Joshua Folkard has a broad commercial and arbitration practice including the conflict of laws, civil fraud, professional liability, insurance and sports.

Josh’s recent work includes:

  • Led by Justin Fenwick QC and Graham Chapman in a fraud claim against auditors in the Cayman Islands.
  • Led by Anneliese Day QC and Professor Jonathan Harris QC in a dispute between an Austrian owner of patents and intellectual property and a Hong Kong producer of plant protection products.
  • Junior Counsel in Europools v Royal and Sun Alliance (Commercial Court), a two-week trial concerning to which policy year a notification under a mitigation costs clause in a professional indemnity policy attached.
  • Junior Counsel for the successful Respondent in Rollerteam v Riley [2017] Ch 109 (CA), a case concerning the construction of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989.
  • Junior to Justin Fenwick QC resisting application to set aside service out of Antigua and Barbuda on two US law firms.
  • Sole Counsel successfully resisting a High Court application to vary the terms of a freezing injunction over commercial property.
  • Several sole instructions concerning the cross-border enforcement of European Judgments under Regulation 805/2004 (the ‘European Enforcement Order’ Regulation)
  • Junior to George Spalton in an FA Rule K Football Arbitration concerning a player-agent dispute relating to a representation contract.
  • Sole instruction defending an amateur cyclist before the National Anti-Doping Panel in respect of an alleged anti-doping violation concerning EPO under the Cycling Time Trial Anti-Doping Rules.

Josh also gained significant experience of Indian commercial arbitration from his previous work as Tribunal Secretary to the Hon’ble Justice Deepak Verma, a retired Justice of the Supreme Court of India.

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Areas of Expertise

Commercial Dispute Resolution

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  • Junior Counsel in action concerning a loan to a New York individual by a company registered in the BVI and alleged commission for the design of a superyacht.
  • Instructed in a claim brought by the purchaser of a company under guarantees given in an SPA by directors of the vendor. The case concerned the construction and/or rectification of the SPA and the obligation of the purchaser to mitigate its losses arising from a Skilled Person Review brought by the FCA.
  • Sole Counsel successfully resisting High Court application to vary the terms of a freezing injunction over commercial property.
  • Led in defending a claim brought against a non-executive director in relation to advice allegedly given by the director relating to Convertible Notes placed by the firm. The claim concerned the scope of the general prohibition under section 19 of the Financial Services and Markets Act 2000 and alleged breaches of fiduciary duty.
  • Instructed by the Claimant in a rectification claim relating to the provision of a personal guarantee by the director of a distributor of marine engines and parts.

Josh is also a member of COMBAR and a member of the COMBAR India Committee.

Commercial Fraud

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  • Led by Justin Fenwick QC and Graham Chapman QC in a claim brought by liquidators against auditors in the Cayman Islands alleging fraud and wilful default. The dispute involved the scope of the Stone & Rolls exception and the effect of indemnities in a company’s Articles.
  • Junior to Justin Fenwick QC in a claim brought by the liquidators of an Antiguan bank used as a vehicle for a Ponzi scheme. The dispute involves issues regarding limitation exceptions arising from alleged deliberate concealment and causation in the context of companies with an alleged sole directing mind and will.
  • Sole instruction defending a mortgage broker from allegations of fraud, which involved limitation issues concerning contingent loss and section 32 of the Limitation Act 1980.
  • Junior to George Spalton in a claim brought by Claimants against solicitors who acted for an Irish intermediary in a large number of property transactions. The claims alleged breaches of fiduciary duty, constructive trusts and deliberate concealment.
  • Junior Counsel in claim brought against accountants who acted on the sale of shares in a company where some of the purchase price is alleged to have been cycled back to the buyers through offshore bank accounts. The claims are brought in breach of fiduciary duty, breach of trust and unlawful means conspiracy.

Josh is also a member of the Commercial Fraud Lawyers Association, COMBAR and a member of the COMBAR India Committee.

