James McClelland
Fountain Court Chambers
Temple
London , EC4Y 9DH United Kingdom
+44 (0)20 7583 3335
Fax +44 (0)20 7353 0329
James McClelland

James McClelland

Call date

2004

Practice Areas

  • Banking & Financial Services
  • Civil Fraud
  • Commercial Litigation & Arbitration
  • Conflicts of Law & Jurisdiction
  • Company & Insolvency
  • Employment
  • European Community Law
  • Insurance & Reinsurance
  • Professional Negligence
  • Professional Discipline and Regulation
  • Public Law / Judicial Review
  • Tax litigation

Summary of Practice

James practises in commercial, regulatory, public and employment law; in February 2009 he was appointed by the Attorney General as Junior Counsel to the Crown (C Panel). Full details of James' practice are set out under individual practice headings below; highlights of recent or ongoing matters are as follows:

  • In the commercial field, James is currently acting for an investor in a dispute over the alleged negligent conduct of a >£65 million discretionary investment portfolio and representing a multi-national oil and gas industry contractor in an ICC arbitration concerning the subsea burial of a liquefied natural gas pipeline. Other recent matters include representing an investment bank in a multi-million pound dispute over credit default insurance covering syndicated loans within the U.S. property market; and acting for HBOS Plc in the widely reported test proceedings against the OFT concerning the legality of bank overdraft charges. James lectures on banking topics and is a contributing author of the forthcoming 4th edition of Brindle & Cox on “The Law of Bank Payments”. 
     
  • In regulatory law, in 2009 James appeared in two appeals before the Divisional Court and in June 2010 appeared for the SRA (as sole counsel) in an appeal before the Court of Appeal - James’ opponent was a leading QC. Throughout 2008-2009 James acted for the SRA in the widely publicised prosecutions for alleged solicitor misconduct in connection with the Miners’ Compensation Scheme - collectively the largest enquiry ever undertaken into alleged misconduct within the legal profession. James appeared in four separate prosecutions, including both of the headline cases of Raleys and Beresfords, the latter of which resulted in findings of dishonesty and was described as a “landmark hearing” (The Times). James is a member of the Association of Regulatory and Disciplinary Lawyers and has contributed to their quarterly bulletin.
     
  • In public Law, James is currently acting (as sole counsel) for a regulator resisting a judicial review of its application of rules governing the management and supervision of regulated businesses; and for the Department of Health in a multi-million pound dispute arising out of the decision to cancel the >£900m Pathway Project - the second largest NHS PFI project ever proposed. Other recent matters include acting for the claimant in the first damages claim ever brought against the UK government for alleged infringements of EC law by a domestic Court (reported as “ground-breaking” in Chambers & Partners 2009); acting on behalf of a university in a judicial review of funding decisions by the Higher Education Funding Council (resulting in the quashing of the decisions); and acting for the Governing Body of a maintained school in the statutory appeal of a decision to permanently exclude a pupil for alleged serious breaches of the school’s behaviour policy.
     
  • In employment Law, in 2008-2009 James acted in several heavily contested employment disputes. These included acting for (as sole counsel) for a commercial business manager in a week-long trial of a disability discrimination / constructive dismissal claim against one of the “big four” UK clearing banks; and acting (as sole counsel) for a global advertising agency resisting claims for disability discrimination and unfair dismissal by a campaign manager. James is a member of the Employment Lawyers Association.

Education

BA, Cambridge University (Eng. Lit) - Starred Double First, including top First in the University
CPE, City University - Distinction, second highest in the University
BCL (LLM equivalent), Oxford University - Distinction
BVC, Inns of Court School of Law - Outstanding

