Simon Kerry

Areas of expertise

• Commercial dispute resolution
  • Commercial litigation

    Commercial litigation

    Simon acts in a wide range of commercial disputes, covering contractual issues, liability in tort, restitution, insurance, and commercial fraud.

    From his experience at PwC, Simon understands the needs of clients and the importance of adopting a commercial approach when dealing with the issues they face. His experience as a chartered accountant means he also has a strong ability to quickly grasp business accounts, management and financial information, and understand its impact on the issues in dispute.

    Recent and on-going cases include:

    • Assisting Nigel Jones KC in the defence to a claim brought by SKAT, the arm of the Danish Government dealing with tax, to recover over £2 billion alleged to have been paid out pursuant to a fraudulent dividend withholding tax conspiracy.
    •  Acting as sole counsel in proceedings brought by victims of an international investment fraud.
    • Acting as sole counsel for a corporate group investigating unauthorised payments to a former director.
    • Acting for a professional motorbike racer and racing team in a dispute over sponsorship payments and ownership of team assets.
    • Advising in respect of a multi-year maintenance services agreement entered into with a local authority, in particular the operation of provisions measuring performance of the relevant circumstances against defined Key Performance Indicators (KPIs).
    • Assisting Nigel Jones KC and Aileen McErlean in a major commercial fraud dispute, including issues arising in an international arbitration, under the Consumer Credit Act 1974, and limitation.
    • Acting for an Independent Financial Advisor in a breach of contract case concerning delay in delivery of promised computer software and website services.
    • Acting for an insurance company in a dispute concerning ownership of IP rights in software developed by a third party supplier.
  • Employment & executive disputes

    Employment & executive disputes

    Simon’s time at PwC was spent advising on executive remuneration, with a particular interest in share plans. He therefore has experience dealing with the issues and documentation that accompany performance-related incentive schemes, and the contractual and employment law issues that can arise.

    Simon specialised in the tax treatment of share incentive arrangements and tax-advantaged share schemes such as SIPs, CSOPs, SAYE/’Sharesave’ and EMI options. He has a detailed knowledge of the legislation and rules that accompany these plans.

    Recent instructions include assisting in advising as to treatment of a ‘bad leaver’ under the terms of an LLP agreement, and problems concerning the exercise of contractual discretion as part of an individual’s performance-related bonus arrangements.

  • Banking & finance

    Banking & finance

    Simon has extensive experience in banking and financial matters, both in his practice at the bar and through his time working in PwC’s specialist Financial Services Reward team. His background in accountancy gives him a strong grasp of the issues that arise in complex financial disputes.

    Simon has a particular interest in disputes involving national and international tax issues. Recent work in this area includes:

    • Assisting Nigel Jones KC in the defence to a claim brought by SKAT, the arm of the Danish Government dealing with tax, to recover over £2 billion alleged to have been paid out pursuant to a fraudulent dividend withholding tax conspiracy. The claim is one of the largest in the history of the English commercial court, and has already generated a number of significant reported decisions.
    • Assisting Nigel Jones KC and Sarah McCann in claims arising from the liquidation of Enterprise Insurance, working specifically on issues relating to the Icebreaker tax avoidance scheme and the associated litigation before the tax tribunal.

    Simon frequently acts for financial institutions in consumer and B2B disputes, dealing with issues under the Consumer Credit Act 1974, contractual provisions and enforcement (including mortgage possession).

• Construction & engineering
  • Adjudication

    Adjudication

    Simon regularly accepts instructions to act in high value and complex adjudications, as well as matters instructed through Gatehouse Chambers’ Fixed Fee Adjudication scheme. He has experience acting for both referring and responding parties.

    Recent instructions include:

    • Responding Party – Acting as sole counsel in a c.£2.5m adjudication brought against a quantity surveyor, alleging negligence in the preparation of a cost estimate of construction works and tender pricing documentation.
    • Responding Party – Acting as sole counsel in relation to an extension of time claim arising on a c. £4m private residential construction project.
    • Responding Party – Acting as sole counsel in a subsequent adjudication in the same dispute, alleging numerous variations and seeking additional payments.
    • Responding Party – Acting as sole counsel in a ‘smash and grab’ adjudication where neither party had strictly adhered to the payment/pay less notice regimes set out in the contract.
    • Referring Party – Acting as sole counsel in a final account adjudication including claims for variations and prolongation costs.
    • Responding Party – Acting as sole counsel in a valuation dispute arising from a major external wall insulation project, where both parties had relied heavily on oral instructions and there was a consequent lack of written records.
    • Referring Party – Acting as sole counsel in a breach of contract claim by a property developer against a major lift manufacturer alleging that the lifts supplied did not meet the contractual specification.
  • Construction & engineering

    Construction & engineering

    Simon is part of Gatehouse Chambers’ market-leading construction team. He is a ranked construction junior in Chambers & Partners and regularly acts in multi-million pound disputes in his own right, as well as being led in major national and international disputes by senior members of chambers.

