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  • Valuation of Services for Purposes of Section 245 of the Insolvency Act 1986 - Robert-Jan Temmink QC and Victoria Kühn, ProskauerView More

    Mon, 09 December, 2019

    This article first appeared in International Corporate Rescue and is reprinted with permission of Chase Cambria Publishing - www.chasecambria.com/

    You can access a PDF of the article by clicking here.

    Synopsis

    Section 245 of the Insolvency Act 1986 (‘IA 1986’) declares certain floating charges automatically invalid if they were created within a specific time before the commencement of an administration or winding-up of the chargor, subject to certain exceptions. Floating charges are not invalid to the extent that they secure new value provided in the form of money, goods or services or a reduction (including a discharge) of a debt of the chargor.

    In Re Peak Hotels and Resorts Ltd Crumpler and another (joint liquidators of Peak Hotels Resorts Ltd) v Candey Ltd [2019] EWCA Civ 345 the Court of Appeal (the ‘Court’) provided clarification and guidance in relation to the valuation of services provided to a chargor under a fixed fee agreement where payment for those services had been secured by a floating charge. The Court made clear that a floating charge is valid only to the extent of the value of the services actually supplied under the fixed fee agreement. That was so irrespective of the fact that the fixed fee arrangement might provide for a facility for the chargor to draw on as many services under the fixed fee agreement as required. To the extent that the value of the services actually supplied fell short of the full amount of the fixed fee - and the floating charge therefore did not cover the whole of the fixed fee - the difference remained provable in the insolvency proceedings as an unsecured claim.

    Section 245 of the Insolvency Act 1986

    A common method under English law of taking security over an asset is to encumber the asset with a charge. A charge entitles the charge-holding lender to such amount of the proceeds of sale of the encumbered asset as is required to discharge the debt secured by the charge. English law distinguishes between fixed and floating charges. A fixed charge attaches to a specific asset, or assets, while a floating charge ‘hovers’ over a shifting pool of assets (present and future), e.g. inventory, allowing the chargor to use or trade the assets in the ordinary course of business until some future step is taken by or on behalf of those interested in the charge. At that point, the floating charge crystallises and the chargor is no longer permitted to use or trade the assets without the charge-holder’s consent. A charge is not categorised as fixed or floating merely by dint of the label creating it; instead, the court will consider whether a charge-holder has sufficient control over the charged assets. Where there is control the charge will be considered a fixed charge, otherwise it will be a floating charge. The distinction becomes particularly important when a chargor becomes insolvent.

    Section 245 IA 1986 provides that a floating charge is invalid if it was created within one year (or two years where the chargee is a connected party) before an administration or winding-up of the chargor is commenced unless, and to the extent that, the charge secures new money’s worth provided by way of consideration at the same time or after the creation of the charge (‘New Value Exception’). New money’s worth can be provided in the form of new money (as the name suggests), the discharge or reduction of existing debt, or by goods or services supplied to the chargor.

    In an insolvency situation, the classification of security is of critical importance for the ranking of the creditor’s debt claim in the subsequent payment to creditors out of the insolvent’s assets. The general position is that the proceeds from the realisation of any company assets which are subject to a fixed charge are distributed first to satisfy the debt secured by the relevant fixed charges, followed then by the expenses of the administration or winding-up, and after that by debts secured by floating charges (subject to a relatively small deduction of the prescribed part which is made available to unsecured creditors) and, lastly, pari passu to the unsecured creditors.

    Facts of the case and findings of the High Court

    British Virgin Islands-incorporated holding company Peak Hotels and Resorts Limited (‘Peak’) held a stake via a joint-venture vehicle in the luxury Aman Resorts hotel group. Shortly after purchase of the hotel group in January 2014, the joint venture partners’ relationship broke down and international litigation in relation to control of the hotel group and funding arrangements ensued. Candey Ltd, a small firm of solicitors, acted for Peak in that litigation which involved proceedings in the English High Court, international arbitration in Hong Kong and proceedings in the BVI courts.

    Peak had experienced cash flow issues and faced a potential bill for Candey’s fees at the conclusion of the litigation in a sum estimated to be £5 to £6 million if no settlement could be reached. Peak and Candey agreed that Candey would be entitled to a fixed fee of circa £3.86 million (plus interest of 8% p.a. from judgment or settlement) for its legal services provided in the proceedings and the payment of outstanding fees would be rescheduled. The fixed fee would not have to be paid until a judgment on liability was handed down or a settlement was agreed in the subset of the proceedings referred to by the Court as the ‘London Litigation’ unless Peak obtained cash from elsewhere (the ‘Fixed Fee Agreement’). To secure Candey’s claims under the Fixed Fee Agreement, on 21 October 2015 Peak executed a deed of charge and security in favour of Candey (the ‘Charging Deed’) creating continuing security by way of fixed and floating charges over all of Peak’s assets, undertakings, any damages and any other sums flowing from the claims.

    In February 2016, Peak entered liquidation proceedings in the BVI while the London Litigation was at a critical stage. The Liquidators subsequently managed to achieve a settlement in the London Litigation so as to prevent further costs being incurred. Upon Peak’s entry into liquidation, the fixed fee became due under the Fixed Fee Agreement and, relying on the Charging Deed, Candey claimed to be a secured creditor for the full £3.86 million in the liquidation. Candey claimed the whole sum despite the fact that, based on its standard hourly charging rates, the value of the services provided by Candey had been significantly lower.

    While not challenging the fixed fee in their application before the English High Court, the Liquidators challenged the asserted security. The English court had recognised the BVI liquidation proceedings in relation to Peak in February 2016 as main foreign proceeding under the Cross-Border Insolvency Regulations 2006 and the parties agreed that the matter should be conveniently dealt with in the English court.

    The main issues before the High Court were (1) whether certain properties fell within the relevant charges of the Charging Deed; (2) to the extent the property fell within the charge, whether the charge was a fixed or floating charge; and (3) to the extent the charge was a floating charge, whether s.245 IA 1986 applied to limit the sums secured.

    In a judgment dated 23 June 20181 the Deputy Judge in the High Court, His Honour Judge Davis-White QC, found that (1) both the monies paid into the court by Peak and received by the Liquidators upon settlement of the London Litigation, and the monies formerly held on trust for Peak in a bank account, were ‘property’ falling within the terms of the Charging Deed; (2) the charges over that property were floating charges because there was inadequate control over the assets for the charges to be considered fixed; and (3) the threshold conditions of s.245 IA 1986 were satisfied so as to limit the sums secured to the value of the services supplied at or after completion of the Charging Deed. The judge considered that further evidence was required to determine the value of the services supplied and that matter would have to be dealt with separately. A separate hearing on the valuation of the services was heard by His Honour Judge Raeside QC on 22 November 2017 who held that the value of the services supplied was to be measured by reference to the Fixed Fee Agreement and was therefore the whole of the fixed fee.

