Benjamin Fowler

Commercial litigation is at the heart of Benjamin’s practice.   He deals with a wide range of commercial disputes across a variety of industry sectors addressing issues such as contractual disputes, negligence claims, breach of fiduciary and directors’ duty, breach of trust (including accessory liability), banking disputes, shareholder disputes, breach of confidence and misuse of private information.  He has experience of advising on jurisdictional matters and conflicts of laws, which in turn formed a significant part of his academic legal studies.

Benjamin also has experience of pre-action and interim applications including freezing injunctions and security for costs.

Recent instructions include:

• Overturning the striking out of a claim for want of prosecution on appeal (sole counsel in the High Court; Quaradeghini v Mishcon de Reya [2020] 4 WLR 34).
• A partnership dispute and derivative action arising out of the breakdown of a private equity and investment management partnership.
• Acting as sole counsel in a four-day TCC trial on causation and quantum concerning damages for repudiatory breach of contract (Redbourn Group Ltd v Fairgate Developments Ltd [2018] EWHC 658 (TCC).
• A multi-million pound partnership dispute and derivative action arising out of a falling-out between partners in an investment management LLP.
• A dispute between members of a joint venture concerning the law of guarantees, involving allegations of fraud and conspiracy.

Cases

Construction comprises a significant proportion of Benjamin’s practice, acting and advising for employers, contractors and sub-contractors in disputes in the High Court (in particular the Technology and Construction Court) and the County Court as well as adjudication and arbitration.  He has been instructed in relation to several high-profile construction and engineering projects in the UK, including cladding claims, motorways, nuclear-implicated and marine installations and commercial and residential property.

Benjamin has acted on claims for and against construction professionals, including architects, structural engineers, concrete suppliers and interior designers involving standard form and bespoke contracts.   He has experience of the major forms of construction and engineering contracts, including JCT and NEC3.   He has experience of litigation and arbitration where the underlying issues include mechanical and electrical engineering, civil and marine engineering, concrete, subsidence, traffic flow modelling, public procurement and nuclear safety and engineering.

Since commencing practice, and in addition to acting as a junior on high value disputes, a significant proportion of Benjamin’s construction practice has been as sole counsel.   He regularly acts for both employers and contractors and is comfortable appearing before any tribunal whether led or not.

Recent work includes:

• complex cladding claim in the TCC (acting for the architect in a major UK commercial/residential property development)
• adjudications including (most recently in 2020) a dispute between contractor and architect arising out of waterproofing at a swimming pool complex and a claim concerning defective installation of drylining
• acting as sole counsel in Redbourn Group Ltd v Fairgate Development Ltd [2018] EWHC 658 (TCC); [2017] EWHC 1223 (TCC)
• representing an architect in ARB disciplinary proceedings
• representing an architect in RIBA disciplinary proceedings
• sole counsel for an architectural practice in arbitration proceedings arising from the design and design coordination of a prestigious UK art gallery.
• a claim in the Jersey Royal Court concerning defective piling works

Cases

“Technically gifted both in writing and orally.” – Legal 500, 2020

Benjamin has experience in all aspects of professional liability and regularly advises and acts on behalf of both claimants and defendants in claims against lawyers, construction professionals (including architects and structural engineers), surveyors and valuers, insurance brokers, accountants and financial professionals.  In lawyers’ claims, Benjamin has experience of cases including conveyancing, lost litigation, underlying family proceedings, probate, mortgage lending, corporate transactions and tax advice.  Benjamin has also acted for defendant solicitors and planning consultants in a claim arising from a lost chance to obtain planning permission and appeal an enforcement notice and refusal of planning permission.

Recent work includes:

Holt v Holley & Steer – sole counsel in the Court of Appeal successfully striking out a claim against solicitors arising out of ancillary relief proceedings on limitation grounds following a second appeal: [2020] EWCA Civ 851.

Quaradeghini v Mischon de Reya (Ch Div, 2019) acting as sole counsel in a lost litigation claim arising from the Defendant’s handling of a claim brought against the Claimants by Banca Monte dei Paschi di Siena.  Successful on appeal in overturning the Deputy Master’s decision to strike out the claim for want of prosecution ([2020] 4 WLR 34).

Tomlinson v TW Solicitors (QB, 2018) as sole counsel, successfully defeating a claim against solicitors following a three-day trial in the Queen’s Bench Division.

Muduroglu v Stephenson Harwood (A Firm) [2017] EWHC 29 (Ch) as junior to David Turner QC, striking out claims against solicitors arising out of their handling of share sale agreements and warranties and complex loan transactions and trust arrangements.

Led by Ben Elkington QC in a claim against two firms of solicitors relating to rights of light provisions in leases forming part of a hotel and commercial property development.

Cases

Benjamin has extensive experience of arbitration, in particular large-scale construction arbitration.   Benjamin acted (led by Roger Stewart QC and Anneliese Day QC) on behalf of contractors in a complex arbitration claim worth in excess of £100 million relating to a nuclear installation.  He is currently acting as sole counsel in the preliminary stages of an arbitration between employer and architect arising from a prestigious art gallery development.

Benjamin is a member of IBA and YIAG.

