Tom has a broad commercial practice in both arbitration and litigation. His work includes civil fraud, insurance and reinsurance and disputes arising out of construction projects.

Much of Tom’s work has an international dimension. He has a particular interest in the Middle East, where he has been very active since the establishment of the DIFC Courts. Tom collaborated with Michael Black QC in drafting the Rules of the DIFC Courts and was subsequently instructed to draft the rules of the Dubai World Tribunal, together with various papers, protocols and rule changes for the Courts.

Tom has been involved in some of the most significant cases before the DIFC Courts and the Dubai World Tribunal. Recent instructions include Taaleem PJSC v National Bonds Corporation (CFI, 2010 – 2016) (with Vernon Flynn QC), a US$100m dispute concerning a property transaction, involving allegations of breach of trust and Nakheel v Souq (DWT, 2011 – 2015) (with Michael Black QC), a AED1bn dispute about a property transaction and the construction of several buildings on the Palm, Dubai.

A significant part of his recent work has involved the enforcement of New York Convention awards. He appeared in Honeywell v Meydan [2014] 2 Lloyd’s Rep 133 in which the Defendant raised every Convention defence. The decision is of particular interest on the application of the public policy defence to allegations of bribery.

Tom has acted in many of the claims to enforce foreign judgments and awards in the DIFC Courts. Leading judgments include DNB Bank v Gulf Eyadah (CA, 25 Feb 2016), a landmark decision on the use of the DIFC Courts as a “conduit” jurisdiction for the enforcement of foreign judgments in Dubai. Tom also appeared in Eagan v Eava (CFI, 28 Nov 2014), the first judgment to examine the DIFC Court’s enforcement jurisdiction, Fiske v Firuzeh (CFI, 5 Jan 2015), confirming the constitutionality of the DIFC’s enforcement laws and Eagan v Eava (CFI, 29 July 2015) on public policy.

Other examples of Tom’s recent work include:

  • Orient Insurance v ABN Amro and ors (2016): credit default insurance, declarations.
  • Shareholders’ dispute about pre-emption rights over shares in DIFC and BVI companies (2016).
  • Shareholders’ dispute about operation and ownership of distribution agent (2016).
  • WCT Berhad v Meydan Group LLC (2016): construction, enforcement of AED 1.1bn.
  • Brookfield Multiplex v DIFC Investments (2016): construction, arbitration, anti-suit injunction.
  • Banyan Tree v Meydan (2016): arbitration, enforcement, examination on assets.
  • Claim for enforcement of USD 250m judgments (2016).
  • Various disputes arising out of agreements for the supply of satellite capacity (2015 – 2016).
  • LMAA arbitration (2015): USD 6m charterparty dispute.
  • Azzam v Deyaar (2015): anti-suit injunction, abuse of process.
  • Fidel v Felecia (2015): leading case on use of expert evidence of foreign law in the DIFC Court.
  • Al-Mojil v Protiviti (2015 – 2016): forum non conveniens, negligent misstatement, witness immunity.
  • Silva v United Investment Bank (DIFC Court of Appeal, 14 Nov 2014): Wrongful dismissal; directors’ fiduciary duties; re-opening appeals.
  • Two linked AED 100m DIAC arbitrations relating to a high profile construction project in Dubai.
  • DIAC arbitration concerning construction of theme park installations.
  • US$40m telecommunications arbitration.
  • AED 90m ICC arbitration relating to a claim under a guarantee.
  • (with Michael Black QC) AED 100m DIAC arbitration about the sale of land in Dubai.
  • Vaughan v Percy (Ch. D.) (2014 – 2015) [specific performance, contempt].
  • Acting in the £100m claim brought following the collapse of the Axiom Legal Financing Fund (Ch. D.) (2013).

Tom is a contributor to Foskett on Compromise (8th Edn), responsible for chapters on arbitration, insurance and construction.

Montagu-Smith, Tom The Legal 500 - The Clients Guide to Law Firms

Areas of experience

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  • Arbitration

    Tom has a busy arbitration practice, acting both in arbitrations and in arbitration-related court proceedings. He has acted in most of the leading cases on the enforcement of arbitration awards in the DIFC. Recent instructions include (all as sole counsel save where stated):

    Recent arbitration instructions include:

