Tom Smith QC
QC 2014, Called to the Bar 1999
Tom specialises in commercial litigation and arbitration, banking and finance, and corporate insolvency and restructuring. He also practices extensively in the fields of company law, civil fraud and asset recovery, professional negligence and trusts.
In recent years Tom has been involved in a number of high profile and complex cases ranging from major commercial trials such as the Formula One/Ecclestone and Avonwick/Webinvest disputes to Supreme Court/House of Lords decisions on important legal issues in the fields of banking and restructuring (HIH. Mills v HSBC. Rubin v Eurofinance. Nortel/Pensions Regulator, MorganStanley v Tael).
Other notable work includes many of the recent restructurings and schemes of arrangement and banking disputes (Saltri. Grupo Urvasco. Assenagon). Tom is also an experienced trial advocate in both court litigation and arbitrations. He frequently appears as an advocate both in England and in other jurisdictions including the Cayman Islands and Dubai.
Tom was appointed QC in 2014 and is described as being very bright, quick-witted and very approachable.
AREAS OF PRACTICE
Insolvency and Restructuring
Recent cases include:
- Re Espirito Santo Bankers Dubai. DIFC Courts, 19 October 2014, appearing for the Dubai Financial Services Authority on opposed applications to place Espirito Santo Bankers Dubai into provisional liquidation and liquidation – one of the first insolvency proceedings under the DIFC Insolvency Law
- Re Nortel GmbH; Bloom v The Pensions Regulator  AC 209 (SC), administration expenses and provable debts
- Re Comet Group Ltd  EWHC 3477 (Ch), power under section 236 of Insolvency Act 1986 to order production of information and data.
- Picard v Primeo Fund. Cayman Court of Appeal, April 2014, ability of foreign officeholder to bring clawback claims under domestic and foreign law
- Rubin v Eurofinance  1 AC 236 (SC), recognition of foreign judgments in insolvency proceedings
- Vietnam Shipbuilding Industry Group v Bluecrest  EWHC 1146 (Comm), stay of proceedings in support of proposed scheme of arrangement
- Re UK Housing Alliance  BCC 752, whether payments under sale and leaseback arrangements constitute administration expenses
- Re Chesterfield United  1 BCLC 709, disclosure in support of foreign insolvency under Cross-Border Insolvency Regulations 2006
- National Westminster Bank v Kapoor  1 All ER 1201, material irregularity in setting aside individual voluntary arrangement
- Re Oilexco Northsea  Ch 187 (CA), grant of anti-suit injunctions in support of insolvency proceedings
- Re HIH Casualty and General Insurance  1 WLR 852 (HL), power of an English liquidator to remit assets to foreign office-holders
- Re Energy Holdings (No 3)  1 BCLC 84, approach to adjudication of claim in CVA when related pending proceedings on foot in another jurisdiction
- Re Metronet Rail BCV  2 All ER 75, meaning of “other appointee” in relation to transfer scheme under the Greater London Authority Act 1999
- Re Collins & Aikman Europe  1 BCLC 182, power of administrators to make distributions and payments to creditors in accordance with foreign law
Various schemes of arrangement including Sea Containers, Crest Nicholson, TI Automotive, Rodenstock. Fitness First, Travelodge, CEVA, Vietnam Shipbuilding Group  1 BCLC 400, Hibu/Yellow Pages  EWHC 370 (Ch),  EWHC 1074 (Ch), Stemcor  EWHC 1096 (Ch), Global Resources Lancashire. Endeka Ceramics .
Tom has also advised on most of the cases involving complex CVAs particularly to restructure lease liabilities and involving combined financial/operational restructurings: JJB Sports, Focus DIY, Blacks Leisure, Fitness First, Travelodge, Café Rouge, Mamas and Papas.
Other restructurings on which Tom has advised include Eurotunnel. Damovo. Luxfer. Metronet. Northern Rock. Nybron. Four Seasons Healthcare. Level One Property. XL Airways. Lehman Brothers. Kaupthing. Landsbanki. Baugur. Madoff. United Company RUSAL. Oilexco. Setanta Sports. Saad Investments. Nortel. Orion Cable. European Directories. KCA Deutag. Southern Cross. Codere SA. Samos. Inmobiliaria Colonial, European Care Homes, Punch Taverns.
