Silk: 2003
A highly regarded and experienced silk with over 30 years experience at the bar, Mark Lomas's practice focuses on common and commercial law with a particular specialisation in professional negligence and insurance work. Legal directories say that "his record speaks for itself". He is regularly instructed in a wide variety of common law, commercial contract, professional indemnity and insurance related cases, and appears for professional firms and individuals before their disciplinary and regulatory tribunals. He acts as an arbitrator in professional indemnity insurance matters and is a qualified and highly experienced mediator with an impressive track record of achieving settlement in complex cases.
Mark has extensive experience in his chosen area of specialisation, namely professional negligence in the advisory professions, in which he has developed a busy practice over 25 years. He receives instructions both from claimants and from a variety of professional indemnity insurers including the Bar Mutual Insurance Association, most of the principal insurers of solicitors and various insurers of other professionals including accountants, surveyors, patent agents, financial advisers and insurance brokers.
Mark was involved in several of the leading cases at first instance and in the Court of Appeal in which the tests to be applied in applications for wasted costs against barristers were defined and limited. In two of them - Fryer v RICS and Wall v Lefever - he obtained orders for indemnity costs from the Court of Appeal in favour of his barrister client. He recently defended a barrister alleged to have misconstrued a clause in a commercial contract; at trial in the High Court the judge held that the construction was not only not negligent but was probably correct. Mark also defended a firm of solicitors against what is believed to be the only claim of racial discrimination brought against a solicitor by a member of the bar, arising from removal of his instructions during a criminal case. In his most recent case in the professional indemnity field, Daniels & Ors v Deville & Ors, Mark achieved the summary dismissal with costs of all claims against a firm of solicitors in the second week of a ten-week trial of a multi-party multi-million pound claim.
As well as advising and defending professional practitioners and their insurers in litigation, Mark also regularly appears on their behalf before their professional disciplinary bodies, including particularly the Disciplinary and Appeals Committees of the ICAEW and the Solicitors Disciplinary Tribunal. He has successfully advised and defended numerous professional firms or individual practitioners against complaints of professional misconduct or regulatory breaches, and has recently conducted a seminar for Kingston Smith on the tactics and approach to be adopted in appearing before professional tribunals. He is currently a member of the Complaints Committee of the Bar Standards Board.
Mark is regularly appointed as arbitrator to adjudicate in disputes between solicitors, barristers and their insurers in issues concerning dishonesty, coverage, aggregation, settlement and contribution. He was a platform speaker at the recent PNBA 11th Lawyers Liability annual seminar, leading on the topic of professional indemnity insurance.
Mark is also a qualified and highly experienced mediator. He has combined his mediation skills with his long experience as a professional negligence practitioner to develop a considerable reputation in the resolution of all kinds of professional negligence disputes.
In the commercial field, in Mainstream Properties v Young & Ors IRLR [2005] 964 Mark successfully defended a High Court action in which his client, a financier, was alleged deliberately to have induced a breach of contract between the Claimant property developer and its director and employee, the other defendants. The other defendants had diverted deals to themselves, which Mark's client had financed in the mistaken belief that they were authorised to do so. He was found not to be liable due to the lack of specific intent. Mark subsequently successfully defended the Claimant's appeal in the Court of Appeal, during which the test for intent in the tort of inducement of breach was re-defined. The Court of Appeal's decision was subsequently upheld by the House of Lords in conjoined appeals in OBG v Allen & Ors [2007] 4 AER 545.
OTHER QUALIFICATIONS AND POSITIONS
MA CANTAB (Trinity Hall, Cambridge)
Member of COMBAR
Member and past committee member of PNBA
Member of the Complaints Committee of the Bar Standards Board
REPORTED CASES IN PRACTICE PROFILE AREA
Daniels & Ors v Deville & Ors Ch Div 28-02-08 [Unrep] Lindsay J - Obtained the summary dismissal with costs of all claims against defendant firm of solicitors at the outset of the trial of a multi-party multi-million pound action
Mainstream Properties v Young & Ors IRLR [2005] 964 [CA] - dismissal of claim upheld by Court of Appeal - redefining the test for intent in inducement of breach of contract - decision upheld by House of Lords in conjoined appeal
Simmons v Overbury Steward & Eaton & Anor LTL 11-03-2002 - Successfully defended a barrister alleged to have given wrong and negligent advice concerning the construction of a contractual provision - the construction was held to be (i) not negligent and (ii) probably correct, and the advice was held to have been given with appropriate warnings of the risk of a different construction being preferred
Fryer v Royal Institute of Chartered Surveyors 2000 TLR [CA] - Barrister's wasted costs - issues of privilege and client confidentiality - dismissal of claim at the 'show cause' stage upheld by Court of Appeal with an order for indemnity costs in favour of BMIF
Daniels v Wellers 1999 All ER(D) 1409 [CA] - Successfully resisted appeal in relation to preliminary issues and costs in an Accountants’ negligence action
Wall v Lefever 1998 1 FCR 605 [CA] - Barrister's wasted costs - obtained the dismissal of claims against barrister at first instance - dismissal upheld by the Court of Appeal with an order for indemnity costs in favour of BMIF
Preston v Filer Knapper & Co 1997 All ER Trans [QBD] - Obtained the dismissal of allegations of negligence against a firm of Accountants
Manzanilla Ltd v Corton Property & Investments Ltd 1997 3 FCR 389 [CA] Barristers' wasted costs - successfully resisted applications for discovery and right to call evidence and cross-examine - Court of Appeal confirmed the principle that wasted costs is a summary jurisdiction
Halifax Building Society v Urquhart Dykes & Lord 1996 RPC [Ch Div] - Claims of negligence and breach of duty against a firm of Patent and Trade Mark Agents dismissed [Led by the late John Slater QC]
First National Commercial Bank v Loxleys 1996 EGCS 174 [CA] - Solicitor's negligence - preliminary issue on the duty of care owed by solicitors to the opposite party
John Mowlem & Co v Eagle Star Insurance Company 1994 44 Con LR 134 [O R] - Commercial - acted for Defendants in biggest ever trial in the Official Referee's court using electronic retrieval and document display systems in court - claims withdrawn with indemnity costs for defendants after six months’ trial of preliminary issues [Led by Elizabeth Gloster QC]
Rooks Rider (a firm) v Steel 1994 1 WLR 818 [Ch Div] - acted for the successful applicant in a leading case on the enforcement of solicitors' undertakings given in the course of commercial negotiations that do not result in a concluded agreement
de Balkany v Christie Manson & Woods Ltd 1994 Trading Law Reports 163 [QBD] - acted for the Defendant, a leading international auctioneer, in a claim for misrepresentation in an auction catalogue - exclusion of liability clause in catalogue held to have negatived any assumption of responsibility in tort.