    The Liquidators’ appeal of HHJ Davis-White QC’s decision that the monies paid into court and subsequently paid out to the Liquidators were subject to the charge was dismissed. The Liquidators also appealed the valuation of the services by HHJ Raeside QC with permission granted by the judge.

    Judgment

    The Court (judgment by Lord Justice Henderson with whom the others agreed) allowed the Liquidators’ appeal of HHJ Raeside QC’s judgment and remitted the question of the valuation of the services supplied by Candey after completion of the Charging Deed to the High Court.

    The Court rejected the submission by Candey that the Fixed Fee Agreement was akin to a facility by which Peak could draw on Candey’s legal services regardless of the amount of work that would be required and should consequently be valued on that basis for the purpose of ascertaining the extent of the floating charge. Instead, the Court relied on the wording in s.245(6) IA 1986 which focused on the services actually supplied after the creation of the charge ([36-37]). The charge would be valid only to the extent of the value of those services actually supplied while the consideration agreed in the Fixed Fee Agreement would merely determine the extent of Candey’s claim in the liquidation as an unsecured creditor.

    With respect to the test for determining the value of the services supplied, the Court referred to s.245(6) IA 1986 and considered that the test was an objective one. ‘[T]he exercise required by section 245 […] is retrospective, and requires a valuation with the benefit of hindsight of the work which has actually been done.’([39])

    Value, therefore, must be ascertained by ‘an objective and retrospective assessment of the amount that Candey could reasonably have charged for those services in the ordinary course of business’ on the same terms as they had been supplied save for the consideration agreed ([40]). For the purpose of determining what Candey could reasonably have charged, the Court
    considered that Candey’s standard terms, charging on a time-basis with monthly invoices, would be ‘likely to provide an appropriate basis’ ([40]) for valuation. At the same time the Court cautioned that the service supplier’s standard terms could only serve as guidance and could not be conclusive because, given that the test was objective, it could not necessarily be assumed that the supplier of the services would have been Candey itself rather than another firm with comparable expertise and resources ([41]).

    Analysis

    The Court recounted the legislative history of s.245 IA 1986, tracing its history from s.212 of the Companies (Consolidation) Act 1908 (when floating charges created within a specified time before entry into insolvency were invalid ab initio save when cash was provided at or after their creation) to s.245 IA 1986 (in which the provision of goods and services was accepted as an equivalent of cash for the purposes of the New Value Exception). In contrast to the view presented by the authors of Sealy & Milman: Annotated Guide to the Insolvency Legislation in their commentary on s.245(2) IA 1986 who consider it is hard to see why other value provided, e.g. real property, is not to be taken as as providing good value for the purposes of the New Value
    Exception, at [17] the Court approved the passage in Goode, Principles of Corporate Insolvency (5th Edition, 2018, para 13-111) which explicitly states that the extension of the New Value Exception to goods and services is expressly restricted to ‘those forms of benefit to the company which arise from day-to-day trading and finance and have readily ascertainable value. Excluded are a wide range of other assets, both tangible and intangible, including land and buildings, intellectual property rights, debts and other receivables and rights under contracts.’

    From this analysis the Court distilled the purpose of s.245 IA 1986 as being:
    (i) the prevention of the preferential treatment of a floating charge-holder in the payment waterfall visà-vis the company’s unsecured creditors; where
    (ii) the charge is created at a time when the chargor is already in financial difficulty and is later placed into administration or liquidation; and where
    (iii) such charge-holder has obtained the charge without providing value equivalent to the charge in addition to the assets existing at the time of creating the charge. ([33])

    The valuation test in s.245(6) IA 1986 prescribes that ‘the value of any goods or services supplied by way of consideration for a floating charge is the amount in money which at the time they were supplied could reasonably have been expected to be obtained for supplying the goods or services in the ordinary course of business on the same terms (apart from the consideration) as those on which they were supplied to the company’.

    In the light of that explicit wording, the Court considered that the valuation test should be the sole guide to the valuation of the services. It rejected the approach of adducing other standards as aides for measurement, as HHJ Raeside QC had done when he considered whether the fee in the Fixed Fee Agreement was reasonable within the meaning of s.61 of the Solicitors Act 1974.

    Analogy to facility

    The Court rejected the argument that the Fixed Fee Agreement was a facility provided by Candey under which Peak could draw legal services as and when Peak required them. And consequently rejected the argument that the valuation of the service should take that call-off arrangement into account when determining the extent to which the floating charge is valid under the New Value Exception.

    The Court concluded that the Fixed Fee Agreement did not, in fact, create a commitment on the part of Candey akin to a facility: the legal work which Candey had undertaken to provide was specifically related to specific proceedings and did not allow Peak to draw whatever legal services it might require. Additionally, Candey had the right to withdraw from the Fixed Fee Agreement at any time.

    Notwithstanding the Court’s conclusion as to the nature of Candey’s commitment under the Fixed Fee Agreement, the Court made clear that whether or not there was a facility-like commitment was irrelevant. The words ‘at the time [the services] were supplied’ in s.245(6), presumably as interpreted in light of the section’s purpose, required the valuation to be based on the work actually done by Candey at or after the creation of the floating charge. Services ‘promised’ but not supplied under the Fixed Fee Agreement would not be value for the purpose of the New Value Exception.

    To hold otherwise would, of course, have given Candey an unwarranted windfall: it would have jumped the queue of unsecured creditors for a pari passu distribution in respect of fees it hoped to receive for work it hoped to carry out, but which in fact it had not done and for fees which had not, in fact, been incurred.

    That said, whilst the Court’s conclusion that the valuation should be based on the actual work done by Candey is unassailable in this particular case, it remains to be seen whether another Court could be convinced to find that a fixed fee agreement by which a client could draw on legal services as and when required could, as a matter of principle, amount to a valuable service for the purpose of the New Value Exception. That position appears to have been contemplated by HHJ Davis- White QC. At [119] of his judgment he explained that he ‘accept[s] what has to be valued is the services supplied to the company and not the services contracted to be supplied, but that of course does not determine what services were, for these purposes, ‘provided’.’

