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JAMES BICKFORD SMITH

 

James has a broad commercial and employment law practice. He has unusually extensive advocacy experience for a barrister of his call and often acts as sole counsel against more senior opponents; he is equally at home acting with leading counsel as part of large litigation teams. He is currently acting in cases proceeding in the Chancery and Queen’s Bench Divisions of the High Court, in LCIA Arbitration, in County Courts, in the Employment Appeal Tribunal, and in Employment Tribunals. He is particularly sought out for injunctive relief matters in the employee competition field, for commercial and commercial Chancery advisory and trial work, and for the most challenging tribunal cases.

James joined Littleton after obtaining a Double First and Doctorate from Oxford University, where he worked as a College Lecturer. He gained "Outstanding” marks on the BVC, scoring particularly highly in cross-examination and winning the Herbert Smith award for outstanding speaker in the Final of the Apex Competition.

Recent practice has included acting:

  • As junior counsel in a High Court Freezing Injunction following discovery of an unlawful means conspiracy (led by David Reade QC);
  • In Partnership, LLP and shareholder disputes, both led and unled; 
  • In a High Court action turning on a failed investment in a power plant in India;
  • In a dispute over force majeure provisions (about which he has lectured to the International Bar Association);
  • As sole counsel appearing against a silk in the multi-day hearing of a City whistleblowing claim;
  • As sole counsel for a successful Applicant in a Chancery Division injunction concerning the departure of a senior employee and the copying of a client database;
  • As sole counsel in a commercial arbitration (LCIA);
  • As sole counsel in Tribunal claims involving substantial reputational and other risks for Respondents, including for a) for mid-Staffordshire NHS Trust following the dismissal of a nurse for an alleged patient assault (result: nil award) b) for an airline pilot accused of having sexually assaulted a fellow employee after a crew "night out” outside the UK (result: struck out at PHR); c) for a public authority accused of dismissing a senior executive for whistleblowing (claim dismissed) and d) for a Trade Union in a case brought by a former union official making allegations against the General Secretary (result: claim struck out);
  • As junior counsel for the Claimant in the High Court team move case of JM Scully Ltd v Minett and others (led by Jeffrey Bacon, then by Andrew Stafford QC and Jeffrey Bacon). The case began with Search Orders following which over 15, 000 documents were recovered; as it progressed to a speedy trial listed for ten days James dealt with most of the legal and practical issues thrown up by team move litigation.
  • As junior counsel (led by Gavin Mansfield QC) in a commercial court conspiracy claim arising out of disputes at an asset manager;
  • For Claimants in a range of City employment disputes whether as sole counsel or as a junior. James’ familiarity with banking and finance law (including FSA/FCA issues), track record in Tribunal, and approachability have made him junior counsel who specialist firms regularly work with, often during the currency of employment;
  • As sole counsel in Dumol, Naitta & ors v Aircraft Services International Group (1), Gate Aviation Ltd (2), Performa Elan Singapore Pte Ltd (3), successfully establishing a TUPE Transfer following a 4-day PHR concerning closure of Heathrow Terminal 2;
  • As junior Counsel (led by Ian Mayes QC) in Nath v Devi, a high-profile High Court dispute over the ownership of the George Cross posthumously awarded to Naik Kirpa Ram in 1946.
  • As sole counsel for the defendants in a High Court team-move case which ended at interlocutory stage with his clients recovering 90% of their costs bill.
  • In numerous employee competition matters that have been resolved on an undertakings basis. While some recent contested matters are listed above, James is familiar with the tight judgment calls required in such situations and with striking the balance between reaching sensible commercial agreements and being prepared to fight a case. He is also familiar with the way such cases can swiftly move from a short advisory call into the corridors of the High Court.

In addition to the above, James writes a widely-read monthly column on civil procedure for the Practical Law Company, past issues of which can be read here.

Much of his practice consists of repeat business, with instructing solicitors ranging from City firms to sole practitioners. James is also happy to work where appropriate on a licensed access basis, notably with insolvency practitioners.

