Ben Smiley has a broad commercial practice, with a particular focus on international disputes, insurance, financial services, arbitration, disciplinary proceedings, professional liability work, insolvency, costs and sport.

He advises on, and appears regularly in, trials, appeals, applications and interlocutory hearings in domestic and international courts and tribunals, as sole or junior counsel.

More detail in respect of the areas in which Ben accepts instructions can be found below.

Ben is named a “Leading Junior” in Chambers & Partners 2017 and 2018, and Legal 500. He is described as:

  • “An emotionally intelligent advocate who can adapt his style when necessary.”
  • “He has a particularly impressive ability to quickly digest the details of even the most complex cases. He is also a formidable advocate in court and has achieved some remarkable victories.” “He’s very clever, very affable, turns things around quickly and efficiently, and always thinks things through.”
  • “A really reliable and very capable junior barrister.”
  • “He provides clear, practical advice that goes to the root of the matter and is targeted to meet the aims of the client.”
  • “A good advocate, and a rising star.”
  • “An impressive junior with strong analytical skills.”
  • “flexible in his methods and modern in his approach.”
  • “incredibly charming, hands-on and [someone who] always responds.”
  • “An up-and-coming star, who has a keen mind and an engaging approach.”
  • “Always first-rate. Very slick, personable and hard working. He beats deadlines and is ahead of the game.”

Ben has undertaken secondments at international law firms and the Financial Services Authority (now the Financial Conduct Authority), working on international commercial cases, insurance matters, financial services regulation, professional liability work and sports disputes.

Just as comfortable providing advice as making submissions, and equally adept at written work as in court or conference, Ben has a keen understanding of the needs and objectives of solicitors, insurers and lay clients. He is happy to accept instructions in matters which cross the spectrum of Chambers’ work.

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Areas of Expertise

Commercial Dispute Resolution

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Ben’s practice involves a wide range of commercial disputes in the United Kingdom and abroad, including the Middle East and Central Asia. He has worked on substantial claims involving:

  • Banking and finance
  • Insurance
  • Utilities
  • Mining
  • Shipping
  • Aviation
  • The sale of goods
  • Company law
  • The law of assignment
  • Spread-betting

A few of the particular cases in which Ben has acted are as follows:

Cases

Bahraini bank

$1.5bn claim in the Bahrain Chamber of Dispute Resolution concerning an insolvent bank.

Bahraini bank

$1.5bn claim in the Bahrain Chamber of Dispute Resolution concerning an insolvent bank.

Acting for a mining company

$10m dispute between a mining company and the Uzbek Ministry of Finance

Acting for a mining company

$10m dispute between a mining company and the Uzbek Ministry of Finance

Telecomms dispute

Telecommunications dispute in the Middle East, concerning both contractual and statutory obligations

Telecomms dispute

Telecommunications dispute in the Middle East, concerning both contractual and statutory obligations

UK shopping centres

£12m dispute concerning the financial management of several shopping centres

UK shopping centres

£12m dispute concerning the financial management of several shopping centres

Business transfer agreement

Claim concerning the enforcement of a business transfer agreement and the related sale of several properties

Business transfer agreement

Claim concerning the enforcement of a business transfer agreement and the related sale of several properties

UK petrol stations

Claim concerning purchase of a number of petrol stations and connected businesses

UK petrol stations

Claim concerning purchase of a number of petrol stations and connected businesses

Nigerian leasing arrangement

Dispute in respect of a proposed commercial leasing arrangement and the enforcement of security in Nigeria

Nigerian leasing arrangement

Dispute in respect of a proposed commercial leasing arrangement and the enforcement of security in Nigeria

Insolvent LLP

£42m dispute concerning the management and insolvency of a limited liability partnership

Insolvent LLP

£42m dispute concerning the management and insolvency of a limited liability partnership

Share dispute

Substantial claim for the enforced sale and valuation of shares in a joint venture company

Share dispute

Substantial claim for the enforced sale and valuation of shares in a joint venture company

Insurance & Reinsurance

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“He provides clear, practical advice that goes to the root of the matter and is targeted to meet the aims of the client.” – Legal 500, 2020

Ben’s practice has a particular emphasis on all insurance-related matters, acting for and against insurers. He has experience of both litigation and arbitration, in claims (and potential claims) involving:

  • The potential impact of regulatory action on insurance coverage
  • Material misrepresentation and non-disclosure
  • Notification of claims and/or circumstances
  • Aggregation issues
  • Reinsurance and retrocession
  • The construction of policy wording

