Marcus Smith QC
Call date
1991
Silk date
2010
Appointments
Part-time Chairman of the Competition Appeal Tribunal (CAT)
Practice Areas
Marcus specialises in commercial and commercial chancery work, which includes an extensive arbitration practice. He also practises in the field of regulation. Marcus’ work spans aviation, banking, commercial contracts, competition, conflict of laws, insurance and reinsurance, IT and “soft” IP, professional negligence and sports. More specific details appear below.
Marcus relishes cases that have a technical element to them – whether this is US tax law, the corrosion of metal in nuclear reprocessing plants, complex securitization structures, or the validity of the assignment of mobile phone patents.
Marcus has particular expertise in relation to intangible property (of all sorts, including intellectual property) and is regularly involved in advice and litigation in this area. He is the author of the leading work in this area – The Law of Assignment: The Creation and Transfer of Choses in Action (OUP 2007).
Education
1985-1988 Balliol College, Oxford (BA Hons in Jurisprudence, first class honours; MA 1992)
1988-1989 University of Munich (German civil/commercial law)
1989-1990 Balliol College, Oxford (BCL, first class)
1991-1994 Lecturer in law, Balliol College (teaching contract, tort, constitutional law)
1991- Called to the Bar and, since then, in practice at Fountain Court
Prizes & Scholarships
Williams Exhibition (Oxford)
Brackenbury Scholarship (Oxford)
Proxime accessit, Gibbs Prize in Law (Oxford)
Jenkyns Essay Prize (Oxford)
Paton Studentship (Oxford)
Kennedy Scholarship (Lincoln’s Inn)
Major Award (Inns of Court School of Law)
Languages
German, French
Practice
The areas in which Marcus practices are listed below, in alphabetical order.
Administrative, Public and Regulatory Law
Marcus has acted for and advised the Law Society in relation to matters under the Solicitors Acts (including various interventions). Recently, he has acted:
- In respect of a claim by a former solicitor against the Law Society alleging conspiracy i the conduct of disciplinary proceedings. The claim culminated in a 5 day strike-out before Supperstone J (Baxendale-Walker v Middleton: see below under Reported Cases).
- In respect of a claim by a bank client in respect of a bank’s obligations in respect of her option trading. The nature in which this trading was carried out raised some fundamental regulatory issues (Bank Leumi (UK) Ltd v Wachner: see below under Reported Cases).
He has also acted in disciplinary proceedings brought by the London Metal Exchange concerning various firms’ involvement in unauthorised copper trading by Yasuo Hamanaka of Sumitomo.
Arbitration
Marcus has been Involved in a number of commercial and international arbitrations, on a wide range of issues, precise details of which are confidential. Instances include:
- An arbitration concerning damages arising out of the insurance into Lloyd’s of various “viatical” policies issued in the US (three weeks before George Leggatt QC, Andrew Popplewell QC and John Rowland QC, plus various later hearings on quantum)
- An arbitration concerning the avoidance of the reinsurance of a major accounting firm on the grounds of the sale of tax evasion schemes in the US
- An arbitration concerning deficiencies in the construction of a nuclear reprocessing plant
- An ICC arbitration (one week before Christopher Clarke QC) dealing with Russian oil financing
- An UNCITRAL arbitration (two weeks before Sir Robert Jennings (former President of the ICJ), Sir Robert Parker (former Lord Justice of Appeal) and Dr Kamal Hussain (an eminent Bangladeshi lawyer) dealing with a dispute between an airline and its Europe-wide sales agent
- A Lloyd’s arbitration (before a market panel) dealing with the avoidance of three stop-loss policies
- An ad hoc arbitration (before Christopher Carr QC, Peter Leaver QC and Sir Michael Kerr (former Lord Justice of Appeal) dealing with a dispute between a football club and the league in which it participated
- An ICC arbitration dealing with a dispute regarding the provision of a NATO air command and control centre in Portugal
Aviation
Marcus has acted in a number of Warsaw Convention disputes and in cases involving significant air accidents. Examples include:
- The crash of a Learjet 35A at Lyon airport in 2000. Marcus acted for the operator of the aircraft in resisting claims by the dependants of the two pilots who were killed in the accident. The claims were substantial (c £2m in total) and the case involved difficult questions of aircraft handling. The case (listed for a 10-12 day trial) settled 2 weeks before trial.