Cases

Benjamin has a busy practice in costs work.   He has been instructed on a variety of costs matters, which include the following:

• Led by Nicholas Bacon QC in the Supreme Court on a successful application relating to CFA enforceability on appeal from the Court of Appeal of Northern Ireland (Denise Brewster v NILGOSC [2017] UKSC 8).
• Detailed and provisional assessment proceedings in the SCCO and County Court, often on preliminary issues including:
  • Applicability of the EL/PL Protocol to contractual claims and the definition of “clinical negligence” for the purpose of exclusion from the Protocol
  • Enforceability issues arising from the assignment of CFAs
  • Acting on behalf of a successful claimant appealing a provisional assessment of an ATE premium which was subsequently held to be wholly recoverable
  • An appeal of a decision on the recoverability of an ATE premium
• Solicitor-client assessments under s. 71 Solicitors Act 1974, including:
  • applications for permission to commence detailed assessment proceedings outside the 1-month period and “special circumstances” cases;
  • acting in detailed assessment proceedings;
  • applications for delivery of files and enforceability of liens; and
  • advising on strategy and issues such as costs of assessments, liens, and interest.

• Setting aside of default costs certificates and applications for relief from sanctions following late service of Points of Dispute.
• Advising on Part 36 formalities including the date of acceptance following the settlement of an extensive group action.
• Advising on the application of QOCS in claims with an element of personal injury.

Benjamin has extensive experience of dealing with costs management in both the County Court and High Court.

Benjamin’s commercial and property practice regularly involves consideration of issues of a chancery nature such as breach of directors’ duties, breach of fiduciary duties, breach of trust and proprietary remedies.    Benjamin has significant experience of trusts of land, including claims under the Trusts of Land and Trustees Act 1996.

Benjamin has experience of and has given talks on issues of will preparation, probate and administration in a professional liability context, including claims from disappointed beneficiaries.

Benjamin regularly advises and acts for high street banks and other lenders in various aspects of mortgage law, appearing in the Court of Appeal, High Court and County Court.  Benjamin regularly deals with complex possession matters and rectification (including subrogation claims and vesting orders).   Recent work includes:

• Sole counsel in the Court of Appeal resisting an application for permission to appeal a decision of the High Court refusing a stay of execution of a warrant for possession on human rights grounds.
• Sole Counsel in the High Court resisting various applications for interim injunctions and stays of execution brought by tenants and mortgagors.
• Obtaining a High Court Freezing Injunction relation to a claim to enforce a loan agreement and promise to secure the loan by way of a second charge
• Acting as Sole Counsel in a successful common intention constructive trust claim relating to residential property following a five-day trial which was reported in the national press.
• Acting in a subrogation claim in the Lands Tribunal arising out of a mortgage fraud.
• Successfully representing a lender appealing an enforcement notice over a series of flats built without planning permission in a two-day planning inquiry.  The appeal was brought on the basis that the notice was brought after a period of four years of continuous use in breach of planning permission.  It also required consideration of the test for positive deception under the Welwyn principle.

Cases

Benjamin acts for and advises private individuals, corporate bodies and insolvency practitioners on bankruptcy and corporate insolvency.   His recent work includes disputed bankruptcy petitions and advising a trustee in bankruptcy on costs recovery.

Benjamin was sole counsel in Access Flooring Services (Special Works) Limited v Pither & Or [2019] EWHC 1243 (Ch), an application under ss. 212, 238 and 239 of the Insolvency Act 1986.

Successfully resisting winding-up petitions brought against an LLP and limited company in the context of a derivative claim brought by a partner/director.

In line with Chambers’ expertise, Benjamin’s practice encompasses insurance work, particularly in the context of professional indemnity insurance.   He has experience of a wide range of coverage issues and often advises on matters of policy construction.   Recent work includes

• a claim against insurers and insurance brokers raising issues of policy interpretation, dual insurance and rectification.
• a subrogated claim brought against a security company following a theft of clothing stock from a warehouse facility.
• a claim for damages for repudiatory breach of contract arising from insurers’ refusal to indemnify following a series of thefts.   Concerned the insurers rights to avoid the policy and the distinction between different policy years.

Benjamin has experience of property damage claims, particularly in the context of insurance.

He has dealt with claims arising from flood, fire, and subsidence (including tree root removal).   Recent matters include:

• Acting for a claimant seeking damages for subsidence and cracking caused by the structural engineer’s failure to consider and advise on tree root removal and appropriate mitigation.
• Acting for a commercial tenant in a claim for damage and business interruption brought against a neighbouring tenant for extensive water damage caused to their property and stock.
• Business

Cases

Benjamin acted for a leading international manufacturer of engineered metal components, in a claim against a manufacturer of plant which exploded in their premises causing extensive damage.    He acted for a distributer of dehumidifier units alleged to have caused fire damage in a claim under the Consumer Protection Act 1987.   He has recently acted and advised in claims concerning biodigestive heaters (under the renewable heat incentive scheme) and defective boilers.

Benjamin accepts instructions in relation to Regulatory and Disciplinary matters.    His experience of these – in particular, solicitors’ disciplinary matters – has mostly arisen in the context of claims against professionals, but he is developing a practice in Regulatory and Disciplinary work as well.   He has recently given talks and written articles on the role of dishonesty and lack of integrity following the decisions in Ivey and Wingate.