Prizes & Scholarships

  • Eldon Scholarship (for the most promising graduate of Oxford University intending to practise at the Bar)
  • Barnett Bequest Award (for an outstanding student of the BCL) (Merton College)
  • Buchanan Prize (for outstanding performance on the Bar Vocational Course) (Lincoln’s Inn)
  • Eastham Scholarship (Lincoln’s Inn)
  • Mansfield Scholarship (Lincoln’s Inn)
  • Bowen Scholarship (Lincoln’s Inn)
  • Hardwicke Entrance Award (Lincoln’s Inn)
  • Maitland Chambers Advocacy Competition (First Prize)
  • European Law Mooting Competition (Second Place, European Regional Finals held in the Supreme Court of Lithuania, both oral and written submissions made in French)
  • Rylands Prize (for top First in English) (Cambridge)
  • Heineman Prize (for outstanding work on Shakespeare) (Cambridge)
  • Matthew Wren Senior Scholarship (Peterhouse)
  • College Exhibition (Peterhouse)
  • Faculty Exhibition of Finals Dissertation (Cambridge)
  • Friends of Peterhouse Prize for English
  • Leavers Prize in all three A-level subjects (Westminster School)

Recent Practice

Banking & Finance (including Financial Regulation)

A substantial proportion of James’ commercial practice is given over to banking and financial services disputes. In addition to the specific matters listed below, James is frequently instructed to advise and appear on behalf of clearing banks, stockbroking firms, credit finance providers and private investors in a wide variety of matters including claims on accounts, loan agreements and commercial guarantees; disputed mandates, cheques, bills of exchange and electronic payments; allegations of mistake, duress, undue influence or fraud; claims to recover assets held by third-parties (including third-party lienors); and actions to enforce security and judgment debts. James also has significant experience of advising in relation to financial regulatory issues.

James is a contributing author of the forthcoming 4th edition of Brindle & Cox on The Law of Bank Payments and lectures on banking topics, most recently giving a lecture on the duties and liabilities of clearing banks in the collection and payment of cheques. Recent cases include:

  • MSSHG I Ltd v Mitsui Sumitomo Insurance (London) Ltd (Commercial Court): acting for a major investment bank claiming on a debt default insurance policy following default under complex syndicated finance arrangements supporting a >US $175 million property development loan.
     
  • The Bank Charges Test Proceedings: acting (with Robin Dicker QC, Timothy Howe QC and Jeremy Goldring) for HBOS Plc in the test proceedings against the OFT over the legality of bank overdraft charges. 
     
  • Garnet Investments Ltd v BNP Paribas SA (Royal Court of Guernsey): advising (with Timothy Howe QC, as English counsel) a corporate investor claiming against a number of international financial institutions for alleged negligence in the management of >£65 million portfolio equity investment portfolios and FX trades.
     
  • Prentice v Administrators of Landsbanki Guernsey Ltd / Lloyds TSB Offsore Ltd (Royal Court of Guernsey): advising (as sole English counsel) a depositor seeking the liberation of assets frozen in the Guernsey subsidiary of an insolvent Icelandic bank.
     
  • Myerson v Brewin Dolphin (Chancery Div): assisting Richard Coleman in a three-week High Court trial over alleged negligence in the management of private client discretionary investment portfolios. (The case is unreported having settled on the final day of trial).  
     
  • Re. Standard Terms & Conditions of a Bank: advising (as sole counsel) a major retail bank as to aspects of the drafting of its standard terms and conditions for commercial customers.
     
  • Re. the Standard Terms & Conditions of a National Financial Services Provider: assisting leading counsel in advising a major financial services provider as to the amended requirements of the Distance Marketing Directive (Amendment) Instrument 2004 on its standard terms and conditions. 
     
  • Re. the Standard Terms & Conditions of a National Financial Services Provider: advising a major financial services provider as to the effects of certain provisions of the Consumer Credit Act 2006.
     
  • Acting for a stockbroking firm defending a claim for alleged negligence/breach of contract in relation to transactions on an online share dealing account. 
     
  • Acting (as sole counsel) in a jurisdictional and choice of law dispute over the enforcement of a foreign promissory note containing clauses selecting U.S. (Minnesotan) law and jurisdiction. 
     

