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William Clerk

Call 2012

wclerk@2tg.co.uk

+44 (0)20 7822 1200

Practice Overview

Will specialises is commercial law, insurance law, and civil fraud.  His experience spans a number of industry sectors both domestically and internationally: manufacturing and logistics, technology, energy, insurance and reinsurance, construction and development, financial services, and sport.

Will’s commercial practice deals with a wide range of litigation and arbitration (increasingly with international and cross border elements) concerning general  commercial contractual disputes, director / shareholder (including s.994 petitions) and partner disputes, employment disputes (particularly concerning restrictive covenants and misappropriation of confidential information), asset finance, guarantee and indemnity claims, commercial agency and commission claims, professional negligence and sports disputes.

He has particular experience and is regularly instructed as sole or junior counsel in various applications for urgent injunctive relief including: freezing orders (domestic and worldwide); search orders; doorstep delivery up orders; prohibitory and springboard injunctions; and Norwich Pharmacal orders.

Will’s insurance practice complements his commercial work, and he is frequently instructed to act for insurers in significant property damage claims (in particular claims arising from fires and floods), and claims where there are issues of policy coverage and/or fraud.  He has also developed a specialist sports law practice, acting for the insurers of some major UK sports governing bodies on a variety of high-value claims typically raising complex issues of coverage and apportionment, and requiring an aptitude with handling specialist technical evidence and expert witnesses.

Commercial Dispute Resolution & Arbitration

Will is instructed in a wide range of commercial disputes across a variety of industry sectors including: manufacturing and logistics, technology, energy, insurance and reinsurance, construction and development, financial services, and sport.

He is highly sought after for his experience in general commercial contractual disputes, and those concerning civil fraud where he brings to bear his commercial fraud practice (see below) and experience of obtaining and responding to urgent injunctive relief.  In addition, he is regularly instructed in cases concerning shareholder, director and partner disputes.

Will has broad litigation experience as sole or junior counsel (increasingly with international and cross border elements), and also of both domestic and international arbitrations.

Current and Recent Work

 

  • Re: Z (2020/ongoing) – acting in LCIA arbitration proceedings concerning force majeure in the context of Covid-19
  • Re: A (2020/ongoing) – acting for a petitioner in s.994 proceedings arising from the mismanagement of a family property investment company
  • AM v BE (2020/ongoing) – acting for a defendant manufacturer of covert electronic communications equipment in a dispute regarding the international sale of goods
  • A v B, C and D (2020/ongoing) – acting for a defendant previous director in a claim seeking injunctive relief and damages arising from alleged misappropriation of confidential information and alleged breaches of fiduciary duty
  • Re: X (2020/ongoing) – acting (led by Stuart Benzie) for the petitioner in s.994 proceedings in the context of breaches of fiduciary duties and conflict between deadlocked directors of a services company
  • Re: Schneebalg (2020) – acting for the successful defendant investment management fund resisting payment of a fee claimed upon acquisition of a commercial property for c.£15m.  The claim was dismissed in full after a 3 day trial with an order for indemnity costs in the defendant’s favour
  • X v Y & Z (2020) – acted in a US$40m ICC arbitration concerning agreements for the supply of banking software and hardware
  • Shah v CVS Asset Management (2020) – acted for the successful claimant executors of an estate wrongfully denied payment of dividend monies held on trust for it.  Summary judgment granted in favour of the claimant (in the face of an application by the defendant to strike out the claim) with an order for indemnity costs in the claimant’s favour
  • Re: X (2020) – acted for a wrongfully excluded partner in an LLP dispute
  • Bestway v X (2019/2020) – acted for the defendant provider of EPOS hardware and software in this dispute concerning the construction of software licence agreements
  • L&G v MFS (2019/2020) – acted for the claimant insurers in this professional negligence claim against defendant financial advisers
  • AO v BE (2019/2020) – acted (led by Sonia Nolten) in an ad hoc arbitration concerning data capture technology, and termination of an agency agreement
Insurance & Reinsurance

Will has a busy insurance practice – split between advising and acting in subrogated recovery claims (in particular those concerning property damage arising from fires, floods and subsidence), and advising and acting on issues of construction and coverage, joint insurance, contribution and non-disclosure.

He has particular experience of claims concerning fraud, exaggeration, and non-disclosure – where he brings to bear his experience from his commercial fraud practice.

Will is also instructed in claims under life and health insurance policies, which often raise issues of coverage and fraud or exaggeration.