    He has extensive experience of dealing with issues arising under JCT and other standard form contacts (including payment provisions), professional negligence and breach of warranty claims.

    Recent cases include:

    • Acting as sole counsel in a c.£6.5m claim against engineers arising in relation to a significant petroleum spill when carrying out piling works.
    • Acting as sole counsel in a claim against architects for defective design and/or supervision and inspection in the construction of the roof to a multi-million pound property.
    • Acting as sole counsel in a c.£2.5m adjudication brought against a quantity surveyor, alleging negligence in the preparation of a cost estimate of construction works and tender pricing documentation.
    • Acting for a major External Wall Insulation (EWI) subcontractor in a c. £3m TCC dispute, including drafting pleadings and appearing at the CMC.
    • Acting as a junior to David Pliener KC in a c. £3m dispute over the supply of concrete in the course of motorway construction works.
    • Assisting a Jersey-based advocate with ongoing litigation regarding defects in the construction of a c. £12m home, including water ingress and inadequate drainage.

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    Cladding and fire safety

    Simon has particular experience of disputes relating to cladding, fire stopping and other fire safety issuing following the Grenfell Tower disaster in 2017. Simon has acted for both claimants and defendants and has dealt with all relevant issues including the requirements of the Building Regulations, Approved Document B, and the Defective Premises Act 1972. He has extensive experience of the reforms introduced by the Building Safety Act 2022 and has numerous ongoing instructions relating to the implications of this important legislation.

    Recent instructions include:

    • Acting as junior to Paul Reed KC defending a c.£40m claim brought against a timber framed building manufacturer alleging inadequate design and construction of fire stopping elements. Simon has been extensively involved in all aspects of the case, including drafting the Defence and liaising with expert witnesses in relation to the numerous technical issues.
    • Acting as sole counsel for leasehold owners pursuing a developer and contractor for fire safety defects in the construction of an apartment building.
    • Advising a liquidator in relation to a c. £7m proof of debt submitted by a building owner in the liquidation of an insolvent construction contractor.
    • Advising on settlement in relation to a dispute concerning cladding remedial works, including funding issues arising under an agreement between the building owner and the GLA.
    • Advising in relation to insurance coverage issues in respect of alleged defects in cladding and fire stopping.
    • Drafting Adjudication documents seeking damages against a building contractor in respect of unsafe and combustible cladding.
  • Property damage

    Property damage

    Simon has experience of cases raising issues of property damage, and all associated construction, engineering and insurance issues.

    Recent instructions include:

    • Acting as sole counsel in a c.£6.5m claim against engineers alleging damage to a petroleum pipeline in the course of carrying out piling works.
    • Acting as sole counsel in a dispute concerning water ingress at a multi-million pound new build home, arising from defective design and construction of the roof.
    • Acting as sole counsel for a construction contractor in a dispute over whether works were defective, where the principal issue was whether water damage to internal surfaces was caused by rainwater penetration or internal condensation.
    • Acting as junior counsel to Paul Reed KC in the case of RFU v Clark Smith Partnership and FM Conway Limited, a case concerning damage to underground cables caused by water ingress. Simon acted for the RFU in the TCC and the Court of Appeal, and the Court of Appeal’s judgment is now one of the leading authorities on the coinsurance defence.
    • Acting as junior counsel to Paul Reed KC in a water damage case concerning burst pipework, where a construction contractor was alleged to have been negligent.
    • Acting for the defendants to a potential claim alleging work in one flat caused damage to other flats in the same building. The allegations raised issues of duty of care and complex structure theory.

     

• Professional indemnity insurance

  Professional indemnity insurance

  Simon’s insurance experience has also involved him in professional indemnity claims.

  Recent instructions include:

  • Acting for insurers of conveyancing solicitors, responding to a potential claim alleging negligence in respect of ground rent escalation provisions.
  • Drafting particulars of claim on behalf of professional indemnity insurers in a claim by their insured for unpaid invoices. The defence and counterclaim alleged professional negligence against the insured professional accountant.
• Insurance coverage

  Insurance coverage

  Simon regularly acts in insurance matters, including coverage disputes and professional negligence claims. He has appeared in the TCC and the Court of Appeal in relation to complex insurance issues, including the coinsurance defence and the scope of cover under a Construction All Risks (CAR) insurance policy.