Civil Fraud

James frequently acts in disputes involving allegations of dishonesty and the misappropriation of assets. He has experience of providing advice and representation in relation to emergency ex parte injunctive relief, including Mareva/freezing orders, prohibitory injunctions (including for the non-destruction of property,) and specially tailored injunctive relief sought on a quia timet basis. Examples of recent cases include: 

  • Serious Fraud Office v King [2009] 1 W.L.R. 718: acting (with Timothy Howe QC) for an interested party (non-appearing) on an appeal to the House of Lords appeal over the legality of extra-territorial financial restraint and disclosure orders granted by the English Courts in support of foreign prosecutions for revenue fraud. 
     
  • Acting (with Timothy Howe QC) for a company resisting a claim by a national government for a constructive trust over >€30 million assets allegedly misappropriated by a former head of state and his dependents. Issues included challenging freezing injunctions and resisting applications for third-party “Norwich Pharmacal” disclosure. 
     
  • Advising (with Timothy Howe QC) multiple offshore trust companies in relation to restraint and disclosure orders imposed on assets in excess of £100m alleged to be the proceeds of fraud.
     
  • Aldi Development Ltd v Barclays Bank Plc (High Court, QBD) acting (as sole counsel) for a bank resisting mandate claims from a corporate customer following an alleged cheque fraud perpetrated by its company secretary over a 4 year period involving in excess of 300 company cheques. 
     
  • Re. A Statutory Compensation Fund: advising (with Timothy Dutton QC) the trustees of a statutory compensation fund regarding their standing to freeze the assets of an alleged fraudster on a quia timet basis on the grounds that the fund, while having no direct claim arising from the fraud, would obtain subrogated rights from the primary victims of the fraud if and when they sought compensation from the fund. 
     
  • Assisting Michael Green QC in Directors disqualification proceedings, involving allegations of the fraudulent abuse of trade finance arrangements and the misappropriation of company assets.

Commercial Litigation & Arbitration

James acts in a wide variety of commercial disputes which do not fit conveniently into any of the pigeon-holes provided above and below. Frequently these cases have an international dimension and a substantial portion of James’ practice involves parties based in the Channel Islands, the BVI or the Far East. Examples of recent matters are set out below. (See also under separately under “Banking & Finance”, “Insurance & Reinsurance”, “Civil Fraud” and “Professional Negligence”).

  • Multi-million pound ICC Arbitration: acting for a multi-national oil and gas industry contractor in a confidential dispute over the burial of a liquefied natural gas pipeline. The case ran to a 3 week trial and involved detailed expert evidence on geological, geotechnical and operational issues.
     
  • Portfolio Solutions (Northern Island) Ltd & Ors v Department of Health & another (High Court, TCC; ongoing): acting (with Michael Green QC) for the Department of Health resisting >£28m claims arising out of the cancelled procurement of the >£900m Pathway Project; the second largest NHS PFI project ever undertaken. 
     
  • Affinity Partnerships Ltd v Flybe Ltd (High Court; QBD): acting (as sole counsel) for a commercial broker successfully recovering £600,000 in commissions from an airline for brokering the launch of their branded credit-card scheme. James’ opponent was a QC. 
     
  • E & Z Industrie-Loesungen GmbH v. Thyssen Schachtbau GmbH (High Court; TCC): acting (with Thomas Leech) for the Claimant in a multi-million pound contractual and restitutionary claim against a parent company following the insolvency of its former subsidiary and the non-completion of work on a Flu Gas Desulphurisation plant on a coal-fired power-station. The case, which involved detailed expert evidence, settled on the eve of a 4 week trial.
     
  • Towergate Underwriting Group & Ors v Total Broker Solutions & Ors (High Court; QBD): acting (with Charles Bear QC) in a dispute over alleged breaches of restrictive covenants under a share sale agreement. Issues included the construction and enforceability of covenants purporting to restrain the vendors of a business from associating with or assisting businesses “about to be” in competition with the business sold. The case settled before trial. 
     
  • Acting (as sole counsel) for an insurance brokerage in a dispute over the validity of notice terminating a long-term rolling contract for the supply of data-feeds from an online service provider.

