Commercial litigation concerns and trends – autumn 2023
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Legal 500
“A very good advocate, who is able to hammer home the strong points of a case.”
Paul is an academically powerful lawyer, imaginative, bold, creative and firmly anchored in the reality of how human beings actually behave in their commercial dealings and in the witness box. His expertise in professional negligence work leads to his instruction on the highest value and most reputationally delicate cases across a wide range of areas of professional practice. In the commercial sphere, he is often instructed in cases where one or both of the parties is French, Italian, Ukrainian or Russian. He has unrivalled expertise in the new tort of malicious prosecution of civil proceedings, having acted in every significant reported case since it was recognised.
Professional Negligence
The bedrock of Paul’s work is bringing and defending claims against lawyers. These arise across a wide range of fields of law, in the context of failed or imperfect transactions or the conduct of earlier litigation. He has in recent years handled cases concerning such areas as bank financing, the misconduct of group litigation, financial claims on divorce, intellectual property, investor-state arbitrations, planning, real property transactions, share purchase agreements, dry shipping, tax mitigation schemes, public procurement competitions – indeed, in almost every sphere where lawyers are instructed, Paul has acted in claims arising from their conduct. He frequently acts for or against well-known firms of solicitors and KCs. As well as lawyers, he also acts for and against accountants, particularly in the context of corporate and personal tax advice and in relation to claims by whistle-blowers in Big Four firms; and for tax advisers; financial advisers, company directors, and a variety of other professionals facing claims alleging breach of their professed special skills.
Commercial Litigation
A substantial part of Paul’s work is commercial litigation, often involving fraud and/ or one of the economic torts. In recent years he has acted in whistleblower claims, contractual disputes, shareholder and boardroom clashes, director breach of fiduciary duty claims, diversion by key employees of maturing business opportunities, arbitration claims, and claims arising from incipient or actual insolvency. Much of his commercial work begins with applications for injunctive relief, frequently without notice.
Malicious Prosecution/Contempt
A growing strand of Paul’s work is in the field of actions seeking damages for malicious prosecution of civil proceedings or abuse of process. He has contributed extensively to the developing torts of malicious prosecution of civil proceedings and abuse of process: Willers v Joyce [2016] UKSC 43, [2016] UKSC 44, [2018] EWHC 3424 (Ch), [2019] EWHC 2183; CXZ v ZXC [2020] EWHC 1684 (Ch); Mosley v Associated Newspapers Ltd [2020] EWHC 3545 (QB) and Monks v East Northamptonshire Council (settled but widely reported). He is frequently consulted in cases where one party believes the litigation process is being abused, often assisting clients prepare the ground for future claims for damages for abuse of process or malicious prosecution of civil proceedings (in particular, financial remedy proceedings in the family court). He also acts in “traditional” malicious prosecution claims arising from the misuse of criminal proceedings. A related field of his work is bringing and defending contempt applications within existing proceedings.
“An outstanding advocate who is very intelligent and very easy to get on with. He’s very user-friendly, and has a good balance between tenacity and charm.” Chambers UK 2022
“My chosen counsel because of the depth of his experience – he’s a polymath, has excellent investigation skills and has an interest in legal history, which helped in this case.” “Incredibly easy to deal with, exceptionally bright and knowledgeable and a very effective negotiator.” Chambers UK 2021
“Utterly charming with the mind of an arch-strategist. Exceptionally good at dealing with a very complicated set of facts and issues and magically making the case look simple and straightforward.” Legal 500 2021
“Very personable, gets to the nub of the issue quickly and doesn’t faff around the edges. He’s incredibly calm and cool as an advocate.” “Very bright and becomes part of the team.” Chambers UK 2019
“A brilliant advocate. Very tenacious but clear thinking. He set out sensibly and clearly a technically secure, well-thought-out, compelling piece of advocacy. He gives very robust advice and is prepared to think out of the box.” Chambers UK 2018
“A very good advocate, who is able to hammer home the strong points of case.” Legal 500 2017
“Charming and incisive, with a real knack for thinking on his feet.” “Phenomenally bright and the advice that he provides is very commercial.” Chambers UK 2017
“He unfailingly gets the answer right and is incredibly easy to get on with.” Legal 500 2016
“He makes light work of hard cases and is excellent on his feet. He is a delight to work with and is very good at coming up with pragmatic solutions.” “His main strengths are his attention to detail, legal knowledge and interpersonal skills.” Chambers UK 2016
“He delivers clear advice, is commercially aware, and has strong personal and diplomatic skills.” Legal 500 2015
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“Paul Mitchell is very good with clients and at explaining strategy. His drafting is also really impressive.” “Paul is calm and authoritative.” “Extremely high quality in all aspects of drafting, advisory work and advocacy.” – Chambers & Partners, 2024
“A very skilled, knowledge and effective advocate. Very user friendly and pragmatic.” – Legal 500, 2024
“He is able to manage complex cases with ease.” – Chambers & Partners
“An outstanding advocate who is very intelligent and very easy to get on with. He’s very user-friendly, and has a good balance between tenacity and charm.” – Chambers & Partners
