of eminent silks and juniors able to offer adept counsel in all manner of wet and dry shipping matters as well as complex commodities disputes.

  • Energy and International Arbitration specialist Gaurav Sharma joins Quadrant ChambersView More

    Mon, 10 February, 2020

    Quadrant Chambers is delighted to welcome energy and international arbitration specialist Gaurav Sharma as a new member of chambers. 

    “It is a great pleasure to welcome Gaurav to Quadrant Chambers. The depth and breadth of his experience make him a fantastic addition to our energy and international arbitration offering. Gaurav’s arrival compliments and enhances Quadrant’s strategic focus on these sectors.”  

    Simon Croall QC, Head of Quadrant Chambers

    Gaurav Sharma is a highly experienced international arbitration practitioner who has appeared as an advocate in many dozens of investment and commercial arbitrations throughout his career. He is dual-qualified as a barrister and avocat, having passed the Paris Bar exams in 2008. Prior to joining Quadrant, Gaurav was “Counsel” at the specialist arbitration firm, Three Crowns, and was an associate at Debevoise & Plimpton earlier in his career.  Gaurav has particular expertise in energy arbitration, having spent a number of years as a Senior Legal Counsel in Shell’s Global Litigation Group, where he successfully acted as counsel in many of the group’s upstream oil and gas disputes, natural gas and LNG pricing arbitrations and investment treaty matters. Between 2014-2016, Gaurav was a member of the IBA Subcommittee on Investment Treaty Arbitration. He featured in The Legal 500 as a ‘Next Generation Lawyer’ and ‘Future Leader’ in the field of international arbitration (2018, 2019).

    “I am thrilled to be joining Simon and the other members of Chambers as a colleague. Quadrant offers an unrivalled platform at the Bar for energy disputes and international arbitration, with a host of pre-eminent specialists in these fields and a demonstrated track record of success. I look forward to developing my arbitration practice independently over the coming decades from my new home on Fleet Street.”

    Gaurav Sharma   

    “Gaurav is a seasoned litigator with great judgment and instinct, with a growing list of friends and admirers in the field.”

    Constantine Partasides QC, Three Crowns

    Quadrant Chambers holds a pre-eminent position as a leading international commercial disputes set. We are market leaders with a reputation for excellence in our areas of focus: aviation, banking, commercial disputes, commodities, energy, insurance, international commercial arbitration and shipping. Quadrant was shortlisted for International Arbitration Set of the Year 2020 at the Legal 500 UK Awards.

    Gaurav Sharma

    gaurav.sharma@quadrantchambers.com

    Gaurav is an international arbitration specialist with particular expertise acting in disputes in the energy industry.  He is a highly accomplished advocate having appeared as lead counsel in international arbitrations throughout his career.  He was named in the Legal 500 as a “Future Leader” and “Next Generation Lawyer” in 2018 and 2019. He is dual-qualified, having passed the Paris bar exams in 2008 to become an avocat.  As such, he is equally adept at handling civil and common law disputes. 

    Before joining Quadrant, Gaurav was “Counsel” at the specialist international arbitration law firm Three Crowns LLP.  Prior to that, he spent a number of years as a Senior Legal Counsel at Shell, which followed several years as an international arbitration Associate at the London and Paris offices of the international law firm, Debevoise & Plimpton.

    Gaurav acts as sole counsel, together with other barristers or as part of a team with lawyers from instructing law firms (whether international- or UK-based).  He is typically instructed to develop case strategies, and implement them through written and oral advocacy.  His experience as a senior lawyer at specialist arbitration firms and in-house means he is also perfectly comfortable handling the day to day conduct of cases, including acting as a senior legal team leader and managing associates working on individual work streams in complex matters.

    Gaurav has a track record of success acting in disputes across all sectors of the energy industry, notably including:

    Upstream oil and gas production arbitrations, including operational disputes (for example in relation to alleged breaches of the “Good Oilfield Practice” standard; in arbitrations of environmental claims based on oil contamination or gas flaring; and in disputes relating to joint operating arrangements) as well as in the context of liabilities at the end of production sharing arrangements and related economic disputes. 

    Liquified Natural Gas (LNG) and natural gas disputes arising under long term contracts (including price reviews and reopeners, transportation and shortfall disputes, and force majeure issues affecting LNG production).

    Renewable energy disputes.

    Investment arbitration, including most recently acting in SCC proceedings for Puma Energy in relation to the attempted expropriation of its assets and operations by the Republic of Benin; for Shell in relation to its ICSID arbitration with the Republic of Philippines; and for the Republic of Oman in ICSID proceedings brought by Turkish former contractor, Attila Dogan.

    Gaurav also has extensive experience acting in arbitrations in other industries (notably including disputes in the mining, banking and financial, pharmaceutical and automotive sectors) as well as corporate disputes between shareholders, arising from M&A transactions, or from joint ventures.  In addition, he has successfully acted in emergency arbitrations in commercial and investment disputes.

    In addition to his arbitration practice, Gaurav is also an experienced commercial litigator, having acted in some of the most significant litigation matters in recent years, including for the defendants in the matter of Okpabi and others v Royal Dutch Shell Plc and Shell Petroleum Development Company of Nigeria Ltd, which deals with the complex issue of the liability of parent companies for the acts of their foreign affiliates as well as related threshold jurisdictional questions that arise in that context.

    Gaurav is a fluent French and German speaker and has previously conducted disputes in both languages.

  • Contracts Jim, but not as we know them: Cryptoassets and Smart Contracts - Jeremy RichmondView More

    Tue, 04 February, 2020

    This article was first published in The Commercial Litigation Journal.

