This is the final episode in the second series of The Fountain Court Podcast. The episode is moderated by Stephen Moriarty KC, a senior Fountain Court silk and former Head of Chambers. The episode is a recording of a virtual panel discussion hosted in September 2022 to mark the annual Christopher Bathurst Prizegiving and therefore we apologise for any noise interruptions.

The episode features an internationally focused discussion on the topic of ‘Duty of Care and Professional Liability’. This was the topic that this year’s applicants for the Christopher Bathurst Prize were asked to write about. Each panellist discusses recent developments in the law of professional negligence in their jurisdiction, including the circumstances in which a duty of care would be held to arise, the scope of the duty, causation and limitations to recoverable loss.

Adopting a comparative law approach, the panel considered recent significant decisions of the Singapore and English courts as well as the position under Australian and Indian law.

Joining Stephen in the discussion are:

Kanaga Dharmananda SC: Based in Australia, Kanaga is Senior Counsel. He practises from Perth as a door tenant at Fountain Court. He has a broad commercial litigation and arbitration practice, with emphasis on resources, finance, projects, and insolvency matters.

Leigh-Ann Mulcahy KC: Leigh-Ann is a silk at Fountain Court. Her practice includes insurance and reinsurance, international arbitration, product liability, professional negligence and discipline, administrative and public law and commercial and IT-related disputes. She works both domestically and internationally, including in Asia where she is a Registered Foreign Lawyer with the Singapore International Commercial Court (SICC) and in the Caribbean.

Siraj Omar SC: Based in Singapore, Siraj is Senior Counsel and Director of Dispute Resolution at Drew & Napier. Siraj specialises in complex, high-value commercial litigation and international arbitration. He has an active trial and appellate practice at all levels of the Courts in Singapore and in international arbitrations. For several years now he has sat as one of the judges for the Christopher Bathurst Prize.

Zal Andhyarujina SA: An Indian Senior Advocate based in Mumbai and a door tenant of Fountain Court, Zal has a large and diverse commercial practice with a focus on cross border disputes. He practices in the Bombay High Court, The Supreme Court of India and various tribunals including the Securities Appellate Tribunal (SAT), the National Company Law Tribunal (NCLT) and the National Company Law Appellate Tribunal (NCLAT).

After the webinar, we welcomed guests in person for the first time since 2019 to our Christopher Bathurst Reception and Prize-Giving in Singapore. Stephen Moriarty and Paul Neo, the Chief Operating Officer of Singapore Academy of Law, presented the prize to this year’s Christopher Bathurst winner, Magdalene Ong. The prize is an all-expense-paid two-week internship at Fountain Court in London. We hope to welcome Magdalene to London in 2023. The full news piece can be found here: https://www.fountaincourt.co.uk/2022/09/fountain-court-announces-winner-of-the-christopher-bathurst-prize-2022/

For more information on Fountain Court’s international experience, please see here: https://www.fountaincourt.co.uk/international/

This is the ninth episode in the second series of The Fountain Court Podcast. The episode is hosted by Aaron Taylor, a barrister at Fountain Court.

Aaron has a broad commercial practice with a particular interest in cases involving civil fraud, financial crime, and corruption and in disputes involving art and cultural property. He is on the Serious Fraud Office’s “C” Panel for Proceeds of Crime International Assistance and an Associate Lecturer at Goldsmiths, University of London, where he lectures on topics relating to financial wrongdoing. Aaron is currently working on a book about financial crime in the art market. His proposal for the book was shortlisted for the FT Bracken Bower Prize 2021.

On this episode, we discuss the risk of fraud and financial crime in the art market.

Joining Aaron in the discussion are:

• Susan Mumford: The CEO and co-founder of Art AML, a platform that assists a wide range of art market participants in complying with their anti-money laundering and international sanctions obligations. Before setting up Art AML in 2018, Susan spent a decade as an art dealer and adviser. She founded the Association of Women Art Dealers in 2009, and the organisation Be Smart About Art in 2012.

