Fidelis Oditah QC
Date of birth:
27th March 1964
Contact details:
3/4 South Square, Gray’s Inn, London WC1R 5HP.
Telephone +44 (0)20 7696 9900. Fax +44 (0)20 7696 9911. LDE (Chancery Lane).
Email fidelisoditah@southsquare.com. Wed www.southsquare.com
Education:
MA, BCL, D Phil (Oxon)
Professional career:
Queen’s Counsel 2003
Called to the Bar July 1992 (Lincoln’s Inn)
ICC Arbitrator
Areas of Practice:
Company Law, Capital Markets, Corporate Finance, Factoring, Asset-based financing, Projects, Financial Services, Banking, Insolvency, Professional Negligence,
Commercial Law.
Reported and other major cases:
Linklaters v HSBC Bank plc & Anor [2003] 2 Lloyd’s Rep 545, Gross J (Cheque conversion – liabilities of paying bank and collecting bank – whether paying bank entitled to an implied indemnity and/or warranty from the collecting bank that cheque was presented for payment on behalf of person entitled to the proceeds of the cheque – contribution between joint tortfeasors)
Re Rescupine Limited [2003] 1 BCLC 661, Hart J (Disposition of property after commencement of winding up – validation of sale of property by company – no satisfactory evidence that property was properly marketed – validation order refused).
On Demand Information plc & ors v Michael Gerson (Finance) plc & ors [2002] 2 WLR 919, [2002] 2 All ER 949, House of Lords (Civil Procedure - Contract - Remedies - Company Law - Insolvency - Receivership - Lessor terminated leases of video editing equipment on lessee's receivership - Receivers wished to sell equipment together with business as going concern and applied for relief against forfeiture - Court granted interim relief by way of order for sale of equipment - Sale of equipment did not defeat lessee's claim for relief against forfeiture)
Cadbury Schweppes plc v Somji [2001] 1 WLR 615, CA (company voluntary arrangements – debtor’s friend offered money to two opposing creditors in order to buy their votes – without votes the arrangement would not have the requisite statutory majority – vote purchase agreement structured as a conditional assignment of the debts owed by debtor to the two opposing creditors – the two creditors changed their votes and arrangement was approved – whether arrangement valid and binding – arrangement invalid – failure of the debtor to disclose the existence of the side deal with the two creditors was a material concealment of relevant information)
On Demand Information plc v Michael Gerson (Finance) plc [2001] 1 WLR 155; [2000] 2 All ER (Comm) 513, CA; (Finance lease – whether court had jurisdiction to grant relief against the forfeiture of a finance lease – whether the fact that equipment had been sold pursuant to court order deprived the court of jurisdiction – whether relief could be granted in respect of the sale proceeds)
Banque Arabe Internationale d’Investissement SA v Morris & Ors [2001] 1 BCLC 263, Neuberger J (fraudulent trading – whether liability limited to persons who performed a managerial or controlling role within company or directed or managed the business – whether a person who knowingly assisted in the carrying on of the business liable)
Re
Bank of Credit and Commerce International SA [2001] All ER (D) 227 (November),
Hart J (Expert evidence – Exchange of experts’ reports – application for
disclosure by respondents of the facts and assumptions relied on by expert in
preparation of report – whether statement of instructions in expert’s report
defective – whether court should order disclosure of instructions)
Re ASRS Establishment Ltd [2000] 2 BCLC 631, CA (fixed charge over book debts, “other debts and claims” due to company – whether escrow monies caught – whether charge fixed or floating – whether the fact that the charge over book debts was floating meant that the charge over “other debts and claims” was also floating –whether charge to be construed on an “all or nothing” basis)
BCCI v Akindele [2001] Ch 437; [2000] 3 WLR 1423; [2000] 4 All ER 221; [2000] BCC 968, CA (constructive trust – knowing receipt – whether proof of dishonesty required – single unified test – whether state of recipient’s knowledge made it unconscionable for him to retain the benefit of the receipt)
Re ASRS Establishments [2000] 1 BCLC 727, Park J (debenture created fixed charges over classes of assets and floating charge in so far as fixed charges were ineffective as such – whether charge over “other debts and claims” due to the company took effect as fixed charge – applicable test)
Grove v Advantage Healthcare (T10) Ltd [2000] 1 BCLC 661; [2000] BCC 985, Lightman J (charge – registration – company submitted mortgage for registration with erroneous registration number of company on application form – whether registration duly made).