    Jeremy Richmond and Christopher Recker of Trowers & Hamlins boldly explore the status of cryptoassets and smart contracts.

    In November 2019 the UK Jurisdiction Taskforce (UKJT) published a legal statement on the status of cryptoassets and smart contracts following the issuing of its consultation paper in May 2019. As Chancellor Vos noted in the foreword to the legal statement, there is no doubt that some of the matters covered in it will in the future be the subject of judicial decision. The ever increasing use of cryptoassets and smart contracts has given rise to some difficult and subtle issues of contract, insolvency and property law, not to mention conflicts of law. This article seeks to summarise some of the main points in the legal statement with an emphasis on these areas of law. The legal statement is broadly divided into, respectively, the treatment of cryptoassets as property, and smart contracts. It is to these two areas that we now turn.

    Cryptoassets as property

    The UKJT noted that there is no universally accepted definition for the term ‘cryptoasset’. At a very high level of abstraction a cryptoasset is defined by reference to the rules of the system in which it exists. Functionally it is usually represented by two parameters: one public, and one private. The public parameter contains encoded information about the asset like ownership, value and transaction history, which information is available to all participants in the system or the world at large. The private parameter – the private key or keys – allows dealings in the cryptoasset to be cryptographically authenticated by digital signature. The UKJT identified some principal and novel features of cryptoassets including:

    • intangibility;
    • cryptographic authentication;
    • use of a transaction ledger, the function of which is to keep a reliable history of transactions and so prevent double spending;
    • the distribution transaction ledger may be distributed and decentralised in the sense that it is shared over the network with no one person having a responsibility for maintaining it, or any right to do so; and
    • rule by consensus in that the rules governing dealings are established by the informal consensus of participants rather than by contract or in some other legally binding way.


    A pressing consideration for commercial lawyers is whether a cryptoasset is capable of being property. If the cryptoasset is capable of being property, then among other things the holder of a proprietary right over the cryptoasset may have priority over claims by creditors in an insolvency context, and may be able to create a security interest over the cryptoasset, which otherwise might not be possible.

    The UKJT after an extensive analysis arrived at the conclusion that cryptoassets should be treated in principle as property because of the following:

    • Cryptoassets have all the indicia of property, namely, they are definable, identifiable by third parties, capable in their nature of assumption by third parties, and have some degree of permanence or stability: per Lord Wilberforce in National Provincial Bank v Ainsworth [1965]. The conclusion that cryptoassets have the indicia of property is consistent with the relatively limited English case law on point to date: see Vorotyntseva v Money-4 Ltd [2018] (interim proprietary injunction granted over Bitcoin and Ethereum cryptocurrency valued at £1.5m); and Robertson v Persons Unknown [2019] (where an asset preservation order was granted over Bitcoin).
    • The novel features of some cryptoassets – intangibility, cryptographic authentication, use of a distributed transaction ledger, decentralisation, rule by consensus – do not disqualify them from being property.
    • Nor are cryptoassets disqualified from being property by reason of being ‘pure information’, or because they might not be classifiable either as things in possession or things in action.

    Since a cryptoasset cannot be physically possessed and is, as such, virtual, the UKJT arrived at the following conclusions concerning the potential security or other interest that could be taken over them:

    • As a matter of law, cryptoassets could not be the object of a bailment since bailment requires the transfer of possession. Since cryptoassets are not capable of being possessed, they could not be the subject of a bailment.
    • Only some types of security could be granted over cryptoassets. The UKJT confined itself to the question of consensual security of which there are four kinds in English law: pledge, (contractual) lien, equitable charge and mortgage. It considered that pledges and liens can only be created by transferring possession of an asset. As such, since cryptoassets could not be possessed it would not be possible to create a pledge or lien over them. However, the UKJT considered that if a particular cryptoasset was property, a mortgage or equitable charge could be created over it in the same way a mortgage or equitable charge could be created over other intangible property and subject to the same requirements.
    • Cryptoassets are not documents of title, documentary intangibles or negotiable instruments (though some form of negotiability could arise in future as a result of market custom).
    • Cryptoassets are not instruments under the Bills of Exchange Act 1882 so that the provisions of that Act do not apply.
    • Cryptoassets are not goods within the meaning of s61(1) of the Sale of Goods Act 1979 so that the provisions of that Act do not apply.

    The UKJT expressed the view that since cryptoassets can be property at common law, they could be property for the purposes of the Insolvency Act 1986. In an interesting observation, the UKJT also considered that where a particular cryptoasset was not property at common law, it might still be property within the meaning of the Insolvency Act 1986. This was because s436(1) of the Insolvency Act 1986 defined property to include:

    … money, goods, things in action, land and every description of property wherever situated and also obligations and every description of interest, whether present or future or vested or contingent, arising out of, or incidental to, property.

    A cryptoasset that was not property at common law could still be property under the Insolvency Act 1986 insofar as it could be considered an ‘obligation [or a] description of interest… arising out of, or incidental to, property’.

    The UKJT also considered some difficult choice of law problems that arise in the treatment of cryptoassets. Generally, English law treats questions of:

    • how property is to be classified; and
    • how and when a transfer of property affects third parties,

    as questions of the lex situs, that is to say the law of the country where the property is situated at the relevant time. Since cryptoassets are intangible property it is not altogether obvious how the lex situs would be identified or indeed whether the general rule would (or should) apply at all. Other candidate choice of law rules might include the country where the cryptoassets have some sort of central control; or the law which governs the transaction between the parties (as in cases where a tangible asset is in transit so that its location is really a matter of chance or is unknown). The UKJT considered that these complex conflicts of law issues should be resolved by legislation most likely following international cooperation.

