Alexander Pelling

Areas of experience

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• Arbitration

  Alex has very considerable experience of arbitrations and related disputes, including:-

  • (Ongoing) a very substantial arbitration involving allegations of fraud and duress.
  • A claim for damages arising for failure to deliver 500,000MT of petroleum coke in the Caribbean, heard in a five day arbitration before a three-man panel;
  • A dispute relating to a residual value guarantee provided in the context of the financing of railway trains. The proceedings were stayed under s. 9 of the Arbitration Act (see [2012] EWHC 1067 (Comm)) and were continued before a three-man panel of arbitrators;
  • A claim brought in the English courts by Aeroflot, the Russian state airline, against a group of companies, with two of which Aeroflot had entered into arbitration agreements. The claims against two of the companies were stayed (see [2013] EWCA Civ 784).
  • A shareholders’ dispute between Pakistani and English shareholders, relating to the value of the shareholding sold under a put option, that was heard in London under the rules of the Stockholm Chamber of Commerce;
  • A dispute between a creditor and debtor in which the creditor simultaneously brought insolvency proceedings in England under a contract that contained an arbitration agreement and arbitration proceedings in Sri Lanka.
• Banking and Financial Services

  Alex has very considerable experience of work involving capital markets and derivative products (these cases are summarised here; bank payment disputes are summarised in the section on civil fraud). This work has been mostly contentious but also non-contentious. Contentious work has included disputes over contracts for differences, spread bets, options and other derivatives relating to financial (and, to a lesser extent, sporting) markets. He is recommended in this area by Legal 500.

  Notable and recent cases have included the following.

  • (Ongoing) a forex trading case relating to the alleged non-implementation of stop loss orders against positions on the EUR/CHF following the ‘flash crash’ of January 2015.
  • An offshore case concerning £12m-worth of CFDs in bank shares that were closed without agreement when the market dipped. The claimant sought damages on the basis that he would have closed the position at a better price.
  • A claim against an investment bank relating to the purchase by the claimant for US$12m of a structured product on which the counterparty (Lehman) defaulted (the Camerata litigation). The claim was based on an allegation that the bank’s failed to give proper advice to the claimant and mis-sold the product.
  • City Index Limited v Romeo Balducci [2011] EWHC 2562.  A claim by a spread betting company against a debtor who asserted that his losses were caused by advice wrongfully given to him by the claimant in breach of its statutory and contractual obligations.
  • Spreadex v. Barnes (2010).  A £2.4m claim by a spread betting company against a debtor in which there were issues as to the debtor’s liability for an account that was not in his own name.
  • Cambridge Mercantile v. Global Metcorp Ltd & Anor (2010) claim by a foreign exchange dealer against a customer in relation to a number of disputed contracts.
  • Spreadex v Kemsley (2010) claim by a spread betting company for payment of c. £6.5m under a number of spread bets. The defendant took numerous points of contractual construction as well as relying on UCTA.
  • Byblos International v IFX Markets Ltd [2009] EWHC 346. Claim by a foreign exchange broker against a dealer which the broker alleged had underpaid it in relation to transactions by customers introduced under the brokerage.
  • Advising an offshore internet betting firm based in the Isle of Man in relation to judgments given in the state of Kentucky based on breaches of local gambling statutes.
  • Spreadex Ltd v. Vijay Ram Battu [2005] EWCA Civ 855, CA (Civ Div) On the applicable terms of trade for spread betting between a customer and operator the initial security paid in relation to future potential losses and the further security provided in respect of running losses overlapped. The security was not to be regarded as separate and cumulative.
  • Cantor Index v. Shortall [2002] All ER (D) 161 (Nov): A spread betting company was liable to the customer for duress/intimidation where it prevailed on the customer to agree to closing of bets before the time for providing a margin had expired.
  • Sporting Index Ltd v. Ahmed (Bristol County Court, unreported, 2001): On the construction of the claimant’s terms and conditions the defendant was liable in respect of losses on spread bets that were closed out against his wishes.

  Non-contentious work has included drafting of terms and conditions for Financial Spreads and Spreadex, and advising on the creation of a new offshore internet futures trading business based in Gibraltar, FuturesBetting.com. He has dealt with regulatory issues including those arising out of the financial promotions restriction in the Financial Services and Markets Act 2000 and the voluminous secondary legislation related to it. In undertaking such non-contentious work he regards it as essential to gain a good understanding of the client’s working practices.

