Kevin Pettican

Banking & financial services

Kevin is frequently instructed in litigation with banks and financial institutions, especially disputes arising from secured lending and the provision of guarantees.

In recent years, Kevin has been instructed in several cases involving disputes as to the terms and/or enforceability of interest rate swap transactions involving the ISDA Master Agreement.  Most recently, in Deutsche Bank AG London v Comune di Busto Arsizio [2021] EWHC 2706 (Comm) Kevin was instructed (with Paul Downes KC) by an Italian local authority in Commercial Court litigation concerning the enforceability of two interest rate swaps.  This was the first case in which the Commercial Court considered the effect of the decision of the Joint Divisions of the Italian Supreme Court in the Cattolica case (Case No. 8770/20220).

Kevin acted (with Romie Tager KC) for the successful appellants in Szepietowski v The National Crime Agency [2013] UKSC 65; [2014] 1 AC 338, which is the leading case on the equitable doctrine of marshalling.  Whilst the marshalling of charges is something that normally takes place in the context of secured lending, the case raised complex issues arising from a settlement agreement between Kevin’s clients and the National Crime Agency.

Civil fraud & asset recovery

Kevin is frequently instructed in commercial cases in which fraud is alleged or which involve the recovery of assets.

Featured cases

• Re: JD Group Ltd [2022] EWHC 202 (Ch). Acting for a former director in a substantial claim by a liquidator alleging fraudulent trading and misfeasance in the context of an alleged MTIC fraud.  Permission to appeal has been granted and the appeal will be heard in early 2023.
• Winter v Hockley Mint Ltd [2019] 1 WLR 1617. The litigation involved claims of deceit and conspiracy in the context of office equipment leases.  Kevin acted for the successful appellant and the decision of the Court of Appeal is a leading authority on the circumstances in which a principal is vicariously liable for the fraud of his agent.
• Szepietowski v The National Crime Agency [2014] 1 AC 338. A successful appeal to the Supreme Court (together with Romie Tager KC) in what is now the leading case on the equitable doctrine of marshalling.  The case raised complex issues arising from a settlement of asset recovery proceedings that was originally brought against Kevin’s client by the National Crime Agency.
• Al Baho & Ors v Meerza [2011] EWHC 2984. Acting for a Kuwaiti national, a member of the ruling family of Kuwait and a former English solicitor in litigation arising from the sale of a London property in which it was alleged that the purchaser had paid a bribe and a secret commission had been received.  The dispute gave rise to proceedings in the Chancery Division, the Queen’s Bench Division (for defamation), as well as proceedings in Kuwait.
• Kinch v Rosling & Ors [2019] EWHC 286. Successful claim on behalf of Leicestershire businessman Gilbert Kinch who had been the victim of an advanced fee fraud in connection with a failed bid to acquire Leicester City Football Club.

Commercial

Kevin is a commercial litigator with more than 28 years of experience in litigating and arbitrating business disputes before courts at all levels up to and including the Supreme Court, and before arbitral tribunals both in the UK and internationally.

Whilst Kevin particularly enjoys preparing for and conducting trials, he is a versatile advocate who is equally at home in the applications court, or argument a novel point of law before the Court of Appeal.  In all his cases, Kevin seeks to adopt a persuasive and direct approach to advocacy, based on intensive prior preparation.