    Smart contracts

    The UKJT’s analysis is welcome and comes at an important time; smart contracts are becoming increasingly utilised and embraced by businesses. The significance and potential applications for smart contracts are diverse; in the construction industry it is thought that smart contracts could be implemented t simplify greatly and automate the payment of contractual obligations. In the insurance industry, smart contracts are being explored as mechanisms for both the purchase of policies, and the fast resolution and settlement of claims. The key theme is efficiency:

    Before considering those issues, it is worth describing why smart contracts warrant consideration. In summary, it is because they improve the efficiency, speed and performance of contracts. Efficiency is improved because of the automation of contractual actions, which reduces the need for human involvement and, as a result, the potential for human error. Speed is improved as actions can occur in real time as information is collected and verified. Performance is improved as the terms are unambiguous and results predictable and auditable.

    (Farrell, Machin and Hinchliffe, ‘Lost and found in smart contract translation – considerations in transitioning to automation in legal architecture’.)

    In contrast, issues have also been raised about the extent to which too much trust is being placed in the software rather than the other party to a contract. The concern is that no code is perfect and, therefore, the more complex it is, the greater the risk:

    A similar situation took place in 2017 and concerned the already mentioned QuadrigaCX. The company lost US$14 million in cryptocurrency [Ethereum (ETH)] because of the
    defective smart contract which processed the transactions involving ETH. Apparently, an update of the algorithms caused an error in the code, which disabled the correct acceptance of payments in ETH. The defect was noticed after a couple of days, when it was found that ETH was ‘blocked’ in the smart contract.

    (Hulicki, ‘Cryptocurrencies – a legal dilemma of the digital age’).

    The UKJT's position

    The UKJT highlights that contract law ‘is concerned with the enforcement of promises’ and addresses the argument that a smart contract’s code will do ‘what it is programmed to do’. This is where the primary risk sits; the quality of the code will in principle dictate the quality of the performance of the aspects governed by the smart contract itself. The UKJT, however, also makes the valid point that there could be external factors which affect the performance of the code. A party can, therefore, on a case-by-case basis, argue that a smart contract is or is not legally binding.

    The UKJT points out that the concept of a contract under English law is not defined, and there is generally no particular ‘form’ that a contract must exist in. The courts will enforce a promise provided that the constituent common law requirements are met (offer and acceptance, certainty, an intention to be legally bound by the agreement and consideration). The court would, of course, also take into account what the UKJT refers to as ‘vitiating factors (such as duress, misrepresentation or illegality)’.

    The UKJT highlights that ‘the precise role played by the software in a smart contract can vary’. This is important. The interpretation of the contractual relationship will be governed on its merits. Parties to a contract may wish for a smart contract to define all of their obligations, merely enforce them or use some other hybrid arrangement. Other parties may not wish to utilise any code at all. The enforceability and scope of the contract, as the UKJT points out, will be a matter of analysing the words and conduct of the parties to determine objectively what was agreed.

    A few examples are explored, and the theme raised by the UKJT is that the further away the parties move from the ‘conventional’ methods of contracting with each other, the less straightforward the position:

    • A natural language contract with certain performance obligations executed with code. In these circumstances, the contractual interpretation should not be controversial; any differences in relation to performance (including the operation of the code) can be determined by reference to the contract.
    • A natural language contract but with some terms in code (such code likely being embedded in the contractual documentation, and/or on an execution platform). Here, the question is of the constituent parts; has an agreement been reached, was there sufficient intention and has there been sufficient consideration? It is not envisaged that there is significant material difference to the category appearing immediately above given that there is some form of underlying natural language contract.
    • A contract with no natural language is most problematic, given that this would mean that the entire agreement existed in code. The terms of the agreement will be enshrined within the source code, and any consideration ought to be identifiable by an examination of that code or considering the code’s behaviour. The challenge is assessing whether or not an agreement has been reached at all, and whether there was an intention to create legal relations. The analysis of those aspects will need to be explored by reference to the code itself, and any applicable evidence (such as written correspondence) which may indicate what the parties intended.
    • A party utilises code on a distributed ledger platform, where in exchange for payment or transfer of value, the platform performs a service (such as algorithmic investment). A third party who is not known to the party deploying the code could potentially form a unilateral contract with the other party. The underlying analysis would be very fact specific, and would evidentially depend on the nature of the platform and the arena in which it operated (among other things).
    • A party deploys code to set up a decentralised autonomous organisation (DAO), but has no intention to participate or enter into contracts with other parties. Entirely separate third parties will contract with each other in accordance with the terms of the smart contract running the DAO. The UKJT points to the challenges with identifying who the parties are to those contracts, and establishing whether any legally binding agreement has been reached. Helpfully, the UKJT compares this situation with transacting with an unincorporated association, whereby each member of that association contracts with the membership as a whole and intends to be bound by the applicable rules of that association (even though each member does not necessarily know the identities of the others).

    The English court's application

    The rules of contractual interpretation in England and Wales are well known; the court will determine what the reasonable reader would consider the parties objectively intended (which will call for an analysis of the language utilised in the agreement). The court generally relies on what was stated in an agreement, unless the language is unclear or ambiguous.

    The UKJT points out that these rules do not easily reconcile with a contract containing terms exclusively in code. However, to the contrary, the UKJT suggests that a contract of that nature could be interpreted as nothing more than:

    … an extreme example of a contract whose language is clear, with the result that there is no justification to depart from it.

    It still, however, begs the question as to what happens if the code itself is not clear (and which may give rise to different meanings or interpretations).

    The UKJT envisages that these issues would be resolved by either:

    • reference to other parts of the code which are clear; or
    • looking ‘beyond the four corners of the code to interpret it’.