    As ever in these situations, everything will depend on the context and what, precisely, has been agreed. On the one hand, a call-off arrangement for legal services required from time to time, subject to an overall cap on fees, is likely to result in a Court considering what has been called-off and what the value of those services were. On the other hand, a fixed-price fee for work over a period of time, however much work was done, might well amount to the provision of a service sufficient to trigger the New Value Exception.

    Guidance on the valuation of services

    The Court provided further guidance on the valuation of Candey’s services since creation of the floating charge.

    In respect of the term ‘ordinary course of business’, the Court clarified that this denoted the ordinary course of the supplier’s business, i.e. Candey’s business as solicitors, irrespective of the enhanced credit risk associated with Peak as the purchaser of the services ([44, 45]). Therefore, neither a charge for credit in the form of compensation for delayed payment nor increased charging rates or other special terms of business attributable to the risk of non-payment can enter the valuation considerations for the purposes of s.245.

    The Court reached this conclusion on the basis that the purpose of the words ‘ordinary course of business’ clearly had a function to perform, part of which was to insulate the valuation of the services actually provided from any increase in the supplier’s normal charging rates or other special terms of business caused by an increased risk of non-payment.

    Similarly, the objective standard did not, in the Court’s view, permit consideration of the particular circumstances which led Peak to negotiate the Fixed Fee Agreement to be taken into account. Accordingly, the value pursuant to s.245(6) IA 1986 could not include compensation for the delay in payment. Instead, s.245(2)(c) IA 1986 provided a saving for contractually-agreed interest and it would have been inconsistent with that express statutory right if Candey were also able to include such charge by means of the definition of the services supplied.

    In this respect, by excluding any special terms of business attributable to the increased credit risk, the Court seems to have concluded that the valuation test in s.245(6) IA 1986, by reference to ‘the ordinary course of business on the same terms […] as those on which they were supplied’, requires that the terms assumed for the purposes of valuation be the same as would be agreed with a healthy solvent company. However, it is not obvious that the valuation test does require that such terms should be assumed, nor is it clear why it should. Why should service-providers not put in place either extra security, or additional terms to protect themselves, or to compensate them for the unwelcome effects of insolvency as part of their normal course of business? If it is market practice to provide services to financially distressed companies on different terms compared to financially healthy companies, why should the former be considered to be supplied outside the ordinary course of business?

    Moreover, if the legislators had intended that the value of services for the purpose of the New Money Exception be determined by reference to a healthy going-concern, would it not be expected to have said so expressly and without adding ‘on the same terms (apart from the consideration) as those on which they were supplied’?

    By including services in the New Value Exception, the legislators added a source of value supporting a floating charge which is more flexible than the mere provision of money. Goode stated that the value of services in day-to-day trading is readily ascertainable and was therefore added to s.245 as another foundation of value for the purposes of the New Money Exception. However, the assumption that value is readily ascertainable is only correct where the valuation basis is taken either to be the actual consideration agreed for the services supplied, or fair market value determined for the service actually delivered. In either case, at least certain special terms of business that take into account the increased credit risk, e.g. increased rates, should not reasonably be disregarded in such consideration and valuation. If they were to be disregarded, the legislators could and should have expressly stated as much.

    In fact, the statement that the legislators intended to insulate the valuation of the service for the purpose of s.245 from any terms of business occasioned by an increased credit risk also appears inconsistent with the saving provision for interest in s.245(2)(c). In the case of cash provided to a company under a new money facility, it is accepted market practice for the lender to charge higher interest if lending to a financially distressed entity than if lending to a financially healthy company. Section 245(2)(c) saves all of such interest charged without restriction as to the portion of interest attributable to the higher credit risk of the borrower-chargor.

    Conclusion

    The Court in Re Peak Hotels and Resorts Ltd Crumpler and another (joint liquidators of Peak Hotels Resorts Ltd) v Candey Ltd helpfully provided further guidance in relation to the definition of services supplied for the purposes of s.245 IA 1986 where a fixed fee was agreed and in relation to the terms which can be taken into consideration when determining the value of the services supplied for the purpose of the New Value Exception.

    While the Court’s conclusions in respect of the facts of the case are readily understandable, the Court’s statements of principle may have inadvertently excluded perfectly reasonable agreements and intentions between supplier and consumer/chargor and chargee where the price of services was agreed between the parties and legally secured prior to any insolvency. In excluding the possibility that a facility type of service could be taken into account when determining the valuation of a service actually supplied; or that special terms occasioned by working for a risky client could be taken into account, the Court may have gone slightly too far.

            

    Robert-Jan Temmink QC

    Robert is recognised as a talented advocate with a commercial practice encompassing a broad spectrum, from Chambers' core areas of aviation and shipping, to energy, construction, and insurance law together with financial services, insolvency and fraud. Many of Robert's cases involve cross-border, or other jurisdictional issues both in the UK and abroad and he most regularly appears in the Commercial, Chancery and Technology & Construction courts in the United Kingdom. He is also registered to practice at the Dubai International Financial Centre Court where he has frequently appeared and is called to the Bar in Northern Ireland and as a Foreign Legal Consultant in the State of New York. He is often asked to work on cases in the Caribbean (he is called to the bar of the Eastern Caribbean) arising out of contractual or commercial chancery disputes.

    > To view Robert's full profile, please click here.

    robert.temmink@quadrantchambers.com 

    Victoria Kühn, Proskauer

    Victoria Kühn is an associate in the Firm’s Business, Solutions, Governance, Restructuring & Bankruptcy Group. Her practice includes both financial restructuring transactions, including consensual and non-consensual restructurings and distressed asset sales, and insolvency-based litigation, particularly with a cross-border element. She has advised and represented a number of stakeholders and office holders in a variety of situations, including cross-border restructurings, liquidations, schemes of arrangement and distressed asset sales. Although she focuses on distressed situations, she has also experience in leveraged finance transactions advising both financial institutions and companies. Recently, Victoria spent half a year in Moscow working as an English solicitor. Prior to embarking on her career as a solicitor, Victoria worked in Switzerland with a Big Four accountancy firm as an external financial auditor for a number of years and completed her training as a Swiss Certified Public Accountant (eidgenössisch diplomierter Wirtschaftsprüfer).

    > To view Victoria's full profile, please click here.

  • Simon Rainey QC is featured in Lloyd’s List Top 10 Maritime Lawyers 2019View More

    Mon, 09 December, 2019

    We are delighted to announce that Simon Rainey QC has been featured in the Lloyd's List Top 10 Maritime Lawyers of 2019.

