James McClelland
Call Date
2004
Practice Areas
- Aviation
- Banking & Financial Services (including FSA regulation)
- Civil Fraud
- Company & Insolvency
- Employment & Discrimination
- European Community Law
- Insurance & Reinsurance
- Private International Law
- Professional Negligence, Discipline and Regulation
- Public / Administrative Law
Summary of Practice
A wide ranging commercial and civil practice with experience both as sole counsel and working with a leader. James is currently acting for HBOS in the ongoing test proceedings against the OFT for declarations as to the lawfulness of bank overdraft charges; and for the Solicitors Regulatory Authority in three major disciplinary actions concerning (alleged) systematic misconduct by firms of solicitors representing hundreds of thousands of miners (and their estates) claiming under the DTI’s multi-billion pound compensation scheme.
Other representative instructions over the last 18 months have included: a five-day trial (as sole counsel for the claimant); an application for emergency injunctive relief; acting for the claimant in the first ever damages claim against the UK government for infringements of E.C. law by a UK Court (described as a “ground-breaking” in Chambers & Partners 2009); a judicial review of decisions by the Higher Education Funding Council and a contractual claim turning on the disputed construction of a choice of court agreement within a foreign promissory note. Details of James’ practice areas and recent cases are listed below.
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
Aviation:
- Regularly instructed by international airlines (including KLM and Turkish Airlines) to defend claims under the Montreal Convention / Carriage by Air Act 1961.
- Drafting pleadings in multi-party High Court proceedings relating to serious wing damage suffered by a jet aircraft arising during an airfield collision with maintenance equipment.
- (See also under Public / Administrative law, below).
Banking & Finance:
- The Office of Fair Trading v Abbey National and Others [2008] EWHC 875 (Comm) and [2008] EWHC 2325 (Comm). Acting (with Robin Dicker QC, Timothy Howe QC and Jeremy Goldring) for HBOS in the ongoing test proceedings against the OFT over the legality of bank overdraft charges.
- Acting (with Timothy Howe QC) for a corporate investor claiming against a number of international financial institutions for alleged negligence in the management of >£25 million equity and forward FX investments.
- Obtaining judgment for a creditor on a foreign promissory note. The dispute turned on the proper construction of a jurisdiction agreement (see further under “Private International Law”, below).
- Acting for a stockbroking firm defending a claim for alleged negligence/breach of contract in relation to transactions on an online share dealing account.
- Myerson v Brewin Dolphin, assisting Richard Coleman in a three-week High Court trial over alleged negligence in the management of private client discretionary investment portfolios. The case settled on the final day of trial.
In addition to the above, 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); actions to enforce security and judgment debts.
James lectures on banking topics, most recently giving a lecture on the duties and liabilities of clearing banks in the collection and payment of cheques to the banking & finance department of a firm of solicitors.
Financial Services Regulation:
Experience of financial regulatory matters both as an adjunct to wider banking and professional indemnity practice, and also as a discrete source of instructions. James has particular experience of the Proceeds of Crime Act, the FSA’s COB rules, the former SFA rules and the UTCCRs.
Examples of James’ recent regulatory practice include:
- Advising a major financial services provider as to the effects of certain provisions of the Consumer Credit Act 2006.
- Assisting leading counsel in advising a major financial services provider as to the amended requirements of the Distance Marketing Directive (Amendment) Instrument 2004.
- Acting with Timothy Howe QC for a private company claiming > £25 million for negligence and breaches of the Securities and Futures Authority Rules and Statements of Principle in the mismanagement of equity investment portfolios.
- (see also "Professional Discipline" below)
James’ regulatory practice is complemented by his experience of European Community law, which has proved invaluable when interpreting regulatory provisions with a Community origin. In addition to domestic regulatory provisions, James has experience of multi-jurisdictional matters in which the English courts have been invited to take account of steps taken by foreign regulatory authorities
Civil Fraud:
- Acting (with Timothy Howe QC) for a company resisting a claim by a national government for a constructive trust over multi-million pound 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 their UK assets as the alleged proceeds of a £16.5m fraud on foreign revenue authorities.
Company:
- Acting (with Charles Béar 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.
- Assisting in Directors disqualification proceedings, involving allegations of the fraudulent abuse of trade finance arrangements and the misappropriation of company assets.