- An accident on a Boeing 747 en route from London to Washington. At 35,000 feet, one of the cockpit windows shattered, causing injury to the pilot of the aircraft. The case involved significant expert questions as to the cause of the glass fracture, and a novel claim under the Consumer Protection Act. The case settled shortly before exchange of expert reports
Marcus has also acted in airport-related disputes involving Luton, Biggin Hill and White Waltham; in disputes between airlines and their agents; and in disputes regarding financing of and security over aircraft.
Banking & Finance
Marcus has worked for all the major clearing banks, and has acted in a wide range of banking and financial services disputes (e.g. flotations/IPOs, letters of credit, demand guarantees, reverse knock-in options, bills of exchange, electronic money transfers, money laundering, prime bank guarantee fraud and negligent management of investment portfolios.
He has written in the field of credit default swaps and their regulation (The Legal Nature of Credit Default Swaps, [2010] LMCLQ 386.
Commercial Litigation
Considerable experience in issues arising out of commercial contracts, including share sale agreements, private equity, M&As, licensing agreements (including IP), international finance agreements and construction contracts. Regularly advises on questions of construction and rectification in respect of such contracts, as well as any negligence claims against professional advisors involved (including claims against banks, accountants and solicitors).
Competition
As a Chairman of the CAT, Marcus determines disputes and appeals arising out of many areas of competition law, including the Chapter I and Chapter II prohibitions and follow-on damages claims. A number of Marcus’ decisions in this field have been reported (see below).
Conflict of Laws/Private International Law
Marcus regularly deals with jurisdictional and choice of law questions arising out of his commercial practice, much of which has an international flavour. He has particular expertise on such questions in the context of insurance and reinsurance disputes. He is one of the authors of Private International Law of Reinsurance and Insurance, published in 2006.
Construction
Marcus is quite happy dealing with construction disputes, and has been involved in matters relating to the provision of a NATO air command and control centre in Portugal and two disputes concerning deficiencies in the construction of nuclear reprocessing plants (all confidential).
Insurance & Reinsurance
Marcus has wide experience in all aspects of insurance and reinsurance, including coverage issues and broker’s negligence. Experience includes:
- the ERAS/EIL litigation (acting for London Market reinsurers in multi-party professional negligence proceedings arising out of insurance scheme covering pollution risks in the United States)
- Lloyd’s litigation (in particular, for the Merrett and Feltrim names in relation to asbestosis and LMX spiral claims; also for Rose Thompson Young names)
- the Sphere Drake litigation (workers’ compensation, involving a 110 day hearing in the Commercial Court)
- film finance (acting for insurers in the Hollywood 4, 5 and 6 cases)
- a Bermudian arbitration regarding the insurance of accountants’ non-audit risks
- a dispute between Aon and a Libyan insurer concerning ceding commission
- a dispute arising out of the insurance into Lloyd’s of various “viatical” policies issued in the US
IP
Marcus has considerable experience in areas of “soft” IP, including in particular injunctions (see Apotex v SKB under Reported Cases), the assignment of patents and other IP rights (in particular, the recently settled Apple v Nokia litigation, where Marcus acted for Apple), and licensing disputes (see CAT v Abbott under Reported Cases).
Professional Negligence
Marcus has dealt with a number of professional negligence cases involving underwriters, brokers, portfolio managers, accountants and banks. Notable cases include Henderson v Merrett, Arbuthnott v Feltrim and Yorkshire Bank plc v Lloyds Bank plc and Bank Leumi (UK) plc v Wachner (see below under Reported Cases).
Sport
Marcus has acted (in an ad hoc arbitration) dealing with a confidential promotion dispute between a football club and the league in which it participated. He has additionally been involved in advice/litigation regarding boxing promotion.
Technology and Telecommunications
Marcus has acted in a number of computer and technology related cases, including in particular telecommunications and defence. Experience includes:
- dispute regarding the provision of a NATO air command and control centre
- dispute concerning Books-on-Line website
- numerous disputes between IT suppliers and purchasers
- dispute regarding the provision of a telecommunications network between UK and Italy
- dispute between BT Cellnet (as it then was) and one of its suppliers concerning ineffective software costing £70m
- dispute between Winterthur and one of its suppliers, regarding the provision of software
Reported Cases
It is a feature of modern litigation that most cases settle. Marcus is well-aware of the commercial advantages of settlement, and well-able to advise on and facilitate a commercial outcome for his clients.