  Recent instructions include:

  • Acting as junior counsel to Paul Reed KC in the case of RFU v Clark Smith Partnership and FM Conway Limited, including appearing in the TCC and the Court of Appeal. The case is now one of the leading authorities on the coinsurance defence.
  • Assisting Nigel Jones KC and Sarah McCann in relation to insurance coverage points arising from the liquidation of Enterprise Insurance Company.
  • Represented a major health insurance provider at the trial of a claim brought by a customer. Successfully argued that the policy had ended prior to the relevant treatments being carried out, and accordingly that the insurer had no liability in respect of them.
  • Drafting a letter of response to a claim brought against an insured construction contractor, alleging negligence in carrying out work in a flat leading to damage to the building and other flats within it.
  • Drafted the defence in an insurance coverage dispute, arguing that the healthcare treatments for which the claimant sought coverage did not fall within the definitions set out in the policy.
• Professional negligence

  Professional negligence

  Simon regularly acts in professional negligence disputes in a wide range of circumstances, both in construction and non-construction related cases. His background as a fully qualified chartered accountant gives him particular insight in cases alleging negligence against finance professionals, and enables him to quickly grasp the technical details of negligence claims against solicitors, engineers, architects and others.

  Recent and on-going cases include:

  • Acting as sole counsel in a c.£6.5m claim against engineers alleging negligence in causing a significant petroleum spill when carrying out piling works.
  • Advising in relation to a c. £1.5m claim brought against solicitors alleging negligent drafting of a contract (liquidated damages provision).
  • Acting as sole counsel in a claim against architects for defective design and/or supervision and inspection in the construction of the roof to a multi-million pound property.
  • Acting as sole counsel in a c.£2.5m adjudication brought against a quantity surveyor, alleging negligence in the preparation of a cost estimate of construction works and tender pricing documentation.
  • Acting as sole counsel in an arbitration brought by accountants in relation to unpaid fees, including marshalling the clients’ counterclaim alleging negligence.
  • Acting for insurers of conveyancing solicitors, responding to a potential claim alleging negligence in respect of ground rent escalation provisions.
• Insolvency & restructuring
  • Corporate insolvency

    Corporate insolvency

    Simon regularly appears in corporate insolvency matters, dealing with winding up petitions and applications in insolvency proceedings, including injunctions to restrain a petitioning creditor from presenting a petition.

    Simon has also acted pro-bono for companies needing advice and assistance in winding up petitions via the Company Insolvency (CO.IN) scheme run by City Law School. Issues he has dealt with include the need to apply for a validation order, the impact of a winding up order against the top company in a group, and the steps needed following adjournment of a petition to minimise the chance of the company being wound up at a subsequent hearing.

    Recent cases include:

    • Assisting Nigel Jones KC and Sarah McCann in relation to the insolvency of Enterprise Insurance Company.
    • Acting for the respondent to an application for an injunction restraining winding up proceedings.
    • Assisting Sarah Clarke in the preparation of a claim by an insolvent company against delinquent directors. The directors had entered into a potentially fraudulent transaction with a Dubai entity, which had taken over liabilities of over £1m owed by the directors to the insolvent company.
    • Instructed on behalf of shareholders petitioning to wind up their company on just and equitable grounds, on the basis of deadlock with their fellow shareholders.
    • Assisting Sri Carmichael in a claim by a company in liquidation against a de facto director for breach of duty and misappropriation of company funds.
  • Personal insolvency

    Personal insolvency

    Simon has extensive experience of bankruptcy proceedings, and frequently represents debtors, petitioners and trustees in all manner of bankruptcy hearings.

    Recent cases include:

    • Acting for the trustee in bankruptcy in an application for a possession and sale order in respect of the bankrupt’s home. The matter was complicated by the bankrupt’s claim that his interest was reduced by an order made in family proceedings, and the bankrupt’s refusal to cooperate or provide documentation to the trustee.
    • Acting for the trustee in an application for a possession and sale order, in circumstances where the bankrupt was facing a serious family emergency.
    • Acting on numerous occasions for a bankrupt seeking an adjournment of a bankruptcy petition on the basis of previous payments made.
  • Construction insolvency

    Construction insolvency

    Simon frequently acts and advises in matters involving combined issues of insolvency and construction law. He has acted both in the TCC and in the Companies Court in construction cases involving insolvent parties, and has represented insolvency practitioners dealing with construction disputes. He has particular experience of dealing with construction adjudication and the problems around enforcement of an adjudicator’s decisions against the background of insolvency.

    Simon was a contributor to Sarah McCann’s leading text on Construction Insolvency.

    Recent instructions include:

    • Marpaul Southern Ltd v Betteshanger Sustainable Park Ltd [2022] EWHC 1515 (Ch) – An appeal against a liquidator’s rejection of a proof of debt submitted by a construction company for works of a value of c. £1m.
    • Acting for a plastering and finishing subcontractor resisting an injunction restraining winding up proceedings against a major residential property developer, and in subsequent litigation between the same parties.
    • Advising on the effect of clauses in a bespoke construction contract designed to operate in the event of contractor insolvency, and in particular whether they offended the anti-deprivation principle.