    The court’s role in that scenario is to assess all of the admissible evidence and make findings relating to whether or not the code actually defined the obligations, or was intended to merely implement them. This will of course dictate the nature of the evidence (including expert evidence) required.

    The parties to a dispute may, therefore, ask the court to consider specific issues. The UKJT points out that, by way of example, one of the parties may argue that the code needs to be rectified, which would require analysis beyond the outcome or operation of the code itself. The UKJT also considers that the usual rules relating to the court’s interference in circumstances of duress, fraud and misrepresentation would continue to apply.

    The UKJT clarifies that there is no requirement under English law for parties to a contract to know each other’s real identities and, therefore, sees no issue with smart contracts being utilised in this manner. The issue of knowing the contracting party is, however, an important one for enforcing the terms of a contract following a breach.

    Smart contracts and writing

    Another issue raised relates to the use of a private key as a mechanism for satisfying a statutory signature requirement. The UKJT acknowledges that electronic signature can generally satisfy these requirements (depending on the precise statutory instrument) and that a private key is a type of electronic signature when used in this way. The key issue the UKJT has raised:

    … is not what the signature looks like, but whether or not it is clear that the party intended to authenticate the full terms of the document.

    The UKJT takes this further and considers whether or not the statutory ‘in writing’ requirement could be met by a smart contract composed partly or wholly of computer code. The UKJT points to the wide definition of ‘writing’ in the Interpretation Act 1978, and on balance considers that it is likely the statutory requirement would be satisfied given that:

    … the fact that the code might not be comprehensible to an uninitiated English speaker without an expert translator is irrelevant.

    Other matters

    The legal statement provides a comprehensive overview of smart contracts but for understandable reasons does not purport to analyse comprehensively every possible legal issue that may arise in the area. We tentatively suggest that two technical areas that may merit further consideration are:

    • whether or not it is possible to obtain a court order securing the rectification of a blockchain ledger; and
    • the extent to which a judgment could be obtained in a virtual currency.

     

    Summary

    In summary, the UKJT has helpfully clarified that smart contracts are in principle capable of satisfying the constituent parts of contractual common law. As with the status of cryptoassets, we expect that the legal status of each smart contract will need to be considered on a case-by-case basis. As a result, the law around cryptoassets and smart contracts will no doubt develop and be refined over time.

    Jeremy Richmond

    Jeremy will be appointed Silk on 16 March 2020.

    Jeremy specialises in commercial and modern chancery law.  He is ranked as 'Leading Junior' for Commercial Litigation and Insolvency in The Legal 500 2020 and has been described in Chambers and Partners as a “superb advocate” whose “expertise in chancery, commercial and banking matters is a useful complement to his insolvency skills”.

    Jeremy’s practice spans a broad range of commercial chancery and insolvency matters.  It encompasses company law (including directors misfeasance), shareholder and joint venture disputes, banking law, sale of goods (both international and domestic), fraud (with an emphasis on asset recovery) and all aspects of general commercial law.   He also has a specialisation in cross-border insolvency issues particularly in relation to the shipping, commodities, insurance and aviation sectors.  Jeremy has advised and / or appeared for key parties in OW Bunker, Hanjin Shipping, STX Pan Ocean, Alpha Insurance and Arik Airlines. He regularly appears in the Chancery Division as well as in the Commercial and Circuit Commercial Courts.   Jeremy often works in conjunction with Counsel from other jurisdictions and with experts. 

    Many of his cases involve a cross-over between ‘modern’ chancery and commercial litigation. 

    Jeremy was admitted to the New York Bar in 1996 and has worked as a New York lawyer for blue chip law firms in Manhattan and then the City.

    To view Jeremy's full profile, please click here.

    jeremy.richmond@quadrantchambers.com

    Christopher Recker

    Christopher is an associate in Trowers & Hamlins' Dispute Resolution and Litigation team specialising in commercial litigation and arbitration, with a particular emphasis on fraud and risk management.

    His experience includes resolving complex multi-jurisdictional disputes, freezing and tracing assets and carrying out internal investigations.

    To view Christopher's full profile, please click here.

  • Welcome back to Emily McWilliamsView More

    Mon, 03 February, 2020

    We are very pleased to welcome Emily McWilliams back to chambers following her parental leave. Emily has a broad commercial practice with a particular emphasis on shipping and aviation related disputes. She is recommended as a leading junior in the fields of Shipping, Aviation and Travel Law by The Legal 500, where they note "She is astute, composed and prepared."

    For further information, contact Paul Bloxham or any of the practice management team at Quadrant Chambers.

    Emily McWilliams

    Emily regularly appears as sole and junior counsel in both court and arbitration. She is experienced in shipping disputes of all kinds, and has acted in a wide range of aviation matters, including commercial disputes and claims under the Carriage by Air Conventions. Emily’s cases frequently involve important issues of principle, such as the meaning and effect of industry standard contractual terms.

    "She is a real aviation specialist; her knowledge in this area is invaluable." (Legal 500, 2020)

    "She is astute, composed and prepared." (Legal 500, 2020)

    "Down-to-earth, prompt, and manages expectations well." (Legal 500, 2020)

    To view Emily's full website profile, please click here.

    emily.mcwilliams@quadrantchambers.com

  • English courts’ supportive powers over English seated arbitrations: Minister of Finance v International Petroleum Investment Company - Joseph SullivanView More

    Thu, 30 January, 2020

    This article was first published on the Practical Law Arbitration Blog and can be found here.

    On 26 November 2019, the Court of Appeal handed down judgment in Minister of Finance (Inc) and another v International Petroleum Investment Company and another. The appeal addressed the ambit of the supportive powers of the English courts over English seated arbitrations, and the proper approach when issues of fact arise for determination both in a court claim invoking that supervisory jurisdiction and a new arbitration.

