James Bickford Smith

James has a busy commercial practice comprising:

• Led work in high value and complex commercial disputes;
• Work as sole counsel in the High Court, often appearing against more senior barristers.

He regularly receives unsolicited positive feedback from solicitors, clients and opponents.

Examples only of recent work are given below. James has undertaken work within a wide range of areas of commercial law: should you wish to inquire about experience of particular areas or sectors please contact James’ clerks.

Led work

• Acting for an Italian company in a jurisdictional dispute arising out of a bank’s application for negative declaratory relief to stymie proceedings in Italy (led by Charles Samek KC);
• Acting (led by Adam Solomon) for claimants in a conspiracy, breach of fiduciary duty and asset tracing claim;
• Acting in an appeal of orders made following a 35-day Chancery trial involving allegations of knowing receipt and knowing assistance following a €100m fraud (led by Charles Samek KC);
• Acting in a shareholder dispute and related proceedings concerning failure to repay or issue shares in respect of a significant private loan/capital contribution (led by David Reade KC);
• Acting for special administrator of bank in dispute over registration in England and Wales of a €3bn overseas freezing order (led by Charles Samek KC).

Court Work as sole Counsel

• Acting for a charity recovering monies paid away following a fraud. Two freezing order applications, Norwich Pharmacal applications, application for service by alternative means. Judgment secured and majority of funds recovered;
• Acting for solicitors firm in successful High Court enforcement action concerning a debt owed by related Iraqi and BVI companies;
• Acting for a minority shareholder in Chancery proceedings over control of a well-known restaurant group. Two silks and three senior juniors represented the other parties;
• Acting for bank counterparties in disputes over interest rate swaps, breach of lending agreements, property valuation, and security enforcement.

James has particular expertise in interlocutory applications and co-authors the Injunctions Practice Note for PLC. He also writes a long-running column on civil procedure as well as specialist articles.

Advisory Work

James’ advisory practice is broad. It ranges from “quick view” assessments made in the context of pressing commercial deadlines or injunction applications to much more detailed analyses. James’ academic background and legal writing often see him instructed in cases raising difficult and/or novel points of law.

James undertakes court work in the DIFC, where he is a registered practitioner. He has advised and acted in a wide range of DIFC commercial, company and employment disputes. He has acted in cases involving other Middle Eastern jurisdictions and Pakistan.

He is ranked by both L500 (Middle East/Commercial: Tier 1) and Chambers Global (DIFC/ADGM Litigation): “commands a significant track record in employment litigation before the DIFC and ADGM. He is an accomplished barrister who often appears on cases such as executive terminations and business protection disputes. “James is excellent in all respects. He is very easy to work with, responsive and a good strategist.””

James has wide experience of international fraud and commercial contract disputes. He has worked for a year or more on disputes anchored in each of Switzerland, Cyprus, Italy, and the UAE, in each case working with local legal teams.

Civil law. James has worked with law firms in European jurisdictions on cases turning on points of civil law. He is familiar with and enjoys working with academic lawyers on points of civil law arising for determination in English proceedings.

“Previously an academic at Oxford University who now frequently takes on complex employment disputes, often appearing in High Court injunctive relief cases. Clients and peers comment on his mental acuity and strategic approach to his advocacy.”

James has ten years experience of High Court employment litigation and undertakes similar work internationally.

Employee competition and team moves

• Trial Counsel for the Defendants in ED&F Man Capital Markets MENA Limited v Hussain (1) RJ O’Brien MENA Limited (2) Ghallami (3), the first team move case to reach trial in the DIFC (led by Tom Montagu-Smith KC);
• Trial Counsel for the second and third Defendants in Bluefin Insurance Services Limited v Bruce (1) Rogers (2) Powell (3) Global Risk Partners Limited (4) Thornton (5), High Court (sole Counsel; the Claimant was represented by Leading and Junior Counsel).
• Applying for or resisting injunction applications. Examples of claimant work: enforcing a UK-wide 12 month non-compete (sole counsel); securing search order following which over 15,000 stolen documents were obtained (led). Examples of defendant work: sole counsel for all Defendants to a team move case. The case settled after the interlocutory application was dismissed; sole counsel for respondent to Restrictive Covenant/Confidential Information injunction application. Two hearings. Application dismissed on indemnity cost basis.

