Tom Smith QC +44 (0)20 7696 9900 tomsmith
@southsquare.com


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Practice Managers

Tom Smith QC

Tom Smith QC Tom Smith QC

Tom Smith QC

QC 2014, Called to the Bar 1999
+44 (0)20 7696 9900
tomsmith@southsquare.com
Tom Smith QC
QC 2014, Called to the Bar 1999

Tom specialises in commercial litigation and arbitration, banking and finance, corporate insolvency and restructuring and company law (including investment funds). He also practices extensively in the fields of civil fraud and asset recovery, professional negligence and trusts.

Tom is an experienced trial advocate in both court litigation and arbitrations. In recent years Tom has been involved in a number of high profile and complex cases including major commercial trials such as the Formula One/Ecclestone and Avonwick/Webinvest disputes.  Most recently, he has led the $2 billion claim by a Madoff feeder fund in a four month trial in the Cayman Islands. 

He has also been involved in many of the recent restructurings and schemes of arrangement and banking disputes. These include Supreme Court/House of Lords decisions on important legal issues in the fields of banking and restructuring (HIHMills v HSBCRubin v EurofinanceNortel/Pensions Regulator, Morgan Stanley v Tael).  Tom frequently appears as an advocate both in England and in other jurisdictions including the Cayman Islands, Dubai and Gibraltar. 

Tom is described as being very bright, quick-witted and very approachable.

AREAS OF PRACTICE

Insolvency and Restructuring

Recent cases include:

  • Mitchell v Royal Bank of Scotland [2017] EWHC 1025 (Ch), claims of conspiracy and unlawful means against administrators, purchasers and lenders arising out of Torex restructuring
  • Shlosberg v Avonwick Holdings [2016] EWCA 1138, [2017] 2 WLR 1075, rights of a trustee in bankruptcy to access and use documents including privileged material belonging to the bankrupt
  • Re Lehman Brothers Internatonal (Europe) [2016] BCC 239, the “Waterfall II” litigation dealing with the distribution of the Lehman Brothers estate
  • Tabata v Glencore Ltd [2015] EWHC 1031 (Ch), recognition under the CBIR and remission of funds to foreign officeholder
  • Re Nortel GmbH; Bloom v The Pensions Regulator [2014] AC 209 (SC), administration expenses and provable debts
  • Re Comet Group Ltd [2015] BPIR 1, power under section 236 of Insolvency Act 1986 to order production of information and data
  • Picard v Primeo Fund, Cayman Islands Court of Appeal, April 2014, ability of foreign officeholder to bring clawback claims under domestic and foreign law
  • Rubin v Eurofinance [2013] 1 AC 236 (SC), recognition of foreign judgments in insolvency proceedings
  • Vietnam Shipbuilding Industry Group v Bluecrest [2013] EWHC 1146 (Comm), stay of proceedings in support of proposed scheme of arrangement
  • Re UK Housing Alliance [2013] BCC 752, whether payments under sale and leaseback arrangements constitute administration expenses
  • Re Chesterfield United [2013] 1 BCLC 709, disclosure in support of foreign insolvency under Cross-Border Insolvency Regulations 2006
  • Re Oilexco Northsea [2010] Ch 187 (CA), grant of anti-suit injunctions in support of insolvency proceedings
  • Re HIH Casualty and General Insurance [2008] 1 WLR 852 (HL), power of an English liquidator to remit assets to foreign office-holders
  • Re Collins & Aikman Europe [2007] 1 BCLC 182, power of administrators to make distributions and payments to creditors in accordance with foreign law

Tom has advised and appeared on numerous schemes of arrangement including Sea Containers, Crest Nicholson, TI Automotive, RodenstockFitness First, Travelodge, CEVA, Vietnam Shipbuilding Group [2014] 1 BCLC 400, Hibu/Yellow Pages [2014] EWHC 370 (Ch), [2014] EWHC 1074 (Ch), Stemcor [2014] 2 BCLC 373, Global Resources Lancashire, Endeka Ceramics, DTEK Finance BV [2015] EWHC 1164 (Ch), Torm A/S, Stemcor 2 [2016] BCC 194, Avantgardco, Privatbank [2015] EWHC 3299 (Ch), DTEK Finance plc [2016] EWHC 1083 (Ch), EnQuest [2016] EWHC 3734 (Ch).

Tom has also advised on many cases involving CVAs particularly to restructure lease liabilities and involving combined financial/operational restructurings: JJB Sports, Focus DIY, Blacks Leisure, Fitness First, Travelodge, Café Rouge, Mamas and Papas.