• Tim Maxwell: A Partner at Charles Russell Speechlys, and a recognised leader in the field of art law. He has represented clients across the art world – including artists, institutions, auction houses, galleries, and collectors – in cases involving artists’ rights, ownership, art finance, attribution, restitution, and many other issues – including several of the most high-profile disputes of recent times. Tim provides guest lectures at Sotheby’s Institute of Art, Christie’s Education, the University of Glasgow, and the Institute of Art and Law.

• Eleanor Davison: A senior junior at Fountain Court. Eleanor specialises in international civil and criminal fraud, bribery, money laundering, market abuse, insider trading, and sanctions – alongside banking, financial services, and regulatory investigations. She is instructed in a range of high-profile matters, including most recently the Dame Linda Dobbs Review into Lloyds Banking Group’s handling of the HBOS Reading affair, the inquiry into the Post Office Horizon software, and the proceedings brought by the Serious Fraud Office against Barclays Bank.

The episode discusses and provides a range of perspectives to the nature and extent of the risk of fraud and financial crime in the art market. The panellists discuss recent scandals which have highlighted the ability of dishonest dealers to defraud their clients. They also discuss the focus on money laundering since the art market was included within the scope of the EU’s fifth money laundering directive as well as the impact of the war in Ukraine, and the resulting sanctions on various Russian individuals and entities. The panellists also touch upon the impact of technology on the art market and the effect of non-fungible tokens and cryptocurrencies.

For more information about Fountain Court’s art practice, please visit www.fountaincourt.co.uk.

This is the eighth episode in the second series of The Fountain Court Podcast. The episode is hosted by Francesca Ruddy, a barrister at Fountain Court.

Francesca has a broad practice, with a particular focus on general commercial litigation, arbitration, civil fraud, financial and offshore disputes. She has also acted in a number of complex and high-value energy and infrastructure disputes. Francesca was previously the Judicial Assistant to Lord Hodge at the UK Supreme Court. Before coming to the Bar, Francesca practised as a Solicitor at Herbert Smith Freehills, where she acted in commercial disputes at all stages of litigation and arbitration.

On this episode, we discuss the current volatility in energy markets and how this is likely to create energy disputes.

Joining Francesca in the discussion are:

• Rachel Lidgate: a solicitor-advocate and partner in the dispute resolution division of Herbert Smith Freehills in London. Rachel has over 15 years' experience advising clients in the oil, gas and power industries on contractual and other disputes, with her practice spanning High Court litigation, international arbitration, expert determination and mediation. Rachel is ranked as a 'Next Generation Partner' in Legal 500 and recently chaired the energy disputes panel at London International Disputes Week.

• Elizabeth Farrell: a partner in the Energy & Natural Resources Group at Reed Smith. Elizabeth is ranked as a “Next Generation Partner" by Legal 500 for her work in commodities disputes. She has extensive experience in the international trade and transportation of a wide range of commodities, particularly coal, metals, iron ore, LNG, crude oil and oil products. She also has wide-ranging transactional experience, having advised on long-term offtake agreements, flash title arrangements, and tolling agreements in the commodities sector.

• James Cutress QC: a silk at Fountain Court who specialises in heavy and complex commercial disputes which are international in nature and often raise jurisdictional issues. James is ranked as a Leading Silk by Legal 500 and Chambers & Partners in a range of practice areas, including Commercial Dispute Resolution, Insurance, Banking and Finance, Aviation and Professional Negligence. He is frequently called upon to advise clients in relation to contractual, recovery and insurance issues arising out of sanctions.

The episode discusses the impact of energy price volatility on contractual disputes, principally in the oil and gas sectors. The speakers consider the impact of the war in Ukraine and current sanctions on Russian entities, as well as the possibility of further sanctions. The speakers also discuss how the renewed focus on energy security interacts with the decarbonisation agenda, before reflecting on current trends in environmental litigation more generally.

For more information about Fountain Court’s energy practice, please visit www.fountaincourt.co.uk.

This is the seventh episode in the second series of The Fountain Court Podcast. The episode is hosted by Christopher Langley, a barrister at Fountain Court.

