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William Clerk

Call 2012

wclerk@2tg.co.uk

+44 (0)20 7822 1200

Practice Overview

Will specialises in commercial law, insurance law, and civil fraud.

He has a busy commercial practice that deals with a wide range of commercial work across a variety of industries and is regularly instructed in litigation concerning general contractual disputes, commercial agency, commercial fraud, restrictive covenants, share purchase agreements, guarantees and indemnities, insurance and reinsurance, professional negligence, and sports disputes.

Will is experienced in handling claims involving urgent interim applications and injunctive relief (most recently applications for Norwich Pharmacal / Bankers Trust Orders and Freezing Orders arising out of “cyber fraud” claims) whether instructed as sole counsel, or as part of a larger team.

In addition, Will has a busy insurance practice dealing with both (a) subrogated recovery claims (especially those concerning property damage which typically raise issues of professional negligence); and (b) disputes concerning coverage and policy interpretation.

Will is frequently instructed and has particular expertise in claims (whether in the fields of commercial law or insurance law) raising issues of fraud and exaggeration where he brings to bear a robust approach.

Commercial Dispute Resolution

Will is instructed in a wide range of commercial disputes. He has particular experience of claims arising from sale of goods contracts between SME businesses (and, typically, the termination of such contracts), claims involving guarantees and indemnities, commercial agency claims and other claims for unpaid commission, disputes arising from share purchase agreements, and joint venture and partnership disputes.

He accepts instructions as sole or junior counsel in cases concerning all aspects of commercial dispute resolution. He has a particular interest and aptitude in cases dealing with specialist technical evidence.

Current and recent work includes:

  • X v. Y (ongoing) – acting for an online advertiser in its claim for unpaid sums due under a services agreement with a leading online retailer.
  • X v. Y (ongoing) – acting for a contractor in a claim concerning alleged non-payment of recruitment commission fees.
  • FCFM Group Ltd v. X & Ors (2017/18)– Commercial Court proceedings concerning acquisition financing.
  • Snook v. THL (2017) – Mercantile Court proceedings arising from a commercial agency agreement.
  • Thakrar v. Zentai (2017) – a dispute concerning allegedly unpaid commission payments flowing from a SPA.
  • (Eurokey) Meadowbank Vac Alloys Ltd v. Eurokey Recycling Ltd (unreported) High Court (Mercantile), 16 May 2016 (available on Lawtel, Document No. AC0150558). Acting as sole counsel for the successful Defendant in its counterclaim against the supplier/Claimant for the supply of defective scrap metal consignments bought by the Defendant and delivered on to buyers in India and Pakistan. Noted in Chitty on Contracts as the most recent authority to consider pass-through claims, following the principle in Biggin & Co Ltd v. Permanite Ltd [1951] 2 KB 314.
  • KLM v. Global Invacom Ltd [2015] LTL 5/08/2015 (Lawtel Document AC9301600) – instructed as junior counsel for the Claimant, led by Stuart Benzie (2TG), in these Mercantile Court proceedings arising out of the wrongful termination of a long term supply agreement.
  • X v. Y v. Z (2014) – instructed on behalf of a major UK Oil and Gas Project Management company as junior counsel (led by Andrew Miller QC of 2TG) in a US$53m claim arising out of the drilling of a prospective well in West Africa. The matter settled shortly before a six-week trial in the TCC.
  • R.S. Brookhouse Engineering(Evesham) Ltd v. Willbros Construction (U.S.) LLC (2013)- instructed as junior counsel (led by Stuart Benzie of 2TG) in this three week trial in the TCC concerning a dispute over contracts for hire of mechanical plant used for laying oil-pipelines in the USA.
Commercial Fraud

Will is regularly instructed in litigation involving commercial and insurance fraud. He accepts instructions to act either as sole or junior counsel.

Many of his commercial fraud cases concern recovery of misappropriated company funds whether the unsophisticated misappropriation of funds by delinquent employees, or more sophisticated frauds perpetrated by directors and other officers. He is also increasingly instructed on behalf of insurers in “cyber-fraud” claims, often in cases concerning push-payment scams.

Will’s commercial fraud practice is equally concerned with the enforcement of judgments, whether by obtaining urgent injunctive relief (e.g. Norwich Pharmacal / Bankers Trust and Freezing Orders), or by establishing personal liability (whether direct liability or receipt-based liability) against e.g. past or present directors of companies.

Will also has particular experience of insurance claims involving fraud and exaggeration.