• Civil Fraud, Asset Tracing & Recovery

  A recommended junior in this area in Legal 500, Alex has substantial experience in civil frauds and asset-recovery, and in cases involving the breach of fiduciary obligations.

  He has substantial experience in freezing orders and related disclosure orders against banks and other third parties. He also has particular niche expertise in cases involving cheque fraud.

  It is normal for fraud cases to involve freezing injunctions and third party disclosure orders, such as Norwich Pharmacal orders or orders under the Banker’s Books Evidence Act and Alex has considerable experience of these. He seeks where possible to bring proprietary claims, an area in which those with a Chancery flavour to their practices often have an edge on practitioners whose background is more in the commercial mainstream.

  Alex has substantial experience of frauds on banks and is familiar with the operation of bank payment systems. He has plenty of experience of applying for freezing orders on behalf of banks and other clients at short notice.

  Examples of work are:

  • Ras Al Khaimah Investment Authority & ors. v. Bestfort Development LP & ors [2015] EWHC 3383 (Ch) (Rose J).  Freezing order application by six claimants against fourteen defendants arising out of the alleged misappropriation of assets from UAE entities in the Republic of Georgia together with the appointment of receivers over the defendants’ assets, including bank accounts in Latvia.
  • TMSF v Demirel [2007] EWCA Civ 7, 99; [2011] UKPC 17 (Privy Council): 

  proceedings in Cayman to enforce a judgment obtained by a bank in Turkey against two trusts containing US$24 million. The judgment debtor was settlor of the trust and retained a power of revocation over it. The case went to the Privy Council.

  • Avaya v Dowley (2009) claim by employer against employee alleging appropriation of approximately £1 million-worth of electronic components.
  • (2008) advising a major clearing bank in relation to the procedures that should be adopted in relation to the opening for a purported sole traders of an account that is not in the applicant’s own name, so as to avoid liability to the true owner of any cheque that may subsequently be fraudulently collected through the account.
  • (2007) – Proceedings to recover the proceeds of a £3m fraud committed in the Isle of Man on an American company. The proceeds were in various jurisdictions including the Channel Islands and Switzerland.
  • Architects of Wine Ltd (In Liquidation) v. Barclays Bank PLC [2006] EWHC 1648 (Comm) (David Steel J. 16/6/2006); [2007] EWCA Civ 239. Action by liquidator based on conversion of cheques stolen from company. Issues concerned director/sole shareholder’s authority to appropriate cheques belonging to insolvent company and the question whether the defendant bank acted negligently in collecting them for its customer.
  • Isovel Contracts Ltd -v- ABB Building Technologies Ltd [2001] 1 BCLC 390 Ch D. It was no defence to an action on a dishonoured cheque for the amount due under a certificate authorising interim payment under a building contract to argue that subsequent certificates or valuations showed that the amount paid was not due. The rule on mutual credit and set off in r.4.90 Insolvency Rules 1986 SI 1986/1925 was not to be extended to companies in administration by the device of granting a stay on an application for summary judgment based on the cheque.
  • Smith & Hayward v. Lloyds Bank PLC [2000] 1 WLR 1225 – Court of Appeal Where a cheque or banker’s draft was fraudulently altered by deleting the name of the true payee and substituting the name of a different payee, and the cheque or draft was then presented or paid, the collecting bank was not liable in conversion for the full value of the instrument. Section 64 Bills of Exchange Act 1882 rendered the instrument worthless, such that only nominal damages were recoverable.
  • Yorkshire Bank v. Lloyds Bank (QB) 16/3/99 References: LTL 18/5/99: (1999) Lloyd’s Rep Bank 191: Times, May 12, 1999. There were no grounds for establishing a new category of liability for economic loss caused by negligent performance of services so as to cover a situation where a cheque had been abstracted from a bank’s custody after receipt and was then altered, presented elsewhere and paid.
• Commercial Litigation

  Alex has acted in a wide range of business, contractual and banking disputes and is recognised in Legal 500 as a leading junior in this highly competitive area. Among the most recent are the following:

  • Arab Jordan Investment Bank v Sharbain [2019] EWHC 860, Waksman J.  Claim to enforce judgment of the Jordanian courts in England & Wales.  Numerous points of Jordanian law taken by the defendant.
  • Aeroflot – Russian Airlines v. Estate of Berezovsky & ors. [2018] EWHC 1735.  Allegation that defendants had fraudulently conspired to misappropriate over $100m from Russian state airline through the provision of a bogus secured financing arrangement.  Claim discontinued after eight years of litigation on eve of 28-day trial and indemnity costs of the entire action subsequently awarded against the claimant.
  • Janus Capital Management v Safeguard World [2016] EWHC 1355.  Claimant alleged that the defendant payroll processor had wrongly charged a mark-up for the provision of foreign exchange and payment services, in breach of contract/fiduciary duty.
  • Amira v RS Foods (2015).  Sale of goods case relating to contracts for the delivery of a large volume of rice, including issues as to specification and condition of the goods.
  • (2010) Advising on the construction of various clauses in the ISDA Freight Forwarding Master Agreement in numerous claims following the collapse of the Baltic shipping index in 2008-2009
  • (2010) acting in a US$34m claim between offshore companies controlled by Russian oligarchs. The claim included a contested freezing order and substantial offshore investigations.
  • Cambridge Mercantile v. Global Metcorp Ltd & Anor (2010) claim by a foreign exchange dealer against a customer in relation to a number of disputed contracts.
  • (2009) acting for the minority (15%) shareholder in a s. 994 (formerly 459) petition in relation to a company whose assets – mostly consisting of leasehold property – were being mismanaged by the dominant shareholder.
  • Byblos International v IFX Markets Ltd [2009] EWHC 346. Claim by a foreign exchange broker against a dealer which the broker alleged had underpaid it in relation to transactions by customers introduced under the brokerage.
  • RBS Invoice Financing Ltd v. Karia & ors (2008) claim by debt factor against customer involving freezing order and allegations of fraud.
  • Aboualsaud v Aboukhater & Anor [2007] EWHC 2122 (QB) (19 September 2007). A claim for €21m arising out of the sale of the Monte Carlo Grand Hotel for over €200m, in which the claimant’s case was that he was engaged under an oral contract to act as an agent for sale by the defendants. The issues included the difficult question whether the sale to a consortium of buyers that included a party introduced by the claimant was a sufficient performance of the contract sued on.
  • Halton International Inc (Holding) SARL (Formerly Halton International Inc) & Anor v Guernroy Ltd [2005] EWHC 1968 Ch D (Patten J) 9/9/2005 [2006] 1 BCLC 78; [2006] EWCA Civ 801. The case was concerned with a voting agreement under which some of the shareholders in British Mediterranean Airways (the claimants) had given power to another (the defendant) to vote their shares and the defendant used that power to authorise the issue of a large number of new shares to itself. The action was concerned with the question whether in these circumstances the defendant was under a fiduciary duty in relation to its exercise of the power, and if so whether it was in breach of such duty. The case also raised questions relating to the construction of section 21 of the Limitation Act, which went to the Court of Appeal.
  • Royal Bank of Scotland v. Sandra Estelle Fielding [2003] EWHC 986 Ch D (Hart J) 2/5/2003 References: LTL 8/5/2003: Times, May 16, 2003. Under the terms of a mandate signed by both the defendant and her husband, the defendant was liable to the bank for a substantial debt on a joint account held with her husband even though she was ignorant as to the indebtedness, which was arranged solely between the bank and her husband.
  • Isovel Contracts Ltd -v- ABB Building Technologies Ltd [2001] 1 BCLC 390 Ch D. It was no defence to an action on a dishonoured cheque for the amount due under a certificate authorising interim payment under a building contract to argue that subsequent certificates or valuations showed that the amount paid was not due. The rule on mutual credit and set off in r.4.90 Insolvency Rules 1986 SI 1986/1925 was not to be extended to companies in administration by the device of granting a stay on an application for summary judgment based on the cheque.
  • Scania Group Litigation. Proceedings were brought by over seven hundred lorry drivers against over fifty employers, alleging that Series 4 Scania lorries were defective in that the seating and cab design caused back injuries. A group litigation order was made and the employers issued third party proceedings against Scania, the manufacturer, for which Alex was instructed with Philip Shepherd QC. The case settled shortly before trial with the dropping of all allegations of defect and the claimants agreeing to pay a substantial contribution towards Scania’s costs.
  • Breach of contract claim relating to sole distributorship for ice cream machines. A UK company with sole distribution rights relating to machines for the commercial production of ice cream was replaced in breach of contract by the Italian manufacturer.
  • Numerous other business disputes relating to (for example) the investment funds industry, the derivatives trading industry, the travel industry, estate agents and the hotel industry. Also (2010) a dispute relating to contracts for the removal of land mines in Africa and a case concerning allegations that the claimant had been sold defective life jackets.
• Insolvency

