ANALYSIS: Commercial Dispute Resolution And Life At The Bar: Recent Episodes
4 New Square Chambers
ANALYSIS will examine a wide range of current issues in dispute resolution including commercial fraud, construction, costs and litigation funding, disciplinary and regulatory issues, insurance, international arbitration and commercial disputes, professional liability and sports. You will also hear from our barristers about their experiences of life at the Bar starting with pupillage.
This podcast is a recording of the 4 New Square Chambers panel discussion, ‘Choosing Your Arbitration Tribunal’, from London Arbitration Week 2025.The panel discuss the practical and strategic considerations involved in constituting an arbitral tribunal. The session combined recent case examples with institutional perspectives and reform initiatives, offering both technical guidance and strategic insights for counsel and parties.
Speakers:
- Sian Mirchandani KC, 4 New Square Chambers – Moderator
- Nicholas Fletcher KC, 4 New Square Chambers
- Kelly Yu, 4 New Square Chambers
- Wing Shek, LCIA
- George Burn, BCLP
- Matthew Buckle, Osborne Clarke
Thirty years on from the landmark decision in Allied Maples v Simmons & Simmons, Sir Rupert Jackson, Roger Stewart KC, and Hugh Evans reflect on its lasting impact on professional negligence law and the application of its principles in modern litigation.
They discuss the development of the loss of a chance doctrine, its use across different legal contexts, and the ongoing challenges it presents. With insights into recent case law and continuing debates around causation and quantification, this episode offers thoughtful analysis to mark a significant anniversary.
Read the full judgment here: Allied Maples v Simmons & Simmons
4 New Square Chambers’ George McDonald and Matt Waszak explore new representative actions and the complex interplay between litigation funding and class actions, addressing the legal challenges that arise. They emphasise the importance of courts making early rulings on funding arrangements to ensure the viability of class actions.Key Topics Discussed:
- Funding Challenges: Issues related to funding agreements and privity of contract among class members.
- Early Court Decisions: The potential for courts to provide early clarity on funding arrangements.
- Conditional Fee Agreements (CFAs): Insights into CFAs, including success fees and cost recovery for class representatives.
- Damages-Based Agreements (DBAs): Limitations and challenges of DBAs in collective actions.
- Adverse Costs: Discussion on liability for adverse costs in representative actions.
- Legislative Reforms: Speculation on potential reforms to expand the CAT’s collective action regime for consumer claims.
- Judicial Management: The proactive role of courts in managing funding and costs early in litigation.
- Early Determinations: Advantages of pre-emptive court decisions on funding for smoother processes.
- Recommendations for Funders: Guidance on creating tailored funding agreements for representative actions.
In this latest episode in our costs and litigation funding mini-series, 4 New Square Chambers’ Nicholas Bacon KC, George McDonald, and Ben Smiley provide an authoritative analysis of the Competition Appeal Tribunal (CAT) and the key cost-related issues that are arising in CAT proceedings.This episode will cover:
- The CAT’s approach to litigation funding arrangements, including the scrutiny of funding agreements and the returns available to funders.
- The complexities surrounding the distribution of collective settlements, with a focus on how the CAT manages the allocation of damages and costs, and the potential for judicial intervention to adjust terms proposed by the parties.
- The impact of the ongoing PACCAR reforms on CAT cases, particularly with regard to procedural and cost-related considerations.
- Key procedural issues unique to the CAT, such as the treatment of costs incurred at the certification stage.
This episode offers an informed perspective on how the CAT is handling these issues and what practitioners can expect as more cases proceed to settlement and distribution.
In this episode of our costs and litigation funding mini-series, Roger Mallalieu KC, Hugh Evans, and Ben Smiley examine security for costs.
They discuss the fundamental principles and offer top tips for successfully making a security for costs application. The episode also explores the use of after the event insurance (ATE Insurance) and Anti-Avoidance Endorsements (AAE) as forms of security for costs.
In the second episode of our costs and litigation funding mini-series, 4 New Square Chambers’ Benjamin Williams KC and Theo Barclay discuss the complexities of costs in group litigation.
They discuss the distinction between individual and common costs, examining the mechanisms designed to simplify the allocation of common costs and offering insights into how these systems can be effectively utilised.
Furthermore, they delve into the role of cost budgeting, evaluating its effectiveness in controlling and forecasting costs in complex legal proceedings, and highlight the challenges posed by the detailed assessment of costs in large-scale group litigation.
