Fountain Court Chambers

London & Singapore

Derrick Dale QCCall Date: 1990 | Silk Date: 2010

Email: dd@fountaincourt.co.uk

Clerks: sian@fountaincourt.co.uk , declan@fountaincourt.co.uk

Derrick Dale QC is an experienced commercial advocate – described as having a natural authority in the court room”. Derrick specialises in commercial litigation and arbitration, in both a domestic and an international context, instructed as lead counsel or sitting as an appointed arbitrator.

Derrick’s knowledge and experience covers multiple practice areas, principally: banking and finance, commercial disputes, insurance, professional negligence, civil fraud, and asset tracing. His expertise also covers financial services, insolvency and restructuring, regulatory and corporate crime. He is frequently instructed in cases requiring urgent injunctions, freezing and search orders and he is well versed in conducting group litigation.

As leading counsel Derrick has acted in high-profile litigation including: a dispute between Zambian mine operator and a Zambian mine owner, leading to 4 arbitral awards and 4 court challenges before the Commercial Court in London; a dispute between an acquirer of telecom towers in Pakistan and a lobby firm; Derrick recently acted for Bank of Scotland in respect of a dispute with a former customer of the bank over the construction of the terms of the loan agreement. He also recently acted in a US$100m dispute between a former husband and wife who owned and ran one of the largest hedge funds in London and Cyprus.

Since 2004, Derrick has been the joint editor of the damages section in ‘Simpson on Professional Negligence’. He is a Bencher of Middle Temple and has also been a member of the Bar Standards Board (Rule Committee).

Areas of Expertise

  • Banking & finance
  • Commercial dispute resolution
  • Financial services
  • Fraud: civil
  • Insurance and reinsurance
  • International arbitration
  • Media, entertainment & sport
  • Offshore
  • Professional discipline
  • Professional negligence

Recommendations

In the 2020 directories, Derrick is recommended in Banking & Finance, Commercial Dispute Resolution and Professional Negligence. Recent quotes include:

  • “Gives us exactly what we need in terms of legal, tactical and commercial input in order to put our client in the strongest position.”  (Chambers and Partners)
  • “He has a natural authority in the courtroom.”  (Chambers and Partners)
  • A star banking silk.” (Legal 500)
  • Exceptionally charming and on the ball, he also has a good way with clients.” (Legal 500)
  • “An obvious choice for complex commercial and insurance and reinsurance disputes.” (Legal 500)
  • He has excellent judgement.” (Legal 500)
  •  “Technically creative, enthusiastic and very much onside with client’s interests.” (Banking and Finance, Legal 500)
  • An excellent lawyer, who is very bright and immensely calm under pressure.” (Commercial Litigation, Legal 500)
  • “Extremely thorough in his approach.” (Professional Negligence, Legal 500)
  • “Charming and confident, great with clients, and quick to grasp complex issues and identify commercial solutions. He also has excellent drafting skills.” “Exceptionally hard-working and good with clients. A persuasive advocate.” (Banking & Finance, Chambers and Partners)
  •  “He is good on paper and good with clients, and knows how to be commercial, tactical and sensible.” “He is very practical, very user-friendly and really bright.” (Commercial Dispute Resolution, Chambers and Partners)
  •  “Very good with clients – able to understand the client and really relate to them.” “Very effective   and reasonable and a good commercial player.” (Professional Negligence, Chambers and Partners)

