Commercial Litigation Summit – 8 November 2021

Date: Mon 8 Nov 2021

Time: 8.30am – 6.00pm

Venue: etc venues St Paul’s, 200 Aldersgate, London, EC1A 4HD

Event Format: Hybrid (online tickets will only be available to those based outside of the United Kingdom)

Cost: Free for In-house legal teams, private practice and barristers

After a year’s hiatus, our annual the Legal Business Commercial Litigation Summit will take place on 8 November 2021 and will see senior figures from the world of disputes debate key issues in the field.

This year’s summit, which will as ever attract a blend of private practitioners and in-house counsel, will see a focus on the development of litigation in the Covid era, including the opportunities and challenges facing courts to adapt to new ways of working; the types of disputes most likely to arise from the pandemic; and the use of hybrid approaches to hearings.

Between comprehensive panel discussions and the opportunity to meet and engage with fellow counsel, the Commercial Litigation Summit 2021 promises to be a practical and forward-looking event, bringing together the world’s leading experts.

AGENDA

8.15am – Registration

9.00am – Opening remarks

Lord Wolfson of Tredegar QC

9.10am – Class Actions and Group Litigation: charting the explosion of collective claims

The UK is well on its way to becoming an established class action jurisdiction, with huge competition cases already being heard, data protection claims in the pipeline and transnational tort litigation a notable feature of the landscape. This panel will endeavour to chart the progress being made with the various categories of opt-in and opt-out claims now available, to untangle the many jurisdictional, procedural and tactical issues thrown up for claimants, defendants and funders, and to assess the future for this rapidly developing area.

Anthony de Garr Robinson QC, One Essex Court (moderator)
Neil Blake, Herbert Smith Freehills
Stephen Wisking, Herbert Smith Freehills
Mark Kenkre, Keller Lenkner
Mark Deem, Mishcon de Reya LLP

10am – Too much of a good thing: are cases becoming over managed?

The last few years have heralded significant increased judicial intervention in the management of commercial trials. Recent notable examples are found in the areas of disclosure, witness statements and costs budgeting, together with the development of more specialised courts. This roundtable discussion will concern the implications (both good and bad) of these (and other) developments and where the balance should be struck between the all too often competing demands of technology, party autonomy and the interests of other courts users, set against the background of ever-spiralling costs.

Sara Masters QC, Twenty Essex (moderator)
Henry Byam-Cook QC, Twenty Essex
Daniel Bovensiepen, Twenty Essex
John McElroy, Hausfeld
Natalie Todd, PCB

10.50am – Coffee break

11.10am – Quincecare: banks in the spotlight

Almost thirty years ago, the English courts found that a bank owes a fiduciary duty to its customer, known as the Quincecare duty of care, in both contract and tort to execute the customer’s instructions with reasonable care and skill. That extends to refraining from making a payment pending enquiries about the bona fide nature of those instructions from a customer if it has reasonable grounds for believing that the payment is an attempt to misappropriate funds from the customer. Since that original case, it has rarely been relied upon by customers seeking to take action against their bank. However, a number of recent decisions in the last two years have changed that and put the duty firmly back in the spotlight. And 2022 is set to produce a number of important appeal decisions which will decide whether banks owe such a duty to personal customers as well as corporate ones and, crucially, whether banks can contract out of the Quincecare duty.

Rick Brown, partner, HFW (moderator)
Helen Dodds, LegalUK
Jeffery Onions QC, One Essex Court

12 noon – Damages-based agreements: the future of funding litigation, or still a high-stakes gamble?

Damages-based agreements have been available since 2013, although lack of certainty over their enforcement meant few law firms made use of them. Change is on the horizon, however – new draft DBA Regulations are under review, and a series of cases before the courts in 2021 have arguably provided reassurance on interpretation and enforcement of DBAs. So will DBAs feature more prominently in the future of funding litigation, and how might they benefit law firm profits?

Maurice Macsweeney, Harbour Litigation (moderator)
Martyn Day, Leigh Day
Richard Leedham, Mischon de Reya
Natasha Harrison, Boies Schiller Flexner

12.50 – Lunch

1.50pm – A new horizon in light of compulsory ADR

Alternative dispute resolution (ADR) is already mandatory before going to court in most family and employment disputes, but recent developments suggest it will soon become compulsory in all civil litigation. Is such a compulsion necessary or even legal? And how will it affect pre-action conduct and tactics?