Featured cases

• Deutsche Bank AG London v Comune di Busto Arsizio [2021] EWHC 2706 (Comm). Kevin was instructed (together with Paul Downes KC) by an Italian local authority in Commercial Court litigation concerning the enforceability of two interest rate swaps.  This was the first case in which the English Commercial Court considered the effect of the decision of the Joint Divisions of the Italian Supreme Court in the Cattolica case (Case No. 8770/20220).
• NaturaStudios Ltd v The New York Laser Clinic Ltd [2019] EWCA Civ 421. This was a dispute concerning the supply of laser equipment to the claimant.  Kevin successfully appealed against a decision by the Deputy High Court Judge that permitted the claimant to substantially change its case shortly before trial.  Kevin was able to secure from the Court of Appeal a substantial adjournment of the trial and, thereafter, appropriate case management directions.
• Winter v Hockley Mint Ltd [2019] 1 WLR 1617. Kevin acted for an office equipment supplier in a substantial trial in the Chancery Division involving allegations of deceit and conspiracy in the context of office equipment leasing agreements.  The allegations of wrongdoing against Kevin’s client were dismissed at trial and a finding by the trial judge that Kevin’s client was vicariously liable for the actions of one of the other defendants was set aside by the Court of Appeal.  The Court of Appeal’s decision in this case is a leading authority on the circumstances in which a principal will be liable for the fraud of his agent in a commercial context.
• Dondore Incorporated v Fetaimia [2018] EWHC 1832 (Ch). This was a dispute over whether an oral agreement had been made (and performed) for the sale and purchase of the shares in a BVI company that owned a £2.5 million flat in Knightsbridge.  Following a 5-day trial in the Chancery Division, the court found that Kevin’s client had entered into an oral agreement with the claimant to purchase the shares in the BVI company that owned the flat, and that the purchase price had been paid to an African company controlled by the claimant.
• The Ritz Hotel Casino Ltd v Al-Geabury [2015] EWHC 2294. Acting for the defendant in litigation with the Ritz Club arising from multi-million-pound gambling losses.  The case gave rise to complex issues concerning the duties owed by a casino to a self-excluded customer under the Gambling Act 2005.
• Szepietowski v The National Crime Agency [2014] 1 AC 338. A successful appeal to the Supreme Court (together with Romie Tager KC) in what is now the leading case on the equitable doctrine of marshalling.  The case also raised complex issues of construction arising from a settlement agreement entered between Kevin’s client and the National Crime Agency.
• Trident Australasia Pty Ltd v Versabuild LLC [2013] EWHC 4838. Security for costs in circumstances where there were no publicly available financial statements relating to the claimant.  The issue arose in the context of a dispute between the partners to an international joint venture.
• Street v Larkins [2013] EWHC 1408. A dispute between the members of an alleged family partnership arising from the sale and purchase of property in London over a number of years.
• Re Giambrone LLP. Acting for various claimants in proceedings for professional negligence against a firm of Registered European Lawyers arising from losses suffered in relation to the purchase of off-plan holiday homes in Calabria, including making one of the first successful applications for summary judgment.

Company & partnerships

Kevin is often instructed in disputes that arise in a company law context or which arise between partners (or the members of LLPs).  Most commonly, these claims involve disputes between shareholders in which relief is sought pursuant to s994 of the Companies 2006, or in which an order is sought for the winding up of the company on the just an equitable ground.

However, Kevin has been involved in a number of claims where disputes have arisen between partners (including disputes as to whether a partnership exists at all) or between members of an LLP.  For example, Street v Larkins [2013] EWHC 1408 concerned a dispute as to whether a partnership had come into being because of various property dealings undertaken by various family members, and Simmons Gainsford LLP v Shah [2008] EWHC 2554 concerned a dispute between a firm of accountants and a former member of the LLP concerning entitlement to the proceeds of a life insurance policy.

Insolvency & restructuring

Kevin is regularly instructed in disputes arising in the personal and corporate insolvency context.  His experience includes:

• Applications to set aside statutory demands
• Applications to restrain the presentation/advertisement of winding up petitions
• Contested bankruptcy and winding up petitions
• Matters arising during the insolvency process, including resisting applications by office holders to conduct private examinations under s236 and s366 of the Insolvency Act 1986, as well as representing individuals in such examinations
• Issues concerning the appointment of administrators and their powers
• Transaction avoidance claims by office holders
• Claims by trustees in bankruptcy
• Claims by office holders against former directors for fraudulent and/or wrongful trading and misfeasance
• Directors disqualification proceedings

Featured cases

• Re: JD Group Ltd [2022] EWHC 202 (Ch). Acting for a former director in a substantial claim by a liquidator alleging fraudulent trading and misfeasance in the context of an alleged MTIC fraud.  Permission to appeal has been granted and the appeal will be heard in early 2023.
• Hira v Kanzai Securities Ltd [2017] EWHC 2213 (Ch). Successful defence of an appeal against an order refusing to set aside a statutory demand where the debtor was arguing that his liability under the personal guarantee did not give rise to a liquidated debt.
• The Law Society v Beller [2014] EWHC 3923 (Ch); [2014] BPIR 1480. Successful defence of a claim by the Law Society to recover a fund representing the work in progress of a solicitor’s former practice.  The case raised complex issues concerning the relationship between an IVA entered by the former solicitor and the statutory trust that arose following the Law Society’s intervention in his practice.
• Re: Legal & Equitable Securities plc. (in Liquidation) [2012] EWHC 910 (Ch); (2012) 109 (24) L.S.G 22. A successful challenge to a liquidator’s refusal to admit the applicant as a contingent creditor based on a contractual indemnity.  The case is significant in terms of the meaning of a contingent liability for the purposes of Rule 13.12 of the Insolvency Rules 1986.
• Re: RC Realisations (2011) Ltd. Acting for an Italian company in proceedings arising from the decision of the administrators of RC Realisations to refuse to admit a substantial claim.  The case (which settled) concerned the impact of the EU sanctions regime against Iran on two international trade agreements.
• Beller v Valentine [2011] EWHC 2397; [2012] BPIR 15. Acting for a former solicitor in a claim for outstanding fees against a liquidator in the context of a third-party funding arrangement.  The case is significant in terms of its consideration of the potential liability of an office holder who instructs solicitors in reliance on third party funding.