Banking and Finance
Recent cases include:
- US Bank Trustees Ltd v Titan Europe 2007-I (NHP) Ltd  EWHC 1189 (Ch), construction of servicing agreement in relation to CMBS securitisation transaction
- Grupo Hotelero Urvasco v Carey Value Added  EWHC 1039 (Comm), alleged defaults under loan agreement including material adverse change (MAC) clauses and other default provisions
- Saltri III v MD Mezzanine SICAR  2 BCLC 217, rights and duties of security trustee and duties owed to junior lenders
- Morgan Stanley v Tael One Partners  EWCA Civ 473, construction of LMA standard terms for par trade transactions
- Assénagon Asset Management v Anglo Irish Bank  1 All ER 495, abuse of power in relation to consent and exchange offer for subordinated notes
- Mills v HSBC Trustee (CI)  1 AC 804 (SC), effect of the rule in Cherry v Boultbee applicable in relation to the rights of guarantors
- Carey Valued Added SL v Grupo Urvasco  1 BCLC 352, construction of guarantee as demand guarantee/performance bond
- Re European
Directories, HHY Luxembourg Sarl v Barclays Bank 1 BCLC 336 (CA), construction of release provisions in intercreditor agreement
- Lehman Brothers RASCALS  EWHC 2914 (Ch), operation of repos/stock loans and the intermediated holding system for securities
- Satinland Finance Sarl v BNP Paribas Trust Corporation UK  EWCA Civ 150, construction of terms of subordinated bonds and ability of bondholder to apply for winding up
- Mills v Sportsdirect.com Retail  2 BCLC 143, operation of repos under GMRA and whether securities held on trust
- Trimast Holding Sarl v Telecolumbus  EWHC 1944 (Ch), construction of intercreditor agreement
- Newcastle Building Society v Mills  2 BCLC 137, effect of contractual bar on rights of set off in trust deed under the CREST system
- Re Golden Key  EWCA Civ 636, payment priorities in relation to structured investment vehicle (SIV)
- British Energy v Credit Suisse  2 Lloyd’s Rep 427, dispute over permissibility of the sub-participation of option rights
Other recent cases in the field of financial services include acting for the FSA and other regulators in relation to Re Keydata Investment Services, Lehman Structured Products, Split Capital Investment Trusts.
Recent cases in the field of disciplinary and professional negligence proceedings include Farepak and TransTec .
Commercial Litigation and Arbitration
Recent cases include:
- Avonwick Holdings Ltd v Webinvest Ltd  EWHT 3661 (Ch), acting for claimant in successful claim to recover US$200 lnding in face of an alleged oral agreement; and also  EWCA Civ 1436,  EWHC 3434 (Ch) regarding the discosure of "without prejudice" material and documents produced in an arbitration
- Constantin Medien v Ecclestone  EWHC 387 (Ch), acting for the second defendant in successful defence of claim concerning Formula One bribery allegations
- Belltrey Corporation v Newcote Ltd. shareholder dispute over ownership of BetVictor internet bookmakers
- Smithton v Naggar  1 BCLC 602,  EWCA Civ 939 breach of duty claims concerning operation of contracts for difference arising out of Dawnay Day collapse
- Tchenguiz v Director of the SFO  1 WLR 1476, disclosure of material obtained by SFO search warrants
- Saad Investments Company v Markant Investments , Commercial Court claims to recover intercompany lending
- Nomihold Securities v Mobile TeleSystems Finance  1 Lloyd’s Rep 6 (CA), scope of court’s ability to grant post judgment freezing order relief
- Westacre Investments v The State Owned Company Yugoimport  1 All ER Comm 780, effect of expiry of time on application for charging/third party debt order
- Fourie v Le Roux  1 All ER 1087 (HL), grant of freezing orders in support of intended legal proceedings
- Silvera v Urquhart  All ER (D) 330, fraud and breach of trust; issues considered included use of unused witness statements and the inferences to be drawn from a failure to call witnesses
Tom also acted for the Bank of England in the two year trial in Three Rivers District Council v The Bank of England in the Bank’s defence of the claim brought by the liquidators of BCCI for misfeasance in public office.
Arbitrations under ICC, LCIA, UNCITRAL and ICSID rules:
- LCIA arbitration regarding purchase of Ukrainian agri-business
- LCIA arbitration regarding Black Sea grain terminal including application for section 66 relief
- ICC arbitration regarding arms contract with Middle Eastern state
- LCIA arbitration for defence contractor regarding MoD IT project
- LCIA arbitration for defence contractor regarding MoD armoured vehicle project
- Nomihold Securities v Mobile TeleSystems Finance  1 Lloyd’s Rep 442, anti-suit injunction in relation to arbitration proceedings;  EWHC 2143 (Comm), test for setting aside leave to enforce an arbitration award under section 66 of the Arbitration Act 1996
- Kernel Holding v Taman Invest  EWHC 715 (Comm), section 66 injunction in support of arbitration proceedings to restrain business sale
- Schemes of arrangement and Part VII transfers under the Financial Services and Markets Act 2000
Trusts and Property
- Nolans v Minerva Trust Company  JRC 078A, dishonest assistance claims against trust company and corporate service provider
- Freeman v Ansbacher Trustees (Jersey)  WTLR 569, standing of objects of a power to sue trustees for breach of trust and application of principle of reflective loss to trusts and nominee companies
- Alhamrani v Russa Management  WTLR 1551, circumstances in which confidential trust documents can be disclosed to a stranger to the trust
- Re JC Bamford , acting in proceedings concerning the disputed will of JC Bamford and in relation to associated actions in Jersey, Switzerland and Bermuda
- Re Rothfield Investments  WTLR 593, convening of a claimant to trust property to an application by the beneficiary for the transfer of the property