Conflict of Laws

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  • Junior to Justin Fenwick QC resisting application to set aside service out of Antigua and Barbuda on two US law firms. The dispute includes numerous conflicts issues including applicable law, jurisdiction and forum conveniens.
  • Led by Anneliese Day QC and Professor Jonathan Harris QC in a dispute between an Austrian owner of patents and intellectual property and a Hong Kong producer of plant protection products. The case raised numerous issues of applicable law, including (i) the law applicable to contractual, tortious and unjust enrichment claims; (ii) the limitation position under Austrian law; and (iii) the Foreign Limitation Periods Act 1984.
  • Instructed in a dispute concerning a loan from a BVI company to a New York individual, raising the issue of the scope of the new Article 25 of the Brussels Recast Regulation and the procedure for service out ‘as of right’ under CPR 6.33.
  • Instructed to advise a broker in the oil and gas sector based in a Gulf country on the effect under the Brussels scheme and the common law service out rules of overlapping jurisdiction/choice of law clauses.
  • Numerous sole instructions under the European Enforcement Order Regulations for uncontested claims (Regulation 805/2004), including:
    • Resisting the enforcement of an Italian judgment in England, partly on the ground that jurisdiction was wrongly taken by the Italian Courts.
    • Advising a German company on the prospects of resisting the making of a European Enforcement Order against it in England, in order to prevent enforcement of an English Judgment against foreign assets.
    • Acting for an individual defending enforcement proceedings brought by a Spanish bank in relation to the mortgage of a property in Lanzarote.
  • Instructed in claim for declarations and injunctions against the Malaysian franchisee of an English company
  • Josh recently assisted in Bazhanov v Fosman [2017] EWHC 3404, a service out case concerning alleged agreements made between two businessmen to divide a substantial Russian business group. The case concerned the applicable law to unjust enrichment, constructive trust and breach of fiduciary duty claims, as well as the effect of the decision in Cherney v Deripaska.
  • Assisted Murray Rosen QC on an expert opinion regarding the jurisdiction of the English courts in an international commercial dispute. This case raised issues of res judicata, cause of action estoppel and issue estoppel as they apply to foreign judgments.

Josh has also published case notes on conflicts cases in the following areas:

  • Choice of law: The effect of the Rome II Regulation on national procedural law, and in particular the decision of the Court of Appeal in Wall v Mutuelle De Poitiers Assurances [2014] EWCA Civ 138: [2015] 74 Cambridge Law Journal 37.
  • Jurisdiction: Recent decisions on the common law ‘service out’ gateways, including:
    • The effect of the Supreme Court decision in Abela v Baadarani and the litigation between Google and Vidal-Hall: Vidal Hall v Google [2015] 3 WLR 409: [2014] Lloyd’s Maritime and Commercial Law Quarterly 492 (FI decision); and [2016] 132 Law Quarterly Review 31 (CA decision).
    • The recent decision of the Supreme Court in Brownlie v Four Seasons [2018] 2 All ER 91: [2018] 134 LQR 344 (co-authored with Ian Bergson): https://www.4newsquare.com/wp-content/uploads/2018/08/Ian-Bergson-and-Joshua-Folkard-PDF-Offprint-1.pdf.

Josh is co-author (with George Spalton) of the talk “Recent Developments in Jurisdiction”, (with Graham Chapman QC) “Long Arms and Sharp Elbows” and “Jurisdiction/Applicable Law after Exit Day: What You Need to Know”.

Insurance & Reinsurance

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  • Junior for the successful Claimant in Europools v RSA Insurance [2018] EWHC 46 (Comm) a 2-week Commercial Court trial concerning to which policy year a notification under a mitigation costs clause in a professional indemnity policy attached. The case concerned issues of the correct approach to the construction of notifications, the authority of a loss adjuster to bind the insurer to pay for approved works and how limitation works under such clauses.
  • Assisted in the Court of Appeal hearing in Milton v Brit Insurance [2015] EWCA Civ 671, which raised a number of issues of construction of a fire policy including the phase “left unattended”.
  • Assisted in the preparation for the High Court hearing in AIG Europe v OC320301 LLP [2015] EWHC 2398 (Comm), which concerned the meaning of the aggregation clause in the SRA Minimum Terms.
  • Sole instruction for an insurance broker to recover brokerage fees and ‘time on risk’ charges from an insured in the face of allegations of misrepresentation
  • Successfully obtained strike out of a claim brought under a Personal Accident Insurance policy as sole Counsel acting for insurers.
  • Instructions to advise an insurer on the prospects of recovering an interim payment made to the solicitors of the Claimant in a fraudulent personal injury claim and subsequently lost.
  • Advised in a jurisdiction dispute relating to an insurance policy which purported to grant jurisdiction to the courts of Scotland.
  • Assisted Ben Elkington QC in Western Trading Limited v Great Lakes Reinsurance [2015] EWHC 103 (QB), a decision concerning (i) the requirement of insurable interest; (ii) the meaning of reinstatement clauses; and (iii) the availability of declarations.