Morris v Bank of America [2000] 1 All ER 954; [2000] BCC 1076; [2001] 1 BCLC 771; The Times, 25 January 2000, CA (strike out pleadings – guidance on pleading and conduct of complex cases – use of information technology)
On Demand Information Plc v Michael Gerson Finance Plc [1999] 1 All E R Comm 512; [1999] 2 All ER 811; [2000] BCC 289; The Times 28 April 1999 (finance leases – whether court has jurisdiction to grant relief against forfeiture of finance leases – relevant principles)
BCCI v Akindele [1999] BCC 669’ Carnwath J (constructive trust – investment agreement at a rate higher than market level – repayment at uncommercial rate – whether investor liable for knowing receipt or dishonest assistance in a breach of trust)
Morris v State Bank of India [1999] BCC 943, Neuberger J (fraudulent trading – strike out – relevance and sufficiency of allegations
Re: Bank of Credit and Commerce International SA [1997] Ch 213, Scott V-C (meaning and scope of ancillary winding up – whether English court could disapply English set-off rules in favour of narrower rules in place of principal liquidation)
Re: Bank of Credit and Commerce International SA (No 12), [1997] 1 BCLC 526, Robert Walker J (section 236 - whether Bank liable to provide documents at world-wide locations - rolling production)
Marathon Electrical Manufacturing Corp v Mashreq Bank [1997] 2 BCLC 460; [1997] CLC 1090, Mance J (whether proceeds of letters of credit were existing debts – assignment of proceeds of letter of credit to third party - whether notice of assignment valid – whether collecting bank entitled to set off proceeds of letter of credit against debt owed by assignor of proceeds of letter of credit.
Kent Carpets Ltd v Symes [1995] 2 BCLC 651
(individual voluntary arrangements – whether court has jurisdiction to convene
second meeting of creditors within 12 months after first meeting had voted and
rejected debtor’s proposals)
Morris v Banque Arabe et Internationale
d’investissement SA (6 Dec 1999, New Law Online 2991221301), Neuberger
J (Civil Evidence - Civil Procedure -
Hague Convention – whether party to English proceedings whose principal place
of business was abroad could refuse to give disclosure on the grounds that
disclosure and/or inspection would involve commission of a crime under a
foreign blocking statute in the country where it has its principal place of business
– Civil Evidence Act 1968, section 14)
CA Pacific Group [1998] on behalf of representative claimant (nature of the interests of investors in immobilised shares – whether mere creditors or beneficiaries under a trust)
BCCI v Bryce & Ors [1998], Neuberger J, on behalf of BCCI Liquidators (guarantee – whether bank promised not to enforce guarantees)
TSB v Bir [1998], Scott V-C, on behalf of TSB (execution of deeds – whether deed attested two years after signature was valid – meaning of “attestation” – whether receiver validly appointed
The Bell Group Ltd v Westpac & Others [1996/1997] on behalf of Westpac and the Lloyds Bank syndicate (sec 426 – assistance of foreign court - whether documents provided under sec 236 pursuant to a letter of request should be subject to restrictions applicable in English proceedings - whether disclosure should be governed by Australian rules)
Eagle Trust Plc v KPMG [1995], Waterhouse J, on behalf of KPMG (meaning of notice in LPA sec 236 – whether handing over debenture to auditors was notice of assignments contained therein)
Maxwell Group Pension Trustees v Credit Suisse [1994] on behalf of the Maxwell Group Pension Trustees (equitable priorities: constructive trust, misapplied pension assets)
Advisory Practice:
(a) Securitisation of reinsurance receivables, corporate loans, lease and other receivables
(b) Other Capital Market Issues
(c) Energy Projects both in the UK and abroad.