Paul Strelitz, barrister, Gatehouse Chambers (moderator)
Luke Harrison, partner, Keidan Harrison
Robert Waterson, partner, RPC
Sarah Perry, managing partner, Wright Hassall
Stephen Meade, partner, Capital Law

2.40pm – Making group actions economically viable for all

With the growth of group actions in the UK we are seeing the rise of group claims with thousands, if not millions of claimants. To make a claim certified the courts will want to see that the that the purpose of the case is to compensate claimants, but to get a case up and running it needs to be economically viable for lawyers and funders as well. This session will explore the practical ways that can help with this.

Lochy Macpherson, FinLegal
Kimela Shah, Oxera
Lucy Pert, Hausfeld
James Oldnall, Milberg

3.30pm – Coffee break

3.50pm – Litigation post-pandemic – the client’s perspective

Reflecting on the day’s discussions, this panel sees leading GCs give their take on the key issues facing companies in litigation and outline what advisers need to learn from clients.

Jane Colston, Brown Rudnick (moderator)
Ryan Thorne, StoneBridge
Abby Olushola, Afrissance Holdings
Catherine Odigie, ED&F Man Capital Markets

4.40pm – Closing remarks

4.50pm – Drinks and canapes

6pm – Event concludes

SPEAKERS

Neil Blake, Herbert Smith Freehills

Neil Blake is a disputes partner at Herbert Smith Freehills and a member of the firm’s class actions practice. Neil has a particular interest in transnational torts, having acted for the defence in the leading case in the area, Lungowe v Vedanta Resources Limited. He advises clients (particularly those in the extractive and consumer sectors) in connection with disputes before the English and overseas courts arising from a wide range of ESG issues.

Daniel Bovensiepen, Twenty Essex

Daniel Bovensiepen’s practice covers a broad range of international commercial work. He has extensive experience, including in the Supreme Court and Court of Appeal, and in arbitration under a wide variety of arbitral rules. He is consistently ranked as a leading junior by The Legal 500, Chambers & Partners, Chambers & Partners Global, and Who’s Who Legal.

Rick Brown, HFW

Rick Brown is co-head of the fraud and insolvency team. Rick specialises in complex, high-value cross-border fraud and insolvency matters, including those which involve claims for breach of contract, fraud and/or breach of fiduciary duties and asset tracing. He has also worked on a number of offshore trust matters in the Caribbean, Gibraltar and elsewhere. He regularly deals with and instructs investigators and offshore lawyers.

Rick has considerable experience in acting for insolvency practitioners, mainly on contentious complex cross-border insolvency matters. He has valuable experience of interlocutory hearings and trials in the Commercial Court in the British Virgin Islands and elsewhere in the Caribbean and has significant experience acting for clients on claims involving parties from Russia and the CIS, as well as the Middle East.

Rick is also ranked in Who’s Who Legal for Asset Recovery and has been recommended within the Dispute Resolution (Commercial Litigation) section of The Legal 500.

Henry Byam-Cook QC, Twenty Essex

Henry Byam-Cook QC has a broad commercial disputes practice, often involving cases with a multi-jurisdictional aspect. His experience covers sale of goods, joint ventures, SPAs, commission agreements, commercial agencies, financial products, guarantees and trade & asset-finance structures. He has extensive experience of jurisdictional and injunction applications together with acting in trials, frequently with a complex, technical dimension.

Jane Colston, Brown Rudnick

Jane Colston specialises in complex cross-border litigation, including high-value civil fraud cases, commercial banking, contract and tort disputes as well as company, shareholders and partnership disputes. Legal 500 2021 names Jane as a Leading Individual and states: ‘Jane Colston – everybody’s favourite litigation partner. Indefatigable. Driven. Humane. Efficient and a strong thought leader.’