    The case concerns the well-publicised 1MDB scandal, which concerns allegations that billions of dollars were misappropriated as a result of a fraud carried out against 1MDB, a Malaysian state-owned investment fund. The scandal has given rise to civil legal proceedings in a number of jurisdictions, two LCIA arbitrations involving the parties to the dispute before the Court of Appeal, and criminal proceedings in a number of jurisdictions, including ongoing criminal proceedings in Malaysia against its former Prime Minister, Najib Razak.

    The English court proceedings comprise a challenge by the Malaysian parties under sections 67 and 68 of the English Arbitration Act 1996 (AA 1996) against a consent award which purported to settle an LCIA arbitration between the Malaysian parties and the Abu Dhabi parties. When the English court proceedings were served on the Abu Dhabi parties, those parties commenced a new LCIA arbitration pursuant to arbitration clauses contained in settlement deeds entered into at the same time that the consent award was made.

    The dispute before the Court of Appeal concerned the question of which forum should proceed first. The Abu Dhabi parties had applied for a stay of the court claim under both section 9 of the AA 1996 and the court’s case management powers to permit the arbitration to proceed first. The Malaysian parties resisted the stay and applied for an anti-arbitration injunction to restrain the prosecution of the arbitration proceedings pending resolution of the court claim.

    At first instance, Knowles J refused the section 9 stay but granted a stay of the court proceedings under his case management powers, thereby deciding that the arbitration should proceed first. Accordingly, he also refused the Malaysian parties’ application for an anti-arbitration injunction.

    The Court of Appeal overturned this decision. It held that the stay of the court proceedings should be lifted and an injunction should be granted to restrain prosecution of the new arbitration, pending resolution of the court claim. In reaching this decision, the Court of Appeal was heavily influenced by the mandatory nature of the limited supervisory jurisdiction afforded to the court under the AA 1996. Pursuant to section 4 of the AA 1996, it is not possible for parties to contract out of that supervisory jurisdiction. On the contrary, by agreeing to a London arbitration in the first place, the parties expressly contracted into the exercise of the court’s supervisory jurisdiction. The Abu Dhabi parties could not, therefore, legitimately complain when the Malaysian parties sought to avail themselves of that jurisdiction.

    The Court of Appeal pointed out that the AA 1996 strikes a balance whereby, on the one hand, the objectives of fair and speedy dispute resolution by arbitration are upheld by limiting the circumstances in which the Court may intervene, whilst on the other ensuring that those supervisory safeguards that are required in the public interest are mandatory. The efficacy and reliability of the system of arbitration requires a robust system for ensuring that awards which have been issued without jurisdiction or which have been procured by fraud should be set aside. This is a matter reserved to the courts, and the scheme of the AA 1996 would be undermined if a party could avoid court scrutiny (which may, if the court so decides, involve a public trial) by crafting an arbitration clause designed to cover the very matters falling within the exercise of the court’s supervisory jurisdiction.

    As to the anti-arbitration injunction, the Court of Appeal applied the approach set out by Hamblen J in Claxton Engineering Services Ltd v TXN Olaj-es Gazkutato Kft (No 2), whereby a party must show that the arbitration in question either infringes a legal/equitable right or is vexatious, oppressive or unconscionable, in order to be granted an injunction. The Court of Appeal held that both tests were satisfied on the facts of the case. The new arbitration comprised an attempt to infringe the Malaysian parties’ legal right to challenge the consent award under sections 67 and 68 of the AA 1996, and it was vexatious because it was brought as a response and consequence of the Malaysian parties’ attempt to exercise those mandatory rights.

    Joseph Sullivan was junior counsel for the appellant in this matter, instructed by Richard Little at Eversheds Sutherland.

     

            

    Joseph Sullivan

    Joe specialises in commercial law, banking and finance, commercial fraud and professional negligence. He appears regularly in the High Court and the Court of Appeal for claimants and defendants both as sole counsel and as part of a counsel team.

    Recently he has appeared as lead counsel for the respondent in the Supreme Court in Takhar v Gracefield Developments [2019] 2 WLR 984 (instructed by Gowling WLG LLP), now the leading authority on the test for setting aside a judgment on the ground that it was procured by fraud; as junior counsel for the appellant in Minister of Finance v International Petroleum Investment Company [2019] EWCA Civ 2080, in which he acted for the Malaysian government against an Abu Dhabi sovereign wealth fund in a claim arising out of the “1MDB scandal”; as junior counsel for the appellant in WH Holding Ltd v E20 Stadium LLP [2018] EWCA Civ 2652 (instructed by Gateley plc), the first televised hearing in the Court of Appeal in which the Court revisited the scope of litigation privilege and the threshold for judicial inspection of documents when privilege is challenged; as junior counsel for the second respondent in the Court of Appeal in NCA v RBS and others [2017] 1 WLR 3938 (instructed by Howard Kennedy LLP), the leading authority on the grant of interim declarations; for the respondent insurer in the Court of Appeal in AmTrust Europe Ltd v Trust Risk Group [2016] 1 All ER (Comm) 325 (instructed by Clyde and Co LLP), in which the Court gave guidance as to the proper approach when faced with conflicting jurisdiction agreements; and as sole counsel for the appellant in the Court of Appeal in Cunliffe v Prometric [2016] EWCA Civ 191 (instructed by Allen and Overy LLP) in proceedings regarding the approach the Court should take to analysing an alleged oral contract.

    Joe is recommended as a leading junior in the Legal 500 for banking & finance.