Current and Recent Work

 

  • F v N (2020/ongoing) – advising and acting for the insurers of a motorsports event in respect of numerous claims arising from a catastrophic accident, raising issues of coverage, contribution, and proceeding against a co-assured
  • N v E (2020/ongoing) – advising the defendant insurer in this claim arising from the installation of defective wiring and brought under the Third Party (Rights Against Insurers) Act 2010 concerning, amongst other things, the scope of the insurer’s obligations under the Act
  • Re: H (2020) – acting for the respondent insurer, successfully setting aside an order made without notice, and then defending (in full) an application to call in a security bond in the sum of £750,000 arising from allegations that a Court of Protection deputy had misappropriated in excess of £1.5m
  • L&G v MFS (2019/2020) – acted for the claimant insurers in this professional negligence claim against defendant financial advisers
  • A v B (2019) – advising an insurer on coverage and subrogation rights in relation to losses sustained by both a landlord and a tenant of an insured commercial premises where the policy inured to their joint benefit
  • X v Y (2019) – advising an insurer on the operation of a surety bond (and whether it operated as a contract of indemnity)
  • PTF v HCC (2018) – acting for the successful defendant insurer in a claim concerning the declinature under a policy of trade credit insurance
  • Watts v X, Y, Z (2018) – acting for the successful insurer in an application to strike out a claim brought directly against it, in the absence of a direct cause of action
Commercial Fraud

Much of Will’s commercial and insurance work includes issues of commercial fraud in particular claims concerning breach of fiduciary duties, economic torts (inducement of breach of contract and conspiracy), and claims in deceit.

Will has particular expertise in this context in obtaining and responding to urgent interim applications, including: freezing orders (domestic and worldwide), search orders, doorstep delivery up orders, and Norwich Pharmacal / Bankers Trust orders.

Current and Recent Work

 

  • A v B & C (2020/ongoing) – obtaining a worldwide freezing order and acting for the claimant in these proceedings arising from the misappropriation and international dissipation of c.US$3m
  • X v Y (2020/ongoing) – acting for the claimant insurers in this claim arising from the unlawful diversion of profits by an ex-director-employee
  • S v M (2020/ongoing) – acting for the claimant co-director in this claim arising from the misappropriation of significant funds and broader mis-management of company affairs by a co-director
  • Re: H (2020) – acting for the respondent insurer, successfully setting aside an order made without notice, and then defending (in full) an application to call in a security bond in the sum of £750,000 arising from allegations that a Court of Protection deputy had misappropriated in excess of £1.5m
  • Re: N (2020) – acting for an expelled director, accused of breach(es) of fiduciary duty and misappropriation of funds
  • Re: Z (2020) – obtaining a Norwich Pharmacal order on behalf of an insurer in the context of repeated fraudulent claims by linked parties
  • Hyperama v P & G (2019/2020) – acting (as junior to Stuart Benzie) for the claimant in these proceedings arising from the alleged diversion of secret profits and misappropriation of confidential information by ex-employees, including successfully obtaining a doorstep delivery up order [2018] EWHC 3843 (QB), cited in WB vol.2 at §15-91
  • Flogas v G4W (2019/2020) – acting (as junior to Stuart Benzie) for the claimant company in successfully obtaining a search and delivery up order against various respondents
  • Re: SS (2019) – obtaining a freezing order on behalf of the insurer of a solicitors firm against the perpetrators of a significant fraud on their client account
  • Re: P (2019) – obtaining a Norwich Pharmacal order on behalf of an accountancy firm the victim of significant push-payment fraud
  • Re: G (2019) – obtaining a Norwich Pharmacal order on behalf of the insurer of a solicitors firm the victim of cyber-fraud
Employment

Closely allied to his commercial fraud work, Will advises and acts in High Court employment cases concerning misappropriation of confidential information, breach of restrictive covenants, and team moves – often requiring urgent, interim applications to be made or responded to (e.g. search and/or delivery up orders, and springboard and/or prohibitory injunctions).

Current and Recent Work

 

  • A v B, C and D (2020/ongoing) – acting for a defendant previous director in a claim seeking injunctive relief and damages arising from alleged misappropriation of confidential information and alleged breaches of fiduciary duty
  • Re: GT (2020) – advising a company on breach of confidence arising from the use of its business plan by an ex-employee
  • Re: H (2020) – advising and acting for the claimant company the victim of diversion of business and misappropriation of confidential information by an ex-employee.  The claim settled shortly after forensic images of the defendant’s computers had been obtained
  • Hyperama v P & G (2019/2020) – acting (as junior to Stuart Benzie) for the claimant in these proceedings arising from the alleged diversion of secret profits and misappropriation of confidential information by ex-employees, including successfully obtaining a doorstep delivery up order [2018] EWHC 3843 (QB), cited in WB vol.2 at §15-91
  • Re: G (2019) – acting for a claimant company against a director who misappropriated confidential information and used the same to breach restrictive covenants
Property Damage

Will is frequently instructed on behalf of insurers in subrogated recovery actions arising from damage to property, invariably caused by fires, floods or subsidence (including tree-root induced subsidence).