Bonus and other contractual disputes

James has broad experience of:

• Bonus claims;
• Claims concerning shares and share options;
• Deferred compensation and long-term incentive plans;
• Good/bad leaver disputes in all the above contexts;
• Remuneration disputes with parallel or related proceedings in Court/Tribunal or Court/arbitrations.

“Sources repeatedly stressed the high quality of his advocacy, as well as his powerful intellect. He is an advocate experienced in the tribunal and courts at all levels” (Chambers & Partners 2016)

James has trial experience across a full range of statutory claims, including: 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.

James was involved in lengthy trials from early in practice, often appearing against much more senior barristers. He is now primarily briefed in:

• Unlawful deduction/contractual remuneration disputes (collective and individual);
• International/jurisdictional disputes;
• Cases involving both ET and High Court/arbitral proceedings.

James has been involved in banking and finance litigation ever since beginning pupillage 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 subsequently developed a substantial banking practice of his own at Littleton acting for bank customers and counterparties in High Court actions or FCA/FOS matters. A significant number of his cases have been high profile or high value or both.

Recent instructions include:

• Actions arising out of the conduct of RBS’ GRG unit; James has acted for companies, administrators, shareholders and directors of companies put into GRG;
• Actions involving West Register;
• Actions arising out of banks breaching terms of pre-credit crunch loan agreements, notably in the property sector;
• Interest rate swap cases for both individuals and businesses, both involving the FSA scheme and High Court litigation;
• Chargeholder disputes;
• Guarantee and other security disputes.

James has been instructed in corporate and personal insolvency cases since pupillage. He is most commonly instructed where (a) there is an overlap between civil fraud/contractual claims and insolvency (b) specialist advisers seek an oral advocate for heavily-contested matters or (c) there is an employment law crossover.

Recent instructions have included:

• Counsel for defendant resisting s. 238, 239, and s. 423 claims at High Court trial;
• Resisting applications to set aside statutory demands, including demands of over £10m;
• Successfully resisting a Chancery appeal concerning the failure of such an application: Promontoria (Ram 2) Ltd v Nicoll;
• Acting for appellant seeking to reopen findings made after a lengthy high court trial of liquidator’s claims against multiple parties that had proceeded in some defendants’ absence;
• Advising directors resisting liquidator claims under s. 423;
• Advising creditors on preference, wrongful trading and other claims following a business insolvency and sale of assets;
• Long-running cases involving TUPE, collective redundancy, business sales, and insolvency priorities.

James is the Chair of our Partnership and LLP group. The L500 2023 UK Bar describes him as having “standout expertise acting for individual LLP members in high-stakes exit disputes”. His practice encompasses disputes litigated in arbitration/the Chancery Division and in ETs. Many of his cases involve disputes in two of these at once, with James instructed in both to ensure a joined up approach.

The ensuing work has ranged in scale from very high-value disputes where James has been lead junior (in one case led by 3 silks) to cases where James is instructed on his own from first advice through to trial. James’ expertise at trial is well-known. It reflects advocacy experience gained in courts and tribunals from Cardiff to Dubai.

His experience of heavy partnership litigation has made James familiar with the pressures this can place on the partners involved. He remains focused on exploring ways of resolving issues early and/or before they proceed to litigation. He takes pleasure in the fact that many of his partner clients enjoy very successful careers after – as well as before – instructing him. Over the last two years he has achieved several seven figure settlements for individuals as well as extricating a number of LLPs economically from “bet the firm” disputes, with minimal reputational impact.

Recent work has included:

• Acting for partners subject to expulsion votes or quasi-disciplinary processes;
• Advising on LLP team moves and covenant disputes, in both England and Wales and the Middle East (Dubai/Abu Dhabi);
• Advising partners and groups of partners in the context of merger discussions;
• Acting for Respondent LLP (In ET) and Respondent Partners (in arbitration) defending claims brought by partner expelled from professional services firm following misconduct;
• Acting for partner in 1890 Act solicitors’ partnership subject to detriment after pregnancy and pregnancy-related illness (against KC); the case saw a significant financial settlement;
• Acting for two members of an algorithmic trading fund in a dispute with a departing member and a BVI nominee company concerning asset & IP ownership and valuation.
• Acting in a long-running LLP Unfair Prejudice Petition. Main issues: exclusion, diversion  of business opportunity.

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.

Insolvency and 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.

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.