David Phillips KC

Commercial disputes

Since taking silk 25 years ago David has developed an extensive trial practice (both in court and in arbitration) at both first instance and appellate levels. He is widely recognised for his courtroom skills – cross-examination, legal analysis, and interaction with the judge/arbitrators. David considers, however, that the requirements for first class advocacy extend beyond oral court room expertise and encompass all aspects of a case, the great variety of documents now produced in litigation, not simply skeleton arguments and statements of case, but also the structure and form of witness statements, experts’ reports, and opening and closing submissions.

For nearly 20 years David has conducted numerous cases in offshore jurisdictions. His experience has extended from interlocutory skirmishing through first instance witness actions to appeals in Courts of Appeal and the Privy Council. The Turks and Caicos Islands civil recovery litigation has taken much of David’s time over the recent years. Recently he was instructed in a 10 week arbitration originating in the Caribbean but heard in London.

David’s offshore experience involved setting up, managing and acting as leading counsel in the Turks and Caicos Islands’ civil recovery programme. Many civil fraud cases have been pursued, most involving contested witness actions and ensuing appeals.

David’s involvement in the civil recovery programme was preceded by acting for the commissioner and the governor in challenges to the Sir Robin Auld Commission of Inquiry. Two sets of judicial reviews were brought: the first to stop the Commission proceeding, the second to prevent publication of its eventual report. David acted in both sets of proceedings at first instance and the Court of Appeal. Both cases succeeded, permitting the commission to proceed and to publish its report. David was involved in a number of peripheral issues, including advising the governor in relation to the contents of the report and in relation to the leaking of the report by WikiLeaks.

Akita is a prime example of the work of the civil recovery programme. The allegations of fraud, unconscionable receipt and dishonest assistance were made against a former government minister. He was said to have preferred himself in the grant of Crown Land for commercial development. The first instance action was dismissed by the trial judge. The Court of Appeal set aside her decision. The claim of unconscionable receipt succeeded at the second trial, before the Chief Justice. David successfully resisted the appeal before the Court of Appeal, and the appeal to the Privy Council. The Privy Council hearing concerned the proper measure of compensation in the aspect of unconscionable receipt that arose in this case: the decision is reported at [2017] AC 590. The case raised not only difficult questions of liability, but also explored issues of quantum.

Robinson raised similar issues – a senior civil servant had benefited from what was said to have been an improperly preferential grant of Crown Land. The trial judge had dismissed the claim. The Court of Appeal reversed her decision, substituting a finding of unconscionable receipt. Assessment of compensation (which overlapped with the issues raised in Akita) was remitted to the Chief Justice.

Richards Arthur again involved issues of improper receipt of land. The claim succeeded – but only after the application to strike out the government’s claim had been unsuccessfully appealed to the Privy Council ([2012] UKPC 30).

Yellowstone Club World was a claim by a trustee in bankruptcy to remove a caution registered by the government to protect its claim to recover unpaid stamp duty. The action was finally determined by the Privy Council ([2013] STI 1715). The judgment considered whether a claim to unpaid stamp duty created an interest in land, and examined the powers of the Registrar of Lands.

The Trade Winds litigation was a dispute between commercial developers and the government. The claim made against the government raised eight distinct causes of action, including one of defamation. A preliminary issue was raised as to the enforceability of an arbitration clause. That issue resulted in two separate Supreme Court actions, with subsequent appeals to the Court of Appeal. The preliminary issue finally having been resolved in the government’s favour the dispute proceeded to resolution by arbitration. The arbitration was heard over a period of ten weeks in London. If the claims had succeeded the solvency of the government would have been threatened.

Coxco was an important decision of the Court of Appeal within the jurisdiction. The application was for Norwich Pharmacal disclosure – unusually against the wrongdoer himself. David succeeded in the Court of Appeal in establishing the admissibility of a very wide range of hearsay and other indirect evidence.

Other government civil recover claims have included:

• An action questioning the validity of a stamp duty avoidance scheme. David succeeded at first instance and the in the Court of Appeal. The subsequent appeal to the Privy Council was not pursued.
• Representing the government in a judicial review challenge to a planning decision to permit development of resorts at increased height.
• Representing the government in a judicial review challenge to an amendment of subordinate legislation to permit the development of a dolphin resort.
• A number of separate claims against national banks challenging the circumstances in which they had obtained advantageous charges over recently released Crown Land.
• An action exploring the question of priorities in registered land.
• Several cases raising the issue of when a secured creditor was entitled to sell the charged land by private treaty without first tendering it for sale at public auction.
• A claim concerning the implications of the passage of time (inactivity on the part of the purchaser: laches et al) on the enforceability of a preferential Conditional Purchase Agreement for the sale of Crown Land.
• A claim to recover Crown Land let to a group of belongers on the ground that the development required by the Conditional Purchase Lease had not been satisfactorily completed within the stipulated time.
• David has been instructed in a substantial civil fraud claims by a number of different sovereign states:
• Claims on behalf of one sovereign state against former government ministers, civil servants and civil engineering contractors involving the improper granting of multimillion-dollar construction projects. The litigation has included pre-action Norwich Pharmacal applications, issues of consolidation and pre-trial management. The claims are proceeding to trial.
• Claims brought by a different sovereign state against government trustees and civil engineering contractors alleging the improper granting of construction contracts for the refurbishment of government controlled golf courses.
• Claims brought by a sovereign state against former government ministers and medical service providers alleging the improper granting of contracts providing national health services.
• Claims brought by a yet different sovereign state against former directors and employees of the national airline, and their associates, alleging misappropriation and unconscionable receipt of government funds. Conduct of the litigation has involved Norwich Pharmacal applications, as well as Orders securing the preservation of property. This action proceeded in London, and included jurisdiction issues arising under the EU Judgment Regulation.
• David is now conducting similar civil fraud/asset recovery actions on behalf of government organisations in Trinidad & Tobago. There are three principal claims, each at a relatively early procedural stage. In the most advanced the defendants to unlawful means conspiracy claims have challenged the existence of the tort in Trinidad and Tobago. The issue has just been argued in the Court of Appeal: judgment is awaited. It seems likely that that challenge will proceed to the Privy Council.

David has recently appeared in the Privy Council in the latest round of the decades old dispute between Dion Friedland and Charles Hickox. This is multi-action litigation seated in New York and Anguilla between two wealthy individuals arising out of ownership of the Cap Juluca estate in Anguilla, one of the Caribbean’s prestige resorts. The litigation has involved first instance hearings, appeals to the Court of Appeal and the Privy Council – the most recent being a Privy Council hearing in November 2020.

David is representing a Russian owned Caribbean company in the Privy Council, appealing a decision of the Eastern Caribbean Court of Appeal. The subject matter of the appeal is land in Israel that was destined to become a religious shrine. The issues in the appeal are ones of corporate governance and commercial fraud.

David is conducting litigation in the Turks and Caicos Islands for a Monaco owned local property holding company against a San Marino (Italian) bank. The claim involves a dispute over property rights valued at tens of millions of dollars. The issue centres on the validity of a registered charge which turns on issues of company governance: there are allegations of fraud and malpractice.

Litigation within the British Isles has included:

• Litigation concerning the wrongful transfer of intellectual property rights in breach of a court Order. The central issue became one of the jurisdiction of the courts of England and Wales that was determined at a lengthy hearing in the Chancery Division. The decision involved a detailed examination of the workings of the relevant parts of the EU Judgment Regulation.
• A dispute between a public service vehicle business and the local authority arising out of its removal from preferred contractor status. The case raised procurement, construction issues as well as allegations of fraud and impropriety. The first instance witness action was appealed to the Court of Appeal, where a compromise was negotiated.
• Night Trunkers – the first sitting of an all-female Court of Appeal. The litigation challenged the legality of a commercial contract for the provision of drivers to Interlink. The allegation was that the operation of the contract contravened the regulatory scheme. The action failed at first instance but succeeded on appeal. After an oral hearing the House of Lords refused the application for leave to appeal.
• Acting for a hedge fund in its multimillion-pound claim against a national bank for misrepresentation/breach of contract arising out of the sale of tranches of bad credit card debt.
  Acting for the franchisee operators of an international parcel carrying business in their claim for breach of contract and misrepresentation. The first instance trial proceeded for some days in the Chancery Division before a compromise was negotiated.
• Instructed by a number of Welsh local authorities in their dealings with care home providers. The various disputes were dealt with in different ways: some proceeded to a series of contested arbitrations; others were dealt with by negotiated meetings. Subsequently advising on, and drafting revised service contracts.
• Successfully setting aside a world wide Freezing Order on the grounds of failure to prosecute the underlying action. Negotiating the eventual discontinuance of the claim.
• Representing claimants in their dispute with their former partners over ownership and control of a series of nursing homes.
• Representing a number of British citizens who had retired to Spain in claims against a European bank of mis-selling retirement packages. Conducting mediations, resulting in settlement of some of the claims. Appearing in the Chancery Division in jurisdiction applications – again, turning on the proper operation of the EU Judgment Regulation.
• Representing a professional in her High Court challenge to the operation of her professional body. The claim involved examination of a series of governance issues as well as allegations of impropriety and related failures.
• Litigation concerning the proper construction of restrictive covenants in a lease of property in a managed estate.
• Acting for the widow of the Sultan of Malaysia in her claim that she was fraudulently tricked into investing tens of millions of pounds in an electric taxi business. Conduct of the claim involved obtaining a Freezing Order, resisting an application to set aside, and subsequently successfully appointing a receiver.
• Acting for a Premier League football club in a dispute with the supplier of sporting clothing. The dispute was London based but involved worldwide commercial contracts.

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