“My chosen counsel because of the depth of his experience – he’s a polymath, has excellent investigation skills and has an interest in legal history, which helped in this case.” “Incredibly easy to deal with, exceptionally bright and knowledgeable and a very effective negotiator.” – Chambers & Partners
“Utterly charming with the mind of an arch-strategist. Exceptionally good at dealing with a very complicated set of facts and issues and magically making the case look simple and straightforward.” – Legal 500
“He is very thorough and very much on top of his cases. He’s good at identifying opponents’ weaknesses and key points in the case.” “He’s a great advocate who has extremely good judgement. He has a really great instinct for the good and bad points and for how things will turn out.” – Chambers & Partners
“Has an encyclopaedic knowledge of the law.” – Legal 500
“Very personable, gets to the nub of the issue quickly and doesn’t faff around the edges. He’s incredibly calm and cool as an advocate.” “Very bright and becomes part of the team.” – Chambers & Partners
Paul’s professional liability work involves allegations made against solicitors, barristers, accountants (especially tax advisers), fund managers and financial advisers (giving bespoke advice and recommending tax mitigation schemes). He is particularly experienced in questions of scope of duty, causation, the recoverability of losses claimed, and mitigation. In addition to his trial experience, Paul is frequently actively involved in assisting at mediations leading to settlement. He is instructed by both claimants and defendants, and is often asked by both sides to provide a written opinion on the merits to assist with settlement negotiations. He is on the PNBA’s approved list of adjudicators authorised to adjudicate professional liability disputes pursuant to the current Pre-Action Protocol on Professional Negligence claims.
Featured Professional Negligence cases
Paul acts for or against accountants in a wide variety of claims, from failure to detect fraud on audit to negligent advice regarding corporate structure and restructuring, pensions, taxation (personal and corporate), or investment (including investments as part of tax-mitigation).
Featured cases
He acts in claims arising in connection with complex financial schemes designed, promoted or recommended by financial advisers, e.g. split cap investments, the Stax investment scheme, the Innovator investment scheme, film finance schemes, enterprise zones, multi-currency mortgages, forex trading, futures trading, derivatives trading.
During the post financial crisis wave of lender claims between 2008 and 2017, Paul acted in dozens of claims against surveyors, instructed by claimant banks, defendant surveyors, solicitors seeking contribution from surveyors and surveyors defending contribution claims brought by solicitors. He has also acted in several claims involving the valuation of unusual properties, such as fish farms, business parks, amusement arcades, caravan sites, nursing homes, hotels and student accommodation, as well as more standard valuations of commercial property such as leases in shopping centres, office blocks, new build apartments and of course residential property. His extensive experience of lender claims has covered all aspects of lender contributory fault as well as defences such as limitation, scope of duty, date of accrual of loss, mitigation etc. He has also acted in more unusual claims against surveyors alleging extensive duties of care: see in particular Harrison v Technical Sign Co Ltd & Ors [2014] EWCA Civ 1569; and claims involving alleged fraud by surveyors.
Featured cases
Paul acts in claims where IPs or LPA receivers are alleged to have failed to raise the true value of assets following bankruptcy or insolvency. He also has substantial experience of coverage disputes between IPs and their insurers, including in cases where dishonesty is alleged against the insured.
Featured cases
He acts in claims against insurance brokers by clients alleging that the broker failed properly to ascertain the full nature of the risk to be insured; or failed adequately to explain to the client the limitations on coverage.
Paul acts in connection with disputes regarding the scope of coverage of policies of professional indemnity insurance, and in particular coverage questions under the Minimum Terms and Conditions for solicitors’ PII. He has substantial experience of arbitrations of such coverage disputes, with particular expertise in questions involving dishonesty, reimbursement, and the application of the Successor Practice rules contained in the MTC.
Paul acts in a wide variety of commercial disputes, both in England and offshore. He has particular experience of freezing injunctions, shareholder disputes, company valuation disputes, professional negligence claims (in particular against lawyers and tax advisers) and fraud (alleged Ponzi schemes, SDLT avoidance schemes, money laundering and sanctions avoidance schemes). He speaks Russian, Italian, French and Farsi has a particular interest in cases with connections to countries where those languages are spoken.
Malicious Prosecution of Civil Proceedings/ Abuse of Process
Paul is the leading practitioner in England & Wales for these new claims, having appeared in Willers v Joyce, the long-running litigation that gave extended the tort of malicious prosecution to civil claims; advising the winning party in the equivalent case in the Singaporean Supreme Court, Lee Tat Development Pte Ltd v MCSTP No 381 [2018] SGCA 50; representing the wife in CXZ v ZXC, the first case arising from bitterly contested Child Arrangement Order proceedings; acting for the claimant in Mosley v Associated News Limited, the case arising from The Daily Mail’s submitting a “dossier” about Max Mosley to the Crown Prosecution Service; and acting for the claimant in the ongoing Monks v East Northamptonshire Council, the case arising from the travails of Private Eye’s “Lowick One”.