Cases that did not settle, and were sufficiently important to be reported, are the following:
- Baxendale-Walker v Middleton [2011] EWHC 998 (Supperstone J). A five-day strike out application examining the conduct of discplinary proceedings by the Law Society before the Solicitors Disciplinary Tribunal. The case considered the scope of the Law Scoiety’s immunity from suit when conducting disciplinary proceedings.
- Dhanani v Crasnianski[2011] EWHC 926 (Teare J). A two-week commercial court trial concerning the establishment of a private equity fund.
- Bank Leumi (UK) plc v Wachner[2011] EWHC 656 (Flaux J). A four-week commercial court trial concerning a banks obligations to an execution only investor under FSMA and the common law . The case concerned technical aspects of reverse-knock-in options, but also the regulatory scope of FSMA in relation to business conducted by New York banks through UK based agents.
- United Insurance Co of Libya v Aon[2008] Lloyd’s Rep IR 166 (Langley J). Dispute between an insurance company and a broker regarding ceding commission and an obligation not to tender for other fronting companies.
- Apotex v SmithKline Beecham[2006] 1 WLR 872 (Lewison J) and Times 9 June 2006 (Court of Appeal). The leading case on the extent to which undertakings in damages in interlocutory injunctions protect third parties; and also, the extent to which the law of restitution can allow the restoration of benefits derived from orders of the Court. The case concerned an interlocutory injunction obtained by SKB preventing the importation of a generic drug. The usual cross-undertaking in damages was given to the named defendants. Two other companies in the same group as the defendants then sought to take the benefit of the cross-undertaking.
- X Ltd v Y Ltd [2005] EWHC 769 (QB). Counsel for the respondent in an appeal under s67 of the Arbitration Act 1996 against the finding of an arbitral tribunal as to its own jurisdiction. The question of jurisdiction turned on the true construction of a number of interlocking government procurement contracts and their transfer.
- CAT v Abbott[2004] EWHC Pat 2974, [2004] All ER (D) 323 (Laddie J) appealed to the Court of Appeal). The case settled on the day the appeal was due to open, in October 2005. The case concerned the construction and rectification of the royalty provisions in a licence agreement for the development of a "blockbuster" drug known as HUMIRA. The sums at stake were several hundred million dollars.
- Sphere Drake Insurance Ltd v Euro International Underwriting Ltd[2003] EWHC 1636 (QB Commercial Court). 110 day trial on the US personal accident LMX spiral.
- Biggin Hill Airport Ltdv Bromley LBC, [2001] Times, 9 January 2001 and 13 August 2001 (Chancery Division and Court of Appeal). A dispute regarding the scope of permitted use at Biggin Hill airport.
- Yorkshire Bank plc vLloyds Bank plc, [1999] Times, 12 May 1999 (HH Judge Pitchers, sitting a Judge of the QBD). On the duty of care owed by a banker regarding a stolen cheque.
- Banco Exteriorv Thomas, [1997] 1 All E.R. 46 (Court of Appeal). Application of Barclays Bank v O’Brien principles in a non-cohabitation situation, raising questions of undue influence and the constructive notice of banks.
- Allied Irish Bankv Ashford Hotels Ltd, [1997] 3 All E.R. 309 (Court of Appeal). On the appointment of receivers by way of equitable execution in an international context. One of the leading cases on cross-undertakings in interlocutory injunctions.
- Arbuthnottv Feltrim Underwriting Agencies Limited, [1996] L.R.L.R. 143 (QB Commercial Court). The first underwriters’ professional negligence case to reach the courts, dealing with the writing of LMX business and the quantification of loss. Damages awarded were £176m.
- The Eras EIL Actions, [1995] 2 All E.R. 278, [1995] 1 Lloyd’s Rep. 64 (QB Commercial Court). Substantial insurance litigation involving environmental impairment insurance in the US. The case also raised substantial conflict of laws questions.
- Cementation v Aegon Insurance, [1995] 1 Lloyd’s Rep. 97 (Court of Appeal). Liability under a contractors all risks insurance in connection with the construction of harbour works.
- Henderson v Merrett, [1994] 3 All E.R. 506, [1994] 2 Lloyd’s Rep. 468 (House of Lords). One of the first “long-tail” names actions, raising allegations of professional negligence of Lloyd’s underwriters. This is now one of the leading cases on duty of care in tort.