Conflicts of Law & Jurisdiction

James specialised in Private International Law in his graduate studies and jurisdictional and choice of law issues arise frequently within his commercial practice.
Recent examples include:

  • Acting (as sole counsel) in a jurisdictional and choice of law dispute over the enforcement of a foreign promissory note containing clauses selecting U.S. (Minnesotan) law and jurisdiction. Issues included whether the debtor had submitted to English jurisdiction and whether on its proper construction the jurisdiction agreement was exclusive, and therefore binding on both parties, or merely a pre-emptive waiver of the debtor’s rights to resist U.S. jurisdiction. 
     
  • Advising a reinsurer seeking a declaration as to its rights and obligations under an international policy of reinsurance (see under Insurance & Reinsurance above). Issues included whether the Courts of England & Wales were the forum conveniens for seeking declaratory relief.

Employment & Discrimination

James has experience of numerous claims for unfair dismissal, sexual, racial and disability discrimination, harassment and equal pay. He also has experience of employment disputes of a more commercial variety, including breaches of restrictive covenants, directors’ fiduciary duties and “team poaching”. Being one of the Attorney General’s Treasury Counsel, James is frequently instructed on behalf of central government departments. Examples of recent mattes include: 

  • Acting (as sole counsel) for the claimant in a disability discrimination / constructive dismissal claim against one of the “big four” UK clearing banks. In the course of the trial, James cross-examined four bank witnesses, including the Area Director for commercial lending in London. The trial involved claims of harassment, direct discrimination, reason-related discrimination, the failure to make reasonable adjustments and direct age discrimination. It also involved independent psychiatric evidence as to whether the claimant’s recurrent depressive disorder was a qualifying disability under the DDA. 
     
  • Towergate Underwriting Group & Ors v Total Broker Solutions & Ors (High Court; QBD): acting (with Charles Bear QC) for a group of insurance brokers defending very substantial claims brought by their former employer for alleged breaches of contract and fiduciary duty; allegations included failures to warn of competitor start-up activity and “team poaching”. The case settled before trial.
     
  • Acting (as sole counsel) for a global advertising company defending claims for disability discrimination / unlawful dismissal in connection with the dismissal (on the grounds of redundancy) of a campaign manager. The case involves alleged discrimination in relation to the formulation and application of redundancy selection criteria.
     
  • Acting (as sole counsel) for a multinational software group in an unfair dismissal claim by a senior consultant. The case involved alleged unfairness in the redundancy selection process.

European Community Law

  • Cooper v Attorney General [2008] 3 C.M.L.R. 45: acting for the claimant in the first “Kobler” claim for damages for the manifest infringement of EC rights by an English court ever brought in this jurisdiction. The claim relates to alleged contraventions of Community law by the Court of Appeal when dismissing judicial review proceedings challenging the grant of planning permission for the White City retail development.
     
  • The Bank Charges Test Proceedings: acting for HBOS Plc in the test proceedings into the legality of bank overdraft charges. These proceedings involved detailed submissions as to the proper construction of the Directive 93/13 EEC, including consideration of the Community legislature’s travaux preparatoires.

Insurance & Reinsurance

  • Acting for a major investment bank making disputed claims on a debt default insurance policy following default under complex syndicated finance arrangements supporting a >US $175 million property development loan. 
     
  • Advising (as sole counsel) a reinsurer seeking a declaration as to its rights and obligations under an international policy of reinsurance in respect of claims relating to multiple fatalities caused by the explosion of a foreign utilities installation. Issues included the forum conveniens for obtaining declaratory relief, the interaction between a “follow the settlements” and “claims control” clause and whether the policy was in law one of reinsurance or merely a sham placement of primary insurance. 
     
  • Assisting leading counsel in advising a bank in relation to arbitrated claims on a policy of mortgage default insurance covering lending in the Hong Kong property market.
     
  • Regularly advising on questions of policy construction and coverage, including the drafting of contracts for professional services and collateral warranties by reference to policy limits.