Current and recent work includes:

  • A v. B & Ors (2017/2018) – acting as sole counsel for insurers in proceedings concerning fraudulent misappropriation of sums from a solicitors firm. Successfully obtained Norwich Pharmacal / Bankers Trust / Disclosure orders from the High Court against the banks who had received the misappropriated funds and, thereafter, a Freezing Order (without notice) from the High Court against a third party involved in the commission of the fraud
  • Paint the Frog Ltd v. Tokio Marine HCC Plc (2017) – acting as sole counsel for the successful Defendant in this claim under a policy of trade credit insurance which was declined because of concerns that the underlying goods had never in fact been delivered. Acting for the Defendant in subsequent recovery and enforcement proceedings.
  • X v. Y (2017) – acting as sole counsel in High Court proceedings arising from the Defendant’s (alleged) misappropriation of sums via fraudulent expense claims over a significant period of time.
  • Kiril Mischeff Ltd v. Osman (2016) – High Court proceedings arising from the Defendant’s fraudulent accounting and misappropriation of sums from the Claimant.
  • Flogas Britain Ltd v. McNicholas (2016) – acting as sole counsel for the Claimant in this claim for damages and injunctive relief, arising from the wrongful detention of the Claimant’s property following termination of a distributorship agreement.
  • Bradley v. Jones (2015) – acting as sole counsel on behalf of the Claimant in a claim concerning an urgent application for an injunction prohibiting the Defendant from disposing of his interest in a property pending entry onto the register of a charging order over the same.
  • VKB v. Y (2014)– acted as sole counsel for the Claimant in these proceedings relating to the alleged misappropriation of significant sums from a company by a previous director.
  • F.W. Farnsworth Ltd & Anor v Lacy & Ors (2013) – (as junior counsel, led by Stuart Benzie of 2TG) a successful application to commit the Defendants for contempt of court following the breach of a consent order to enforce a restrictive covenant.
  • MWUK Ltd v. Martin (2013) – (as junior counsel led by Stuart Benzie of 2TG) a successful, without notice application for a “door-step” delivery-up order.
Insurance & Reinsurance

Will is regularly instructed to advise and act in matters relating to coverage and policy interpretation.

He has a particular interest in claims raising issues of fraud and exaggeration in which he brings to bear his experience in commercial fraud.

Current and recent work includes:

  • X v. Y (2018) – advising an insurer on coverage and rights of subrogation in relation to losses sustained by both a landlord and tenant of insured commercial premises where the relevant policy inured to their joint benefit.
  • A v. B (2018) – advising an insurer on the operation of a surety bond (and whether it operated as a contract of indemnity, a contract of indemnity, or both).
  • Watts v. X, Y, Z (2018) – acting successfully for an insurer to strike out a claim brought directly against it in the absence of any direct cause of action.
  • Paint the Frog Ltd v. Tokio Marine HCC Plc (2017) Acting as sole counsel for the successful Defendant in this claim (and subsequent recovery and enforcement proceedings) under a policy of trade credit insurance which was declined because of concerns that the underlying goods had never in fact been delivered.
  • A v. B (2017) – advising an insurer on coverage in relation to “damage” allegedly sustained to materials during (a) manufacturing; and (b) application.
  • X v. Y (2014) – advising the United States Air Force’s group insurer on issues of coverage, and in particular the question of double insurance.
Property Damage

Will has a busy Property Damage practice, and has significant experience across a broad range of claims in this field: dealing with both damage to private property (whether residential or commercial premises, or other chattels) and damage to construction or utilities projects, whether caused by fires, floods, subsidence and explosion.

Such claims frequently feature allegations of professional negligence. Will regularly acts for insurers whether pursuing subrogated recovery actions (via buildings and contents policies) or defending such claims (via public liability and professional indemnity policies). He also acts in cases concerning product liability.

Together with other members of 2TG, Will is currently contributing to a practitioner book on property damage.