    To view Joseph's full website profile, please click here.

    joseph.sullivan@quadrantchambers.com

  • ICSID arbitration in the age of populism: the case for reform - William MitchellView More

    Thu, 23 January, 2020

    This article was first published on the Practical Law Arbitration Blog and can be found here.

    On 12 November 2019, Quadrant Chambers held its biannual international arbitration seminar. The topic for discussion and debate was “ICSID arbitration in the age of populism: the case for reform”. The panel event was chaired by Ruth Hosking of Quadrant Chambers and the speakers were Emma Johnson, partner at Ashurst; Guy Blackwood QC of Quadrant Chambers and Timothy Foden, partner at Lalive.

    The debate

    First, Emma Johnson considered investor-state dispute settlement (ISDS) criticisms and why they matter. She began by considering the range and breadth of those criticising the system and noted that it included Hillary Clinton (“a fundamentally anti-democratic process”); Jean Claude-Junker (“secret courts”); Karl Heinz Böckstiegel (“hotel room justice”) and Oxfam (“unfair rules [which] threaten any prospect for the implementation of sustainable development goals”). She noted that considering whether the criticisms stack up was particularly timely given the array of multinational treaties currently under negotiation, and particularly for the UK which would have to give careful consideration to its position should Brexit happen. She considered the often repeated criticisms levelled at the system, namely:

    • The significant costs involved (and the perceived imbalance between investor/state).
    • The fetter on states’ ability to regulate.
    • A lack of transparency.
       

    When considering whether the latter criticism was warranted, Emma noted that the UNCITRAL Transparency Rules had not assisted as only 15 out of 325 cases since 2014 have adopted the Rules (given they only apply to post 2014 treaties and with parties, often including state parties, having chosen to opt out of them). She noted, however, that significant reform is under way, aimed at addressing some, if not all, of these criticisms, and that state practice in terms of recent treaty amendments demonstrates that ISDS is not dead.

    Guy Blackwood QC then focused on the proposed ICSID reforms in relation to expedition and expense. He started by considering some statistics (taken from Allen & Overy and ICSID), including that the average period from notice of arbitration to an award is four years; the average costs for the claimant exceed US $6 million and US $4.8 million for the respondent. Guy then addressed the length of tribunal deliberation, noting that for proceedings which dealt with jurisdiction and the merits the average tribunal deliberation was 414 days.

    In light of the delay and expense, Guy considered two different routes set out in the reforms. First, he considered the expedited arbitration proceedings. In relation to the proposed amendment currently known as Rule 74 (Consent of parties to expedited arbitration), he noted that it was an opt in procedure and asked, rhetorically, “how realistic is it that states will ever agree to expedited arbitration?”. He considered that the progress of the expedited procedure was sensible, with page limits on memorials and counter-memorials as well as provision for awards to be rendered no later than 120 days, with a possible grace period of 30 days (proposed Rule 81).

    Secondly, he considered the proposals for the ordinary ICSID procedure going forward. He noted the tribunal’s duty to conduct the arbitration in an expeditious and cost-effective proceeding (proposed Rule 31), as well as the time limits for rendering an award (proposed Rules 41, 44 and 57). Whilst Guy thought the majority of the proposed reforms to be sensible, he considered that the proposed rule changes failed to include:

    • A page limit for all cases save where the tribunal expressly permits longer submissions.
    • Sanctions for unmeritorious challenges to arbitrators.

    Timothy Foden was the last speaker. He considered the premise of the topic to be wrong. He challenged the received wisdom that “reform” is necessary, challenging anyone to show him actual abuse of the investment treaty system which had not been ultimately self-regulated. He noted that many of the states that created the system are now those who seek to reform the system.

    The system was created for three purposes, namely:

    • To increase investment flows into the developing world.
    • Protect investors from the developed world against state abuses typically committed by populist governments in developing states.
    • To inculcate norms of behaviour in states transitioning to the free market, replete with a disciplinary mechanism for when they transgressed those norms.
       

    With those goals in mind, delegates from some 86 states held meetings throughout the world to debate a draft ICSID Convention from 1963 to 1964. The competing interests (of capital importing states wanting further investment and capital exporting states wanting to protect their companies) resulted in a system of compromises looking to provide protections to both investors and host states. In his view, the system does not need reform and where there are areas of legitimate complaint (for example, gender disparity on panels) those issues will not be remedied by the proposed reforms.

    The discussion was then opened to the floor. The debate was lively and participants gave a range of views on the perceived weaknesses in the system and whether the proposed reforms were necessary or helpful. Insofar as there was a general consensus on anything, it was that this is an area of law to watch in the future and one which is impacted by political as well as legal considerations.

            

    William Mitchell

    Will has a broad and busy developing practice encompassing all areas of Chambers’ work including:

    • Shipping & Maritime (including fatal accidents at sea)
    • Commercial Litigation
    • Shareholder Disputes
    • Insurance & Reinsurance
    • Banking & Finance
    • Arbitration
    • Aviation & Travel
    • Jurisdiction and Conflict of Laws
    • Insolvency
    • Gaming law

    He appears regularly as sole counsel in the County Court and High Court on a wide range of matters as well as arbitrations under LMAA and ICC rules. He recently appeared in the High Court (as sole counsel, against leading counsel) for the defendant airline in relation to applications concerning an anonymous witness. He is also regularly instructed as a junior alongside other members of Chambers on complex matters.

    To view Will's full website profile, please click here.

    william.mitchell@quadrantchambers.com

  • New silks for Quadrant Chambers in the 2020 appointments - Stewart Buckingham and Jeremy RichmondView More

    Thu, 16 January, 2020

    We are very pleased to annouce that Stewart Buckingham and Jeremy Richmond will be appointed Queen's Counsel on 16 March 2020. The ceremony takes place at Westminster Hall. 