Christopher has a broad commercial practice which covers the full range of commercial, banking, finance, civil fraud, insurance, aviation, art, media and entertainment and professional negligence disputes. Many of Christopher’s cases involve civil fraud across a wide range of industry sectors. He regularly acts on behalf of major banks and financial institutions and has particular expertise in matters involving bribery and corruption.

On this episode, we discuss the origins and evolution of the Quincecare duty.

Joining Christopher in the discussion are:

• Rosalind Phelps QC: a silk at Fountain Court who specialises in large-scale disputes spanning banking, commercial, arbitration, aviation, fraud and professional negligence. Ros is ranked by both Chambers & Partners and The Legal 500 for her work across various areas, including banking. Ros joins the discussion having recently acted for JP Morgan in its high-profile defence of claims brought by the Federal Republic of Nigeria, including in relation to the Quincecare duty, which was the subject of a widely reported High Court Judgment handed down in June 2022.

• George Hoare: a Partner in Reed Smith’s Global Commercial Disputes Group. George has acted in a number of heavy-duty, high profile and multi-jurisdictional commercial disputes, contentious regulatory investigations and arbitration proceedings. He has worked on some of the most complex cases in the London Commercial Court and has particular expertise in banking disputes. He has also been seconded to two international investment banks in the past and is recognised by The Legal 500 as a leading banking and commercial litigation lawyer.

The episode discusses the origins of the Quincecare duty, covering Barclays v Quincecare Ltd and controversies which have since followed. The speakers also touch upon the scope of the duty and how it has recently been extended following the Court of Appeal’s judgment in Philipp v Barclays. The effect of the duty is also considered within the context of large cases such as SIB v HSBC and the recent judgment in Federal Republic of Nigeria v JP Morgan Chase. The speakers also look at where we might go from here in terms of the future development of the law in this area.

For more information about Fountain Court’s banking practice, please visit www.fountaincourt.co.uk.

This is the sixth episode in the second series of The Fountain Court Podcast. The episode is hosted by Robin Lööf, a barrister at Fountain Court, specialising in commercial crime.

Robin started his career at the criminal bar before joining Debevoise & Plimpton’s White Collar & Regulatory Defence Group. He then joined Fountain Court in 2021. Robin primarily acts for companies and individuals facing criminal or regulatory investigations, particularly in relation to corruption, sanctions violations and money laundering.

In this episode, we discuss the independence of prosecutions and prosecutors in England & Wales.

Taking part in the conversation are:

• Nick Vamos: a Partner at Peters & Peters and the former Head of Special Crime at the Crown Prosecution Service (CPS), overseeing its most complex casework including corporate manslaughter, election fraud and police corruption. During his seventeen years at the CPS, Nick also held three of the most senior international prosecution posts: Head of Extradition; Head of the UK Central Authority for Mutual Legal Assistance; and liaison prosecutor in Washington DC.

• Miranda Ching: a white-collar crime lawyer at Kobre & Kim where she advises individuals and corporates in cross-border cases. Before joining the firm in 2021, Miranda was a case controller and prosecutor at the Serious Fraud Office where she was responsible for the investigation and prosecution of multiple fraud and corruption cases.

• Richard Lissack QC: a senior silk at Fountain Court. Richard is one of the country’s most experienced practitioners in the fields of Corporate Crime, Financial Services Regulation, Commercial Fraud and Health and Safety. Richard has been involved in many of the leading cases in these fields in the past three decades. By way of example, he led the successful defence of Barclays Bank against the SFO’s allegations of fraud in relation to its Qatar fund-raising and was also instructed in the JP Morgan London Whale litigation. He joins this discussion fresh from a 14-week trial at Southwark Crown Court resulting in the acquittal of his client, a former CEO accused of misleading the market in a prosecution brought by the Financial Conduct Authority.

The discussion in this episode arises out of a series of recent events, including the SFO continuing to fight what appears to be a constant battle to justify its own existence, the unceremonious ousting of the Chief Constable of the Metropolitan Police by the Mayor of London, a lack of investigation from law enforcement in relation to various scandals involving alleged serious misconduct by politicians, and a sustained trend of individuals and entities making use of the residual right to bring a private prosecution. These events raise questions as to how independent those responsible for investigating alleged criminality and bringing criminal charges before our courts really are from political or other external considerations.