Martyn Day, Leigh Day

Martyn Day is the senior partner of Leigh Day, the firm he co-founded in 1987. He leads a team specialising in environmental and product liability disputes, which are frequently international in nature, and often run as group actions. He acts for claimants seeking redress against corporate and government bodies, and his high profile caseload includes achieving compensation for the victims of several major toxic oil spills, for victims of torture, and former prisoners of war.

Mark Deem, Mishcon de Reya

Mark is a Disputes Partner in the Innovation Department at Mishcon de Reya LLP and a specialist in technology, media and telecoms (TMT) litigation, contentious privacy and cyber security issues.

He has considerable experience of complex domestic and cross-border litigation, international arbitration and regulatory matters. He has conducted litigation in all commercial divisions of the English High Court, Court of Appeal, Supreme Court and Court of Justice of the EU; represented clients in international arbitration proceedings under the rules of the ICC, LCIA, RIDR and IFTA; and has a broad experience of mediation and other dispute resolution mechanisms.

Mark is also co-author of the forthcoming book, AI on Trial, examining the legal, regulatory and ethical framework needed to deploy AI in safe and acceptable manner and is Editor of the soon-to-be-published Global Data Review Guide to Data.

 

Anthony de Garr Robinson QC of One Essex Court

Anthony de Garr Robinson QC of One Essex Court is described by Chambers & Partners 2022 as a ‘first class operator’ and as making ‘everything cast iron’. Recent cases include The Post Office Group Litigation (concerning its Horizon computer system); Re Prudential Assurance Company Ltd (which recast the principles applicable to the transfer of insurance business under FSMA); and a £500m bribery case in which he acted for Bernie Ecclestone.

 

Helen Dodds, Legal UK

Helen Dodds is an international commercial lawyer, board member, and consultant, with experience in financial services, technology, risk and emerging markets. She is a director of LegalUK, an Honorary Senior Fellow of the British Institute of International and Comparative Law, and former Global Head of Legal, Dispute Resolution, at Standard Chartered Bank.

Luke Harrison, Keidan Harrison

Luke Harrison co-founded Keidan Harrison LLP in May 2020, a City of London Disputes and Insolvency Boutique. The Legal 500 2022 credit him for being ‘innovative in his approach’, finding  ‘practical solutions to problems’ and being a ‘dedicated solicitor’ who ‘works tireless for clients’ to ‘get good results’. Luke’s practice covers a broad spectrum of commercial disputes, but he has particular expertise in contentious insolvency, fraud and asset recovery and shareholder disputes.

Natasha Harrison, Boies Schiller Flexner

Natasha Harrison is a managing partner of Boies Schiller Flexner, and founded the firm’s London office. Natasha’s practice focuses on high-stakes international litigation and arbitration. She represents funds, investment banks, governments and corporations in cases arising from distressed debt, emerging market and sovereign debt investments, as well as other complex financial structures. Natasha was listed by Financial News as one of the 100 Most Influential Women in European Finance in 2020, and was recently named, for the third year running, a HERoes Woman Role Model in awards which celebrate women who lead by example and drive change to increase gender diversity in the workplace.

Mark Kenkre

Mark is a leading commercial disputes lawyer specialising in complex and commercially sensitive disputes involving fraud. Mark has a deep understanding and extensive experience in acting in complex multi-claimant and multi-jurisdictional disputes as well as considerable experience of litigation solutions such as litigation funding and after the event (ATE) insurance. Mark has been ranked in Chambers & Partners since 2006 with the latest edition of the publication describing him as ‘a smart litigator who thinks strategically’.

 

 

Richard Leedham, Mishcon de Reya

Richard Leedham is a partner and head of commercial litigation at Mishcon de Reya. He advises on litigation and arbitration arising from investment and shareholder disputes, and insurance coverage issues (notably, representing the Hiscox Action Group in the recent historic FCA Business Interruption litigation). Richard is also at the forefront of innovation in the litigation funding field, and advises clients on CFAs, DBAs, and other options for funding their cases.

Lochy Macpherson, FinLegal

Lochy is the Commercial Director at FinLegal and focuses on sales and client relationships. He was previously at funder Novitas and Close Brothers where he financed a number of group and volume claims . His background in litigation funding and technology uniquely places him to work closely with clients to deliver on their bespoke funding and operational needs.