Josh is a member of BILA and co-author of the talk “Versloot Dredging and the sudden death of fraudulent devices” with Fiona Sinclair QC and Amanda Savage.

Cases

Euro Pools v Royal and Sun Alliance [2018] EWHC 46 (Comm)

Euro Pools v Royal and Sun Alliance [2018] EWHC 46 (Comm)

International Arbitration

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  • Junior to Justin Fenwick QC and George Spalton in LCIA and ICC arbitrations relating to allegations of bribery by a fertiliser producer relating to sales into the Indian market. Josh also assisted in the section 67/s32 Arbitration Act 1996 jurisdiction challenges in Dreymoor v EuroChem Trading GmbH [2018] EWHC 909 (Comm) and the anti-suit injunction hearing relating to a section 1782 Order under the United States Code in Dreymoor v EuroChem [2018] EWHC 2267 (Comm).
  • Josh also assisted in a section 68 Arbitration Act 1996 challenge to an Award relating to a multi-million pound IT dispute in Secretary of State for the Home Department v Raytheon Systems [2014] EWHC 4375 (TCC).
  • Junior to George Spalton in an FA Rule K Football Arbitration concerning a player-agent dispute relating to a representation contract.
  • Josh gained significant experience of Indian commercial arbitration from his previous work as Tribunal Secretary to the Hon’ble Justice Deepak Verma, a retired Justice of the Supreme Court of India. In that capacity, Josh worked on the following matters:
    • Partial Awards concerning multiple disputes arising between an employer and project management consultants concerning the construction of a grassroots oil refinery in Odisha, India.
    • A USD 168m dispute between a leading national developer and a group of companies with substantial land holdings in Gurgaon, India relating to the abortive development of land for commercial purposes.
    • A United Nations Convention on the Law of the Sea (UNCLOS) arbitration between two States.
  • Assisted in a proposed London arbitration concerning an international distribution contract relating to the sale of pharmaceutical goods.
  • Assisted in High Court proceedings relating to conspiracy claims against investment managers previously subject to related arbitral proceedings. These matters raised issues of the proper construction of arbitration clauses, restitutionary claims for total failure of consideration and the principles against double recovery, res judicata and abuse of process in the context of arbitral awards.

Josh has recently published an article comparing the procedure for challenging arbitrators in India with those in Singapore, Japan, the United States and numerous European jurisdictions: https://academic.oup.com/arbitration/advance-article/doi/10.1093/arbint/aiy006/4930714?guestAccessKey=bb131713-00e9-4c8c-9651-7ea232613faa.

He is a member of the LCIA, YIAG and the Young Mumbai Centre for International Arbitration Group.

Professional Liability

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  • Led by Justin Fenwick QC in claim against solicitors who acted for the wife in a divorce from a high net worth individual.
  • Sole Counsel in claim against solicitors relating to their handing of a multi-million pound international commercial arbitration concerning the procedural requirements of Qatari law.
  • Sole instruction in claim against conveyancing solicitors pleaded at £800,000 raising issues of whether reasonable mitigation extends to seeking rectification of the underlying transaction.
  • Instructed in a claim against solicitors concerning the applicability and scope of the rule in Daniels v Thompson.
  • Defending conveyancing solicitors in a negligence claim raising issues relating to the application of SAAMCO and the recoverability of market fall losses.
  • Several instructions in claims brought against high net worth immigration advisors for failure to obtain Tier 1 Entrepreneur and Tier 1 Investor visas.
  • Several instructions defending estate agents against claims brought under the Consumer Protection from Unfair Trading Regulations 2008.
  • Assisted in defending financial advisor against claims in negligence, misrepresentation and breach of statutory duty brought in connection with advice given relating to a film finance partnership tax mitigation scheme.

Josh is co-author (with Scott Allen) of the article “White v Jones – reviewed but not extended”, published in the Trusts and Estates Law & Tax Journal. The article reviews the recent decision in Herring v Shorts Financial Services [2016] EW Misc B12 (CC) (09 May 2016), in which the Claimants unsuccessfully attempted to extend the White v Jones extension of negligence liability to financial advisors.

Property Damage

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  • Sole instruction to advise on the prospects of success of a subrogated claim brought by insurers in relation to fire damage to vehicles stored on third party premises.
  • Sole Counsel in subrogated recovery actions arising from storm damage.
  • Instructed in a subrogated recovery claim arising from a fire caused by electrical works at a residential property.

Josh is also a member of BILA.