Professional Discipline & Regulation

James has substantial experience of professional, particularly solicitors’, regulatory proceedings and accepts instructions from both the regulator and regulated persons. (For details of James’ financial services work see “Banking & Finance” above).

  • The Miners’ Compensation Scheme Proceedings: acting (with Timothy Dutton QC) for the Solicitors Regulation Authority in this widely reported series of disciplinary prosecutions over (alleged) systematic misconduct by firms of solicitors when providing legal representation to tens of thousands of miners claiming for industrial injuries under the DTI’s multi-billion pound compensation scheme.  Collectively these proceedings have constituted the largest enquiry ever undertaken into alleged misconduct within the legal profession: The Times.
     
  • Beresford & Smith v The Law Society (Divisional Court, 20-21 Oct. 2009; SDT, 17-27 November 2008): acted for the SRA in this “landmark hearing” (The Times) and subsequent appeal to the Divisional Court, against former partners of Beresfords solicitors for alleged serious misconduct when handling miners compensation cases. The SDT upheld 8 of the 11 allegations, found that the Respondents had acted dishonestly and ordered that their names be struck from the roll. The decision of the Divisional Court on appeal is pending.
     
  • Richards v Law Society [2009] All ER (D) 103 (Divisional Court: May LJ, Saunders J; 9-10 July 2009), acting for the SRA successfully resisting a solicitor’s appeal from findings that he had taken unfair advantage of an elderly client and acted under a conflict of interest. The appeal raised issues as to the scope of a solicitor’s duties to advise a client as to the financial wisdom of equity release transactions and the proper standard of proof in professional disciplinary proceedings. 
     
  • Solicitors’ Regulation Authority v Barber, Firth & Others (SDT, 5-30 January 2009): acted for the SRA in the prosecution of 5 partners and one former partner of Raleys Solicitors. The Respondents were found to have acted subject to a conflict of interest and contrary to the best interests of their clients and to have purchased approximately 19,000 claims from a claims farmer in breach of the Referral Code. An appeal to the Divisional Court is pending. 
     
  • Advising a professional regulator as to the compliance of a company’s standard client agreement with the Unfair Terms in Consumer Contracts Regulations 1999.

Professional Negligence

James has considerable experience of professional negligence matters, particularly in the context of financial services. He has particular experience of acting for and against fund managers in claims over the alleged mismanagement of discretionary investment portfolios.

  • Garnet Investments Ltd v BNP Paribas SA (Royal Court of Guernsey): acting (with Timothy Howe QC) for a corporate investor claiming against a number of international financial institutions for alleged negligence in the management of >£65 million equity investment portfolios and FX trades. The case involves detailed expert evidence as to fund management practices in the London markets. 
     
  • Myerson v Brewin Dolphin Ltd (High Court, ChD) , assisting Richard Coleman in a three-week trial in the Chancery Division over alleged negligence in the management of private client discretionary investment portfolios. The case settled on the final day of trial. 
     
  • Acting (as sole counsel) for a stockbroking firm defending a claim for alleged negligence/breach of contract in relation to transactions on an online share dealing account.
     
  • Acting (as sole counsel) in numerous professional negligence claims against solicitors relating to the conduct of litigation, conveyancing and the registration of company charges.

Public Law / Judicial Review

  • Khan, West Law Services Ltd v Boddy (SRA intervening) [Court of Appeal]: acting (as sole counsel) for the SRA in an appeal to the Court of Appeal. The case involved public law challenges to the validity of subordinate legislation governing the conduct of solicitors; and an issue as to whether contracts formed in contravention of a regulatory prohibition were unenforceable being illegal and/or contrary to public policy.
     
  • R (on the application of Mashood Iqbal) v SRA [Administrative Court]: acting (as sole counsel) for the SRA in the full hearing of a judicial review challenge to the SRA’s application of new rules governing the management and supervision of solicitors’ practices.
     