Maurice MacSweeney, Harbour

Maurice MacSweeney is a director of litigation funding at Harbour, the world’s largest privately-owned dedicated litigation and arbitration funder, where he originates new investment opportunities and presents them to Harbour’s investment committee. Maurice works with solicitors, barristers, in-house counsel, asset recovery and insolvency practitioners, to develop funding solutions for single cases, portfolios of litigation, monetisation of ongoing cases, acquisition of judgments and awards, and credit facilities for law firms.

Sara Masters QC, Twenty Essex

A go-to Silk for cases raising difficult jurisdiction and private international law issues, Sara Masters’ practice extends to commercial disputes, (particularly complex multi-jurisdictional disputes), EU law (with a focus on competition and private international law), shipping and commodities, construction, energy, insurance and re-insurance. She has extensive experience in the field of international arbitration, both as counsel and arbitrator.

John McElroy, Hausfeld

John McElroy is a commercial dispute resolution expert. He has extensive experience dealing with complex and often high value commercial litigation and international arbitration matters, with a particular emphasis on financial services disputes. His cases often feature in the top litigation lists compiled by the legal media. In 2016, John was the lead lawyer representing the successful claimants on the first case to reach a judgment in the London High Court’s new Financial List. He has also acted in regulatory investigations involving both the Financial Conduct Authority and the Securities and Exchange Commission. Most recently, John led the ground-breaking claim acting for New Balance against Liverpool FC arising out of a sponsorship agreement related to the provision of playing kit and other licensed products. The leading legal directories recommend John as a leading practitioner. For example, The Legal 500 commended his ‘excellent litigation strategy instincts’, while ‘willing to roll up his sleeves as part of the team’.

Stephen Meade, Capital Law

Recognised as a Leading Individual in The Legal 500, Stephen heads up Capital Law’s litigation division. He handles all types of commercial and corporate disputes using various different funding models.

Stephen has acted in a number of high-profile cases that are of public interest, including a judicial review challenging the decision of the Secretary of State for Health to impose a new contract for junior doctors.

 

Catherine Odigie, ED&F Man Capital Markets

Catherine Odigie recently took the helm of the legal and governance function of ED&F Man Capital Markets after spending a decade at StoneX; undertaking a similar role managing the legal and governance affairs of the business in Europe, Asia, the Middle East and Africa. She has substantial and extensive experience of commercial transactions involving commodities, foreign exchange, payment services and technology. She is also a member of the Chartered Institute of Arbitrators.

 

James Oldnall, Milberg

James Oldnall is a commercial litigator specialising in claims against large institutional defendants. He has an in-depth understanding of disputes involving financial markets and products, private equity, hedge funds, data protection, shareholder and companies’ issues, fraud, and mis-selling. James forged his career at London’s leading litigation houses—Freshfields, Clyde & Co, and Mishcon de Reya—before establishing Milberg’s London office. He has worked on many of the UK’s highest profile and industry-recognised commercial disputes, frequently appearing in national and international press. As Managing Partner of Milberg London he is presently overseeing three Group Actions (under CPR 19.10) and two Representative Actions (under CPR 19.6)

 

Abby Olushola, Afrissance Holdings

Abby Olushola is the General Counsel and Director Corporate Services of Afrissance Holdings; she holds a Master’s (LL.M, Dundee) in Energy Taxation and Finance. She is a Tax Consultant, a Barrister & Solicitor of the Supreme Court of Nigeria, Solicitor of England and Wales, and a PRINCE2 Registered Practitioner.

She is a member of the Energy Bar Association, Inter-Pacific Bar Association, Nigerian Bar Association, Project Management Membership AXELOS UK and Supreme Court of England and Wales.

 

Jeffery Onions QC, One Essex Court

Jeffery Onions has a broad commercial practice, both as an advocate and in an advisory context. He has particular expertise in banking/finance/structured finance, private equity, company/insolvency, civil fraud, energy/oil and gas/renewables, insurance/reinsurance, shareholder disputes and international arbitration. He was instructed on behalf of Barclays in the successful defence of the claim in PCP Partners v Barclays.