Current and recent work includes:

  • X v. Y (present) – a claim by a Rugby Club for tree-root induced subsidence damage caused to its clubhouse.
  • X v. Y (2018) – a claim for water damage to the organ within Southwark Cathedral arising from allegedly negligent works to the Cathedral roof.
  • TFL v. Brocks Haulage Ltd (2018) – a claim concerning damage to the Blackwall Tunnel carriageway caused by the allegedly negligent discharge of oil from the Defendant’s lorry.
  • A v. B (2017/18) – a claim for damage and destruction of the contents of an insured’s house, lost when the removal lorry caught fire en route between the insured’s old house and his new house.
  • Drury v. Kier Group Plc, Adstone Construction Ltd & Building Design Partnership (2015 to 2017) – acting as counsel for the Third Defendant in these TCC proceedings concerning allegedly defective design and construction of a steel canopy superstructure.
  • Harding v. Nautic & Mapfre (2015) – acting for the Claimant in this dispute concerning allegedly defective maintenance, service and repair of a boat in Spain which it is claimed led to irreparable damage to the boat’s engine.
Life & Health Insurance

Will is developing a practice is Life and Health Insurance in which he brings to bear his experience of (a) advising on and acting on cases concerning coverage and policy interpretation; and (b) claims concerning fraud and exaggeration.

Current and recent work includes:

  • Thomas v. AIG (present) – acting for Defendant insurers in a claim for permanent total disablement brought by an ex-serviceman under a Policy of personal accident insurance.
  • Ribnikov v. ACE (2018) -¬ acting for Defendant insurers in a claim for permanent total disablement under a Policy of personal accident insurance.
  • Willsher v. Friends Life Ltd (2013) – ¬ led by Caroline Harrison QC and Sonia Nolten; acting for Defendant insurers in significant permanent health insurance claim, discontinued on the second day of trial.
Sport

Will has an established sports practice with a strong focus on the commercial, disciplinary, and regulatory aspects of sports disputes across all major sports with an emphasis on motorsport.

Drawing on his wider commercial and insurance practice, he has particular expertise and experience in issues surrounding the corporate structure and legal status of sports clubs and sports governing bodies.

Will regularly acts for insurers defending claims brought against governing bodies and organisers, in particular in the field of motorsport.

Will was appointed to the Sports Resolutions UK Pro Bono Legal Service in July 2015, and is a core member of 2TG’s sports team.

Current and recent work includes:

  • Clarke v. Dirtbike Action (2018) – acting for the successful Defendant in this claim arising from an off-road motorcycle rally in which the Claimant suffered a serious accident sustaining multiple injuries. HHJ Peter Hughes QC, in dismissing the claim entirely, held that the accident was caused wholly by the Claimant’s “own stupidity”. The judgment is of wider importance in that it gives detailed consideration of (a) the duties owed by motorsports event organisers and the extent of voluntary acceptance of risk by participants; and (b) the doctrine of novus actus interveniens in the context of motorsports.
  • Sanders v. RAC Motorsports Association Ltd (2017) – acted for RACMSAL (the national governing body for motorsport in the UK) in these proceedings arising from a motor racing accident. Successfully applied to strike out the entire proceedings as being brought against the wrong party (the national governing body) rather than the race organiser. Successfully applied to enforce costs against the Claimant for bringing a claim that disclosed no reasonable grounds.
  • Professional Tennis Integrity Officers v. X & Y (2016/2017) – acted for the Second Respondent in confidential disciplinary proceedings concerning match-fixing charges against professional tennis players.
  • Dujakovic v. Crystal Palace FC Ltd (2017) – Advising Crystal Palace on its liability in this claim arising from an accident sustained by a steward as a result of a crowd surge during a match between Manchester City and Crystal Palace at Selhurst Park Stadium.
  • Schwartz v. OUPC (2016/17) – acting successfully for the Defendant OUPC in a claim brought by an ex-member, raising issues of the scope of the Court’s supervision of and jurisdiction over unincorporated associations in a sporting context. Summary judgment was entered following a successful application.
  • Drury v. (1) Toulson; (2) FC Halifax Town Ltd (2016) – Claim arising from a “red card” tackle during a professional match. Advising FC Halifax Town Ltd’s insurers on coverage / indemnity in relation to the lead claim against their player.
  • National Ice Skating Association (UK) Ltd v. X & Y (2015) – acting for NISA in disciplinary proceedings and successfully securing sanctions against each of the Respondents.
  • X v. RFU (2015) –instructed to appear on behalf of the appellant National League 1 Rugby Club in this appeal against a decision of the NCA against the club.
  • X v. Y (2015) – advising a Premiership rugby club in relation to a threatened claim by an agent for non-payment of allegedly outstanding transfer fees. Following robust pre-action correspondence, the claim was never issued.
  • In re: A (2014) – advising a young Formula 4 driver in relation to a sponsorship agreement.
  • X v. Y v. Z (2014) – advising a semi-professional rugby player on the merits of an action against a fellow semi-professional player and an amateur club (including advising on issues relating to coverage and policy interpretation) arising out of injuries sustained during an on-pitch assault.