Professional Liability

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“A really reliable and very capable junior barrister.” – Legal 500, 2020

“He has a particularly impressive ability to quickly digest the details of even the most complex cases. He is also a formidable advocate in court and has achieved some remarkable victories.” “He’s very clever, very affable, turns things around quickly and efficiently, and always thinks things through.”Chambers & Partners, 2020

“He has incredible attention to detail but is also flexible.” – Legal 500, 2019

Ranked as a leading junior by Legal 500, Ben’s practice takes in the whole gamut of professional liability work. He has particular experience of acting in claims involving the liability of:

  • Accountants and auditors
  • Construction professionals
  • Financial advisors
  • Accountants, auditors, insolvency practitioners, administrators and liquidators
  • Insurance brokers
  • Lawyers (including both solicitors and barristers)
  • Surveyors and valuers

For further details, see the links in respect of individual professions.

Financial Services Professionals

Ben has advised and acted in respect of many claims against financial services professionals, including:

  • Financial advisors
  • Tax advisors
  • Insurers and insurance brokers
  • Mortgage brokers and lenders
  • Firms involved in administering and promoting investments

Having undertaken a secondment at the Financial Services Authority (now the Financial Conduct Authority), Ben has detailed knowledge of relevant regulatory law and practice.

Accountants, Auditors & Actuaries

Ben co-edits the chapter on accountants in Jackson & Powell (8th Ed).

Ben has acted in several claims against accountants, auditors and insolvency practitioners.  He has particular experience in respect of:

  • Failure to note and warn of fraud
  • Deficiencies in company accounts and tax returns
  • Tax mitigation advice
  • Claims under paragraphs 74 & 75 of the Insolvency Act 1986
  • Remuneration of administrators and liquidators

A selection of Ben’s recent cases is set out below.

Cases

Re Coniston Hotel (Kent) LLP (in liquidation)

A long-running claim against the joint administrators of an LLP.  Ben (led by Justin Fenwick QC) acted for the joint ad...

Re Coniston Hotel (Kent) LLP (in liquidation)

A long-running claim against the joint administrators of an LLP.  Ben (led by Justin Fenwick QC) acted for the joint administrators.  The claim was struck out and summarily dismissed by Norris J and Morgan J.  The Court of Appeal dismissed the appeals, and the Supreme Court refused permission to appeal.

Claim in respect of tax advice

Defending a claim by a group of corporate and non-corporate entities and their members against a “Big Four”...

Claim in respect of tax advice

Defending a claim by a group of corporate and non-corporate entities and their members against a “Big Four” accountancy firm for negligent tax advice, in respect of the structuring of the entities and the tax relief that might have been obtained.

Claim against auditors

Acting for auditors in an arbitration arising from a failure to identify alleged fraud by the company’s management...

Claim against auditors

Acting for auditors in an arbitration arising from a failure to identify alleged fraud by the company’s management.  Losses of approximately US$100m were claimed.

Claim in respect of tax advice

Acting for a firm of accountants and tax advisers in respect of an alleged failure to obtain tax relief on the sale of a...

Claim in respect of tax advice

Acting for a firm of accountants and tax advisers in respect of an alleged failure to obtain tax relief on the sale of a property.

Acting for auditor

Defending a claim by a school and borough council in respect of allegedly negligent failures by the firm of auditors to...

Acting for auditor

Defending a claim by a school and borough council in respect of allegedly negligent failures by the firm of auditors to uncover fraudulent practices by school staff.

Construction Professionals

Ben is experienced in acting for and against construction professionals of various types, including architects, structural engineers and contractors.

Insurance Brokers & Agents

Ben is experienced in bringing and defending claims against insurance brokers, which draws on his knowledge of both general insurance work and regulatory requirements.  He has particular experience in respect of claims relating to:

  • The notification of circumstances to insurers
  • Material non-disclosure by insureds
  • Negligent placing of insurance
Lawyers

Ben has acted in numerous claims against both solicitors and barristers.  He has particular experience in respect of:

  • Lost litigation
  • Negligent settlement
  • Claims by lenders and clients relating to conveyancing
  • The drafting and execution of wills
  • Use and misuse of client funds
  • Successfully bringing and defending wasted costs applications
  • Advice in respect of business transactions and commercial agreements
  • Family law disputes
  • Lawyers acting as trustees

Cases

Geraint Thomas v Ian Albutt

Ben (led by Ben Elkington QC) successfully defended  a substantial claim against a barrister for allegedly negligent a...