    The top 10 maritime lawyers is one section of their feature on 2019's Top 100 most influential people in shipping. For further details please click here.

    Simon Rainey QC

    Simon Rainey QC is one of the best-known and most highly regarded practitioners at the Commercial Bar with a high reputation for his intellect, advocacy skills, commercial pragmatism and commitment to client care. He has established a broad commercial advisory and advocacy practice spanning substantial commercial contractual disputes, international trade and commodities, shipping and maritime law in all its aspects, energy and natural resources and insurance and reinsurance. He appears in the Commercial Court and Court of Appeal and also the Supreme Court. He has extensive experience of arbitration, regularly appearing before all of the main domestic and international arbitral bodies and trade associations. He particularly relishes complicated legal disputes and also cross-examination, especially in cases involving heavy expert evidence, of both technical disciplines and foreign law. He is well-known as a cheerful and easy to work with team player who rolls his sleeves up in long and complex trials and arbitrations.

    He has been cited for many years as a Leading Silk in the areas of Shipping, Commodities, Commercial Litigation and Dispute Resolution, International Arbitration, Energy and Natural Resources, and Insurance and Reinsurance by Chambers & Partners and Legal 500. He also sits as a Deputy High Court Judge in the Commercial Court. "He has it all under complete control, and he reads the court, his opponents and the direction of the case perfectly" (Chambers UK, 2020); "Truly a super silk - devastatingly sharp and exceptional on his feet." (Legal 500, 2020).

    To view full website profile, please click here.

  • Quadrant wins three Awards in International Arbitration and Shipping at the Legal 500 UK Bar Awards 2020View More

    Wed, 04 December, 2019

    Quadrant Chambers is delighted to announce we have won the following awards at the Legal 500 UK Bar Awards:

    Simon Rainey QC - International Arbitration Silk of the Year 2020

    Quadrant Chambers - Shipping Set of the Year 2020

    John Russell - Shipping Silk of the Year 2020

    Congratulations to all those shortlisted and to the winners. 

    Simon Rainey QC

    Simon is one of the best-known practitioners at the Commercial Bar with a broad commercial advisory and advocacy practice spanning substantial commercial contractual disputes, international trade and commodities, shipping and maritime law in all its aspects, energy and natural resources and insurance and reinsurance and has extensive experience of international arbitration. Simon regularly acts in groundbreaking shipping and commodity cases including NYK Bulkship (Atlantic) NV v Cargill International SA (The Global Santosh) [2016] UKSC 20 where Simon represented Cargill. The decision is the leading one in relation to a contracting party’s responsibility for the vicarious or delegated performance by a third party of its contractual obligations, both in the common charterparty and international sale of goods contexts and more generally. In Bunge SA v Nidera SA [2015] UKSC 43 Simon represented Bunge in a landmark decision by the Supreme Court on GAFTA Default Clause and sale of goods damages after The Golden Victory. His most recent appearance in the Supreme Court was in Volcafe Ltd v Compania Sud Americana de Vapores SA [2018] UKSC 61 one of the most important shipping appeals in recent times, dealing with issues as to the burden of proof under the Hague / Hague-Visby Rules and the inherent vice defence. He has been brought in to argue the prospective Supreme Court appeal in Evergreen Marine Ltd v Nautical Challenge Ltd (The Ever Smart) [2018] EWCA Civ 2173, on the application of the ‘crossing rule’ under the Collision Regulations. 

    Ranked as the “Star Individual” for shipping and commodities by Chambers UK in 2015, 2016, 2017, 2018 and again in 2019, Simon was ranked as Shipping Silk of the Year 2017 by both Chambers and Partners UK and Legal 500 UK Awards and one of the Top Ten Maritime Lawyers 2017 and again in 2018 by Lloyd’s List. He has also been cited for many years as a leading Silk in the areas of Commodities, Commercial Litigation and Dispute Resolution, International Arbitration, Energy and Natural Resources, and Insurance and Reinsurance by Chambers UK and/or Legal 500. He was shortlisted for Shipping Silk of the Year at the Chambers UK Bar Awards 2018 and for Shipping Silk of the Year and International Arbitration Silk of the Year at the Legal 500 UK Awards 2019.

    He has given expert evidence of English law to courts in several countries. He also sits as a Recorder in the Crown Court and as a Deputy High Court Judge (Commercial Court).

    John Russell QC

    John is an experienced and determined advocate and has acted as lead Counsel in numerous Commercial Court trials, international and marine arbitrations and appellate cases, including in the Supreme Court. 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 and marine insurance. John has recently appeared successfully in the Supreme Court in Volcafe v CSAV, in the Court of Appeal in The “Pacific Voyager” and in the Admiralty Court in The “CMA CGM Libra”.

  • Shortlisted for nine awards at the Legal 500 UK Awards 2020View More

    Wed, 27 November, 2019

    We are delighted to announce that Quadrant Chambers has been shortlisted for both International Arbitration and Shipping Set of the Year for the Legal 500 UK Awards 2020. In addition, Simon Croall QC, Simon Rainey QC, John Russell QC, Stewart Buckingham, David Semark and Benjamin Coffer have each received individual nominations:

    International Arbitration Set of the Year
    Shipping Set of the Year
    Simon Croall QC - Shipping Silk of the Year
    Simon Rainey QC – International Arbitration Silk of the Year and Shipping Silk of the Year
    John Russell QC - Shipping Silk of the Year
    Stewart Buckingham - Shipping Junior of the Year
    David Semark - Shipping Junior of the Year
    Benjamin Coffer - Shipping Junior of the Year

    A list of all the nominations can be viewed here

    Simon Croall QC

    Simon Croall QC is Head of Quadrant Chambers. He is an established commercial silk who has appeared in every court (including two recent appearances in the Supreme Court). He is a sought after trial advocate as well as being respected in the appellate courts. He is particularly well known for his experience in the following fields: dry shipping and commodities, commercial litigation, International Arbitration, energy, insurance and Information Technology

    He also has a global practice with a depth of experience working with Chinese and south east Asian clients. This was recognised by his ranking as a leader in International Arbitration by Chambers Asia Pacific 2018 and Legal 500 Asia Pacific Guides. Simon was named one of the top 10 maritime lawyers of 2017 by Lloyd's List. Simon was nominated for Shipping Silk of the Year at the Chambers & Partners Bar Awards 2018 and named Shipping Silk of the Year at the Legal 500 UK awards 2019.