Eusden v Field Fisher 30-4-93 [CA] - Barrister's negligence - preliminary issue on amendment of pleadings
Customs & Excise Commissioners v Penwith Property Co Ltd 1993 STC 369 - test for zero rating for VAT in building restorations
R v Governor of Brixton Prison ex p. Osman 1992 1 AER 108 - Habeas Corpus
Osman v Commissioner of Police for the Metropolis 11/12/91 [CA] - Privilege
Davy Ltd v Smallfield Fitzhugh Tillet & Co 7-3-89 [CA] - Accountant's negligence - strike out
re DPR Futures Ltd 1989 1 WLR 778 - Insolvency
Intercontex v Schmidt 1988 FSR 579 (Ch Div) - Commercial injunction - passing off
Green v Ipswich Borough Council 1988 1 EGLR 239 [O R] - Surveyor's negligence - claims dismissed
Accredited Mediator by ADR Group 2001; Panel Member and Registered Mediator with Littleton Dispute Resolution Services Limited since 2001; Mark has conducted well over 100 mediations as lead or sole mediator in claims ranging from tens of thousands to several million pounds and has appeared as advocate in high value mediations, particularly solicitors' negligence matters, including successfully settling a claim worth over £30m
MEDIATION EXPERIENCE
Mark has acted as sole or lead mediator in a wide variety of disputes ranging from multi-million pounds to tens of thousands of pounds in areas including:
Commercial contract disputes involving sale of goods and businesses, property development, construction and sale of property, information technology, intellectual property, commercial supply, publishing, joint venture agreements and other areas;
Solicitors' negligence in the conduct of litigation, conveyancing, sale of businesses, commercial deals, taxation, probate, divorce, bankruptcy and other areas;
Barristers' negligence in the conduct of litigation and advice in various areas;
Surveyors', Quantity Surveyors' and Architects' negligence in building design, valuation, construction and sale of residential, commercial and development property;
Accountants' negligence in auditing and accounting services and advising on tax and other matters;
Financial Advisers' negligence in advising and selling pension and tax management schemes;
Insurance disputes in the commercial and professional indemnity fields;
Personal and industrial injuries;
Common law and tort-based claims in a wide variety of matters both corporate and personal;
Employment disputes.
FEEDBACK ON MEDIATION
The following are examples of feedback from solicitors:
"Conducted in a very professional and amicable manner."
"Very good. Mark Lomas QC was well prepared and able to establish a relationship of trust and openness with both parties which contributed greatly to the settlement achieved on the day."
"Absolutely brilliant. His legal knowledge commanded respect from three aggressive solicitors and he had excellent communication skills and determination to succeed."
"Good. Tested the case firmly and kept the parties engaged and moving towards a deal. Great job."
"Obviously, Mr Lomas has a huge amount of legal experience. An iron hand in a velvet glove. The case settled which was the aim of the day."
"Very good. Clear grasp of complex issues and the right level of persuasion.
"Mark Lomas was confident and always in control. Impressive performance in a delicate case. Would use him again"
"Excellent. Established as informal an atmosphere as possible in the circumstances. Sensitive and clear understanding of the issues and personalities in the room."
"Very good approach to a complex case. Worked very hard to bring together parties with extremely divergent views about the likely outcome at trial."
"Very good. Helpful, no nonsense, and all with a touch of humour."
"Excellent. Mark Lomas has a very easy manner and encourages frankness without appearing to exert pressure."
"I cannot praise Mr Lomas enough, both for his handling of some difficult issues in the mediation and the way in which he put the lay clients at ease."
"Friendly and efficient. He got to grips with all the relevant issues and was very helpful in getting the parties to make steady progress throughout the day."
"Excellent. We thought the claim would be difficult, if not impossible, to settle and were extremely pleased that the mediator was able to prove us wrong."
"First class. Exceeded my expectations and achieved a most satisfactory result where it hardly seemed possible. His doggedness paid off. 10 out of 10."