[2015] EWHC 2187 (Ch); LTL 31/7/2015
[2015] EWHC 2187 (Ch); LTL 31/7/2015
Geraint Thomas v Ian Albutt

Ben (led by Ben Elkington QC) successfully defended  a substantial claim against a barrister for allegedly negligent advice and conduct in respect of a planning dispute.

Claim against solicitors

Acting for the claimant former provisional liquidators against their solicitors in a c.£2m claim for inadequate advice...

Claim against solicitors

Acting for the claimant former provisional liquidators against their solicitors in a c.£2m claim for inadequate advice and conducting themselves in an inappropriate manner.

Surveyors & Valuers

Ben has particular experience of acting and advising in disputes concerning surveys and/or valuations, including in respect of alleged overvaluations of several million pounds.

Sports Law

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“An emotionally intelligent advocate who can adapt his style when necessary.” – Legal 500, 2020

Ben enjoys advising and advocating in respect of sports disputes.  He acts for governing bodies, clubs and players/athletes.  His experience includes the whole range of sports issues:

  • Advising on and drafting rules and codes
  • Advising and acting for athletes and sports bodies in selection disputes
  • Claims involving doping and other breaches of disciplinary rules
  • Assisting with commercial disputes connected to the world of sport

Ben accepts sports instructions on a Public Access basis, in appropriate cases.

Examples of cases that Ben has worked on are set out below.

Cases

Selection dispute

Successfully representing an athlete in a Commonwealth Games selection appeal

Selection dispute

Successfully representing an athlete in a Commonwealth Games selection appeal

Disciplinary issue

Assisting Richard Liddell in several cases involving the British Horseracing Authority

Disciplinary issue

Assisting Richard Liddell in several cases involving the British Horseracing Authority

Commercial dispute

Providing advice in relation to a claim against a Championship football club regarding player contracts   ...

Commercial dispute

Providing advice in relation to a claim against a Championship football club regarding player contracts

 

Commercial dispute

Assisting in relation to a claim against an Indian Premier League cricket club regarding contractual payments   ...

Commercial dispute

Assisting in relation to a claim against an Indian Premier League cricket club regarding contractual payments

 

Rules

Drafting arbitration rules for a sports body

Rules

Drafting arbitration rules for a sports body

Doping charges

Assisting with the defence of a darts player in respect of doping charges relating to recreational drugs   ...

Doping charges

Assisting with the defence of a darts player in respect of doping charges relating to recreational drugs

 

Commercial dispute

Acting for a football club in defending a claim based on an uncommercial agreement entered into by the club’s prev...

Commercial dispute

Acting for a football club in defending a claim based on an uncommercial agreement entered into by the club’s previous owner

Doping charges

Acting for a rugby player in respect of doping charges relating to a steroid

Doping charges

Acting for a rugby player in respect of doping charges relating to a steroid

Selection dispute

Advising a sports body in respect of a selection issue arising in preparation for the Tokyo Olympics

Selection dispute

Advising a sports body in respect of a selection issue arising in preparation for the Tokyo Olympics

Selection dispute

Successfully representing a governing body in resisting the appeal of a selection decision for the Gold Coast 2018 Commo...

Selection dispute

Successfully representing a governing body in resisting the appeal of a selection decision for the Gold Coast 2018 Commonwealth Games

Selection dispute

Acting for and advising a governing body regarding issues arising from an intimate relationship between a coach and an a...

Selection dispute

Acting for and advising a governing body regarding issues arising from an intimate relationship between a coach and an athlete, in connection with selection for the Gold Coast 2018 Commonwealth Games

Costs

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“A good advocate, and a rising star.” – Legal 500, 2020

Ben’s practice includes consideration of a wide range of issues concerning costs.  He is ranked as a “Leading junior” in the Legal 500 2019 in respect of costs.

He has acted or advised in respect of assessments, applications and appeals concerning a range of topics including the following:

  • The impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”)
  • Costs management orders
  • The construction and enforceability of CFAs
  • The recovery of costs under s.51 of the Senior Courts Act 1981
  • The determination of costs against a publicly funded individual and the Legal Services Commission
  • The award and assessment of costs in respect of interim applications and trials
  • Solicitor-client disputes concerning costs

See a selection of particularly notable cases below.

Cases

RBS Action Group Ltd v Signature Litigation LLP

Ben was led by Nicholas Bacon QC in a complex dispute between a company and its former solicitors in respect of various ...

RBS Action Group Ltd v Signature Litigation LLP

Ben was led by Nicholas Bacon QC in a complex dispute between a company and its former solicitors in respect of various issues arising from substantial litigation. The case concerned fundamental points relating to existence enforceability and terms of conditional fee arrangements.