The speakers also touch upon the status of prosecutors, their independence in deciding whether to open a criminal investigation or prosecution, and whether reform is needed.

For more information about Fountain Court’s commercial crime practice, please visit www.fountaincourt.co.uk.

This episode is hosted by Fountain Court barrister Damien Bruneau and features a discussion with three of our newest tenants.

Damien spoke to his peers about their experiences in their first few months of tenancy and how it differs from their expectations and their experiences during their year of pupillage. They also discussed their case load, how the profession differs from other careers, personal recent highlights and what it is like being a barrister, particularly at Fountain Court.

Joining Damien in the discussion are:

• Joseph Leech: Before coming to the Bar, Joseph studied history at Cambridge and at Yale. He was a full-time Judicial Assistant at the High Court in his first few months of tenancy, where he gained detailed experience of commercial trials and judicial decision-making.

• Francesca Ruddy: Francesca was previously the Judicial Assistant to Lord Hodge at the UK Supreme Court. Before coming to the Bar, Francesca practised as a Solicitor at Herbert Smith Freehills, where she acted in commercial disputes at all stages of litigation and arbitration.

• Daniel Schwennicke: Daniel worked as a Judicial Assistant at the Commercial Court for his first months of tenancy and graduated from Oxford University with a First in Classics, receiving a Henry Fellowship at Yale University. He then completed an accelerated degree in Law at Oxford.

• Hannah Bernstein: Hannah has a broad commercial practice with a particular interest in regulated areas, such as aviation, banking, the professions, and in competition law. Before coming to the Bar, Hannah was an economist and has advised a range of public bodies and multinational corporations on commercial disputes and operational challenges.

For more information about pupillage at Fountain Court, please visit https://www.fountaincourt.co.uk/pupillage/

This is the fourth episode in the second series of The Fountain Court Podcast. The episode is hosted by Andrew Pullen, a barrister at Fountain Court Chambers, and is a recording of a virtual panel discussion hosted in November 2021. Andrew specialises in international arbitration, appearing as counsel and sitting as arbitrator. He is an English-qualified barrister, based in Singapore since 2011.The episode features an internationally focused discussion on a very common feature of commercial contracts – ‘no oral modification clauses’. This was the topic that this year’s applicants for the Christopher Bathurst Prize were asked to write about.

Each panellist outlines the current state of law in each of their jurisdictions before delving into deeper issues that these clauses raise.

Joining Andrew in the discussion are:

• Siraj Omar SC: Based in Singapore, Siraj is Senior Counsel and Director of Dispute Resolution at Drew & Napier. Siraj specialises in complex, high-value commercial litigation and international arbitration. He has an active trial and appellate practice at all levels of the Courts in Singapore and in international arbitrations. For several years now he has sat as one of the judges for the Christopher Bathurst Prize.

• Nathalie Koh: Nathalie practices as a barrister in London at Fountain Court. She has a broad commercial practice, including aviation, banking, and insurance cases and was recently part of the Counsel team who appeared in the UK Supreme Court in the landmark FCA test case regarding business interruption policies.

• Gaurav Pachnanda SA: Gaurav is a Senior Advocate at the Indian Bar, based in Delhi, and a door tenant at Fountain Court. His practice includes a wide range of commercial litigation, arbitration and advisory work, with a significant multi-jurisdictional component. Gaurav is an Honorary Adjunct Professor of Law.

• Kanaga Dharmananda SC: Based in Australia, Kanaga is Senior Counsel. He practises from Quayside Chambers in Perth and as a door tenant at Fountain Court. He has a broad commercial litigation and arbitration practice, with emphasis on resources, finance, projects, and insolvency matters.

The 2021 winner of the Christopher Bathurst prize is also announced in the episode, by Stephen Moriarty QC who shares the history of the prestigious prize. Stephen is a senior silk at Fountain Court and a former Head of Chambers.