Property

Real property disputes form a significant part of Kevin’s practice.  Kevin has experience in the following areas:

• Commercial leases, especially contested lease renewals, forfeiture, arrears of rent and dilapidations claims
• Residential leases, especially disputes concerning the enforcement of covenants in long leaseholds
• Claims for specific performance of agreements for the sale and purchase of land
• Title disputes, including claims based on adverse possession
• Disputes between co-owners
• Boundary/neighbour disputes
• Mortgages and charges

Featured cases

• Malik v Malik – a long-running family dispute concerning the disputed ownership of a valuable leasehold flat in Knightsbridge giving rise to some complex issues concerning the application of the law of adverse possession to leasehold property.
• Dondore Incorporated v Fetaimia [2018] EWHC 1832 (Ch). Successful defence of a possession claim tried over 5 days in the Chancery Division concerning the ultimate beneficial ownership of a £2.5 million flat in Knightsbridge.  The court found that Kevin’s client had entered into an oral agreement with the claimant to purchase the shares in a BVI company that owned the flat, and that the purchase price had been paid to an African company controlled by the claimant.
• Ashley Gardens Freeholds Ltd v Landor (2017) Central London County Court. Successful claim for forfeiture of a long residential lease on the grounds that, by using the flat to operate a B&B business, the leaseholder was in breach of a user covenant prohibiting the use of the flat “for any purpose whatsoever other than as a private residential flat in one occupation”.  The leaseholder was granted relief on terms that she sold the flat within six months of the judgment to avoid the freeholder obtaining a windfall at her expense.  The case received substantial press attention.
• King v Robertson [2014] UKPC 34. An appeal to the Privy Council from the courts of St Vincent and the Grenadines concerning adverse possession of land.

Qualifications

• Christ Church, University of Oxford: BA (First Class Honours)
• Bachelor of Civil Law (BCL)
• Called to the Bar (1994) Inner Temple
• Major Scholarship and Duke of Edinburgh Scholarship, Inner Temple

This is the Privacy Policy for:

Barrister: Kevin Pettican

Address: 1EC, 3 King’s Bench Walk North, Inner Temple, London, EC4Y 7HR

The Purposes for which Personal Data is Processed:

Personal data will be processed in order to enable the provision of legal services, ie:

1. advice;
2. representation in court;
3. the drafting of legal documents.

It may also be necessary to retain personal data for conflict-checking purposes or for use in the defense of potential complaints, legal proceedings or fee disputes.

The Lawful Basis for Processing Personal Data

In some cases the subject of the personal data will have given consent to the processing of his or her personal data. Where explicit consent has not been given, personal data will be processed only when:

1. it is necessary for the performance of a contract with the person whose personal data is processed (or prior to entering such contract, in order to take steps at the request of the person whose personal data is processed); or when
2. it is necessary for the purposes of providing legal services.

Special Categories of Personal Data

It may be necessary to process personal data which constitute particularly sensitive special categories, ie personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation.

Such data will only be processed where processing is necessary for the establishment, exercise or defense of legal claims.

Who will receive Personal Data

The recipients of the personal data processed will be:

1. instructing solicitors and clients;
2. courts and other tribunals to which documents are presented;
3. witnesses and potential witnesses, including expert witnesses;
4. other barristers, pupil barristers and other legal representatives;
5. regulatory authorities.

Retention Periods for Personal Data

Personal data in case files will generally be kept at least the end of one year after the maximum relevant limitation period has expired. The limitation period will be measured from the latest date it is possible to bring any appeal.

The retention period will be reviewed when the work has been completed. The retention period may be adjusted at that time.

International Data Transfers

In cases involving international disputes, it may be necessary to transfer personal data to countries outside the European Economic Area which have different data protection standards to those which apply in the European Economic Area. This will only be done for the purposes set out in this Privacy Policy. In the event this is necessary, appropriate safeguards will be in place to protect personal data, such as European Commission approved standard contractual clauses or the EU-US Privacy Shield. You have a right to ask for a copy of the relevant safeguard.

Individual’s Rights

If your personal data has been processed or held, you have a right to request access to (and rectification or erasure of) personal data; or to request restriction of processing concerning the data subject; or to object to processing; as well as the right to data portability. These rights may be limited where there is a legal requirement, or other legitimate grounds, to process your data.

If you wish to exercise these rights, please use the contact details above.

If you have unresolved concerns you also have the right to complain to data protection authorities.