Practice Summary

 

 

“Very easy to work with, and good at tackling tough cases and handling difficult clients.”

Conscientious, diligent and pugnacious.”

Legal 500 – 2015

“Under a charming exterior lies hard steel.”

Legal 500- 2014

James was formerly a banker with a leading Japanese investment bank having overall responsibility for Italy. He practises in commercial and chancery litigation, including banking and guarantees, contractual disputes, professional negligence, fraud & asset tracing, and insolvency.

James has a wide experience of commercial disputes, both of an advocacy and advisory nature. He has excellent knowledge of procedural matters, and his expertise includes regular appearances at interim hearings including applications for interim remedies (such as freezing injunctions, search orders and security for costs), strike out/summary judgment applications, and disclosure applications.  Thanks to his linguistic abilities he acts in European cross-border disputes. He has a reputation for being a formidable cross-examiner and trial advocate.

Areas of Experience (Select to add to the CV download)

Banking & Finance

James is regularly instructed on behalf of major UK clearing banks and other major finance houses. Typical disputes relate to enforcement of different types of personal and corporate loan agreements, enforceability of guarantees, charges, validity of mandates and other banking related matters. He also carries out work relating to the regulation
and provision of financial services, including cases related to speculation in derivative products, such as futures, options and contracts for differences, requiring extensive knowledge of financial markets and the way they operate. He has been recommended by Legal 500 in this field for many years.

Current and recent cases of interest:

Dexia Crediop SpA v Provincia Di Crotone, Commercial Court (led by Charles Samek QC) Retained by the defendant, an Italian municipal authority in ISDA related proceedings concerning interest rate swap transactions entered into to restructure borrowing of £21 million. Crotone is arguing that Dexia made illicit profits from hidden costs embedded in the swaps and that the swaps are void or voidable due to breaches of Italian law, lack of capacity and fraudulent representations. Listed by The Lawyer as one of the top 20 commercial cases of 2015.

Property 118 Ltd v Bank of Ireland (UK) plc
James is instructed on behalf of a large group of Buy To Let Landlords (the “Group”) in an ongoing dispute with Bank of Ireland (UK) plc regarding their unilateral decision to increase the tracker differential on their base rate tracker mortgages. The Group contends that a fixed differential over the base rate should apply for the duration of the mortgage. The Group’s claim raises interesting issues regarding the effect of implied and express representations in promotional material, the applicability and effect of the Consumer Contract Regulations 1999, the proper construction of the relevant terms contained in the loan and mortgage documentation and whether such terms were properly incorporated, and breaches of the Mortgage and Banking Codes. The Group intendto apply for a Group Litigation Order when proceedings are commenced.

National Westminster Bank plc v June Frankham, Chancery Division.
James is instructed by the Bank in two actions against a commercial customer (i) for possession of a building development and (ii) for a money judgment. The commercial customer seeks to defend the claims on the basis that the Bank, acting by its relationship manager, undertook and assumed responsibility for the financial planning, management and the administration of the development and/or of the building contract. Various allegations of negligence are advanced against the Bank. It is contended that the Bank’s defaults caused the Defendant to lose the profits that would have been made on the Development, thereby allegedly extinguishing the Bank’s claim.

Jane Jones (formerly Stone) v HSBC Private Bank (UK) Ltd
James is instructed on behalf of the Bank. In this case, the issue which arises for consideration is whether the requirement (laid down by the House of Lords in Etridge) that a wife obtains independent legal advice in respect of borrowing for the benefit of her husband alone, should apply in circumstances where the wife had previously executed a joint bank mandate entitling the Bank to accept instructions from her husband on their joint behalves.

Commercial Litigation & Fraud

James has a wide experience of commercial disputes (both of an advocacy and an advisory nature) which representthe core of his practice. Areas of law regularly undertaken by him include banking, guarantees and securities; consumer credit; contract; deceit, dishonest assistance, conspiracy to defraud and breach of fiduciary duty; factoring and invoice discounting; sale of goods and warranty claims.

Current and recent cases of interest:

Trant Engineering Ltd v Royal Bank of Scotland plc, Technology and Construction Court
James is defending an unjust enrichment claim brought against the Royal Bank of Scotland plc (the “Bank”) by a construction company which provided building services to a commercial customer of the Bank. It is alleged that the Bank acted unconscionably by providing assurances to the construction company that it would enable credit to continue to be available. The Bank was not a party to the building contract, but it is alleged that in reliance upon the Bank’s assurances, the construction company elected not to terminate the building contract and provided further building services. No further funding was provided by the Bank and the construction company was not paid by the client for the additional building works. It is alleged that the Bank was unjustly enriched because, in its capacity as first chargee, it benefitted from the added value of these works to the development. The case raises the interesting question about whether the construction company can leapfrog the client and sue the Bank in unjust enrichment, so as to turn the Bank into the de facto guarantor of the performance of the client’s obligations.