Complex remedy claims
Paul is often instructed in claims where the analysis of causation and quantification of loss are very difficult. High profile cases in 2020 were Sogexia Sarl v R Raphael & Sons Plc, where an application for a quia timet injunction against a bank entering Members’ Voluntary Liquidation is current under appeal to the Court of Appeal; YJB v M&A Pharmachem, where Paul and Tom Shepherd’s client was found to have caused no loss to the claimant despite being found at an earlier trial on liability to have been in breach of a covenant against competition; and Involegal v BLM, where Paul, leading Christopher Boardman KC, successfully resisted summary judgment on a cause of action assigned by an insolvent company. Paul is currently instructed by one of the principal defendants in the sprawling and multi-jurisdictional SKAT litigation, a case concerning the alleged liability of agents for representations made by their principals when seeking to claim withholding tax relief on share dividends.
Fine art and equestrian litigation
Paul often acts in cases involving the valuation or movement of these unusual precious assets. In recent years, he has acted in a claim under ecclesiastical law concerning the sale of an Ittenbach by a church in Cheltenham (In Re Emanuel Church, Leckhampton before a consistory court of the Diocese of Gloucester); for a dealer suing a German auction house for fraudulent misrepresentation; for an Italian collector, beneficial owner of an offshore company that in turn owned various important pieces of modern art, in obtaining an injunction on confidential terms; for a dealer regarding a professional negligence claim against an expert in an Old Master; for a consortium of owners obtaining an injunction restraining transport of a stallion from Heathrow to participate in the Southern Hemisphere Breeding Season; and for the owner of a showjumper which was crippled by a farrier; for the owner of a dressage horse accidentally killed while at a stud farm for embryo harvesting.
Featured Commercial cases
Paul is frequently instructed as an advocate in arbitration proceedings, and is an accredited mediator trained at the Regent’s School of Psychotherapy and Counselling under the late Dr Freddie Strasser. He is often invited by clients to attend mediations as he is an active and constructive contributor to obtaining satisfactory resolution of the dispute at hand. He has chaired numerous committees over the course of his career, including almost every year one of Lincoln’s Inn’s major scholarship award panels, and has a low-friction, respectful but firm style of leading panels to well-reasoned, soundly-evidenced decisions supported by all members of the committee or panel.
Paul’s experience of professional negligence claims is a critical component of his practice in regulatory and disciplinary work, whether acting for the complainant before the Taxation Disciplinary Board (the disciplinary body for the Chartered Institute of Taxation and the Association of Taxation Technicians) or defending before the ICAEW Disciplinary Tribunal or the Solicitors’ Disciplinary Tribunal. He is often asked to advise solicitors and accountants regarding complaints and disciplinary investigations, and has been instructed on several occasions by the Taxation Disciplinary Board to make amendments to the regulations governing its disciplinary procedure.
Paul was junior counsel in the £100 million Convergence v Chantrey Vellacott claim ([2007] EWHC 1774 (Ch); [2008] EWHC 360 (Ch); various other decisions without neutral citation numbers) in which a telecoms company alleged that its business in Greece had been destroyed by the negligence of its advisers; the case mainly revolved around detailed expert analysis of the relevant technology and its associated licensing regime. Since then his work in this field has mainly concerned cases involving cyber-fraud, in particular where solicitors’ client accounts have been targeted by fraudsters via hacked email accounts and/ or fake emails purporting to come from clients or counterparties.
Since 2017, Paul has been on the board of Ampbar Limited, a lawtech company which provides a platform linking solicitors, barristers and insurers in certain types of claim.
Paul’s extensive experience in claims arising from earlier litigation, particularly claims against lawyers, has given him particular insight into the handling of disputes connected with legal costs. In recent years, besides being involved in many cases where a principal head of damages has been in respect of costs incurred in earlier proceedings (see in particular Herrmann v Withers [2014] PNLR 15, the leading case on how costs awarded as damages should be assessed, indemnity or standard basis; and Willers v Joyce [2018] AC 843, the leading case on the recovery of “extra” costs, i.e., the difference between what a client received on detailed assessment and the actual sum paid to his or her lawyers), Paul has also been instructed:
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Before coming to the Bar, Paul read Oriental Studies at King’s College, Cambridge, graduating with a First in 1990. He then studied for an MA in Middle Eastern politics, law and economics at the School of Oriental and African Studies before returning to Cambridge for his PhD in the life and works of a twentieth-century Iranian poet.
Languages: Farsi, French, Italian, Russian, Spanish. In 2010 he was editor and co-translator into English of the Catalan novel “Stone in a Landslide”, one of Peirene Press’s first publications.
Paul has two daughters.
Paul is a trustee of Alsama Project, a charity offering new horizons to refugee teenagers and women in Lebanon.
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