    Simon is recommended as a leading silk Shipping and Commodities (Legal 500 UK and Asia Pacific, Chambers UK, Asia Pacific and Global editions), Energy (Legal 500 UK) and Information Technology (Chambers UK). Recent praise includes: "Really attuned to the client, very clear in his thinking and very sympathetic to the client's cause. He brings clarity and a sense of humour, which makes him delightful to work with" (Chambers UK, 2020) and "A very smooth, calm and considered advocate with a masterful grip on the issues." (Legal 500, 2020)

    To view full website profile, please click here.

    Simon Rainey QC

    Simon Rainey QC is one of the best-known and most highly regarded practitioners at the Commercial Bar with a high reputation for his intellect, advocacy skills, commercial pragmatism and commitment to client care. He has established a broad commercial advisory and advocacy practice spanning substantial commercial contractual disputes, international trade and commodities, shipping and maritime law in all its aspects, energy and natural resources and insurance and reinsurance. He appears in the Commercial Court and Court of Appeal and also the Supreme Court. He has extensive experience of arbitration, regularly appearing before all of the main domestic and international arbitral bodies and trade associations. He particularly relishes complicated legal disputes and also cross-examination, especially in cases involving heavy expert evidence, of both technical disciplines and foreign law. He is well-known as a cheerful and easy to work with team player who rolls his sleeves up in long and complex trials and arbitrations.

    He has been cited for many years as a Leading Silk in the areas of Shipping, Commodities, Commercial Litigation and Dispute Resolution, International Arbitration, Energy and Natural Resources, and Insurance and Reinsurance by Chambers & Partners and Legal 500. He also sits as a Deputy High Court Judge in the Commercial Court. "He has it all under complete control, and he reads the court, his opponents and the direction of the case perfectly" (Chambers UK, 2020); "Truly a super silk - devastatingly sharp and exceptional on his feet." (Legal 500, 2020).

    To view full website profile, please click here.

    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 in the Supreme Court. 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.

    He is ranked in the Legal 500 and Chambers & Partners in Shipping, Commodities, Aviation and Travel and was also shortlisted for Shipping Silk of the Year for the Chambers & Partners Bar Awards 2019

    To view full website profile, please click here.

    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 is 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).

    To view full website profile, please click here.

    David Semark

    David ‘Produces excellent work and represents exceptional value for an experienced litigator.’ (Legal 500 2015). David previously trained in the Shipping Department of one of South Africa's leading maritime and international trade firms, before joining and later becoming a partner at what is now known as Reed Smith. He retrained as a barrister and became a member of Quadrant in 2010.

    David specialises in commercial law, with a particular emphasis on shipping and maritime law (especially dry shipping disputes), international trade and commodities, jurisdictional disputes and insurance. Although his practice is primarily as an advocate, he is also an LCIA arbitrator.

    David was in the Supreme Court with Simon Rainey QC in October 2018 on the issues as to the burden of proof under the Hague / Hague-Visby Rules raised on the appeal in Volcafe Ltd v Compania Sud Americana de Vapores SA [2016] EWCA Civ 1103.

    He is the co-author of P&I Clubs: Law and Practice (2010, 4th ed.) and Maritime Letters of Indemnity (2014, 1st ed.)

    To view full website profile, please click here.

    Benjamin Coffer

    Ben was named Shipping Junior of the Year 2019 at the Chambers & Partners Bar Awards and is described by the directories as "very calm and professional in his assessment, which conveys confidence and gravitas beyond his call." (Chambers UK, 2020); "has the ability to simplify the trickiest of legal problems in a way that is readily understandable" and "a rising star" (Legal 500, 2019). He is also recognised as a leading junior in the Legal 500 Asia Pacific Guide. Ben undertakes the full spectrum of shipping work, including every species of charterparty and bill of lading claim, as well as shipbuilding and ship finance disputes. He has developed a particular specialisim in cases involving carriage of goods under the Hague and Hague-Visby Rules, and has appeared in several of the leading cases on such claims in recent years.

    To view full website profile, please click here

  • The English Court Provides Some Useful Guidance on Administrators’ Duties: Green & Newman v SCL Group Ltd and others [2019] EWHC 954 (Ch)- Jeremy RichmondView More

    Mon, 18 November, 2019

    This article first appeared in Volume 16, Issue 6 of International Corporate Rescue and is reprinted with the permission of Chase Cambria Publishing - www.chasecambria.com

    You can access a PDF of the article by clicking here.

    Synopsis

    In Green & Newman v SCL Group Ltd and others,1 the Court had to decide whether to appoint the incumbent administrators of the Cambridge Analytica group of companies as liquidators in the face of wide-ranging objections by a contingent creditor. In considering the matter, the Court provided some useful guidance to administrators touching upon their decision-making and duties.

    Background Facts

    The case concerned a number of companies in the group commonly known as Cambridge Analytica, (hereinafter, for ease of exposition, referred to as ‘Cambridge Analytica’). The business involved the acquisition of commercial data from multiple vendors, its amalgamation and analysis and the use of the analysis to target and message clients. Cambridge Analytica’s clients included political parties and campaign groups who used its services to seek to influence voting behaviour in both the United Kingdom and the United States.

    On 10 January 2017, a Professor Carroll submitted a Subject Access Request (‘SAR’) in England to one of Cambridge Analytica group companies, SCL Group Limited (‘Group’), seeking to find out whether it (or any associated companies) held any of his personal data, what was the legal basis for any processing of that data and, for each ‘data point’, full information as to its source. He did not receive a reply he regarded as satisfactory. Therefore, on 16 March 2018, he issued court proceedings against some of the group companies (including Group and Cambridge Analytica (UK) Limited) founded on section 7 of the UK Data Protection Act 1998. It would seem that Prof. Carroll’s legal action had a wider strategic purpose since on his ‘crowd funding’ website he had solicited donations to fund his campaign to establish the principle that ‘companies cannot use personal data in any way they see fit’.

    Following allegations over Cambridge Analytica’s misuse of personal data of Facebook users in March 2018, the UK Information Commissioner’s Office (‘the ICO’) raided the offices of Cambridge Analytica and seized several servers and significant quantities of evidence (including accounting books and records). The controversy led to a number of Cambridge Analytica’s clients cancelling their contracts and seeking the return of payments made. Moreover, Cambridge Analytica’s inability to access accounting data meant that it failed to pay debts as and when they fell due. Consequently, each of the group companies applied to enter into administration.

    At the conclusion of the hearing of the administration application (which spanned over two-days) on 3 May 2018, the Judge (Hildyard J) found, with some hesitation and ‘on balance’, that there was a real prospect of a better result for Cambridge Analytica’s creditors in an administration (compared to a liquidation) and consequently appointed Messrs. Green and Newman as the joint administrators of each of the group companies (‘the Joint Administrators’). The main plan of the Joint Administrators was to effect the sale of all or part of Cambridge Analytica’s business.