 

    Commercial

James has broad experience of commercial work gained first at a magic circle commercial set and then at Littleton. He has a busy practice, being regularly used by a range of solicitors including City firms and sole practitioners either as sole advocate or adviser or as part of larger litigation teams. He has undertaken a secondment in a well-known banking and finance litigation team. Current or recent instructions include:

  • Sole counsel for SJ Berwin in successful High Court enforcement action concerning a debt owed to the firm by related Iraqi and BVI companies;
  • Junior counsel in a high profile ownership dispute about a George Cross (listed for a five day trial in QBD);
  • Junior counsel in High Court application for a search and seizure order against multiple parties (see further injunctions tab);
  • Advising on directors’ and shareholders’ disputes and unfair prejudice petitions;
  • A range of county court matters on multi and fast tracks.

 Past experience has seen James draft advices, notes, or pleadings in respect of claims which have proceeded to judgment in the High Court and/or Court of Appeal in each of the following fields: insurance; reinsurance; aviation; civil fraud; retail banking; investment banking; professional negligence; general commercial. In all his work James aims to provide clients with prompt, straightforward and commercially realistic advice based on meticulous research.

    Employment

James has a broad employment practice focused on trial work, with experience of bringing or responding to claims of: unfair dismissal, race, sex, age and disability discrimination, unlawful deductions, breach of contract, lay-off redundancy, part-time worker discrimination, unjustifiable discipline (TULR(C)A), breaches of the WTR, and automatically unfair dismissal following protected disclosure or TUPE transfer.

Respondent clients have included small businesses, limited, public limited and multinational companies, public sector bodies, community organisations, a Trades Union, and charities. James enjoys learning about his client’s businesses or activities and considers it essential to do so. He is now increasingly instructed at an early stage to handle highly-charged or problematic cases for corporate and other clients he has represented in earlier Tribunal proceedings.

Claimant clients have come from all walks of life, and James has secured a number of high value settlements or awards. He is also careful to establish early what non-financial outcome if any a client seeks and then to work towards achieving this; settlement agreements have included provisions a) waiving restrictive covenants b) concerning detailed agreed references and c) concerning re-engagement on negotiated terms.

    TUPE

Cases as sole counsel include:

  • Wells v 1) MRGB Realisations Ltd (In Administration) 2) Langley Holdings PLC 3) Manroland Sheetfed (UK) Ltd: Acted for R1’s administrators in high value unfair dismissal claim with follow-on civil claim. Issues of assignment and scope of decision in Spaceright. Held: R1 not liable for dismissal.
  • Dumol, Naitta & ors v Aircraft Services International Group (1), Gate Aviation Ltd (2), Performa Elan Singapore Pte Ltd (3): 4-day PHR concerning closure of Heathrow Terminal 2. Over twenty different airlines involved. Issues of fragmentation, whether "client” requires legal personality, correct legal test for when services fundamentally different.
  • Barnes & or v Milsteda Systems: acted for C1 in claim brought against transferee only. C employed by payroll company. R argued that Tribunal not entitled to pierce corporate veil. Transfer upheld following legal submissions at PHR. Case settled on Day 3 of Full Merits Hearing in course of cross-examination of R’s witnesses on ETO/redundancy pool issues.
  • X & ors v B Ltd & J Ltd: acted for C9. Cs employed as delivery drivers by freight forwarding company which lost nationwide delivery contract. Main issue: whether organised grouping of employees assigned to contract. Case settled on Day 2 of PHR.
  • F v H Council and X Police Force: scope of administrative transfer exception to TUPE, construction and effect of policing agreement between Police Force and Council.
  • R v S Ltd (High Court): transfer of enhanced redundancy rights under TUPE 1981.

    Injunctions & High Court Employment Claims

James is familiar with, and thrives on, bringing or resisting injunctive relief applications arising out of employment relationships. He is regularly instructed by both commercial and employment litigation departments:

  • As a junior supporting a leader in cases of substantial complexity and scope;
  • As sole counsel ready to defend his clients’ interests in the face of better resourced parties.