Join 4 New Square Chambers’ Robert Marven KC, Pippa Manby, and Theo Barclay as they launch our mini-series on costs and litigation funding.
In this opening episode, the team delves into the repercussions of the Supreme Court’s unexpected ruling in Paccar, which sent shockwaves through the industry. They recount a tumultuous year marked by this landmark decision, which many feared could spell the end of litigation funding as we know it.
In this podcast episode, 4 New Square Chambers Barristers Clare Dixon KC and Ben Smiley explore the SRA’s guidance on SLAPPs (Strategic Lawsuits Against Public Participation), the implications for litigation conduct and the challenges it presents to solicitors, COLPs and GCs.
With the publication on 31 May 2024 of the SRA’s updated Warning Notice on SLAPPs, this podcast couldn’t have come at a better time.
In this latest episode of our back to basics Conversations in Professional Liability series, Helen Evans KC, Marie-Claire O’Kane and Will Cook explain all you need to know about audit, discuss key judgments and legal developments and consider what might lie ahead in auditor’s negligence.
In this latest episode of our back to basics Conversations in Professional Liability series, barristers Amanda Savage KC, Paul Parker and Ben Smiley discuss all you need to know about applications for wasted costs; what they are, how you go about making them and what hurdles there might be.
In this latest episode of our Conversations in Professional Liability series, barristers Hugh Evans, Stephen Innes and Matt Waszak look at some of the key points and topics related to costs from the perspective of a professional liability practitioner including pre-action costs, part 36, assessment of costs and the civil justice council costs review.
In this first episode of our new series, Conversations in Professional Liability, barristers Jamie Smith KC, Clare Dixon KC and Anthony Jones explain the insurance cover solicitors are required to obtain (minimum term insurance) and look at the types of claim are covered and which are not. They explain how claims attach to a policy, whether multiple claims can be aggregated and the consequences if they are not.
4 New Square Chambers’ Tim Chelmick and Hannah Daly will join Andrew James of PCB Byrne in a webinar hosted by ThoughtLeaders4 Disputes on 4th November 2022.
The October 2022 amendments to the Civil Procedure rules have brought about significant change to the service of claims out of the jurisdiction. The ‘gateways’ included in Practice Direction 6B have undergone no fewer than 20 substantive changes with several entirely new gateways having been added. These changes come in the wake of the significant upheaval of the rules of international jurisdiction in the UK brought about by Brexit and the UK’s exit from the Brussels Regime.
In this talk the speakers will consider the impact of these amendments on the scope of the English court’s jurisdiction in civil and commercial matters and the opportunities and difficulties these changes may bring for foreign litigants in England.
Amongst other topics the panellists will cover:
- Jurisdictional aspects of the new gateways, in particular the new gateway for information orders against non-parties to the proceedings;
- Whether the amendments represent change or merely the codification of existing rules and practice;
- What impact the new gateways are likely to have when it comes to challenging jurisdiction, from a claimant and defendant point of view.
In this podcast episode, barristers Paul Mitchell QC and Ben Smiley focus on the position of professionals who recommend tax avoidance or mitigation schemes or who adapt the contractual documentation necessary to give effect to these schemes. They will also be touching on a very recent claim against the architect of one such scheme, a tax Silk.
In this podcast episode, barristers David Halpern QC and Ben Elkington QC address aggregation clauses, when two or more claims are treated as a single claim, in professional liability insurance policies including solicitor’s insurance and other types of professional indemnity insurance.
The litigation of civil fraud claims is on the rise, with the Commercial Court consistently reporting this as an area of growth over the last three years. In this podcast, Tim Chelmick and Hannah Daly examine recent developments in the case-law concerning allegations of dishonesty against professionals, including insights into how dishonesty is defined, how it is proved, the causes of action it unlocks and the pros and cons of alleging fraud.
In this podcast episode on limitation, Helen Evans QC and John Williams will cover four core topics; section 32 of the Limitation Act, the law on repeated breaches by professionals, the niche but important issue of when time starts to run for limitation purposes during the course of the day and making amendments after the expiry of the limitation period.
Euro Pools v RSA is the first case in 10 years in which the Court of Appeal has considered the important topic of notifications and attachment of claims in professional indemnity insurance. The speakers for this podcast include counsel who appeared in the case at trial and in the Court of Appeal. They will discuss the judgment, its ramifications and broader issues of notification, attachment and aggregation of claims.
Where a wrong is caused to a company, do its shareholders also suffer a loss? Can a shareholder sue for his own loss, where it “reflects” the company’s loss? What if the company can’t or won’t sue? These thorny issues have led to much litigation for nearly 200 years. Reflective loss has now been given a major overhaul by the Supreme Court.
