Marcus Smith
Call Date
1991
Practice Areas
Marcus specialises in commercial and commercial chancery work, as well as some regulatory work, with particular expertise in arbitration, aviation, banking, commercial contracts, conflict of laws, insurance and reinsurance, I.T, professional negligence and sports.
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 (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)
Recent Practice
Administrative & Public Law
Marcus has acted for the Law Society in relation to matters under the Solicitors Acts (including various interventions). 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. Listed below are those that have actually gone to a substantive hearing:
- An ICC arbitration (one week before Christopher Clarke, Q.C.) 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, Q.C., Peter Leaver, Q.C. 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 (before Professor Martin Hunter, Mr Lloyd Cutler and Mr Yves Fortier, Q.C.) 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, bills of exchange, electronic money transfers, money laundering, prime bank guarantee fraud and negligent management of investment portfolios).
Commercial Litigation
Considerable experience in issues arising out of commercial contracts, including share sale agreements, 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).
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.
Information Technology
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
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 Bermudan arbitration regarding the insurance of accountants’ non-audit risks
Professional Negligence
Marcus has dealt with a number of professional negligence cases involving underwriters, brokers, portfolio managers, and banks. Notable cases include: Henderson v Merrett, Arbuthnott v Feltrim and Yorkshire Bank plc v Lloyds Bank plc.
Sport
Marcus has acted (in an ad hoc arbitration) dealing with a dispute between a football club and the league in which it participated. He has additionally been involved in advice/litigation regarding boxing promotion.
Notable Cases
- 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.
- 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.
- 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.
- Arbuthnott v 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.
- Banco Exterior v 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 Bank v 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.
- Yorkshire Bank plc v Lloyds Bank plc, [1999] Times, 12 May 1999, HH Judge Pitchers, sitting a Judge of the Q.B.D. On the duty of care owed by a banker regarding a stolen cheque.
- Biggin Hill Airport Ltd v 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.
- 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.
- 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.
- 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.
Publications
Articles
Errors and Omissions Insurance and the Lloyd’s Litigation: the decision in Cox v Bankside, [1995] 6 Int. I.L.R. 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, Q.C.)
One Stage further than Clementson: the decision in Marchant & Eliot Underwriting v Higgins, [1996] 6 Int. I.L.R. 199
Rectification of Contracts for Common Mistake: Joscelyne v Nissen and Subjective States of Mind, forthcoming 2007 L.Q.R.
Books
Contributor to Law of Bank Payments, Brindle and Cox (eds.),first published 1996, 2nd ed. 1999, 3rd ed. 2004 (Sweet & Maxwell)
Editor of Commercial Court Procedure first published 1999, 2nd ed. 2000 (Sweet & Maxwell)
Contributor to Carriage by Air, 1st ed. 2000 (Butterworths)
Author of restitution section of Bullen & Leake & Jacob's Precedents of Pleadings 14th ed. 2000, 15th ed 2004 (Sweet & Maxwell), 16th ed forthcoming
Author (with Raymond Cox QC and Louise Merrett) of Private International Law of Reinsurance and Insurance 1st ed 2006 (Informa)
Author of The Law of Assignment: The Creation and Transfer of Choses in Action (OUP), forthcoming June 2007
Private International Law of Reinsurance and Insurance