Called to the Bar in July 1984 by Lincoln’s Inn, David practised in the Chambers of Philip Rueff at 2 King’s Bench Walk until 1991; the Chambers of Philip Sapsford QC at Goldsmith Building until 2001; and at 42BR ever since. David is a Commercial and Chancery practitioner who has garnered extensive experience of all manner of problems arising in the course of both the profitable pursuit, and occasional failure, of every form of commercial activity. David qualified as an Arbitrator in 2002; and in 2003 was elected a Bencher of Lincoln’s Inn.
In 1994 David was one of the “new wave” of barristers introducing structured advocacy training into England & Wales; and who in 1995 was part of the team invited to South Africa to assist in the introduction of post-Apartheid legal training. In 1996 David designed and implemented the Pupils’ advocacy training course for Lincoln’s Inn; which has been running tri-annually ever since, and a compulsory component for the acquisition of Rights of Audience. In 1999 David introduced the “moderated debate” method of instruction in legal professional ethics, now a compulsory component of the Bar Standard Board’s requirements for continuing professional development. David has been a Lead Trainer and Course Director for the Advocacy Training Council since its inception; a panel member authorised to assess standards of advocacy teaching by the Bar Professional Training Course Providers; and, by invitation, an advocacy and ethics trainer in jurisdictions abroad which have retained or adopted the Common Law system.
Banking and financial services
David specialises in advice, drafting and representation in all disputes involving personal or commercial bank accounts; performance bonds; letters of credit; investment vehicles and family trusts; interest swap, spot-rate lending or trading accounts; and the enforcement of mortgages and other securities.
David’s clients have included the Nationwide Building Society, Halifax plc, Eagle Star, Leeds Permanent, Mortgage Works and UCB Home Loans; in connection variously with the recovery of assets worldwide (predominantly the proceeds of diversion/identity frauds), regulatory compliance issues, and the enforcement of securities.
For example –
Freezing and Disclosure Orders seeking the recovery of mistaken payments and diverted funds: defendants have been traced to the USA, France, Germany, Italy, UAE, Cyprus, Lebanon and Syria.
Advising upon compliance and risk issues arising from a Friendly Society’s decision to acquire the shares of a private, internet-based “self-certification of earnings” mortgage lending company; and further advising on compliance with Anti-Money Laundering Regulations after the company’s acquisition and the reorganisation of its “customer-facing” business structure.
Advising a large financial institution on £multi-million pre-arbitration claims within the VISA scheme (and in private law) arising from the TJX data intrusion fraud of 2007, the Cotton Traders internet data intrusion fraud of 2008; and offering solutions with respect to possible security measures in response to “cloning” and interception fraud.
Chancery
Fiduciary duties, constructive trusts and asset protection/recovery; investigations and urgent remedies (e.g. Search/Seizure and “Freezing” orders, tracing, accounts & inquiries); the forfeiture of assets; declarations as to rights, ownership and authorised transfer; Restitution and Rectification.
For example –
- Applications by one bank against another for a “public interest” order requiring the respondent bank to disclose the identity of fraudulent customers.
- Action brought by the State Liquidators (domiciled in Romania) of what had once been a potentially successful national airline, forced into liquidation when its English lawyers refused to release monies received in settlement of a major dispute, claiming a lien on that money against legal bills later found to be excessive.
- Freezing Order and disclosure in a claim for c.£9m alleged diversion of loan funds by an insurance agent in breach of fiduciary duties; summary judgment for £2.5m and accounts/enquiries for another £5m. Currently under pending appeal and stay of execution.
- Acting for a vulnerable claimant with learning difficulties, successfully obtaining a declaration that the equity of a house bought by the defendants for their own occupation by resort to the claimant’s money was held on constructive trust.
Commercial
David is a Commercial and Chancery practitioner who has garnered extensive experience of all manner of problems arising in the course of both the profitable pursuit, and occasional failure, of every form of commercial activity. David qualified as an Arbitrator in 2002; and in 2003 was elected a Bencher of Lincoln’s Inn.
Commercial litigation
David acts for companies, groups and individuals engaged in a wide range of contractual disputes arising in the course of their trading activities. He has particular knowledge and experience of the frequent challenges to standard terms, “non-reliance”, Arbitration and Mediation clauses; the problems of parties being domiciled abroad; challenges to jurisdiction; cross-border and mutual assistance; and parallel proceedings.
For example –
- Obtaining “search-and-seizure” orders for a New York publishing house, seeking to recover photographs and the draft of a book from a Dutch mercantile agent temporarily resident in London.
- Representing a mercantile agent and holder-in-course of $multi-million Letters of Credit, issued for the purchase of agricultural fertiliser by General Noriega’s government in Panama shortly before being deposed by the intervention of US forces.
- Advising Gasa-Odense SA of Denmark – the largest co-operative of independent flower growers in the world – upon the consequences of a dispute with a British retail outlet; and upon wider issues of jurisdiction arising from its adoption of a computerised “through-sales” agency system for supply and distribution contracts with retail outlets located throughout the EMEA.
- Representing British Telecom plc in one of the “self-calling” trials: test case for resolving £multi-million dispute between BT, Benelux telecoms and defendant companies running premium-rate “information lines” using automated self-calling systems.
- Representing Salem El Chelabi, once the presumptive nominee for Prime Minister of Iraq; successfully defending him against an attempt by political opponents to disgrace him by seeking enforcement in England of a Syrian judgment obtained in his absence.