  • Portfolio Solutions (Northern Island) Ltd & Ors v Department of Health & another (High Court; ongoing): acting (with Michael Green QC) for the Department of Health resisting claims arising out of the cancelled procurement of the >£900m Pathway Project; the second largest NHS PFI project ever undertaken. The case involves the interaction between private causes of action and a public scheme of ex gratia compensation; issues include whether claims for declaratory relief in private law proceedings are an abuse of process since they bear upon public law issues and should be litigated by way of judicial review.
     
  • Cooper v Attorney General [2008] 3 C.M.L.R. 45: acting (with Charles Bear Q.C.) for the Claimant in the first claim for damages for the manifest infringement of EC rights by an English court ever brought in this jurisdiction. The claim related to alleged serious errors of Community law made by the Court of Appeal when dismissing earlier judicial review proceedings. The claim was described in Chambers & Partners (2009) as “ground-breaking” and although Plender J. found against the claim he noted the “prodigious research devoted to this case by the Claimant, and […] the courage and persistence with which it was advanced”. 
     
  • R (on the application of Queen Mary University of London) v the Higher Education Funding Council for England [2008] EWHC 1472 (Admin) [2008] All ER (D): acting (with Charles Bear Q.C.) for QMUL challenging a decision by HEFCE to require repayment by QMUL of substantial sums in research grant funding. Obtained the quashing of HEFCE’s decision on the grounds that HEFCE had not properly considered its discretion and the relevant decision-maker had not been properly authorised under HEFCE’s scheme of delegation. 
     
  • Re. the proposed re-structuring of a quasi-governmental body: assisting leading counsel advising a quasi-governmental body on a proposed re-structuring, including ongoing compliance with statutory duties and the disposal of substantial assets held under charitable trusts.
     
  • The Miners’ Compensation Scheme Proceedings: acted (with Timothy Dutton QC) in the widely publicised prosecutions for alleged solicitor misconduct in connection with the Miners’ Compensation Scheme. Issues included a challenge to the substantial validity of the Solicitors Practice Rules 1990 rules on the basis that they contravened domestic and European law. 
     
  • R (on the Application of the Association of British Travel Agents Ltd.) v Civil Aviation Authority [2007] 2 Lloyd’s Rep. 249 (CA): assisting, as pupil, Michael Crane Q.C. in an appeal from a decision of Goldring J. (as he then was) in a judicial review of CAA guidance as to when travel services formed part of a “package” within the meaning of the Air Travel Organisers’ Licensing Regulations. 
     
  • Acting (as sole counsel) for a local authority in an appeal against a mandatory notice issued under the s.230 of Highways Act 1980. Issues included whether the issuing officer had properly delegated authority and whether a private street had been adopted to the public expense.
     
  • Acting (as sole counsel) for the Governing Body of a maintained school in a statutory appeal over the decision to exclude a pupil for alleged serious breaches of the school’s behaviour policy.
     
  • Advising (as sole counsel) a local authority in a dispute with the adjoining authority regarding their respective obligations under the National Assistance Act 1948 for the care of disabled persons re-locating across their boundaries.

Tax Litigation

  • Instructed by Her Majesty’s Revenue and Customs (with Timothy Brennan QC and Richard Coleman) in test case proceedings regarding the tax status of complex film finance arrangements.

Publications

Contributing author of the forthcoming 4th edn of Brindle & Cox on The Law of Bank Payments.

Contributor to the Association of Regulatory & Disciplinary Lawyers’ Quarterly Bulletin.

Contributor to Sweet & Maxwell’s Civil Procedure Reports 2006-2009.

Other Experience

2008-2009  Part-time supervisor in English literature at Peterhouse, Cambridge.  James has published on the influences of mid-19th century French philosophy on American Literature.

James participates in the Bar Council’s Social Mobility Scheme and mentors sixth form students contemplating a career at the Bar.

James is Chambers’ contact for pro bono work with Advocates for International Development, a pro bono organisation providing free legal advice and assistance to clients in the developing world.

James sits on the scholarships interview panel for the Honorable Society of Lincoln’s Inn.

Languages

French (fluent)