Recent practice

Banking & finance

  • McDonagh v Bank of Scotland: Acted for Bank of Scotland in respect of a dispute with a former customer of the bank over the construction of the terms of the loan agreement (including whether the loan was repayable in sterling or euros).
  • Calyon & FGIC v IKB: A $1 bn action brought by FGIC and Calyon against the German Bank in which it is alleged that IKB wrongly diverted profits from one segment of its business to another in order to induce investors to invest in the Rhineland programme and other banks to provide liquidity facilities.
  • O’Driscoll v IBRC: Acted for IBRC in respect of mis-selling/misrepresentation claims against the bank brought by investors in respect of their introduction to an investment in Somerston, the property/hotel chain.
  • BOS v Pickenham Estates Ltd: Acted for BOS in a complex claim to realise the security where the bank’s legal rights were allegedly subject to: (i) certain beneficial interests of the investors, and; (ii) rights of subrogation.
  • The Bird Group v Barclays Bank: A dispute involving swaps mis-selling and the alleged rigging of Libor by Barclays Bank. Derrick has advised and acted in various swap mis-selling cases.
  • Investors v ANZ: Acted for an extensive group of Chilean and Mexican investors in group litigation bringing a mis-selling claim against ANZ Bank in London.
  • Deutsche Bank v APBW: DB suit against Taiwanese telecommunications company for breach of a Credit Agreement and counterclaim by Taiwanese Company that DB knowingly participated in a fraud committed by the Chairman of the companies. Court of Appeal found that under Brussels Regulation DB could also bring alternative claims against the Taiwanese companies for restitution and misrepresentation.
  • Mahonia v WestLB: A dispute between JP Morgan Chase and WestLB as to whether JPMorgan Chase had conspired with Enron to obtain a letter of credit from WestLB in support of a disguised loan in the form of three swaps from JP Morgan Chase to Mahonia, a special purpose vehicle incorporated in Jersey.

Commercial dispute resolution

  • Coward v Ambrosiadou: Acted in a US$100m dispute between a former husband and wife who owned and ran one of the largest hedge funds in London and Cyprus. The dispute related to the terms of agreement between the various partners, the division of funds, trust structures, alleged fraudulent divergence of funds and tracing.
  • TPI v United Learning: Acted for TPI (an introducer) in a breach of confidence case in respect of a loss of a chance claim in relation to being cut out of a maturing business opportunity to purchase and develop a site for a 1000 pupil school.
  • Capstan Capital Partners LLP v Rickmers Holdings: Acted for brokers in a dispute over the contractual construction of a long tail commission fee provision payable in the light of an introduction of a third-party investor leading to a strategic partnership between Rickmers and the third party.
  • Fentimans North America v Fentimans UK Limited : Acting in a dispute relating to the terms of a franchise agreement between the UK parent company and its North American manufacturer and distributor in respect of the terms of manufacture, sale, marketing and profit distribution.
  • Bibby v Nisa and DHL: acting for DHL in a £74m claim brought for alleged breach of confidence, conspiracy and an account of profits in respect of the transitioning of warehouse/logistic services from one service provider to another.
  • Harmsworth v Polestar: Acting in a series contractual disputes between the Daily Mail and its printers involving the construction of the terms of printing agreements and when and how the agreement could be terminated and technical issues relating to the quality of the print copy supplied to the printers and the problems associated with the printing process.
  • Calyon & FGIC v IKB: An action brought by FGIC and Calyon against the German Bank in which it is alleged that IKB wrongly diverted profits from one segment of its business to another in order to induce investors to invest in the Rhineland programme and other banks to provide liquidity facilities.
  • Amiri Capital v Rassmal Investments Ltd: A large dispute between the owners and investors of a development of the Nash facade terrace Portland Place on the agreed terms between the parties.
  • BDT v John Lewis: A dispute between John Lewis and a supplier over a travel business contract, the tendering process and whether the supplier “won” the process and there was a contract implied by conduct of carrying out the services tendered for.

 Corporate Crime, Regulatory and Disciplinary 

Serco and a Deferred Prosecution Agreement (the DPA): Advising the Board of Serco on (i) the prosecution by the SFO of group companies in respect of an accounting fraud in a prison service contract with the MoJ and; (ii) entering into the DPA and the level of fine/redress. DPA entered into by Serco and approved by High Court in June 2019.

Derrick has experience of undertaking investigative and defence work for financial institutions, law firms and individuals in respect of complaints made or threatened to the regulators and advising with regards to their ongoing regulatory/risk compliance obligations. Much of this work is highly confidential. In particular, in recent years this includes:

  • Acting for a large financial institution and assisting on initial investigation and the drafting of reports in respect of compliance and compensation arising out of the fraudulent activities of a dishonest employee.
  • Acting for one of big four accountancy firms in respect of the obligation to report misconduct to regulator in respect of evidence given in court by a partner.
  • Advising a Jersey investment house on duty to report to the regulator having acted for two clients and knowingly preferred the instructions of one.
  • Advising law firm on risks and regulatory implications of findings made in High Court professional negligence proceedings.
  • Advising law firm as to how to handle complaints made to the regulator about the conduct of the firm and senior individuals within it whilst litigation ongoing.
  • Acting for an individual solicitor in respect of allegations of dishonesty, his position within firm and SDT proceedings.