Company & partnership
David has acted for various UK companies seeking protection of their trade names and unregistered marks; representing them in litigation concerning the construction of their standard terms and conditions; contracts of carriage; through-sales, distribution and franchising agreements; and on various disputed insurance policies.
He has represented companies, individual directors and minority/majority shareholders respectively in the course of litigation seeking to limit, restrict or enlarge the control of company assets; including interim Injunctions seeking to delay, define or enforce powers exercisable in EGMs or at meetings of creditors; and advice/representation generally in the course of administrations and winding-up proceedings. For example –
- Advising the Board of a “deliver-to-the-door” internet organic grocery company on its response to an aggressive leveraged take-over bid by a major supermarket chain;
- Preventing the compulsory sale of share options in breach of Franchise; replacing the valuer of shares for bias; forcing the valuer of share options to increase the list of factors relevant to market price; forcing the majority to exercise an option to purchase minority’s shares etc.
- Acting for a company-shareholder of a group of Removals companies affiliated by way of a national Franchise operation [Britannia], which was being “evicted” by EGM after the managing director was acquitted of defrauding the Ministry of Defence.
Construction & Engineering
David has advised and acted for employers, contractors, lenders and investors respectively in respect of disputes arising (or threatening to arise) in the course of both private and public development schemes. David has experience of challenging and affirming references to Arbitration; of drafting Mediation statements at very short notice; and of the enforcement of interim awards by Mediators. He is happy to accept instructions to represent clients in the principal ADR and Arbitration procedures, including those adopted by FIDIC and the DIFC.
For example –
- Advising Skanska Cementation upon the cross-examination of expert witnesses in an Arbitration in Paris (ICC Rules, Lebanese Law) concerning the troubled construction of the Camille Chamoun Sports City Stadium in Beirut.
- Representing Skanska Construction UK against Brighton & Hove Council and the National Lottery Commission in an £11m renovation of the Brighton Pavilion.
- Representing contractors in a year-long battle with a famous fashion photographer over payment for major repair and refurbishment works to the employer’s country mansion. Mediation statements, enforcement of awards, challenge of jurisdiction in the Technology & Construction Court, and a joint reference to Expert Assessor. Successful settlement.
Insolvency
Personal and corporate insolvency is an inevitable feature arising in much of David’s work; whether it provides the context within which other disputes arise (such as the priority of mortgages or other registered securities; recovering a third party’s goods held by liquidators despite retention of title), or whether it is the main challenge faced by the clients. Winding-up of companies and the bankruptcy of individuals; challenging Petitions and preventing advertisement; acting for liquidators and insolvency practitioners accused of misfeasance or negligence, or bringing/defending claims of over-charging.
For example –
- Acting for creditors of an individual who had pledged shares (already subject to prior claims) in return for loans used to buy into the Board of a football club which subsequently went into administration.
- Acting for the owner of a bundle of publishing copyrights (a family trust) in the course of the administration of the publishing company to which the trust had granted licences across the EMEA and in the USA.
Professional liability
David has regularly worked for claimants seeking damages from a wide variety of negligent professionals (predominantly receivers, investment advisers, accountants and solicitors) and their indemnity insurers. He has particular experience of advising solicitors and Receivers accused of negligence or misfeasance; but has also acted for clients and creditors accusing solicitors, Receivers, Liquidators or Trustees-in-Bankruptcy of negligence or misfeasance.
Publications
- ‘A Club Now Open to Everyone’ – Interest on Commercial Debts: (2002) 152 NLJ 1361
- ‘Ropewalking in a Straightjacket – Confidentiality, ‘Dirty Money’ & Disclosure’: (2002) 152 NLJ 1537
- ‘The Risk of Mistake in Contract’ – The trial & execution of Solle v Butcher: (2002) 152 NLJ 1654
- ‘Justice & the ‘Denver Boot’ – Freezing Orders in the County Court: (2002) 152 NLJ 1780
- ‘Allocation of Risk and the Non-Reliance Clause:’ (2003) 153 NLJ 12
- ‘Banking on a Proper Job’ – The Lender’s Perspective of Etridge (No.2): (2003) 153 NLJ 831
- ‘The Judicial View of Bias (Part 1)’: (2003) 153 NLJ 957
- ‘The Judicial View of Bias (Part 2)’: (2003) 153 NLJ 976
- ‘Fairness and the Magician’s Hat’ – Judgment by Surprise: (2003) 153 NLJ 1436
- ‘Taking the Sledgehammer to the Nut’ – The Civil Restraint Order: (2003) 153 NLJ 1555
- ‘Experts or Charlatans?’ – The Advocate’s Approach to Expert Evidence: (2003) 153 NLJ 1742
- ‘The Cautious Banker’ – The irrevocable nature of CHAPS: (2004) 154 NLJ 1191
- ‘Mortgage Shortfalls’ – Drawing the Line: (2004) 154 NLJ 1370
- ‘Shutting the Stable Door’ – Limitation & Abuse of Process (2009) 159 NLJ 1216
- ‘Hot-tubbing’ – Concurrent Expert Testimony (2009) 159 NLJ 1632
Areas of Expertise
Professional memberships
- Chancery Bar Association
- Professional Negligence Bar Association
- Southeast Circuit
Education
- LLB Manchester
- Bar Finals 1984
- Called to the Bar by Lincoln’s Inn
- Award Writing (Paper II), Chartered Institute of Arbitrators
Scholarships & Awards
- Thomas More Bursary 1984
- Bencher of Lincoln’s Inn since 2003
