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Professional negligence
Simon deals with a wide range of cases involving both contentious and non-contentious business. Reported cases include Johnson v[2002] 2 AC 1, in which he was junior Counsel for the Claimant during the interlocutory hearings culminating in Gore Wood & Co success in the House of Lords, and at the subsequent trial and appeal from the judgment. This case remains the leading modern authority in relation to the rule preventing recovery of reflective loss, and in relation to the principle in Henderson v Henderson. Current and recent instructions include all types of lawyers' errors in all areas of practice, for example:
- Negligent advice by solicitors in connection with a wife's equitable interest in property which her husband charged as security for his debts;
- Defending solicitors caught up in a fraudulent conveyancing transaction using forged powers of attorney;
- A dispute as to the acquisition of real property in Spain, the transaction being negligently conducted by the defendant solicitors.
- Multi million pound claim against solicitor arising out of allegedly negligent conduct of serious personal injuries claims and related probate matters, all arising from a light aircraft accident; settled at a mediation.
- Represented solicitors who were allegedly negligent in their handling of a personal injury action, raising issues of breach of duty, causation (including whether underlying action had any prospect of success) limitation and conflict of interest.
- Representing solicitors whose former client alleged a failure to make appropriate application for specific disclosure and recommending inappropriate terms of settlement. Case withdrawn on eve of hearing of Part 24 application by the Defendant.
- Instructed on behalf of solicitors accused of mishandling complex litigation, against a leading merchant bank; damages were claimed in excess of £1.5M plus interest; a satisfactory settlement was obtained at mediation.
- Several claims in relation to negligent drafting of will involving consideration of the scope of the rule in White v Jones, including the question whether accountants could owe a White v Jones duty.
- Lane v Cullens: claim alleging negligent advice as to distribution in the light of competing claims to estate. Limitation issue determined by HHJ Mackie QC in favour of Defendant, in July 2010, and confirmed on appeal [2011] PNLR [ ].
- Instructed on behalf of a leading City firm in relation to alleged negligence on their part with respect to the drafting and negotiation of a Share Purchase Agreement.
- Instructed on behalf of a firm which had allegedly failed to conduct proper due diligence and give proper advice in relation to substantial property investments. Action settled at mediation on confidential terms.
Simon conducts all types of accountant's negligence actions, ranging from negligent advice as to tax mitigation schemes to failure to detect fraud in the course of audit work. He has also been instructed in relation to disciplinary hearings. Clients have included one of the "big four" firms. He has been instructed in relation to a number of matters involving allegedly negligent advice relating to offshore investment arrangements and other tax saving strategies. He appeared for one of the Defendant firms in Dhillon v Siddiqui and others [2008] EWHC 2020 Ch. The Claimant failed after a 7 day trial in all bar one of his many claims against the Defendants. The Claimant was ordered to pay 85% of the Defendant's costs. He also appeared in subsequent proceedings relating to discontinuance and costs in respect of a discrete issue within the Dhillon litigation which had been excluded from that trial (in the exercise of the Court's case management powers): see [2010] EWHC 1400(Ch).
In Midland Packaging v HW Accountants [2010] EWHC 1975 (QB), Simon represented the Defendants at a trial in the Birmingham Mercantile Court concerned with causation and quantum. The claim against the Defendants was significantly reduced and the Claimants were ordered to pay 75% of the Defendant's costs of the trial by virtue of the Defendant's effective success at the hearing.
Reported cases include Stowers v Helm and others [2003] Ll Rep IR 403, in which Simon successfully defended the broker at trial. He has considerable experience in this area of work, in relation to all types of insurance cover (e.g. liability risks, contractors' all risks cover) and the liabilities of both placing and retail brokers. Cases have included a large broker's negligence claim arising out of alleged failure to negotiate suitable terms with underwriters in relation to a professional indemnity policy, and several matters where the allegation is of failure to obtain sufficient cover or cover on proper terms, on behalf of a commercial insured. He has been instructed to assist with the drafting of standard terms and conditions for a major firm of brokers. He is the co-author of the chapter on Insurance Brokers in Ter Haar & Levine on Construction Contracts and Construction Insurance.
Independent Financial Advisers
Simon has dealt with many cases of alleged mis-selling of financial products. He is familiar with the statutory and common law aspects of this area of work. The Legal 500 2010 notes that he is particularly recommended for work in this area. He appeared as junior Counsel for the successful firms in Bunney v Burns Anderson [2007] 4 AER 246, in which Lewison J gave the first judicial guidance on the ambit of the powers of the Financial Services Ombudsman and the distinction between money awards and directions made by him. Appeals by the Claimants were not pursued to a hearing.
He has considerable experience of large scale litigation in relation to allegedly fraudulent or mis-sold investment schemes, including claims made by investors against solicitors, IFAs, and defaulting trustees, and claims for contribution between IFAs and product providers. Cases include litigation arising out of the collapse of the Bridford Optimum Returns Trust, claims connected with the fraudulent conduct of the Imperial Consolidated fund, and most recently the Innovator One litigation. In the latter case, Simon acted for 2 of the 3 IFAs proposed by the Defendant as Lead Additional Parties, instructed by CMS Cameron McKenna LLP. In July 2010 Hamblen J held that it was not necessary or convenient for the Part 20 claims to proceed until after determination of the main action. He has also successfully defended proceedings against a Network arising out of an allegedly negligent reference (Milverton v BAIN, claim dismissed at trial and permission to appeal refused).
Simon acted for the successful Defendant in Kilkenny v NPI (claim discontinued before trial) where serious allegations of misspelling were made in relation to an equity release product.
He deals with cases involving architects, engineers and other professional parties. Reported cases in this area include the successful appeal in Glauser v Khan [2002] BLR 224.
Current and recent instructions include:
Acted on behalf of a development company pursuing various professional advisers for losses arising out of allegedly negligent advice in relation to 2 separate developments. Very significant recoveries were achieved;
- Acted on behalf of a Defendant engineer in relation to allegedly negligent advice as to the design of piling works;
- Acted for an architect alleged to have made errors in relation to site plans, causing delay and additional expense to the project;
- Acting for the insurers of project managers in relation to a large project to revamp a large residential property.
Simon has experience acting both for and against local authorities in relation to large scale public procurement works, including Kent: junior counsel on behalf of engineers accused of negligent advice in relation to an "iconic" building CC v Snohetta and others planned by a Local Authority, and Scarborough Borough Council v HPR.
Simon has undertaken surveyors' and valuers' negligence work for almost all of his career, and was involved in a significant number of cases arising out of the property crash in the 1990s. He is familiar with the issues arising in such litigation in relation to existence and scope of duty, contributory negligence (including poor lending practice by banks) and quantum. Simon has received a series of new instructions arising out of the credit crunch, which raise issues including contributory negligence as regards bad lending decisions, the question of whether a duty of care is owed to all banks in syndicated lending situations, and the question of when issuing a protective claim form may amount to an abuse of process.