  Alex has appeared in many insolvency cases, acting in relation to all kinds of dispute but predominantly in bankruptcies. In particular he has provided advice and/or representation in relation to:

  • applications for interim orders (IA s. 253);
  • applications to set aside statutory demands (IR 6.5);
  • creditors’ and debtors’ petitions (IA s. 271, 272);
  • applications for possession of real property formerly belonging to the bankrupt (IA, s. 306; 335A);
  • validation orders (IA, s. 284);
  • public examination of bankrupt (IA, s. 290);
  • disputes relating to after-acquired property (IA, s. 307);
  • issues arising from the disclaimer of onerous property (IA s. 315);
  • issues relating to proofs of debt (IR 6.105);
  • issues relating to insolvency set off (IA s. 323; IR 4.90);
  • transactions at an undervalue (IA s. 238, 339);
  • preferences (IA s. 239, 340).

  Particular cases with an insolvency aspect were:

  • Architects of Wine Ltd (In Liquidation) v. Barclays Bank PLC [2006] EWHC 1648 (Comm) (David Steel J. 16/6/2006); [2007] EWCA Civ 239. Action by liquidator based on conversion of cheques stolen from company. Issues concerned director/sole shareholder’s authority to appropriate cheques belonging to insolvent company and the question whether the defendant bank acted negligently in collecting them for its customer.
  • PA Roberts -v- (1) PJ Nunn (2) L Tiffany [2004] 1 FLR 1123 Ch. A consent order made between the parties to divorce proceedings had been made without jurisdiction and was therefore ineffective to impose a trust on one half of the pension fund in issue. As a result lump sums paid to the husband out of the pension fund vested in his trustee in bankruptcy.
  • Valder -v- Durrant & Anor [2003] LTL 10/7/2003 Ch (David Oliver QC). Appeal in basnkruptcy. On the evidence, a district judge’s dismissal of a debtor’s application to set aside a statutory demand was unjustifiable.
  • Karia -v- Franses & Anor [2001] All ER (D) 161 (Nov) (Lightman J). Whether bankrupt could avoid eviction from property by relying on Human Rights Act.

Other information

• Recommendations

  “A joy to work with – always on point, super responsive, a great advocate, and great with clients. Just can’t fault him”

  The Legal 500 2024, Commercial Litigation

   

  Ranked as a Leading Junior for Commercial Litigation and Fraud: Civil.

  The Legal 500 2023

   

  “Alexander is great to work with – he focuses in on the key points with an eagle eye, superb draftsman and great advocate.”

  The Legal 500 2022

   

  “Thoughtful and tactically astute”

  “Clients trust him because he understands their problems and thinks creatively about how to solve them.”

  “He’s not fazed by anything in either litigation or arbitration.”

  The Legal 500 2021

   

  “A really great member of the Bar to work with”

  “Clients cannot recommend him enough”

  “Clever, imaginative in solving problems, hardworking and a pleasure to work with”

  The Legal 500 2020

   

  ‘Recommended for banking disputes with an offshore element.

  ‘Strong for offshore commercial disputes.’

  ‘Highly experienced in fraud litigation.’

  The Legal 500 2019

   

  ‘A genuine specialist in retail derivatives disputes.’

  ‘Recommended for his broad commercial practice and client skills.’

  ‘Very effective and good value on a heavy case when the cost of a silk isn’t justified.’

  The Legal 500 2018

• Academic history
  • Dundee University, MA (Hons)
  • D Phil, St Edmund Hall, Oxford
  • City University, Dip Law