Construction & Engineering

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  • Josh was a marshal in the TCC with Stuart-Smith J, Fraser J and Edwards-Stuart J. Josh gained valuable insight into the judicial process in cases involving:
    1. A Part 8 claim relating to a contractor’s entitlements to interim payments under a JCT contract and whether a Pay Less Notice had been served in sufficient time.
    2. The effect of bespoke amendments to a JCT contract on limitation relating to a defects claim, in particular section 14A of the Limitation Act 1980.
    3. A number of case management conferences and costs budgeting disputes.
  • Assisted in pre-action advice in respect of liability for alleged defects in a major London skyscraper.
  • Numerous instructions defending architects from negligence claims relating to the preparation of allegedly inadequate or inappropriate plans and designs relating to structural roof support and flood prevention systems.
  • Assisted in drafting Particulars of Claim in an action against professional design engineers relating to the inadequacy of a mass concrete floor.
  • Assisted the Chair of an arbitral tribunal by reviewing an award relating to the construction of a power plant in the Caribbean.

Josh is also a member of TECBAR.

Sports Law

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  • Instructed as junior Counsel in multi-million pound Chancery Division litigation concerning the sale of the share capital of Nottingham Forest Football Club.
  • Junior to George Spalton in an FA Rule K Football Arbitration concerning a player-agent dispute relating to a representation contract.
  • Josh was an independent privilege reviewer for an accountancy firm who acted for a Premier League football club in relation to an HMRC investigation into the split of agent’s fees between player and Club.
  • Instructed in a FA Rule K Football Arbitration for a Championship football club resisting a claim for commission by an intermediary.
  • Sole instruction defending an amateur cyclist before the National Anti-Doping Panel in respect of an alleged anti-doping violation concerning EPO under the Cycling Time Trial Anti-Doping Rules.
  • Assisted Counsel to an inquiry convened by the Motor Sports Association involving an incident at a rally which resulted in a spectator’s car entering the track during a stage.

Prior to coming to the Bar, Josh worked for 5 years as a football referee. In that capacity he attended a number of disciplinary hearings relating to both players and managers. Josh is a member of BASL.

Cases

A confidential Rule K FA Arbitration

2016
2016
A confidential Rule K FA Arbitration
Joshua Folkard

Joshua Folkard

Offshore

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Josh has a developing offshore practice in the Cayman Islands and the Eastern Caribbean. He has particular interest in, and experience of, conflict of laws issues, including jurisdiction and applicable law. Josh has been instructed in the following matters:

Cases

Weavering v Ernst & Young

Grand Court Cayman FSD: 160 OF 2012 (CQJ): Fraud claim against auditors in the Cayman Islands.

Weavering v Ernst & Young

Grand Court Cayman FSD: 160 OF 2012 (CQJ): Fraud claim against auditors in the Cayman Islands.

Stanford International Bank v Proskauer Rose

Eastern Caribbean High Court ANUHCV 2013/0584: Resisting application to set aside service out of Antigua and Barbuda ...

Stanford International Bank v Proskauer Rose

Eastern Caribbean High Court ANUHCV 2013/0584: Resisting application to set aside service out of Antigua and Barbuda on two US law firms.

Public International Law

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Josh has recently assisted on a United Nations Convention on the Law of the Sea arbitration between two States. The arbitration concerned the scope and effect of the right to freedom of navigation under Article 87(1) of UNCLOS.

Qualifications & Memberships

BA, University of Oxford (First Class Honours); BCL, University of Oxford (Distinction).

Josh read Law at University College, Oxford. He was awarded the Wronker Law Prize for the joint best performance in the university, the paper prize for Torts and the Gibbs Prize for Contract, Torts, Trusts and Land Law. He subsequently completed the BCL at Merton College, where he won the paper prize for Principles of Civil Procedure. He was graded Outstanding on the BPTC, and is an Atkin Scholar of Gray’s Inn.

Josh has a particular interest in the conflict of laws, and has published case notes in the areas of choice of law ([2015] 74 Cambridge Law Journal 37) and jurisdiction ([2016] 132 Law Quarterly Review 31).

Prior to commencing pupillage, Josh taught tort law to undergraduates at a number of Oxford Colleges and worked as a Legal Assistant at Clyde & Co’s Oxford office, dealing mainly with solicitors’ negligence cases.

Josh is a member of YIAG, BILA, TECBAR and COMBAR. He is also a member of the COMBAR India Committee.

Publications

VAT registration number: 218687082