    It quickly became apparent, however, that Cambridge Analytica could not continue to trade because the ICO had seized its laptops and servers such that the sale of the business could not be achieved. Consequently, the Joint Administrators proposed to creditors that the group companies of Cambridge Analytica should be placed into compulsory liquidation and that they, the Joint Administrators, be appointed as Joint Liquidators. The creditors for each of the group companies accepted the proposal. Prof. Carroll voted against the proposal as far as it concerned SCL Elections Limited (‘Elections’), the only group company in whose administration he held voting rights as a contingent creditor.

    On 11 August 2018 the Joint Administrators presented petitions for the winding up of Cambridge Analytica and their appointment as Joint Liquidators. Prof. Carroll objected to the proposal. He initially expressed his objections on the basis that ‘he was concerned that the administrators [were] insufficiently objective’ and would ‘fail to hold the balance fairly as between him … and the directors/shareholders of Cambridge Analytica who were responsible for their initial appointment’. He subsequently broadened his objections so as to attack both the personal integrity and professional competence of the Joint Administrators. His objections were wide-ranging. Some of those objections are addressed immediately below.

    The objections to the Joint Administrators’ conduct

    The Joint Administrators’ alleged failure to disclose Prof. Carroll’s pending court proceedings at the time of the administration order

    Since, on the evidence, it was clear that the Joint Administrators only became aware of the court proceedings after the administration order was made, Prof. Carroll mainly argued that the Joint Administrators’ duty of candour included a duty to make reasonable enquiries (analogous to the duty of parties applying ‘without notice’ for interim relief). In this regard Prof. Carroll relied on the case of Re OGX3 (a case concerning an application for recognition of a Brazilian insolvency proceeding under the GB Cross-Border Insolvency Regulations 2006 specifically in order to obtain a stay of a London arbitration, where the judge was not told that the subject matter of the arbitration was not affected by the collective insolvency proceedings in Brazil). He argued that had such investigations been made, the court proceedings would have come to light and the Court would have modified the automatic stay to permit the court proceedings to continue notwithstanding the administration order.

    The Judge (Norris J) rejected the submission on the basis that the Joint Administrators had a duty to make reasonable enquiries relating to their ability:

    a. to provide a certificate that one of the purposes of the administration was reasonably likely to be achieved; and

    b. to perform the duties of their office.

    In light of those duties the Joint Administrators were under no duty to make themselves as fully informed about the company’s general affairs as the applicant company. As noted by the Judge:

    ‘In general (there is always the possibility of an exceptional case) he or she [the administrator] is not before appointment bound to seek out every piece of litigation in which the company is involved and to consider the impact of the statutory moratorium upon it: not least because the alternative will generally be liquidation, which will impose its own stringent moratorium under section 130 [of the Insolvency Act 1986.]’

    The Joint Administrators’ alleged lack of candour concerning the funding of their fees

    The Judge found that it was not unusual, as in this case, for the ultimate holding company (which is also a major creditor) to underwrite the costs of the administration of its subsidiaries in order to obtain the best recovery. The Judge did, however, emphasise that administrators were not the sole judges of what may or may not be material as regards funding and should, where necessary, be prepared to expose their judgement to the consideration of others (including the Court). The Judge found that the Joint Administrators ‘belatedly’ disclosed the funding arrangement to the Judge hearing the administration application (and, in so doing, belatedly complied with their duty in this regard). However, the Judge did find that the Joint Administrators showed misjudgement in not having volunteered information concerning the funding of their fees earlier in the administration application.

    The Joint Administrators’ alleged incompetence in certifying that there was a reasonable likelihood of achieving the purpose of the administration

    Given the concerns expressed by Hildyard J at the administration application hearing, the Judge found that this allegation potentially had some weight. After eschewing the ‘hindsight element’ (this is what happened, so it should have been foreseen) the Judge set out the relevant question as follows:

    ‘The question for the proposed administrators was whether at the date of the hearing (and in particular on its second day), and looking ahead from the standpoint of their current knowledge, they were able to abide by the statement in their respective consents to act that ‘the purpose of administration was reasonably likely to be achieved’ i.e. that there was a real prospect of that outcome. This is a question of immediate judgment, where there may be a reasonable difference of view.’

    The Judge found that the Joint Administrators had (among other things) acted on information from the directors about ‘concrete expression[s] of interest’ in the businesses so that they were entitled to form the view they did. The Judge found that the Joint Administrators’ view was not ‘irrational, perverse or outside the range of views that might be held by reasonably competent practitioners (even if some proposed office holders would have taken a different view)’.6 The Judge also suggested that in order to prove such a case of incompetence against administrators appropriate expert evidence might be necessary.

    The Joint Administrators’ alleged lack of candour concerning the costs of the administrations

    The Joint Administrators’ proposed fees were almost double the fees contained in their initial estimated outcome statement. Prof. Carroll argued that in the circumstances the Joint Administrators had not told the truth about their fees such that they were rendered unfit to be liquidators. The Judge rejected the argument. The Judge found that the increase from the initial estimated fees (based on four days of familiarity of the companies’ business) to the actual fees did not mean that the Joint Administrators had not told the truth or lacked candour. Taking a pragmatic approach, the Judge was also comforted by the fact that, in addition to Creditor Committee scrutiny, the approval of creditors was required in any event before the Joint Administrators could draw their fees.

    The Joint Administrators’ alleged actual bias against Prof. Carroll

    Prof. Carroll had requested the provision of all the materials adduced for the administration application. The Joint Administrators’ solicitors refused the request on grounds of costs. The Judge found that the Joint Administrators should have disclosed to Prof. Carroll their preappointment certificates, estimated outcome statement and skeleton argument relied on at the administration application hearing when asked since such documents were readily to hand. The Judge applied the following test: ‘Are the acts of the Joint Administrators disclosed by the incontrovertible parts of the documentary record so perverse that they can only be attributed to bias?’ The Judge found that the acts and omissions of the Joint Administrators were equally consistent with the Joint Administrators thinking in good faith (for good reason or bad) that they had a strong case for acting as they did, supported by the majority of the general body of creditors. As such, the Judge rejected the allegation of actual bias by the Joint Administrators against Prof. Carroll.