 EU and Competition

  • WH Newson v IMI and Rangemaster: Acted for Aga in a contribution claim brought by members of a cartel against Aga arising out of an EU Commission decision and advising on a follow-on claim for conspiracy to injure Aga indirectly arising from the conduct of members of the cartel against Aga.
  • Sintesi & Ricerca S.p.A v Royal Dutch Shell and others: Acted for 3rd party in respect of the claims for compensation for unlawful agreements and concerted practices infringing Article 81(1) of EC Treaty.
  • Ineos v Huntsman: A large commercial dispute between two chemical companies involving the UK gas pipelines and the construction of various agreements and whether such agreements were in breach of Competition Acts and EU treaties.

 Energy and construction

  • Sul America v Enesa: Acting for insurers in respect of a US$450m claim concerning the interpretation of a political risk clause and a delay claim in respect of the construction of a hydro-electricity plant in Brazil arising out of riots and the burning down of worker’s facilities.
  • Deminor Recovery v BP: Advising on claims arising from the Deepwater Horizon disaster.
  • Ineos v Huntsman: A large commercial dispute between two chemical companies involving the UK gas pipelines and the construction of various agreements and whether such agreements were in breach of Competition Acts and EU treaties.
  • Nuwaila v BIIG Holdings LLC – Dispute over the construction of properties in Dubai.
  • KP&P Africa & Turkana Windpower v Aldwych International: Acting in a dispute relating to the construction and finance of power plants.

 Financial services

  • New Media v Capita Fiduciary Group:  Acting for Capita in a claim brought by New Media for fraudulent conduct and breach of contract/duty in relation to the performance of their duties in allegedly preferring the interests of one partner/shareholder over another and the failure to disclose information to the other partner/shareholder.
  • Investors v ANZ: Acting for an extensive group of Chilean and Mexican investors in group litigation bringing a misspelling claim against ANZ Bank in London.
  • Re FCA investigation of investment house: Acting for and advising an investment house in respect of the activities of an allegedly fraudulent broker/employee.
  • Brewin Dolphin v FSCS: Advising on liability/quantum in respect of Keydata claims.

Fraud: civil

  • Panasonic Europe (BV) v Core: Acting for former individual warrantors defending application to amend warranty claim to allege fraudulent misrepresentation and manipulation of the statutory and management accounts in lead up to sale of business to Panasonic.
  • Standard Bank v EFAD: an action brought by Standard Bank alleging deceit, conspiracy and procuring breach of contract on the part of two employees of EFAD in obtaining a loan on its behalf from Standard Bank.
  • Samara v MBI & Partners: acting for MBI in defending a claim brought by an employee alleged by MBI to be a fraudulent claim in circumstances where MBI had allowed a default judgment to be entered against it and had failed to raise its fraud defence when seeking to set aside the default judgment.
  • Project Walnut: acting for an investment house in a series of investor claims brought about by the fraudulent activities of a self-employed stockbroker acting under the umbrella of the investment house.
  • Markel and QBE v SGC and others: Acting for the insurer QBE bringing a claim against its former brokers, SGC, and other individuals, who had been under-declaring the size of the book written and not accounting to QBE for premium.
  • Trebisol Sud Quest and Soldefi v Berkley Finance Limited: acting for Trebisol in relation to the recovery of monies advanced in respect of a bogus investment scheme.
  • Strive Shipping Corporation v Hellenic Mutual War Risks Association (Bermuda) Ltd, the Grecia Express: A case concerning the alleged scuttling of an Greek passenger ferry by its owner, involving an important analysis of marine perils, policy coverage, the burden of proof in cases of malicious acts and scuttling or barratry, the scope of moral hazard as regards the duty of disclosure and the duty of good faith.