Banking and Finance

Recent cases include:

  • African Export-Import Bank v Shebah Exploration & Production [2017] EWCA Civ 845, [2016] 2 BCLC 412 validity of anti set-off clause in LMA form loan agreement and application of Unfair Contract Terms Act
  • GSO Credit Partners v Barclays Bank [2017] 1 All ER (Comm) 421, first judgment in the new Financial List, construction of LMA standard terms in relation to sale of commitment under surety bonds facility
  • Goldman Sachs International v Novo Banco [2016] EWCA 1092, effect of European Banking Restructuring and Resolution Directive on claims to recover lending under English loan agreements
  • Morgan Stanley v Tael One Partners [2015] UKSC 12, construction of LMA standard terms for par trade transactions
  • US Bank Trustees Ltd v Titan Europe 2007-I (NHP) Ltd [2014] EWHC 1189 (Ch), construction of servicing agreement in relation to CMBS securitisation transaction
  • Grupo Hotelero Urvasco v Carey Value Added [2013] EWHC 1039 (Comm), alleged defaults under loan agreement including material adverse change (MAC) clauses and other default provisions
  • Saltri III v MD Mezzanine SICAR [2013] 2 BCLC 217, rights and duties of security trustee and duties owed to junior lenders
  • Assénagon Asset Management v Anglo Irish Bank [2013] 1 All ER 495, abuse of power in relation to consent and exchange offer for subordinated notes
  • Mills v HSBC Trustee (CI) [2012] 1 AC 804 (SC), effect of the rule in Cherry v Boultbee applicable in relation to the rights of guarantors
  • Carey Valued Added SL v Grupo Urvasco [2011] 1 BCLC 352, construction of guarantee as demand guarantee/performance bond
  • Re European Directories, HHY Luxembourg Sarl v Barclays Bank  [2011] 1 BCLC 336 (CA),  construction of release provisions in intercreditor agreement
  • Lehman Brothers RASCALS [2010] EWHC 2914 (Ch), operation of repos/stock loans and the intermediated holding system for securities
  • Satinland Finance Sarl v BNP Paribas Trust Corporation UK  [2010] EWCA Civ 150, construction of terms of subordinated bonds and ability of bondholder to apply for winding up
  • Mills v Sportsdirect.com Retail  [2010] 2 BCLC 143,  operation of repos under GMRA and whether securities held on trust
  • Trimast Holding Sarl v Telecolumbus [2010] EWHC 1944 (Ch), construction of intercreditor agreement
  • Newcastle Building Society v Mills [2009] 2 BCLC 137,  effect of contractual bar on rights of set off in trust deed under the CREST system
  • Re Golden Key [2009] EWCA Civ 636, payment priorities in relation to structured investment vehicle (SIV)
  • British Energy v Credit Suisse [2007] 2 Lloyd’s Rep 427, dispute over permissibility of the sub-participation of option rights

Commercial Litigation and Arbitration

Recent cases include:

  • Avonwick Holdings Ltd v Castle Investment Fund [2015] EWHC 3832 (Ch), claims under section 423 Insolvency Act and for unlawful means conspiracy
  • Ipsos SA v Dentsu Aegis Ltd [2015] EWHC 1171 (Comm), [2015] EWHC 1726 (Comm), fraudulent misrepresentation and breach of warranty claims arising out of share purchase agreement
  • Avonwick Holdings Ltd v Webinvest Ltd [2014] EWHC 3661 (Ch), acting for claimant in successful claim to recover US$200m lending in face of an alleged oral agreement; and also [2014] EWCA Civ 1436, [2014] EWHC 3434 (Ch) and [2014] EWHC 3322 (Ch) regarding the disclosure of “without prejudice” material and documents produced in an arbitration
  • Constantin Medien v Ecclestone [2014] EWHC 387 (Ch), acting for the second defendant in successful defence of claim concerning Formula One bribery allegations
  • Belltrey Corporation v Newcote Ltd, shareholder dispute over ownership of BetVictor internet bookmakers
  • Smithton v Naggar [2015] 1 WLR 189, de facto/shadow director and breach of duty claims concerning operation of contracts for difference arising out of Dawnay Day collapse
  • Tchenguiz v Director of the SFO [2014] 1 WLR 1476, disclosure of material obtained by SFO search warrants
  • Nomihold Securities v Mobile TeleSystems Finance [2012] 1 Lloyd’s Rep 6 (CA), scope of court’s ability to grant post judgment freezing order relief
  • Westacre Investments v The State Owned Company Yugoimport [2009] 1 All ER Comm 780, effect of expiry of time on application for charging/third party debt order
  • Fourie v Le Roux [2007] 1 All ER 1087 (HL), grant of freezing orders in support of intended legal proceedings

Tom also acted for the Bank of England in the two year trial in Three Rivers District Council v The Bank of England in the Bank’s defence of the claim brought by the liquidators of BCCI for misfeasance in public office.