    Our very best wishes and congratulations to them both and congratulations also goes to associate member, Professor Gerard McMeel who has also been appointed in this year's list. 

    Stewart Buckingham

    Stewart is a commercial barrister, specialising in commercial law, mainly focussing on commercial litigation and international arbitration. He has extensive trial, interlocutory and arbitration experience, and also undertakes advisory work and drafting. His takes a commercially driven approach tailored to the practical needs of his clients, and aims to deliver excellence in the services he provides. He is particularly adept at dealing with complex technical disputes.

    Stewart was shortlisted for Shipping Junior of the Year for the Legal 500 UK Awards 2020. He has been consistently ranked as a 'Leading Junior' in both the leading directories for several years. Comments have included:

    "praised for his approachability and user-friendliness, and is further admired for his advocacy skills"; "a delight to work with"; "easily understandable advice and commercially minded, down-to-earth style" (Chambers UK).

    "very able, easy to work with and delivers excellent advice"; "previously rare salvage experience"; "highly regarded" (The Legal 500).

    > view Stewart's full profile

    stewart.buckingham@quadrantchambers.com

    Jeremy Richmond

    Jeremy specialises in commercial and modern chancery law.  He has been described in Chambers and Partners as a “superb advocate” whose “expertise in chancery, commercial and banking matters is a useful complement to his insolvency skills”. He is ranked as 'Leading Junior' for Commercial Litigation and Insolvency in The Legal 500 2020. 

    Jeremy’s practice spans a broad range of commercial chancery and insolvency matters.  It encompasses company law (including directors misfeasance), shareholder and joint venture disputes, banking law, sale of goods (both international and domestic), fraud (with an emphasis on asset recovery) and all aspects of general commercial law.   He also has a specialisation in cross-border insolvency issues particularly in relation to the shipping, commodities, insurance and aviation sectors.  Jeremy has advised and / or appeared for key parties in OW Bunker, Hanjin Shipping, STX Pan Ocean, Alpha Insurance and Arik Airlines. He regularly appears in the Chancery Division as well as in the Commercial and Circuit Commercial Courts.   Jeremy often works in conjunction with Counsel from other jurisdictions and with experts. 

    Many of his cases involve a cross-over between ‘modern’ chancery and commercial litigation. 

    Jeremy was admitted to the New York Bar in 1996 and has worked as a New York lawyer for blue chip law firms in Manhattan and then the City.  

    > view Jeremy's full profile

    jeremy.richmond@quadrantchambers.com

  • Freezing injunctions: recent guidance from the Court of Appeal - John Russell QCView More

    Mon, 16 December, 2019

    It is a relatively rare occurrence for the Court of Appeal to consider important points of principle in relation to the granting of freezing injunctions. It is remarkable, then, that, rather like the proverbial London buses, there have been three such cases in the last 8 weeks.  This article summarises some of the key points from those decisions.

    Risk of dissipation of assets

    Lakatamia Shipping Co v Morimoto - 11 December 2019 [2019] EWCA Civ 2203

    A crucial question for any party considering whether to launch an application for a freezing order is whether there is sufficient evidence of a risk of dissipation of assets.  The decision of Haddon-Cave LJ provides helpful guidance as to the approach the court should adopt.

    First, Haddon-Cave LJ recapitulated some well-established principles:

    1. An applicant for a freezing injunction must show a real risk that a future judgment would not be met because of an unjustified dissipation of assets (such as concealment or transfer).
    2. Solid evidence of the risk is required- mere inference or generalised assertion is not good enough.
    3. If there is more than one respondent, the risk has to be separately established against each one.
    4. The fact that the respondent has been guilty of dishonesty is not of itself enough: such dishonesty has to point towards a risk of dissipation. 
    5. The use of offshore structures may be relevant, but does not of itself equate to a risk of dissipation.  Such structures may serve an entirely legitimate purpose.
    6. What must be threatened is unjustified dissipation. The purpose of a freezing injunction is not to provide general security for a claim, nor to constrain a respondent from operating its business in a legitimate way.

    Haddon-Cave LJ then emphasised that all that the applicant has to show to establish its case on risk of dissipation is that there is a “good arguable case” that there is such a risk.  He equated this to the “good arguable case” test for establishing a jurisdictional gateway as analysed recently by the Court of Appeal in Kaefer v AMS [2019] 3 All ER 979.  The applicant does not have to prove the risk on the balance of probabilities, though he does have to show that the risk is “more than barely capable of serious argument.” The heart of the test is that there is a plausible evidential basis for saying there is a risk of dissipation.  Haddon-Cave LJ said that the test is “not a particularly onerous one.”  

    We can anticipate that this case will be heavily relied on by applicants for freezing orders, where the evidence of risk of dissipation is fairly thin, as representing a lowering of the threshold, at least in practice, even if Haddon-Cave LJ did not purport to be breaking new ground.

    Ordinary living expenses

    Vneshprombank v Bedzhamov - 19 November 2019 [2019] EWCA Civ 1992

    This case considered the extent of the exception for ordinary living expenses where a freezing injunction is granted against a very high net worth individual. 

    Arnold J, varying the terms of a long-standing freezing injunction, permitted Mr Bedzhamov to spend a total of £80,000 a month on ordinary living expenses, including rent.  Mr Bedzhamov had sought permission to spend £165,000 plus €165,000 a month, which included rent on two properties in London (his own, and his daughter’s), a further property in Monaco (where his wife and other children lived) and a list of other items, including £5,000 per month on his clothes, €10,000 per month for his wife’s clothes, and £2,000 per month for barbers and toiletries.  