    • (2016) Shareholders dispute about the operation and ownership of a distribution agent.
    • (2016) Brookfield Multiplex v DIFC Investments: construction, arbitration, anti-suit injunctions.
    • (2011 – 2015) Two linked AED 100m DIAC arbitrations arising out of a high profile construction project in Dubai. Tom acted successfully in the first arbitration and was successful in defending the majority of the second arbitration, with the balance suspended pending local court proceedings.
    • Honeywell International v Meydan LLC (formerly known as Meydan Group LLC [2014] EWHC (TCC) 1344. Enforcement of a DIAC arbitration award in the UK. The Defendant raised (and failed on) every Convention defence. Of most interest was the Court’s finding that an allegation of bribery, even if made out, would not give rise to a public policy defence.
    • X1 v Y1 (DIFC, 2014). Enforcement of foreign arbitration awards in the DIFC. The DIFC Courts found that they had jurisdiction to recognise and enforce foreign awards, whether or not the claimant was able to demonstrate the existence of assets in the DIFC.
    • (2011 – 2015) AED150m (c.$38m) DIAC arbitration arising under a contract for the sale of land (with Michael Black QC).
    • (2013 – 2014) DIAC arbitration about the construction of theme park attractions.
    • (2013 – 2015) LCIA arbitration arising out of a distribution agreement.

    Past arbitration instructions include:

    • (2011 – 2013) AED 90m ICC arbitration concerning a claim under a guarantee.
    • (2011 – 2012) US$40m telecommunications arbitration under UNICTRAL Rules (sole counsel) (2011 – 2012).
    • US$30m LCIA arbitration concerning the operation of a jack-up oil rig. The dispute was managed from London but spanned several jurisdictions including England, Cyprus, Cameroon, Panama, the UAE, New York and Texas (with Martin Mann QC).
    • US$100m ICC arbitration concerning a joint venture agreement.
    • LCIA arbitration about the ownership of several cargo vessels in a shipping pool.
    • ICC arbitration about the termination of a commercial agency agreement.
  • Civil Fraud, Asset Tracing & Recovery

    Much of Tom’s work involves allegations of fraud or impropriety, from employee fraud to claims involving allegations of large-scale corporate conspiracy. He has acted in a large number of insurance disputes involving allegations of fraud on placement or fraudulent claims. Tom has considerable experience of applications for pre-action relief, including freezing injunctions, search orders, disclosure orders and provisional liquidation. He has lectured on asset recovery in both a domestic and international context.

    Recent instructions include:

    . Axiom Legal Financing Fund Litigation (2013 – ongoing). Acting for two defendants in this £100m claim following the collapse of the Axiom funds.

    Group
    Seven Ltd v AIC and others
    (2013 – 2014) (Ch. D.) Acted for a
    recipient of monies said to derive from a €100m fraud.

    Taaleem PJSC v National Bonds Corporation (2010 – ongoing) (DIFC) (with Vernon Flynn QC), US$100m dispute before the DIFC Court relating to a property transaction, involving allegations of breach of trust and knowing receipt.

    May
    v May
    (2011 – 2013) (Ch. D.) Partnership dispute
    relating to a construction firm, involving allegations of fraudulent
    misappropriation.

    Kensington International v Montrow International (with Michael Black QC) (2008), a US$100 sovereign debt dispute in the BVI, involving allegations of sham corporate personality.

    – Numerous claims involving employee fraud.

    – Numerous insurance disputes involving allegations of fraud on placement and in claims.

  • Commercial Litigation

    Tom has a broad commercial practice. He has been involved in claims involving share sale agreements, sale and purchase agreements, joint venture agreements and international agency contracts. Many of his instructions include allegations of fraud or breach of fiduciary duty. He has considerable experience of asset tracing and recovery measures.

    Tom also has experience of insurance disputes, including policy construction, disclosure and breach of warranty issues arising out of a wide range of different covers.

    Tom has a particular interest in the Middle East, having drafted (with Michael Black QC) the Rules of the DIFC Court and he is the sole draftsman of the Rules of the Dubai World Tribunal.

    Recent instructions include:

    Taleem v National Bonds and Deyaar, a $100m dispute about a property transaction (with Vernon Flynn QC). Tom appeared successfully on jurisdiction both at first instance and on appeal. Tom subsequently appeared successfully at the trial on liability. Along the way, the case has generated a number of important procedural decisions on matters such as the use of fresh evidence on appeal, the DIFC Court’s approach to expert evidence of UAE law and documentary disclosure.

    Nakheel v Souq (Dubai World Tribunal, 2011 – ongoing). Acting for Souq in this AED 1bn dispute about a property transaction. The case was heard in February 2014. At the conclusion of trial, the Tribunal found for Souq on part of its counterclaim, ordering Nakheel to release certificates necessary for the completion of 2 buildings on the Palm, Dubai. The Tribunal reserved judgment on the balance of the claims and counterclaims.

    Limitless v Al Janahi (2011 – 2012). Tom acted for the Defendants in this AED30m restitution claim before the Dubai World Tribunal relating to gifts of land from the Ruler of Dubai. The claim was discontinued on the first day of trial.

     

    – Advising in relation to the failed purchase of an interest in power generation companies.

    Advising on a US$65m claim arising out of a transaction
    for the construction of a power plant.