Tim Chelmick and Lucy Colter discuss practical completion post-Mears v Costplan and other critical events in the life of a construction project, by reference to the role and responsibilities of key construction professionals. They will provide an overview of claims in this area, and also discuss the latest cases with particular focus on the responsibilities of architects including duties to inspect and to issue instructions.
On 11th April 2017, the Supreme Court handed down its decision in Swynson v Lowick Rose [2018] AC 313, a case that sought to push the boundaries of equitable subrogation beyond breaking point. The Claimants were very firmly knocked back and it was made entirely clear that equity cannot be used as a modern day palm tree. Equity is based on legal principle, not discretion, or an amorphous concept of fairness. However, that does not mean there is no scope to get creative – provided you work out what the rules are and stick to them.
We tend to think of professional negligence in terms of contract or tort, but the Chancery concepts of trust and proprietary claims can expand the boundaries – or get both claimants and defendants out of tricky corners. Equally, a Chancery perspective can lead to avenues of recovery that tort and contract will not touch – such as unjust enrichment. This podcast by Nicole Sandells QC will look at a few of the concepts in the context of potential claims against solicitors.
A podcast by Helen Evans, Anthony Jones and Seohyung Kim bringing you up to date with the key professional negligence developments in 2019 and 2020. The podcast will include:
Asking whether the approach to vicarious liability has become more sophisticated Considering how courts are implementing the Patel v Mirza 'policy-based' approach to the doctrine of illegality Reviewing where we are on the 'loss of a chance' doctrine, and how the vexed question of after-available evidence fits in
Murray Rosen QC, an arbitrator and mediator and a member of the new Court of Arbitration for Art at The Hague, discusses the special features of dispute resolution in Art disputes, including a comparison between recent court cases and ADR methods, and the impact of the COVID-19 virus on procedures, especially remote hearings and meetings.
A look at how discontinuity of insurance coverage may arise for insurance policies written on a ‘claims made’ basis. This has particular resonance for professional persons who may believe they have seamless cover so long as they take out back-to-back yearly policies. Discontinuity problems are analysed in relation to both the ‘claims’ and ‘circumstances’ attachment mechanisms typically written into professional indemnity insurance policies. This podcast illustrates how, outside the regulatory sphere where policies are written on pro-consumer terms, there are a number of ways in which the professional may be left without cover.
In a world where Russian oligarchs refer to litigation as “lawfare”, in this podcast we look at the issues arising where personal commercial rivalries are played out in spurious litigation. We go on to consider the new phenomenon of malicious prosecution claims arising from big money divorces, touching finally on the professional liability exposure of lawyers who have acted for the tortfeasor in maliciously prosecuted or abusive civil proceedings.
In this podcast, Jamie Smith QC, Helen Evans and Hannah Daly review where we are with dishonest assistance and unlawful means conspiracy claims after Group 7 and Stobart / The Racing Partnership. A look, too, at insurers’ recovery options in the event that the insured is engaged in ‘naughty conduct’.
Graeme McPherson QC and Diarmuid Laffan share some practical thoughts on preparing for disciplinary hearings and conducting tribunal advocacy.
A review of recent decisions on the disclosure pilot running in the Business and Property Courts and a discussion of the key issues which face practitioners grappling with the procedure set out in PD 51U.
Richard Liddell QC (4 New Square) and Sarah McNally (Herbert Smith Freehills) have received various questions regarding insurance coverage in the wake of COVID-19. In this podcast recorded at the end of March, they consider some of the issues that policyholders and insurers are likely to be grappling with across many different forms of insurance.
The Supreme Court has had two chances to bring some much needed clarity to these questions, but has ducked them. This podcast with Mark Cannon QC and Hugh Evans, provides the answers.
In this podcast Nicole Sandells QC and Miles Harris take a practical look at how to fashion and pursue proprietary routes to recovery – and what to do when you can’t find one, including a look at the restitution and unjust enrichment wild card, rights to information and documentation beyond the CPR, and factoring in the particular issues when professional indemnity insurers seek recovery.
In this podcast Neil Hext QC and Matthew Bradley look at the latest state of play in relation to the Muller exception to the without prejudice rule. The Court of Appeal’s decision in Muller v. Linsley & Mortimer [1996] PNLR 74 seems well established, but the exception remains difficult to square with basic principle. The podcast will consider how WP privilege works in the three-party situation, and the impact of recent cases such as EMW Law LLP v. Halborg [2017] EWHC 1014 and Briggs v. Clay [2019] EWHC 102.