Sandra Booysen, an associate professor at the National University of Singapore and deputy-director of the Centre for Banking and Finance law, explains why the winning essay was chosen. Sandra is also a member of the judging panel for the prize.

For more information on Fountain Court’s international experience, please see here.

Authorities

English Authorities

• MWB Business Exchange Centres Ltd v Rock Advertising Ltd [2016] EWCA Civ 553, [2018] UKSC 24

• Kabab-Ji SAL (Lebanon) v Kout Food Group (Kuwait) [2020] EWCA Civ 6, [2021] UKSC 48

Singapore Authorities

• Comfort Management Pte Ltd v OGSP Engineering Pte Ltd [2018] SGCA 19

• Charles Lim Teng Siang v Hong Choon Hau [2021] SGCA 42

Australian Authorities

• GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50

• Hawcroft General Grading Co Pty Ltd v Hawcroft [2017] NSWCA 91

• Rapsey, Re Australasian Mortgage Finance Ltd [2021] FCA 189

Indian Authorities

• Joshi Technologies International Inc. v. Union of India and others (2015) 7 SCC 728

• Thyssen Krupp Materials AG v. Steel Authority of India 2017 SCC OnLine Del 7997

This is the third episode in the second series of The Fountain Court Podcast. The episode is hosted by Richard Lissack QC, a silk at Fountain Court Chambers, and is a recording of a virtual panel discussion hosted by Fountain Court’s commercial crim group in October 2021, on the topic of UK Corporate Criminal Liability.

Richard Lissack QC is a nationally and internationally recognised leader in the field of banking and financial services, anticorruption legislation including the Bribery Act, commercial fraud and regulatory breaches. A client interviewed by Chambers & Partners comments that ‘there is nobody at the Bar like Richard Lissack QC’ and that he ‘perfectly straddles the intersection between business crime and regulatory exposure’. He is called to the Bar of, or is a licensed practitioner in, London, New York, Northern Ireland, Eastern Caribbean and the DIFC.

Joining Richard in the panel discussion are fellow members of Fountain Court’s commercial crime group:

• Robin Barclay QC: Robin took silk in 2020 and practices in commercial, criminal, financial services and public law. His practice is almost exclusively international and multi-jurisdictional and his expertise spans disputes from investigations before the commercial court and chancery division, the crown court, the administrative court and a range of different regulatory and disciplinary tribunals in the UK and offshore, including the FCA. His practice traverses very different legal and procedural spheres and he is used by a range of corporates and individuals for high value, high stake commercial litigation and advice.

• Eleanor Davison: Eleanor is a leading junior in cross border fraud, money laundering, corruption and financial services law. She advises government at the highest level, state and private enforcement agencies, listed companies and senior executives in criminal and regulatory proceedings. She is listed in Who’s Who Legal as a Future Leader in Investigations and is the appointed expert to the Bar Standards Board on anti-money laundering provisions.

• Robin Lööf: Robin started his career at the Bar in London’s top criminal set and then spent eight years in the white-collar crime team of a leading US law firm, before joining Fountain Court in June 2021. He now represents and advises both companies and individuals facing criminal and regulatory issues in England and abroad. As a French qualified lawyer, he continues to be able to practice seamlessly across the channel.

Over the summer of 2021, the Law Commission consulted a range of stakeholders on options for governmental reform to UK corporate criminality, so the law is fit for the modern business world. During the event, the speakers discussed the need for reform and themes arising during the consultation.

They also discussed the new failure to prevent fraud offence, what the UK can learn from overseas jurisdictions, proportionality and the cost of compliance and the impact on both global investigations and deferred prosecution agreements.

For more information about Fountain Court’s commercial crime expertise, please visit https://www.fountaincourt.co.uk/expertise/commercial-crime/.

To subscribe to our commercial crime quarterly newsletter, referred to in the episode, please contact [email protected]

This is the second episode in the second series of the Fountain Court Podcast. The episode is hosted by Leigh-Ann Mulcahy QC, a silk at Fountain Court, and is a recording of a virtual panel discussion hosted by Fountain Court in July 2021, on the topical issue of insurance aggregation.