     

    – Advising in relation to a guarantee claim arising out of the construction of a superyacht (2011).

    POAH v MIO (2010) (BVI), shareholders’ dispute relating to a BVI telecommunications company (valued at US$100m).

    Corinth Pipeworks v Barclays Bank plc (2010) (DIFC) (with Michael Black QC). Advising at the jurisdiction phase in relation to a US$26m claim in deceit and conspiracy before the DIFC Court.

  • Construction & Projects

    Tom is recommended in Chambers & Partners for construction. He has experience of arbitration, adjudication and the TCC. His practice has an emphasis on energy, oil and gas.

    Recent instructions include (all as sole counsel unless otherwise stated):

    – (2016) Brookfield Multiplex v DIFC Investments: construction, arbitration, anti-suit injunctions.

    – (2016 – ) (with Vernon Flynn QC, Tim Taylor QC and Rupert Reed QC) Claim for enforcement of AED 1.1bn construction arbitration award.

    – (2011 – 2015) Three linked AED 100m DIAC arbitrations arising out of a high profile construction project in Dubai. Tom acted successfully in the first arbitration and was successful in defending the second arbitration. The parties settled before the conclusion of the third arbitration.

    Honeywell International v Meydan LLC (formerly known as Meydan Group LLC [2014] EWHC (TCC) 1344. Enforcement of a DIAC arbitration award in the UK. The Defendant raised (and failed on) every Convention defence. Of most interest was the Court’s finding that an allegation of bribery, even if made out, would not give rise to a public policy defence.

    – (2013 – 2014) DIAC arbitration about the construction of theme park attractions.

    – (2011 – 2012) US$40m telecommunications arbitration under UNICTRAL Rules.

    Obsession v Hi-Lite (TCC) (2010) (with Philip Shepherd QC), £4m claim for business interruption losses arising out of a fire at commercial premises.

    – US$30m LCIA arbitration (2009) (with Martin Mann QC) relating to the operation of an oil rig.

    IPT2 Property v Total (2009) (TCC), £4m claim arising out of the Buncefield explosion.

  • Energy, Oil & Gas

    Tom has acted in a variety of energy related matters:

    – (2014) Advising in relation to the failed acquisition of power generation companies.

    – US$30m LCIA arbitration relating to the operation of an oil rig

    Corinth Pipeworks v Barclays Bank plc (2010) (DIFC) (with Michael Black QC), US$26m dispute in Dubai related to the supply of gas pipeline.

    – Advising liquidators in BVI in relation to a US$30m oil trade (2010)

    IPT2 Property v Total (2009) (TCC), £4m claim arising out of the Buncefield explosion

    Kolmar v Traxpo (2009) (Comm Ct), US$2.5m claim relating to a shipment of methanol.

    Kensington International v Montrow International (2008) US$100m BVI vulture fund dispute relating to the ownership of a corporate structure whose ultimate asset was an oilfield.

  • Professional Negligence

    Tom has acted in claims against solicitors, barristers, accountants, financial advisors, insurance brokers, surveyors and construction professionals. He also has experience of solicitors’ partnership disputes, particularly those involving allegations of fraud.

    Recent instructions include:

    Brampton Insurance v AHJ (Comm Ct) (2010 – 2011), claim against reinsurance brokers for failure to notify claims.

    – Barrister’s negligence claim relating to tax planning advice (2010).

    Lewis v Kyriacou (2009), solicitors’ negligence claim arising out of a conveyance.

    – Surveyor’s negligence claim arising out of the sale of a block of flats.

    – Claim against insurance brokers following a fire at commercial premises.

  • Real Estate Litigation

    Tom has acted in claims arising out of property transactions.

    Recent instructions include:

    • Taleem v National Bonds and Deyaar, a $100m dispute about a property transaction (with Vernon Flynn QC). Tom appeared successfully on jurisdiction both at first instance and on appeal. Tom subsequently appeared successfully at the trial on liability. Along the way, the case has generated a number of important procedural decisions on matters such as the use of fresh evidence on appeal, the DIFC Court’s approach to expert evidence of UAE law and documentary disclosure.
    • Nakheel v Souq(Dubai World Tribunal, 2011 – ongoing). Acting for Souq in this AED 1bn dispute about a property transaction. The case was heard in February 2014. At the conclusion of trial, the Tribunal found for Souq on part of its counterclaim, ordering Nakheel to release certificates necessary for the completion of 2 buildings on the Palm, Dubai. The Tribunal reserved judgment on the balance of the claims and counterclaims.
    • Limitless v Al Janahi(2011 – 2012). Tom acted for the Defendants in this AED30m restitution claim before the Dubai World Tribunal relating to gifts of land from the Ruler of Dubai. The claim was discontinued on the first day of trial.
    • Advising and acting in relation to various disputes relating to the sale of off-plan property in the DIFC.