    The Joint Administrators’ alleged misconduct in not petitioning for liquidation sooner

    The Judge found that the Joint Administrators could have applied for directions from the Court earlier as soon as it became clear that the sale of the business could not occur. However, the Judge found that it was not outside the proper range of decisions for the Joint Administrators to wait for the delivery of the Statement of Affairs in order to ascertain the number and value of creditors and seek their views on the proposal to place Cambridge Analytica into compulsory liquidation.

    The Joint Administrators’ alleged misconduct in relation to Prof. Carroll’s Subject Access Request

    On 4 May 2018, the ICO served an Enforcement Notice on Elections requiring it to provide better answers to Prof. Carroll’s SAR. The Joint Administrators did not cause Elections to take steps to comply with the Enforcement Notice since (a) they were not themselves ‘data controllers’ (per Re Southern Pacific Personal Loans Ltd);7 (b) the relevant servers were in the custody and control of the ICO; (c) from 22 May 2018, Elections had no staff; and (d) the costs of complying would have been disproportionate to the value of the assets and would impact adversely on recovery for the general body of creditors. Elections pleaded guilty to a subsequent prosecution by the ICO for not complying with the Enforcement Notice. It was fined £15,00 and ordered to pay in addition £6000 in costs. Prof. Carroll argued that the Joint Administrators were guilty of misconduct in relation to the Enforcement Notice. The Judge found that the attempts at compliance with the Enforcement Notice would have involved Elections incurring costs that would have ranked as an expense of the administration (to the potential detriment of general creditors); in contrast, non-compliance by Elections with the Enforcement Notice had resulted in some minimal costs and an additional unsecured claim. Since there was no evidence that the latter situation would be more burdensome to the creditors than the former situation, the Judge could not find that the Joint Administrators had misconducted themselves.

    Outcome

    Having rejected the complaints of Prof. Carroll the Judge stepped back and considered whether it was right in any event to place Cambridge Analytica into compulsory liquidation with the Joint Administrators as the Joint Liquidators. The Judge found that it would be ‘conducive to the proper operation of the liquidation’ to place Cambridge Analytica into compulsory liquidation and appoint the Joint Administrators as the Joint Liquidators, especially in light of the Joint Administrators’ familiarity with the business.

    Conclusion

    The case emphasises the generous margin that administrators are afforded by the court in making difficult decisions in the conduct and affairs of a company in administration. It also provides some welcome clarification of the extent to which the administrators have a duty to make reasonable enquiries of a company pre-their appointment as administrators.

     

            

    Jeremy Richmond

    Jeremy specialises in commercial and modern chancery law.  He is 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 has been 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. 

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

    jeremy.richmond@quadrantchambers.com

  • Quadrant Chambers sponsoring the DIFC-LCIA Symposium at Dubai Arbitration Week 2019View More

    Mon, 11 November, 2019

    Quadrant Chambers is delighted to be sponsoring the DIFC-LCIA Symposium as part of Dubai Arbitration Week 2019. The Symposium takes place on Tuesday 19 November. 

    Stewart Buckingham will be taking part in the panel debate. 

    Robert-Jan Temmink QC, Ruth Hosking and Gary Ventura will also be at Dubai Arbitration Week. 

  • Quadrant Chambers International Arbitration Newsletter Autumn 2019View More

    Wed, 06 November, 2019

    The latest edition of the Quadrant Chambers International Arbitration Newsletter is now available.

    The editorial is provided by Tom Nixon with articles on the case of Process & Industrial Developments v Federal Republic of Nigeria and the seat of an arbitration from Koye Akoni and Ben Gardner looks at the Court of Appeal decision in Halliburton v Chubb ahead of the upcoming Supreme Court hearing. 

    Our latest news and upcoming events are also included. 

    > Download International Arbitration Newsletter here
     

  • Matthew Reeve to represent the Family in the Emiliano Sala Pre-Inquest ReviewView More

    Wed, 06 November, 2019

    The first public pre-inquest hearing is taking place before Senior Coroner for Dorset, Rachael Griffin on 6 November 2019, at Bournemouth.  Matthew Reeve will represent the family of Emiliano Sala, the Argentinian football player who tragically died aboard a Piper PA-46 Malibu single-engine aircraft (N-264DB) when it crashed into the sea 22 nautical miles north of Guernsey on 21 January 2019.  There are ongoing investigations by the AAIB, the Dorset Police and the CAA.  Matthew, instructed by Hickman & Rose , is representing the Family in respect of these investigations and any civil liabilities that arise. The full inquest will take place next year.

    Matthew Reeve

    Matthew is a highly experienced barrister with a wide-ranging commercial practice. He appears as the front-line advocate at all levels of the senior courts, especially the Commercial Court, the Court of Appeal and the House of Lords, as well as in international commercial arbitrations (in which he also receives appointments as an arbitrator).

    He has attracted recognition for his handling of larger cases requiring complex legal and factual analysis and the coordination of large teams of lawyers and experts on cases from around the world including (recently) Saudi Arabia, Brunei, Bermuda, Dubai, China, Korea, Cayman Islands, India and New Zealand. Clients include members of royal families, senior military figures, three premiership football clubs, international sportsmen and well-known business personalities in the United States and UK, aviation authorities (in the UK and abroad), insurance regulatory authorities, as well as international insurance and reinsurance companies and airlines.

    Matthew combines the highest standards of advocacy (including traditional cross-examination skills) with the application of the most modern litigation-management techniques. He is consistently ranked as a 'Leading Junior' in the latest editions of both Chambers UK and The Legal 500 for Aviation, Shipping and International Arbitration and was shorltisted for Shipping Junior of the Year for the Legal 500 UK Awards 2019.

    > View Matthew's profile

  • General average guarantees and the actionable fault defence: The BSLE Sunrise [2019] EWHC 2860 (Comm)View More

    Mon, 04 November, 2019

    In a judgment handed down today following a hearing on a preliminary issue, the Commercial Court has held that the “actionable fault” defence under Rule D of the York Antwerp Rules is available to the issuer of a general average guarantee in the standard AAA / ILU form. Ruth Hosking appeared for the claimant shipowner. Benjamin Coffer appeared for the defendant insurers, instructed by Andrew Nicholas and Cameron Boyd of Clyde & Co.

    The Case

    The dispute arose from the grounding of the “BSLE SUNRISE” off Valencia in September 2012. The owners declared general average. Cargo interests issued general average bonds. The defendant insurers provided security for those bonds on the standard form general average guarantee approved by the Association of Average Adjusters and the Institute of London Underwriters.