Re Angel House Development Ltd

Led by Justin Fenwick QC, Ben is acting for the successful co-defendant to a claim in seeking to obtain a non-party cost...

Re Angel House Development Ltd

Led by Justin Fenwick QC, Ben is acting for the successful co-defendant to a claim in seeking to obtain a non-party costs order against the claimant’s commercial funder. The case is of interest as it concerns a challenge to the “Arkin cap“.

Complex wasted and non party costs order claim

Led by Ben Elkington QC and Nicholas Bacon QC, Ben acted for the defendant solicitors to a claim for a wasted costs orde...

Complex wasted and non party costs order claim

Led by Ben Elkington QC and Nicholas Bacon QC, Ben acted for the defendant solicitors to a claim for a wasted costs order and/or a non-party costs order and/or damages arising from the allegedly misrepresenting the extent of ATE insurance cover in place for test claimants in large scale group litigation.

Wasughe v Sullivan

A detailed assessment involving interesting issues regarding the recoverability of costs prior to a claim, and in partic...

Wasughe v Sullivan

A detailed assessment involving interesting issues regarding the recoverability of costs prior to a claim, and in particular whether the claimant receiving party had acted reasonably when it had been communicating with the wrong party and had not complied with the practice direction or pre-action protocol.

Eager v TC Cleaning

Ben successfully represented the appellant in respect of an application to dismiss a Pt 8 costs claims on grounds of pre...

Eager v TC Cleaning

Ben successfully represented the appellant in respect of an application to dismiss a Pt 8 costs claims on grounds of prematurity. The first instance decision, refusing to dismiss the claim, was overturned.

Solicitor-client assessment

Ben represents solicitors and clients in respect of such assessments. On this occasion, he acted for the firm, and succe...

Solicitor-client assessment

Ben represents solicitors and clients in respect of such assessments. On this occasion, he acted for the firm, and successfully argued that the invoices raised were “statute bills”, such that a substantial part of the claim was out of time.

Late acceptance of Pt 36 offer by defendent

Ben has acted in several cases concerning the proper treatment of late acceptance of a Pt 36 offer by a defendant, follo...

Late acceptance of Pt 36 offer by defendent

Ben has acted in several cases concerning the proper treatment of late acceptance of a Pt 36 offer by a defendant, following the confusion at County Court level arising from Sutherland v Khan. Ben has acted on both sides of the argument, and successfully persuaded the court (on different occasions) that Sutherland v Khan was rightly and wrongly decided.

Financial Services Regulation

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Ben has a strong interest in financial services work.

Having undertaken a secondment at the Financial Services Authority (now the Financial Conduct Authority), Ben has detailed knowledge of relevant regulatory law and practice.

He has advised on a wide range of issues involving financial service regulation, including:

  • Whether a firm was providing insurance for the purposes of the FCA
  • The impact of redress schemes on firms’ professional indemnity policies
  • What constitutes carrying on insurance business in the UK

See further his experience below in respect of claims against financial services professionals.

Disciplinary

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Ben enjoys disciplinary and regulatory work.  His experience includes appearing before the Taxation Disciplinary Board, as Presenter for the Chartered Institute of Taxation and the Association of Taxation Technicians, as well as advising on disciplinary matters involving barristers and solicitors.

International Arbitration

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Ben accepts instructions in any domestic or international commercial disputes which are being determined by way of arbitration. His experience includes advising or assisting in respect of:

  • Arbitrations under the LCIA and other rules
  • The meaning and effect of the Arbitration Act 1996
  • The drafting of arbitration rules

For relevant experience, please also Commercial Dispute Resolution below.

Chancery

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Ben has acted in numerous chancery matters, involving the law of: real property, mortgages, trusts, companies and insolvency.  He has particular experience of:

  • Claims against insolvency practitioners and administrators
  • Disputes relating to the duties of trustees
  • Claims for possession and/or other relief by mortgagees and landlords

Qualifications & Memberships

As an undergraduate, Ben read Politics, Philosophy and Economics at Oxford, obtaining a First Class degree. He went on to receive his legal training at City University, achieving a Distinction in his GDL and being graded Very Competent in his BVC. A member of Middle Temple, Ben was awarded a Diplock Scholarship by that Inn.

Education – M.A. (Oxon), Dip. Law (City).

Languages – French (basic), Russian (very basic)

Memberships – COMBAR, PNBA, LCLCBA, ARDL

Publications

VAT registration number: 125311947