Insurance and re-insurance

  • Re Grenfell: Advising primary insurers on their potential liability to indemnify for the fire and the costs relating to the public inquiry.
  • Sul America v Enesa: Acting for insurers in respect of a US$450m insurance claim concerning the interpretation of a political risk clause and a delay claim in respect of the construction of a hydro-electricity plant in Brazil arising out of riots and the burning down of worker’s facilities.
  • Shaheen Air International v Ingosstrakh Insurance Company:  Acting in an insurance/reinsurance claim arising out of the crash of a Boeing 737 in Pakistan, where the key is issue is whether the Russian reinsurer is required directly to cover the total loss of aircraft in a claim made by the original insured against the reinsurer using a “cut-through” clause.
  • Godiva v Travelers: acting for Travelers, in respect of an aggregation claim arising out of the alleged participation in mortgage fraud of a partner in the firm of Willmett.
  • United Biscuits UK Limited v Amcor Flexibles UK:  Acting in respect of an insurance claim relating to the cause of the burning down of a factory and the effect of the force majeure clause.
  • An insurer v another insurer: An Arbitration between two insurers as to which insurer was the successor practice and which insurer was liable for losses falling between two years.
  • Coverage issues: regularly acting for insurers in respect of coverage issues in respect of the conduct of directors, solicitors and other professionals

 Insolvency and restructuring

  • Re Galapogos Holdings SA: Acting for loan note holders to oppose the application of the administrators for administration orders under S.12(1) of the IA 1986 on the basis that the court did not have jurisdiction to open proceedings because England was not the companies main centre of interests.
  • Re Swiss Cottage, No 38&40 Avenue Road: Acting for Deloittes (the Administrators) in respect of a S.75(6) Schedule B1 Insolvency Act claim for equitable compensation arising from the diminution in the value of the fund ad/unlawful disposal of the properties at an undervalue.
  • Bank of Scotland v JLL: Acting in a crossclaim between receivers and the bank in respect of the marketing and sale of a portfolio of properties at an undervalue and the ascription of value to a specific property within the portfolio.  
  • Re: Kaupthing Singer & Friedlander (Isle of Man) Limited (in liquidation): Advising Liquidators of bank on effect of Scottish Restraint and Confiscation orders in respect of two account holders final date for proof of debt and POCA and POCERA.
  • WWT v MF Global: Acting in respect of claims relating to monies held on trust arising out of the bankruptcy of MF Global.

 International arbitration

  • A Malaysian telecoms operator v a Middle Eastern lobby company: An arbitration between an acquirer of telecom towers in Pakistan and a lobby firm relating to whether there was an agreement (oral or by conduct) to pay a reasonable fee for obtaining Pakistan security clearance for the contemplated transaction to acquire the telecom towers and, if so, what was the reasonable sum payable for the service provided.
  • U&M v KCM: A dispute between a Zambian mine operator and a Zambian mine owner, leading to 4 arbitral awards and 4 court challenges before the Commercial Court. These raised points of law in the areas of (i) whether an arbitral award with a “show cause” provision is sufficiently certain (KCM v U&M [2014] EWHC 2374); (ii) the circumstances in which the English Court will grant a worldwide freezing injunction notwithstanding the existence of an exclusive enforcement jurisdiction clause in favour of the Zambian courts (U&M v KCM [2014] EWHC 3250); (iii) the test as to when a party making a court challenge to the arbitral award should be required to pay as security the full amount due under the award as a condition of making the challenge to the award; (KCM v U&M [2014] EWHC 2145.
  • A Mexican distributor v A Greek publisher: An arbitration between a Greek publisher and a Mexican distributor relating to the allegedly wrongful termination of a distribution agreement.
  • A coverholder dispute: acting in relation to dispute between an insurer and cover holder relating to the terms of provisional and final payment obligations for profit commission.
  • An insurer v another: An arbitration between two insurers as to which insurer was liable for losses falling between two years.
  • Another v A Law Firm: An arbitration between a magic circle firm and a former client in which the question was whether a solicitor who had previously acted under a joint retainer for 2 clients, could at the end of the joint retainer act for one of the former clients against the other in other proceedings relating to the same subject matter.
  • Hellenic Mutual War Risk Association v Sea Trade Maritime “The Athena”: An arbitration concerning the exercise of the discretion by the Association to pay a claim involving extensive jurisdictional challenges to the jurisdiction of the arbitrators.