Employment & Discrimination:
Experience of numerous claims for unfair dismissal, sexual, racial and disability discrimination, harassment and equal pay. James appears (for both claimants and respondents) in the employment tribunal and also works frequently with the Treasury Solicitor, drafting grounds of resistance, settling witness statements and advising on evidence in claims brought against government departments. James is a member of the Employment Lawyers Association.
Examples of recent or ongoing work include:
- Acting (as sole counsel) for the claimant in a five-day 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 (West). 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.
- Acting (with Charles Béar 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 shortly before trial.
- Appearing in an interlocutory hearing of a substantial case of alleged sex discrimination case; the hearing involved delicate issues of alleged abuse of process when it emerged that the claimant was pursuing High Court proceedings to recover for psychiatric injuries in parallel to her tribunal claim for (alleged) harassment.
- Acting for a debt recovery company defending claims by a debtor alleging racial discrimination, victimisation and harassment in relation to steps taken to recover unpaid debts. Issues included whether and if so in what circumstances letters of demand threatening legal proceedings could constitute harassment for the purposes of s. 3A Race Relations Act 1976 and/or s.1 Protection from Harassment Act 1997.
European Community Law:
- Cooper v Attorney General: 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 Office of Fair Trading v Abbey National and Others [2008] EWHC 875 (Comm) and [2008] EWHC 2325 (Comm). Acting for HBOS in the Commercial Court test case into the legality of bank overdraft charges. These proceedings involved detailed submissions as to the proper construction of the Directive, including consideration of the Community legislature’s travaux preparatoires.
General Commercial Litigation:
- E & Z Industrie-Loesungen GmbH v. Thyssen Schachtbau GmbH: 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 matter settled following the exchange of skeleton arguments the night before a 5 week trial in the TCC.
Insurance & Reinsurance:
- 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.
- James frequently advises on questions of policy construction and coverage, including the drafting of contracts for professional services and collateral warranties by reference to policy limits.
Private International Law / Conflict of Laws:
James specialised in Private International Law during his postgraduate degree and jurisdictional and choice of law issues arise frequently within his commercial practice.
Recent examples include:
- Cox, Guillet v El-Rayess: obtaining judgment on a promissory note written in the 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.
Professional Negligence, Discipline and Regulation:
- (see also Banking & Finance, above)
- The Miners Compensation Scheme Proceedings: acting (with Timothy Dutton QC) for the Solicitors Regulatory Authority in three major disciplinary actions over (alleged) systematic misconduct, by firms of solicitors when providing legal representation to thousands of miners (and their estates) claimingfor industrial injuries under the DTI's multi-billion pound compensation scheme.
- Assisting Michael Green in Directors disqualification proceedings, involving allegations of the fraudulent abuse of trade finance arrangements and the misappropriation of company assets.
- Advising on a number of professional negligence claims against solicitors relating to the conduct of litigation, conveyancing and the registration of company charges.
- Advising and appearing at trial for the defendant in a claim brought by a City firm of solicitors for the recovery of substantial fees. Issues included whether fee notes were final and bona fide bills within the meaning of the Solicitors Act 1974 and whether gross sum bills were without effect following a section 64(3) request for itemisation.
Public / Administrative Law:
James has a keen interest in public and administrative law and has provided advice and representation in a number of recent and high-profile matters. He is a member of the Administrative Law Bar Association.
- Cooper v Attorney General [2008] EWHC 2178 (Admin): acting (with Charles Béar 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 praised 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 Béar 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.
- 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.
- R (on the Application of the Association of British Travel Agents Ltd.) v Civil Aviation Authority [2007] 2 Lloyd’s Rep. 249 (CA): assisting 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 Organiser’s Licensing Regulations.
Publications
James is a contributor to Sweet & Maxwell’s Civil Procedure Reports.
Other Experience
James has completed the South Eastern Circuit’s Advanced International Advocacy Course, a week long residential course in Keble College, Oxford.
James participates in legal surgeries at a pro bono legal advice centre in east London and is a mentor on the Bar Council’s Social Mobility scheme.
In 2006 James completed a secondment to the contentious banking and finance department of a substantial firm of solicitors.
James is an occasional supervisor in English literature at Peterhouse, Cambridge and has published on the influences of mid-19th century French philosophy on American Literature.
Languages
French (fluent)
Interests
Travel, music, art and literature.