    Owners brought a claim under the guarantees for contribution in general average and it was agreed that the question of whether the wording of the guarantees made a Rule D defence available in principle to the guarantors would be decided by way of preliminary issue.

    The guarantees provided that the insurers undertook to pay ‘“any contribution to General Average and/or Salvage and/or Special Charges which may hereafter be ascertained to be properly due in respect of the said goods.” 

    Judgment

    HHJ Pelling QC, siting as a High Court Judge, held that if the actionable fault defence was available to the receivers, no sums were payable under the guarantees. The standard form wording preserved the insurer’s right to rely on the defence available to the receivers under Rule D if the loss was caused by the shipowner’s actionable fault.

    The Judge considered that the word “due” in the bonds signified a sum that was legally owing or payable. He relied on the judgment of Sheen J in The Jute Express [1991] 2 Lloyds Rep 55 in holding that “and which is payable” means “and which is legally due.” He noted that the payment was to be made “on behalf” of the cargo interests concerned, suggesting that what the insurer was agreeing to pay was what the parties to the adventure would otherwise have had to pay themselves.

    The inclusion of the word “properly” served to put the point beyond doubt. The Judge found support in the success of insurers resisting claims under similarly worded guarantees in The Cape Bonny [2017] EWHC 3036 and The Kamsar Voyager [2002] 2 Lloyds Rep 57 (the Judge inferring that the guarantee in Kamsar was worded similarly to those in the present case).

    Owners relied upon The Maersk Neuchatel [2014] EWHC 1643 in support of their interpretation. Hamblen J had held a that Letter of Undertaking assumed an obligation to pay the sum determined under the average adjustment. The Judge distinguished the case on the basis that the wording of the LOU in that case was different.

    Conclusion

    It is now clear that actionable fault is a defence available to insurers under the standard form ILU / AAA guarantee. The same is also likely to be true for most other forms of guarantee: the Judge considered that his conclusion was in accordance with the settled practice and understanding of the shipping industry, and that only very clear wording could justify departing from that practice and understanding. The Maersk Neuchatel looks to be the exception rather than the rule. 

    > download a copy of the judgment here

            

    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 appeared in the House of Lords, Court of Appeal, High Court and has represented clients in a variety of international and trade arbitrations (including ICC, LCIA, LMAA, GAFTA and FOSFA).  She has been involved in a number of high profile cases, including "The Achilleas", a leading case on the contractual principles of remoteness of damage and "The Atlantik Confidence", the first case in which an English Court has determined that a person was barred from relying on the limits provided by the Limitation Convention. 

    > view Ruth's full profile

    ruth.hosking@quadrantchambers.com

    Benjamin Coffer

    Ben was named Shipping Junior of the Year 2019 at the Chambers & Partners Bar Awards. He is described by the directories as  "a rising star" (Legal 500, 2019); “a standout shipping and commodities junior" (Chambers & Partners, 2018) and “a star of the future” (Chambers & Partners, 2017). He is also recognised as a leading junior in the Legal 500 Asia Pacific Guide. His significant recent cases include: 

    • Volcafe v. CSAV [2019] AC 358, the Supreme Court's authoritative analysis of the inherent vice defence and the burden of proof in cargo claims;
    • The Lady M [2019] 2 Lloyd's Rep. 109 (Court of Appeal), the first modern decision on the meaning of 'barratry' and its effect on the defences under the Hague Rules;
    • Alba Exotic Fruit v MSC Mediterranean Shipping Co [2019] EWHC 1779 (Comm), considering the test to be applied on an application to strike out for intentional delay;
    • The Maersk Tangier [2018] 2 Lloyd’s Rep 59 (Court of Appeal), the leading English case on package limitation for containerised cargoes under the Hague-Visby Rules; 
    • Al Khattiya c/w Jag Laadki [2018] 2 Lloyd's Rep. 243, concerning the significance of the place of a collision in a forum non conveniens application; and,
    • The Aqasia [2018] 1 Lloyd's Rep 530 (Court of Appeal), settling a 90-year dispute as to whether Article IV.5 applies to bulk cargoes. 

    > view Ben's full profile

    benjamin.coffer@quadrantchambers.com

  • Benjamin Coffer named Shipping Junior of the Year 2019View More

    Fri, 01 November, 2019

    At the Chambers & Partners Bar Awards which took place on 31 October, Benjamin Coffer was awarded Shipping Junior of the Year 2019. 

    Benjamin Coffer

    Ben was named Shipping Junior of the Year 2019 at the Chambers & Partners Bar Awards. He is described by the directories as  "a rising star" (Legal 500, 2019); “a standout shipping and commodities junior" (Chambers & Partners, 2018) and “a star of the future” (Chambers & Partners, 2017). He is also recognised as a leading junior in the Legal 500 Asia Pacific Guide. His significant recent cases include: 

    • Volcafe v. CSAV [2019] AC 358, the Supreme Court's authoritative analysis of the inherent vice defence and the burden of proof in cargo claims;
    • The Lady M [2019] 2 Lloyd's Rep. 109 (Court of Appeal), the first modern decision on the meaning of 'barratry' and its effect on the defences under the Hague Rules;
    • Alba Exotic Fruit v MSC Mediterranean Shipping Co [2019] EWHC 1779 (Comm), considering the test to be applied on an application to strike out for intentional delay;
    • The Maersk Tangier [2018] 2 Lloyd’s Rep 59 (Court of Appeal), the leading English case on package limitation for containerised cargoes under the Hague-Visby Rules; 
    • Al Khattiya c/w Jag Laadki [2018] 2 Lloyd's Rep. 243, concerning the significance of the place of a collision in a forum non conveniens application; and,
    • The Aqasia [2018] 1 Lloyd's Rep 530 (Court of Appeal), settling a 90-year dispute as to whether Article IV.5 applies to bulk cargoes. 

    Ben's broad international commercial practice has a particular emphasis on commodities, insurance / reinsurance and shipping. He appears as sole and junior counsel in the Court of Appeal, the Commercial Court and the London Mercantile Court, and before arbitral tribunals under the rules of many different international organisations including the LMAA, the LCIA, the ICC, the SIAC, the HKIAC, the Swiss Chambers' Arbitration Institution, FOSFA and GAFTA.

    Ben undertakes the full spectrum of shipping work, including every species of charterparty and bill of lading claim, as well as shipbuilding and ship finance disputes. He has developed a particular specialisim in cases involving carriage of goods under the Hague and Hague-Visby Rules, and has appeared in several of the leading cases on such claims in recent years in the Court of Appeal and Supreme Court. 

    > view Ben's profile