 As to the former, James worked for some nine months (led by Andrew Stafford QC and Jeffrey Bacon) as junior in the team move case of JM Scully Ltd v Minett and others, which included claims of: unlawful means conspiracy; breach of implied and express contractual terms; breach of fiduciary duty; inducement of breach of contract; unlawful interference; breach of equitable and contractual duties of confidence. James was involved in the case from the first draft of witness statements in support of the initial injunction application to the drafting of the settlement agreement on the eve of a ten day High Court trial. As to the latter, within the last twelve months James has acted as:

  • Sole counsel for all Defendants to a team move case. The case settled after the interlocutory application was dismissed.
  • Sole counsel for Defendant in Chancery Division damages action arising out of alleged breach of implied terms and equitable duties.
  • Sole counsel for Respondent to Restrictive Covenant/Confidential Information injunction application. Two hearings. Application dismissed on indemnity cost basis.
  • Sole counsel advising on a range of putative applications and damages claims.

    Insolvency & Employment Law

James is well-recognised for his work in the crossover area where insolvency and employment law meet. By way of professional recognition, James has been invited to deliver training to the Employment Lawyers Association on "Insolvency for Employment Lawyers” and to write on Employment Law/TUPE for R3. He is frequently the first port of call for insolvency lawyers seeking quick guidance on employment law issues, or employment lawyers seeking quick guidance on insolvency law. He has developed close relationships with leading Insolvency Practitioners and is often involved on a licensed access basis pre-appointment at the stage teams are assembled.

Given the time-critical nature of many decisions in this area James works collaboratively with a small group of other barristers to ensure that any specialist question can be answered rapidly if he is himself otherwise committed, and vice versa. Urgent queries should be emailed to James in the first instance and copied to clerks@littletonchambers.co.uk

James is always happy to discuss restructuring options at an early stage pre-appointment and generally recommends that employment law input be sought as early as possible.

    Banking and Finance Litigation

James has been involved in banking and finance litigation ever since his pupillage began a few weeks after the failure of Lehman Brothers. He sat successively with barristers acting in the Bank Charges Litigation in the Court of Appeal and House of Lords, in PPI Litigation, in other retail banking disputes (breach of mandate, fraud) and in investment banking disputes. He later undertook a secondment with a well-known lender-focused banking and finance litigation team. He has continued to act in retail and investment banking disputes ranging in quantum from £100, 000 to over £10 million.

More recently, a significant amount of James’ caseload has involved acting for borrowers and other non-bank parties. Recent instructions include acting for a range of corporate and personal borrowers in claims arising out of banks breaching terms of pre-credit crunch loan agreements, and in defending lender actions for enforcement of securities (notably guarantees), particularly in the property sector.

 

    Personal Background

  • BA (Balliol College, Oxford): Double First
  • Frazer Scholar of Balliol College and James Gay Prize for History
  • University of Oxford Carlyle Scholar in the History of Post-Classical Political Thought (1999-2003)
  • Arts and Humanities Research Board Competitions A & B Winner (1999-2004)
  • Doctorant Etranger at the Ecole Normale Supérieure (LSH)
  • D. Phil (Oxon) (also completed Master of Studies)
  • College Lecturer in History at St Hugh’s College, Oxford
  • Lincoln’s Inn: Lord Haldane CPE Scholarship; Lord Mansfield major BVC Award; Buchanan Prize for performance in Bar Finals; Sir Robert Megarry pupillage award

 James's examiners recommended his doctorate on the history of Normandy in the eleventh century for publication by Oxford University Press and he continues to prepare this for publication when time allows. In July 2011 he presented a paper to the 34th Battle Conference on Anglo-Norman Studies in York. He has also delivered papers and taught in French.

Other interests include travel, art, and Italian cooking. 

Call: 2008
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