 

Sarah Perry, Wright Hassall

Sarah has been Wright Hassall’s Managing Partner since 2016, successfully leading the firm through substantial change and significant financial growth. In addition to this role she is also head of the firm’s highly regarded dispute resolution practice. A top ranked litigator, Sarah is recognised for her commercial and financial litigation expertise and her considerable High Court experience. Sarah is an advocate of early dispute resolution in all its forms where appropriate to achieve the desired outcome for her clients.

Lucy Pert, Hausfeld

Lucy Pert possesses almost 20 years of commercial litigation and arbitration experience with a focus on financial services, contentious restructuring, insolvency, trusts and shareholder disputes. She has extensive experience of managing international, cross-border litigation. At Hausfeld, Lucy has worked closely with technology providers on pioneering the use of tech platforms to bring group claims effectively.

Lucy previously worked for a leading global litigation funder for several years which has honed her commercial sense and makes her well-placed to advise clients on litigation funding matters, including strategies for securing funding. She has a wealth of knowledge on how to make claims viable for both funders and firms. The Legal 500 commends ‘brilliant partner’ Lucy as ‘clever and with a feel for the right answer’.

Kimela Shah, Oxera

Kimela specialises in providing economic analysis in the context of litigation and arbitration, in particular in consumer and collective actions. She has advised on a number of group and collective actions both in the UK and North America, in both competition and commercial settings. Kimela has published a number of articles on the topic of collective actions in the UK since the introduction of the Consumer Rights Act 2015, and is a special economics rapporteur for Mass Claims Journal.

Paul Strelitz, Gatehouse Chambers

Paul is a noted litigator and revered as a master-tactician whose strong and wide-ranging commercial practice has a particular focus on shareholder and partnership disputes, franchise disputes, claims relating to directors and employment-related litigation. He also handles professional negligence claims against legal professionals. In addition Paul sits as a Deputy District Judge.

Ryan Thorne, StoneBridge

Ryan Thorne is the general counsel of StoneBridge, with a primary focus on M&A, private equity and corporate law. He previously worked as in-house counsel for BlackRock’s Financial Markets Advisory (FMA) Group in London. In Australia, Ryan was Woolworths Group counsel for the Home Improvement Exit. Prior to this, he was a senior associate in the mergers and acquisitions group of King & Wood Mallesons’ Sydney office and an associate in the London office of Freshfields Bruckhaus Deringer.

Natalie Todd, Partner, PCB Byrne

Natalie Todd is a partner at PCB Byrne. She specialises in fraud and asset recovery and has worked on multi-jurisdictional asset tracing cases, including obtaining extensive Worldwide Freezing, Search, Disclosure and Passport Surrender Orders. She has expertise in large scale litigation and arbitration involving banking and financial services, trust, contractual, partnership, shareholder and joint venture disputes. She is ranked as Next Generation Partner in both Civil Fraud and Commercial Litigation in The Legal 500 rankings.

Robert Waterson, RPC

Robert Waterson is a highly experienced regulatory disputes lawyer specialising in tax disputes, regulatory investigations and public law challenges. His practice includes multi-jurisdictional tax investigations and enquiries,  anti-dumping duty and customs disputes, VAT and direct tax disputes and sanctions. He has litigated at all levels of the UK courts and tribunals and the Court of Justice of the European Union.  He has particular experience of mediation in the context of claims against HMRC.

Stephen Wisking, Herbert Smith Freehills

Stephen is the Global Head of Herbert Smith Freehills’ Competition, Regulation and Trade practice, with over 20 years advising across the full spectrum of EU and UK competition law, recognised as a market-leading competition litigator. Stephen has a wealth of experience conducting complex competition disputes (both regulatory appeals and private enforcement) with cases regularly before national competition and regulatory authorities, in the European courts and the High Court of England and Wales, as well as in the UK Competition Appeal Tribunal (CAT) since its inception.

 

Lord (David) Wolfson of Tredegar QC

Lord (David) Wolfson of Tredegar QC was appointed as a minister in the Ministry of Justice on 22 December 2020.