 Arbitrations under ICC, LCIA, UNCITRAL and ICSID rules:

  • LCIA arbitration regarding purchase of Ukrainian agri-business

  • LCIA arbitration regarding Black Sea grain terminal including application for section 66 relief
  • ICC arbitration regarding arms contract with Middle Eastern state
  • LCIA arbitration for defence contractor regarding MoD IT project

  • LCIA arbitration for defence contractor regarding MoD armoured vehicle project
  • Nomihold Securities v Mobile TeleSystems Finance [2012] 1 Lloyd’s Rep 442, anti-suit injunction in relation to arbitration proceedings; [2011] EWHC 2143 (Comm), test for setting aside leave to enforce an arbitration award under section 66 of the Arbitration Act 1996
  • Kernel Holding v Taman Invest [2012] EWHC 715 (Comm), section 66 injunction in support of arbitration proceedings to restrain business sale

International and Offshore

Tom has extensive experience of offshore funds work and recent cases include:

  • Pearson v Primeo Fund[2017] UKPC 19, Privy Council, leading case on the ranking of claims by redeeming investors in liquidation of Cayman corporate open-ended investment fund
  • Primeo Fund v Pearson, Grand Court of the Cayman Islands, February 2016, alleged invalidity of in specie subscription for shares in investment fund on grounds of mistake
  • Re Harbinger Class PE Holdings [2015(2) CILR Note 6], ability to wind up a closed Cayman investment fund on loss of substratum grounds
  • Re Herald Fund SPC, Primeo Fund v Pearson [2015(1) CILR 482], power of liquidator to rectify fund’s register of members

Financial Services

Tom has extensive experience of financial services work, particularly enforcement action on behalf of regulators in the UK and abroad

  • Acting for the FSA in relation to its intervention into Kaupthing Singer & Friedlander and subsequent administration
  • Acting for the FSA in relation to its intervention in respect of Landsbanki and Heritable Bank
  • Acting for the FSA in relation to the contingency planning for other financial institutions
  • Acting for Northern Rock in relation to its intervention by the FSA and subsequent nationalisation
  • Acting for the FSA on various enforcement matters including Keydata (application to place into administration), Bio Partners (unauthorised collective investment scheme
  • Acting for the Central Bank of Cyprus in relation to the restructuring of Bank of Cyprus and Laiki,
  • Acting for the Dubai Financial Services Authority in relation to the application for the appointment of provisional liquidators in respect of Espirito Santo Bankers Dubai
  • Acting for the Isle of Man Financial Services Authority in relation to the intervention and subsequent liquidation of Kaupthing Isle of Man
  • Acting for the Jersey Financial Services Authority in relation to its intervention in respect of split-capital investment trusts
  • Acting for the Jersey Financial Services Authority in relation to its intervention into Alternate Financial Services

Insurance

  • Schemes of arrangement and Part VII transfers under the Financial Services and Markets Act 2000

Trusts and Property

  • Nolans v Minerva Trust Company [2014] JRC 078A, dishonest assistance claims against trust company and corporate service provider
  • Freeman v Ansbacher Trustees (Jersey) [2010] WTLR 569, standing of objects of a power to sue trustees for breach of trust and application of principle of reflective loss to trusts and nominee companies
  • Alhamrani v Russa Management [2006] WTLR 1551, circumstances in which confidential trust documents can be disclosed to a stranger to the trust
  • Re JC Bamford, acting in proceedings concerning the disputed will of JC Bamford and in relation to associated actions in Jersey, Switzerland and Bermuda
  • Re Rothfield Investments [2003] WTLR 593, convening of a claimant to trust property to an application by the beneficiary for the transfer of the property

AWARDS AND RECOMMENDATIONS

Chambers & Partners Ranked in five categories: Banking and Finance, Restructuring/Insolvency (star individual), Chancery: Commercial, Commercial Dispute Resolution, and Company
Legal 500 Ranked in five categories: Banking and Finance, Insolvency, Commercial Litigation, Fraud: Civil, and Company

CAREER

2017 Called to the Bar of Gibraltar
2014 Appointed Queen's Counsel
Called to the Bar of the Cayman Islands
Registered lawyer, Dubai International Financial Centre Courts 
2012 Called to the Bar of Northern Ireland (temporary admission)
1999 Called to the Bar of England and Wales

MEMBERSHIPS

LCIA
Insolvency Lawyers’ Association

PUBLICATIONS

Contributor to Cross-Border Insolvency Fourth Edition (Sheldon, Bloomsbury, 2015) 

EDUCATION AND QUALIFICATIONS

1998 Clare College, Cambridge University, LLM, First Class
1997 Clare College, Cambridge University, MA, First Class

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