In this podcast Paul Parker provides an overview of the “StaRs”, the enforcement regime and their perceived flexibility, and examines the SRA’s reach into one’s private life and personal affairs.
In this podcast, Neil Hext QC and Daniel Saoul QC review the main procedural and substantive weapons available to parties seeking to recover assets in dishonesty claims, including practical examples from recent cases acting for both claimants and defendants.
In this podcast, Graeme McPherson QC, Daniel Saoul QC and Pippa Manby discuss the advantages and disadvantages of pleading fraud, how to prosecute and defend the various causes of action available, and issues arising in relation to insurance coverage where dishonesty is alleged.
Knowing when and how an insurer’s rights should be reserved is a key skill for anyone involved in handling insurance claims. Listen to this podcast to hear Alison Padfield QC’s thoughts on this controversial issue, together with an outline of the new legislation on damages for late payment of claims by insurers – and why she thinks the two topics might be linked.
With solicitor-client cost disputes on the rise, Paul Parker and Tom Asquith consider in this podcast how these are having an impact within the sphere of professional indemnity insurance, in particular advice on funding; applications for delivery of files; and coverage.
In this podcast David Halpern QC (who appeared for Mr Hughes-Holland) and Anthony Jones (who was part of BPE’s legal team) consider the effect of the Supreme Court decision in BPE v. Hughes-Holland and consider how it has been applied subsequently. The case raises issues which arise in almost every professional negligence claim.
In this podcast, newly appointed silks Siân Mirchandani QC and Daniel Saoul QC discuss their main practice areas, life at the bar and their journey to becoming Queen’s Counsel at 4 New Square – and what being a QC means to a career at the Bar.
In this podcast, junior barristers (and 2017/18 pupils) Hannah Daly and Ian McDonald discuss their journeys to the Commercial Bar, the pupillage experience, and life as a first-year tenant at 4 New Square – and what they have learnt along the way.
In this podcast, Seohyung Kim and Melody Ihuoma discuss their path to the bar, tips on securing pupillage and their experience of the pupillage year at 4 New Square.
In this podcast, barristers Helen Evans and Anthony Jones provide an insight into the realities of practice as juniors at a commercial set like 4 New Square, explain their different paths to the bar, and set out what they see as the key qualities required for successful pupillage applicants.
In this podcast, Miles Harris and Lizzy Stewart discuss 4 New Square’s process for recruiting pupils. Miles is head of the Pupillage Committee and Lizzy is 4 New Square’s Chief Executive and Senior Clerk. They both play a leading role in the pupillage process. In conversation they talk about what 4 New Square is looking for in prospective pupils, the criteria they apply when dealing with applications and the application process itself up to and including final interviews. They also deal with common concerns raised by people considering a career at the commercial bar generally.
In this podcast, Michael Bowmer discusses these elusive company law characters and some of the issues and implications around them.
In this podcast, Neil Hext QC and Miles Harris discuss the latest developments in the world of brokers’ claims, including analysis of the most recent cases - Avondale Exhibitions v Arthur J Gallagher, Dalamd v Butterworth Spengler and more.
In this podcast, Charles Phipps and Amanda Savage discuss whether legal professional privilege is a doctrine in retreat. They consider recent cases on the applicability of privilege in the regulatory context and the boundaries of litigation privilege.
In this podcast, Paul Mitchell QC explains the rules for allocating jurisdiction in professional liability cases before and after Brexit.
In this podcast, Jamie Smith QC, Helen Evans and Anthony Jones will consider recent decisions on duty of care and contributory negligence in Manchester Building Society v Grant Thornton (30 Jan 2019) and AssetCo v Grant Thornton (31 Jan 2019), and will also tackle other common thorny issues in accountancy claims (including claims against directors, net contribution clauses and exclusion clauses).
In 2017 the #metoo movement began to spread on social media. Although its meaning and ambit have evolved, it began as a means by which sexual harassment and assault in the workplace could and would be called out. Speakers: Ben Hubble QC and Clare Dixon.
In this podcast, Matthew Bradley will examine how the economic torts may be used to overcome arguments based on company insolvency and the corporate veil and go on to consider ongoing areas of uncertainty in this area of the law.
In this podcast, Ben Hubble QC and Charles Phipps discuss solicitors’ conflicts of interest - how to recognise them, how to avoid them and how to resolve them.