Pereyue Investments Ltd v Kastenig (Jersey)
James advised the beneficiary of various offshore trusts about potential claims against a Defendant domiciled in Germany. James advised that an action which had originally been commenced in Jersey against the Defendant (prior to James’ involvement) was clearly statute barred. However, James has identified alternative causes of action for breach of fiduciary duty and constructive trust (knowing receipt and, possibly, dishonest assistance) on the basis that there is evidence that the Defendant was a de facto director of a trust company.

Opie v HSBC Bank Plc, Queen’s Bench Division.
James is instructed on behalf of HSBC Bank plc in respect of a claim for the loss of a deed box which the Claimants contend contained extremely valuable jewellery. The claim involves issues regarding the Bank’s duties to the Claimants, the reasonableness of the Bank’s standard terms, and the measure of damages, including an assessment of the value of the items allegedly contained in the box, whether the Claimants are entitled to damages for distress and whether the Bank would be liable to compensate the Claimants pursuant to Taxation of Chargeable Gains Act 1992 for the Capital Gains Tax payable on any capital sum recoverable by way of compensation.

Professional Negligence

James deals in a wide range of professional negligence claims and has particular experience in relation to solicitors (including where allegations of fraud are involved), financial practitioners, surveyors and valuers. He has acted in many cases, representing both the claimant and the professional.
Legal 500 recommends him as a leading junior in this field.

Recent cases of interest:

Insight Group Ltd v Jirehouse Capital (2014) (In the matter of Insight Group Ltd v Kingston Smith LLP)
In which James was instructed by Insight Group Limited in respect of a claim against its solicitors for negligent conduct of a professional negligence claim against Kingston Smith LLP a firm of chartered accountants. Jirehouse had mistakenly brought the claim against the Limited Liability Partnership (the “LLP”) instead of the former partnership (the “Firm”). Before the error was recognised, the limitation period for starting a new action against the Firm had expired. The claim against Jirehouse involved consideration of complex issues including the steps (if any) which could be taken to remedy the situation and the extent to which Insight was under a duty to cooperate with Jirehouse pursuant to the requirement to mitigate.

Executors of the estate of Duncan Gerrard v HSBC Bank plc (2014)
James was instructed on behalf of the HSBC Bank plc (the “Bank”). The claimants, who were the executors of the estate of Mr Gerrard, contended that Mr Gerrard was in chronically bad health and that the Bank acted negligently, in breach of statutory duty, and in breach of fiduciary duty by advising Mr Gerrard to liquidate three investment bonds and to use the majority of the sales proceeds of these bonds to purchase an Immediate Life Annuity.

MrGerrard died two months after the purchase of the Annuity.
The Executors contended that, if Mr Gerrardhad been properly advised, he should have done nothing. The Bank denied negligence. Alternatively, the Bank contended that if it had known about Mr Gerrard’s ill health, a competent financial adviser would have recommended the acquisition of a Lifestyle or an Enhanced Annuity. In other words, the financial
outcome to the Estate would not have been materially different from the existing position. This matter has now settled.

Juliet Weems v A Firm (In the matter of Clydesdale Bank plc v Juliet Weems)
In which James was instructed on behalf of Juliet Weems in a claim against a firm of solicitors which had held itself out to Clydesdale Bank plc as having given her independent legal advice for the purposes of a bank guarantee and a legal charge. Mrs Weems consistently denied that she had ever attended the solicitors and contended that her signatures on the material documents had never been witnessed by the solicitors, and that in some cases her signatures were forged. By making carefully judged requests for pre-action disclosure James was able to demonstrate that all Mrs Weems’ contentions were correct and that the solicitors had not been retained on behalf of Mrs Weems at all. James was able to rely on Section 199(1) (ii) (b) of the Law of Property Act 1925 in support of the contention that the solicitor’s knowledge of its own failures should be attributed to Clydesdale Bank. The case settled on very favourable terms to James’client.

Insolvency

James has a wide experience in personal insolvency and in company liquidations both as an advocate and in the provision of advice including:

■statutory demands
■ winding-up petitions and bankruptcy petitions
■ matters arising during the course of a winding-up including examinations
■ preference, transactions at an undervalue
■ restrictions on the re-use of company names and the like

Ongoing and recent cases of interest:

Irish Bank Resolution Corporation Limited v Noel Burke
James acts for the Debtor, an individual subject to an IVA. The creditor has made an application to set aside the IVA pursuant to s.262 of the Insolvency Act 1986 on the grounds that there was an irregularity at or in relation to the Creditors’ meeting when the IVA was approved. The case involves interesting questions relating to the steps which a Nominee must take to notify creditors about a creditors’ meeting and when a court will find an irregularity to be material.

Monarch Properties (UK) Ltd (in liquidation) v Hampshire Trust plc, Chancery Division,
James acted for the Defendant Bank, whose then solicitors had negligently failed to register a charge at Companies House within the appropriate time limits. After the Bank had sold the property as mortgagee and received the proceeds of sale, the liquidator sought to allege that the charge was void pursuant to the Insolvency Act 1986 Section 127. The case revolved around the interesting questions of whether the liquidator was estopped from advancing a restitutionary claim for the sale monies because he had acquiesced to the sale and whether estoppel could be relied upon as a defence to a statutory provision designed to protect the public interest.

Languages

Italian, good French, basic German

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