- Schering v Resibel, noted in (1993) 109 L.Q.R. 175 (Court of Appeal). Litigation regarding the destruction of a factory following the installation of defective heat-sealing equipments. The case raised complicated questions of causation and failure to mitigate in the context of contractual and tortious causes of action.
Additionally, as a Chairman of the CAT:
- Deutsche Bahn AG v Morgan Crucible[2011] CAT 16. Application of limitation periods under section 47A of the Competition Act 1998.
- GM I Construction Holdings plc v OFT[2011] CAT 12;AH Willis & Sons Ltd v OFT [2011] CAT 13, North Midland Construction plc v OFT [2011] CAT 14. Three appeals out of the decision of the OFT regarding cover pricing in the construction industry.
- British Telecommunicationsplc v OFCOM (PPC) [2011] CAT 5. Appeal from a decision of OFCOM under the dispute resolution process under the Communications Act 2003 regarding the nature and effect of certain SMP condition imposed on BT.
- British Telecommunications plc v OFCOM (admissiblity of evidence)[2010] CAT 17, affirmed on appeal to the Court of Appeal [2011] EWCA Civ 245. On the admissibility of evidence on appeals to the CAT.
Publications
Marcus is the author of The Law of Assignment: The Creation and Transfer of Choses in Action, which was published by OUP in 2007. The book has already been widely cited (including by the United States Supreme Court) and widely reviewed.
“...a splendid piece of work. The coverage is comprehensive, practical and brisk...if you are a practitioner needing an answer to (almost) any question on assignment, then Smith must be the choice: readable, well-laid-out and limpidly clear...”
Professor Andrew Tettenborn[2007] LMCLQ 571
...The resulting 616-page volume is a triumph of text book writing. It was a job worth doing and Smith has done it exceedingly well. The book is excellently structured and easy to navigate. Its coverage is about as comprehensive as it is possible to wish for...In conclusion, Smith’s treatise is a triumph, and one of the most important new works in commercial law for decades...”
Professor Gerard McMeel(2008) 37 CLWR 100
“Given the unfathomably diffuse nature of its subject-matter and the lack of any contemporary precedent, it is a tremendous achievement that Smith’s book exists at all. Smith has done the legal community a huge service by bringing together much of the relevant primary and secondary material which make up the large, amorphous and growing body of law on assignment and mechanisms having an equivalent effect to transfer in one fairly compact and succinctly written volume...”
Chee Ho Tham (2008) 124 LQR 175
Marcus is the consultant editor for the title Choses in Action in the forthcoming 5th edition of Halsbury’s Laws of England.
Additionally, Marcus is the author of the following articles and contributor to the following books.
Articles
- The Legal Nature of Credit Default Swaps[2010] LMCLQ 386
- The Effect of Subsequent Increases of Risk on Contracts of Insurance[2009] LMCLQ 366
- Locus Standi and the Enforcement of Legal Claims by Cestuis Que Trust and Assignees, (2008) 22 TLI 140
- Equitable Owners Enforcing Legal Rights?, (2008) 124 LQR 517
- Rectification of Contracts for Common Mistake: Joscelyne v Nissen and Subjective States of Mind, (2007) 123 LQR 116
- One Stage further than Clementson: the decision in Marchant & Eliot Underwriting v Higgins, [1996] 6 Int ILR. 199
- Errors and Omissions Insurance and the Lloyd’s Litigation: the decision in Cox v Bankside, [1995] 6 Int ILR 208
- Descent from the Plane of Public International Law? - The Inter-Relationship between State Immunity and the Recognition of the Effects of Treaties(with Lord Goldsmith QC)
Books
In addition to The Law of Assignment:
- Law of Bank Payments, Brindle QC and Cox QC (eds.), Sweet & Maxwell
1st ed (1996), 2nd ed (1999), 3rd ed (2008), 4th ed (2010) chs 2 (money) and 4 (plastic money)
- Private International Law of Reinsurance and Insurance, Cox, Merrett and Smith, Informa
1st ed (2006)
- Carriage by Air, Philipson QC et al, Butterworths/Tottel
1st ed (2001), chs 2 (the regimes governing carriage by air), 3 (the construction of treaties) and 4 (scope of the conventions)
- Bullen & Leake & Jacob's Precedents of Pleadings, Blair J, Brennan QC, Jacob LJ and Langstaff J, Sweet & Maxwell
14th ed (2000), 15th ed (2004), 16th ed (2008), parts B (assignment) and V (restitution)