    The key point on appeal was whether, as a matter of principle, the level of the exception for ordinary living expenses should be determined (a) simply by reference to what the respondent has been accustomed to spend prior to the freezing injunction being imposed, even if it seems unlikely that he will be able to maintain such spending in the future or (b) by reference to what his living expenses are likely to be in the future.

    The Court of Appeal held that principle, authority and practicality pointed the same way:  “A defendant should be permitted to spend by way of ordinary living expenses in accordance with his actual past standard of living.” The judge’s decision had been wrong, because, inter alia, Mr Bedzhamov had been paying the rent on the three properties, and the £80,000 cap would not allow him to continue to do so.

    The key point of principle was that the purpose of a freezing injunction is to prevent a defendant from taking steps outside the ordinary course which have the effect of rendering a judgment unenforceable.  It is not to provide security.  If a defendant has been accustomed to a certain level of expenditure, he is entitled to maintain that level (even if it is extravagant or imprudent). 

    However, the judgment notes that the court must be alert to the danger that a defendant may exaggerate his expenditure precisely to allow him to put assets beyond the claimant’s reach. 

    That danger, said the court, can be avoided if the court maintains a healthy scepticism about the defendants’ assertions as to expenditure, and requires proper evidence in support of such assertions.  Moreover, it may well be appropriate for the court to allocate particular sums to particular heads of expenditure, rather than simply imposing a global limit.  On the facts, the limit was increased to allow payment of rent on the three properties, but the Court of Appeal upheld the judge’s view that there was insufficient evidence to support many of the other alleged heads of expenditure. 

    This case, therefore, is something of a swings-and-roundabouts decision for high net worth individuals faced with a freezing injunction. As a matter of principle they are entitled to maintain their lifestyle.  But they will have to prove their past expenditure with hard evidence. 

    Full and frank disclosure

    PJSC Commercial Bank v Kolomoisky - 15 October 2019 [2019] EWCA Civ 1708

    The long judgment of the Court of Appeal is largely concerned with the proper interpretation and application of the Lugano Convention.  However, at paragraph 249 et seq the Court considered an applicants’ duty to make full and frank disclosure when applying for a freezing order without notice.

    The Court identified the following principles:

    1. The applicant has to make full and fair disclosure of all the material facts.  What is material is to be decided objectively by the court- it does not depend on the applicant’s assessment, or that of his legal advisors.
    2. The applicant must make proper enquiries before making the application.  He must disclose not only what he knows, but what he would have known if he had made proper enquiries.  The scope of the enquiries that must be made depends on all the circumstances- so if the application is particularly urgent less extensive enquiries may be justified. 
    3. Whether the injunction should be discharged depends principally on the importance of the non-disclosed fact to the issues to be decided by the judge.
    4. However, it is necessary to consider whether the non-disclosure was innocent, or deliberate.  
    5. If a non-disclosure was innocent (in the sense that the applicant did not know the fact or did not appreciate its relevance) that is an important factor, but not decisive.  But the duty to make enquiries must be borne in mind.  A non-disclosure is unlikely to be considered innocent if the applicant failed to make the relevant enquiries for fear of discovering inconvenient facts.
    6. If the non-disclosure was deliberate or substantial, the court’s likely starting point will be to discharge the injunction. 
    7. Ultimately the question is where the interests of justice lie.  That may include continuing the freezing order, but marking the non-disclosure in some other way, such as with a suitable order as to costs.

    The facts relating to the non-disclosure are quite involved, but, in essence, the Court of Appeal overturned the decision of the judge (who had set aside the freezing injunction), on the basis that while the applicant should have gone further than it did in making full and frank disclosure, there was no basis for holding that the failure was deliberate in the relevant sense.

    The decision, therefore, highlights that it is important for an applicant for a freezing injunction to (a) carefully consider what material should be disclosed and why; (b) make all relevant enquiries that can be made in the time available, so that full and fair disclosure can be made; and (c) be able to explain, persuasively, why material which has not been disclosed was considered, objectively, not to be relevant. 

    Conclusion:  the importance of evidence

    While these three recent cases cover disparate areas of the law in relation to freezing injunctions, the common theme is the importance of evidence:

    1. Even though the test for risk of dissipation is the relatively low one of “good arguable case”, the risk has to be established by evidence, not mere assertion or inference;  
    2. Where a respondent seeks a generous exception for ordinary living expenses, they must prove their pre-injunction expenditure with proper evidence; 
    3. An applicant must make diligent enquiries so that the relevant evidence is before the court, to comply with its obligation to make full and fair disclosure. 

     

            

    John Russell QC

    John is an experienced and determined commercial advocate and has acted as lead Counsel in numerous Commercial Court trials, international and marine arbitrations and appellate cases, including two successful appearances in the Supreme Court, including the landmark shipping decision in Volcafe v CSAV. He has also appeared as counsel in inquests and public enquiries.

    He relishes both detailed legal argument and cross-examination of lay and expert witnesses. He will always ensure that a client's case is presented in the most persuasive manner possible, both in writing and orally.

    John provides advice to a wide range of clients. He combines first rate technical legal analysis with a pragmatic, commercial, problem solving approach to cases.

    John accepts instructions in many fields of commercial dispute resolution with a particular focus on shipping, commodities, international trade, marine insurance, aviation and travel.

    John has been named Shipping Silk of the Year for the Legal 500 UK Awards 2020. He was also shortlisted for Shipping Silk of the Year for the Chambers & Partners Bar Awards 2019. He is ranked in the Legal 500 and Chambers & Partners in Shipping, Commodities and Travel.

    > view John's full profile

    john.russell@quadrantchambers.com