He has extensive experience of such claims, and brings to bear his commercial practice in claims including significant elements of e.g. business interruption loss, requiring forensic accountancy evidence.

Current and Recent Work

 

  • G v T (2020/ongoing) – acting for the claimant insurers in a claim concerning recovery of significant sums paid out in settlement to in excess of 50 individual third parties, arising from the escape of a hazardous substance onto the M6 motorway
  • E v B (2020/ongoing) – acting for the claimant in a subrogated recovery action arising from an escape of water in a commercial property in central London
  • J v Severn Trent (2020/ongoing) – acting for the claimant in a subrogated recovery action including a significant claim for business interruption / loss of profits, consequent upon flooding of a commercial premises
  • J v E (2020) – acting for the claimant in this significant subrogated recovery action arising from a fire caused by electrical equipment installed and/or maintained by the defendant and/or its sub-contractor
  • A v B (2020) – advising insurers on a significant claim arising from a break-in and theft to a commercial premises
  • K v L (2019/2020) – acting for the claimant in a subrogated recovery action brought for breach of the ignis suus duty arising from a catastrophic fire
  • X v Y (2018/2019) – advising insurers on the defence of automatism in the context of a catastrophic road traffic accident
  • Pinner RFU v Harrow LBC (2018/2019) – acting for the claimant in this subrogated recovery action arising from tree-root induced subsidence damage suffered to a leased clubhouse
Sport

Will has developed a specialist sports law practice with a focus on the commercial, disciplinary, and regulatory aspects of sports disputes across a variety of different sports including: football, rugby, motorsports, cricket, tennis, athletics and shooting.

He is frequently instructed to advise on the interpretation and application of sports bodies’ regulations, and also acts as procedural adviser from time to time for national and Olympic selection panels.

Will is regularly instructed as junior counsel of choice by the major national governing bodies for motorsports in the UK (MSUK for 4 wheeled motorsports, and ACU for 2 wheeled motorsports) and is a genuine specialist in claims brought against motorsports organisers, governing bodies or their insurers.  Such claims are usually high value (in excess of £1m) and often involve complex issues of sports and insurance law.  The claim of Brand v No Limits [2020] EWHC 1306 (QB) is a lead case in the area – in which Will acted for the successful defendant, leading to the dismissal in full of a c.£2m claim brought by an instructor against the organiser of a motorcycle track day.

Will also has a particular interest in the (mis)management of concussion injuries in sport – not only in the player-welfare issues that arise, but the attendant commercial and/or insurance implications that abound.

He has been appointed to the Sports Resolution UK Pro Bono Legal Service since July 2015.  This service is made up of lawyers who are willing to provide pro-bono legal advice and representation to athletes, coaches, team officials, and other individuals appearing before sport-specific tribunals: see www.sportresolutions.co.uk for further information.

Current and Recent Work

 

  • Smith v MSUK (2020/ongoing) – acting for the defendant governing body (MSUK) in this significant claim arising from a multi-car accident during the British Touring Car Championship
  • Whalley v Rev 2 Race (2020/ongoing) – acting for a defendant mechanic in a claim arising from a fatal accident during the 2017 Ducati Championship
  • Brand v No Limits [2020] EWHC 1306 (QB) – Will acted for the successful defendant motorsports organiser, leading to the dismissal in full of a c.£2m claim brought by an instructor against the organiser of a motorcycle track day.  The case is of wider importance for its exposition of the law in the area
  • Hall v Inch Perfect (2020) – acted for the defendant motorsports organiser in this high value claim which raised significant issues regarding the application of the Bolam test for professional negligence within the motorsports context.  The liability only trial settled on day 4 of 5
  • X v ACU (2020) – acted for the defendant governing body, in this c.£1.5m claim arising from an accident involving a prototype electric superbike
  • Joint v ACU (2020) – acting for the defendant governing body, in this c.1.5m claim arising from a motocross accident
  • Bareham v MSUK & Ors (2019/2020) – acting for the MSUK in this claim arising from an accident at the Wales Rally GB
  • Re: MCC (2019) – advising the MCC on potential liability qua promulgator of the laws of cricket
  • Clarke v Kerwin (2018) – acting for the successful defendant motorsports organiser in this high value claim arising from a serious accident during an enduro event.  The judgement is of wider importance, and has been frequently cited in subsequent cases for its exposition of the doctrine of the modified duty of care / inherent risk in sports cases
  • PTIOs v X & Y (2016/2017) – acting for a respondent in confidential disciplinary proceedings brought by the professional tennis integrity officers concerning match-fixing allegations
  • Schwartz v. OUPC (2016)acting successfully for the defendant club 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
  • 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. 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