David was Called to the Bar at Inner Temple in October 1992, where he is now a Bencher. David practised in commercial law, from Chambers at One Essex Court, Temple. Lord Wolfson was instructed in many of the major banking and commercial disputes in recent years, and his practice extended over a broad range of commercial law, and in litigation. Prior to joining the Government, David was awarded “Commercial Litigation Silk of the Year 2020” by The Legal 500, and also “Commercial Litigation Silk of the Year” in the Chambers UK Bar Awards 2020.

 

Panel sponsors:

 

One Essex Court is a pre-eminent set of London barristers’ chambers right at the very top of the commercial litigation and disputes market. Our principle areas of practice include, banking and financial services; civil fraud and investigations; company and insolvency law, including shareholder and joint venture disputes and restructuring matters; competition and cartel damages claims; group and class actions; energy, oil, gas and renewables work; intellectual property disputes; construction and infrastructure project disputes; professional discipline claims; and tax law.

Professional clients comprise many of the major litigation and disputes law firms both UK and international, as well as general counsel and in-house legal operations in major corporations, banks, financial institutions and government.

Barristers at One Essex Court are often instructed in the most complex and high value cases passing through the courts. The depth of quality and expertise available in Chambers regularly see members acting for multiple parties in large scale commercial cases. Recent, high-profile work has included for both parties in Travelport v. WEX, the first Material Adverse Effect case arising out of the COVID-19 pandemic; for Deutsche Bank in a landmark appeal on the interpretation of competing subordinated debts; for Barclays Bank in the successful defence of claims of fraudulent misrepresentation brought by PCP Capital Partners; before the UK Supreme Court in Sevilleja v Marex Financial Limited in a landmark decision where the UKSC significantly narrowed the scope of the so-called rule against the recovery of reflective loss; in the Privy Council for the successful respondent in the Convoy Collateral appeal, which recasts the scope of power to grant interim injunctions; and for the Russian Federation in successfully resisting applications by shareholders of Yukos in proceedings to enforce US$50bn arbitration awards.

As well as the Commercial Court and the Business and Property Courts in London, members here are also engaged in substantial overseas and offshore disputes, frequently appearing in the courts in the BVI, Cayman, Cyprus, Zambia, Kenya and Hong Kong; as well as working alongside counsel in the Court of Jersey, Guernsey and the Isle of Man.

 

A leading commercial set of chambers, the barristers of Twenty Essex offer outstanding legal minds combined with a modern and commercial disputes experience.

Our clients include major global companies, institutions, governments and their advisors from around the world and our barristers advise and appear as advocates in court or arbitration in relation to a broad range of company and commercial, EU, competition, and public international law disputes. Practices involve the preparation and conduct of litigation before a wide range of courts and tribunals, in the UK, in foreign jurisdictions as well as on the international stage.

The vast majority of the work is international in nature and we have well-established links to many overseas markets, including through our Asian hub in Singapore servicing clients throughout Asia Pacific and beyond.

The set is also home to a number of highly respected domestic and international arbitrators and mediators, some of whom were previously judges either in the UK or overseas.

 

We have one of the largest and most active disputes practices in the market, covering litigation, international arbitration, and alternative forms of dispute resolution. We have more than 350 specialist disputes lawyers across the Americas, Europe, the Middle East and Asia-Pacific, and frequently handle high-value, complex, multi-party and multi-jurisdictional disputes, including fraud and asset recovery, insolvency, class actions and enforcement actions. We manage the dispute process for every type of case from short applications to high value, multi-party multi-jurisdictional litigation. We advise on the full range of issues presented by commercial agreements from inception through performance to termination, asserting or defending our clients’ rights worldwide. We are also among the heaviest users of commercial courts in key international jurisdictions, including the London Commercial Court and Court of Appeal, the Hong Kong High Court, the DIFC and ADGM Courts.

Associate sponsor:

Networking sponsors:

Acolad is a dynamic leader in the global content space providing a full suite of content and language solutions, services and technology. For decades, we’ve been committed to helping customers in the legal sector engage with their markets, increase revenue, and drive process efficiencies through cutting-edge language solutions and technology. To guarantee exceptional and seamless service, the Acolad group has a presence in 25 countries across Europe, North America and Asia, maintaining a strong partnership with over 20,000 language, learning and content professionals.

 

08/11/2021

London, United Kingdom