For Derrick’s full arbitration CV please click here

Professional negligence

  • Investors v Graham Rosen & Scott Fowler: Acting for 150 Claimants in a group action for 150 property investors (who lost their deposits when the developers and bond holders went bust) against several firms of solicitors for failing to advise their clients on the solvency and the enforcement risk relating to the bond provider chosen by the developers.
  • Springdew v Fitzgerald: Acting for a barrister in a professional negligence claim brought by his former client in respect of the failure to advise correctly on the limitation period in respect of a swaps claim as a result of which the client lost the opportunity to sue Barclays and recover more than he had been offered to settle by Barclays under the FSA swap mis-selling review.
  • Partridge v Evans: Acting for a barrister in a professional negligence claim brought by a former client in respect of the barrister’s alleged failure to plead properly and advise upon a mis-selling claim brought against Barclays for mis-selling, for manipulating Euribor and the client’s alleged consequential losses.
  • Innovator litigation: Acting for the IFAs who were sought to be joined as third parties to the claims made by over 500 Claimants against Collyer Bristow and two of its former partners. The claims arose out of a series of tax efficient investment schemes relating to technology products – the Innovator Schemes. The majority of the tax relief claimed was disallowed by HMRC and extensive “class action” litigation ensued.
  • Langsam v Beachcrofts: Acting for Beachcrofts in a professional negligence action brought a former client against Beachcrofts alleging that Beachcrofts let him settle his claim against his former accountants (Hacker Young) at an undervalue. Judgment upheld by the Court of Appeal.
  • Levicom v Linklaters: Acting for Linklaters in professional negligence case on behalf of relating to the advice given by Linklaters to their clients on liability and quantum of that claim and the decision not to accept an offer to settle a dispute under a shareholders’ agreement and subsequent arbitration for the sum offered.
  • Levi Roots v Simons Muirhead & Burton: Acting for the firm and insurers on a wasted costs application against SMB arising out of the unsuccessful claim brought by Mr Bailey against Levi Roots concerning the commercial rights over Reggae Reggae sauce and whether the recipe was disclosed confidentially by Mr Bailey to Levi Roots.
  • Cabvision v Hills and a barrister: A professional negligence action brought by Cabvision against the solicitors and barristers in respect of an unsuccessful action brought by Cabvision against FMS, the arrangers of a tax scheme.
  • Parker v Freeth cartwright: Acting for Freeths in a professional negligence action brought against Freeth cartwright for allegedly failing to plead appropriate loss and heads of damage in a professional negligence claim against SJ Berwin.
  • REO v Aberdeen & UBS: An action relating to the alleged failure of Aberdeen and UBS to advise on flotation the board of a company as to the inherent risks involved in split capital investment trusts and their propensity to systemic collapse by reason of their high gearing and cross holdings in other split capital companies.
  • Williams and McLaren v Linklaters and Baker & McKenzie: A dispute between two Formula One companies and their former legal advisers as to the drafting of an agreement with SLEC, a trust company set up by Bernie Ecclestone.
  • The Football League v Edge Ellison: An action brought by the Football League against its former legal advisers in respect of the alleged failure of Edge Ellison to seek and obtain a guarantee from the parent companies of OnDigital to support OnDigital’s payment obligations under its tv rights contract with the Football League

Share warranty claims

  • Panasonic Europe (BV) v Core: Acting for former individual warrantors defending application to amend warranty claim to allege fraudulent misrepresentation and manipulation of the statutory and management accounts in lead up to sale of business to Panasonic.    
  • Advina Care Homes Ltd v Bupa : Acting for Advina who acquired care homes from Bupa in a dispute with Bupa as to the terms of the SPA, the Business Transfer Agreements and whether monies relating to patient’s fees were held on a special purpose trust or susceptible to set off claims.
  • Boettcher v XIO (UK) LLP: Acting for an employee in a dispute brought against owners of a business in relation to misrepresentations and breach of warranties made by the owners in the course of their business and in their accounts.
  • Bidco v Hamilton: Acting for vendors of property management company sued for breach of warranty by Bidco purchasers – with particular emphasis on notice provisions, quantum and adjusted balance sheet calculations.
  • Re University of Cambridge: Acting on a matter relating to the breach of a negative pledge.
  • Elul v Paedriatric Nursing Link Limited: Advising on effect of two successive sale agreements and liability for partial disclosures and non-disclosures of personal injury claims.

Education

  • MA First Class, Cambridge University
  • LLM Harvard Law School
  • New York Bar

Appointments, memberships, prizes

  • LCIA Arbitrator
  • Member of COMBAR
  • British Association for Sport and Law
  • Associate Member of CIArb

BSB Barristers' Register