Leigh-Ann Mulcahy QC was named ‘Insurance Silk of the Year’ by Chambers & Partners in 2016 and has expertise across many business lines, in both litigation and arbitration. She has considerable experience in relation to insurance claims for COVID-19 losses, including acting for the FCA in the Business Interruption Test Case, and increasingly advises on insurance disputes with an international element.

Joining Leigh-Ann in the discussion are:

• Ben Lynch QC of Fountain Court: Ben is described by the legal directories as “frighteningly astute” and appeared in AIG v Woodman, the leading case on aggregation in the solicitors’ indemnity insurance market. Ben is currently advising on aggregation issues in the business interruption insurance context and appeared for the Hiscox Action Group in the FCA Business Interruption Test Case as well as in Rockliffe Hall v Travelers, defeating the argument that COVID-19 amounts to Plague.

• Sonia Campbell of Mishcon de Reya: Sonia is Head of Insurance at Mishcon de Reya and specialises in policyholder insurance coverage disputes across range of lines and sectors and advises on reinsurance and captive issues. Sonia led the claim for the Hospitality Action Group in the FCA Business Interruption Test Case.

• Christine Williams of Travelers: Christine is a Barrister and Mediator and Chartered Insurer and is Managing General Counsel at Travelers. She was until recently the Chair of the British Insurance Law Association and was voted Insurance Lawyer of the Year, at the 2020 Women in Insurance Awards.

• Ingrid Hobbs of Kennedys: Ingrid is the Head of Kennedys’ Complex Casualty Coverage team and specialises in insurance and reinsurance disputes, across many classes of business and often with multi-jurisdictional elements. Her practice sees her acting for insurers and reinsurers.

During the session, the speakers discuss various issues relating to aggregation including why it continues to be a difficult subject, the construction and application of aggregation wording, issues specific to particularly business lines such as professional indemnity and business interruption, and aggregation in the context of claims relating to COVID-19. The panel also touched on reinsurance.

The speakers refer to a number of cases within the seminar and you can find details of those here: https://www.fountaincourt.co.uk/podcast/series-2-episode-2-insurance-aggregation-hot-topics-and-views-from-across-the-market/

For more information about Fountain Court’s insurance experience, please visit https://www.fountaincourt.co.uk/expertise/insurance-and-reinsurance/

This is the first episode in the new series of the Fountain Court Podcast. This episode looks at the implications of a post-Brexit world for civil litigation, particularly when it comes to issues such as jurisdiction and enforcement.

Taking part in the conversation are:

• Alexandra Whelan – a barrister who has been with Fountain Court since 2016, having previously practiced as a solicitor in Australia. Alexandra has a general commercial practice also covering financial and professional regulatory work and is currently working on a number of fraud and banking cases. She has dealt with jurisdictional issues in all areas of her practice and was recently led by Stephen Moriarty QC and Giles Robertson in a successful challenge to jurisdiction on the basis that, amongst other things, there was no serious issue to be tried because the claim was issue estopped.

• Louise Merrett – a fellow barrister at Fountain Court who has been with Chambers since 1995 and, since 2003, has combined her practice with an academic career. She is currently a professor of International Commercial Law at the University of Cambridge with the focus of both her academic work and her practice being conflict of laws. Louise’s recent work includes being involved in an application for an anti-suit injunction against US discovery proceedings, an alternative service application in relation to a large insurance claim against insurers in Kuwait, the UAE and Qatar and she will be appearing in the Court of Appeal in December in connection with a very large multi-party bribery claim arguing about the applicability of a Swiss jurisdiction clause.

In this episode, Alexandra and Louise discuss the ‘new law’ on jurisdiction post-Brexit, how the Hague Convention works and how this might all come together in practice. They also speak about the impact of Brexit on choice of law rules and parallel proceedings in the UK and Europe, how the enforcement of English judgments in the EU has changed and what we might expect to see in the future.

For more information about Fountain Court, please visit www.fountaincourt.co.uk/