(d) Corporate restructuring (both solvent and insolvent)
(e) Asset-based financing
(f) All aspect of company, banking and financial services law
Academic Career:
Visiting Professor, Oxford University Law Faculty: 2000-
Fellow and Tutor in Law, Merton College, Oxford and Travers Smith Braithwaite Lecturer in Corporate Finance Law, University of Oxford: 1989 – 1996
Visiting Professor, University of Virginia Law School: Fall 1992
Consultant to the United Nations Commission on International Trade Law (UNCITRAL) 1995-1999
Founding Editor (and later Member of Editorial Committee), Company, Financial and Insolvency Law Review: 1997-2001
Member of Editorial Board, Insolvency Lawyer
Member of the Chancery and Commercial Bar Associations
Member, Financial Law Panel Working Group on E-Commerce 1999-2002
Publications:
Legal Aspects of Receivables Financing, Sweet & Maxwell, London, (1990).
The Future
for the Global Securities Market: Legal and Regulatory Aspects,
Clarendon Press, Oxford, (1996).
Insolvency of Banks, FT Law and Tax (October 1996).
“Fixed Charges Over Book Debts after Brumark”, Insolvency Intelligence, July 2001
“Offers of securities and investment services on the internet”, Journal of International Banking Law (Special Issue October 1998)
With Antony Zacaroli, “Chattel Leases and Insolvency”, The Company Financial and Insolvency Review (1997)
“Selected Issues in Securitisation” in Oditah (editor), The Future for the Global Securities Market: Legal and Regulatory Issues, Clarendon Press (1996).
“Secondary Securitizations in the United Kingdom” in Baums and Wymeersch (editors), Asset Securitization in Europe, Kluwer (June 1996).
“Takeovers, Share Exchanges and the Meaning of Loss”, Law Quarterly Review (July 1996).
“Default and Set Off” in Oditah (editor), Insolvency of Banks, FT Law and Tax (October 1996).
With Mark Phillips, “Securities Over Moveables: An Understanding of the English Position, Insolvency Lawyer (Special Annual Conference Issue) (1996)
With Nick Segal, “Lessor’s Right of Proof in Liquidation: Part II, Insolvency Intelligence, November 1996
“Winding-up Recalcitrant Debtors”, Lloyd’s Maritime & Commercial Law Quarterly (1995)
With Nick Segal, “Lessor’s Right of Proof in Liquidation: Part 1, Insolvency Intelligence, Oct 1995
“Individual Voluntary Arrangement”, Lloyd’s Maritime and Commercial Law Quarterly (1994)
With Dan Prentice and Nick Segal, “Administration: Part II of the Insolvency Act 1986” in J.S. Ziegel edition, Current Developments in International and Comparative Corporate Insolvency Law, Clarendon Press, Oxford (1994).
“Assets and the Treatment of Claims in Insolvency” Law Quarterly Review (1992)
“Financing Trade Credit" Welsh Development Agency v Exfinco, Journal of Business Law (1992).
“Misfeasance Proceedings against Company Directors”, Lloyd’s Maritime & Commercial Law Quarterly (1992).
“Lightweight Floating Charges”, Journal of Business Law (1991).
“Wrongful Trading”, Lloyd’s Maritime & Commercial Law Quarterly (1990).
“The Juridical Nature of a Lien on Sub-Freights”, Lloyd’s Maritime & Commercial Law Quarterly (1989).
“Priorities: Equitable versus Legal Assignments of Book Debts”, Oxford Journal of Legal Studies (1989).