Date of Birth: 1965Date of Call: 1989
Silk Date: 2006
General Information
BA (Oxon), First Class Honours Degree in Jurisprudence.
LLM, University of California at Los Angeles (UCLA).
Eldon Law Scholarship, Oxford University (1990).
Tuition Fellowship; UCLA (1987).
Entrance Award and Senior Holker Scholarship; Gray’s Inn (1987 & 1989).
Practice
David Bailey is an advocate specialising in all areas of commercial litigation and arbitration. As well as general commercial disputes involving claims in contract and tort, David has extensive experience in the more specialist fields of shipping, insurance and reinsurance, international arbitration and professional negligence.
Since taking silk in 2006, David Bailey has been engaged in a wide range of commercial disputes both in court and in arbitration. In addition to numerous shipping and reinsurance arbitrations, David’s most recent reported cases include the forthcoming decision of the ECJ concerning anti-suit injunctions and arbitration (The Front Comor) [2008] 2 Lloyd’s Rep. 661), leading a team of counsel for the Bank of Scotland in a commercial court trial against its insurers (Bank of Scotland v Euclidian [2008] Lloyd’s Rep. IR 182), acting for insurers in a court of appeal decision on the construction of warranties (Pratt v Aigaion [2009] Lloyd’s Rep. Plus 7), acting for owners on an appeal concerning an implied safe berth warranty (The Reborn [2008] 2 Lloyd’s Rep. 628), a commercial court hearing concerning the construction of arbitration and exclusive jurisdiction clauses (The Athena (No 2) [2007] 1 Lloyd’s Rep. 280) and an appeal concerning the conflict of laws in relation to a reinsurance dispute (Dornoch v Mauritius Commercial Bank [2006] 2 Lloyd’s Rep. 475).
David has particular experience of the demands (in terms of long-term preparation, tactical planning and cross-examination) of complex, long running commercial cases having been involved in the Lloyd’s litigation, the Barings litigation, the tail-end of the film finance litigation and a number of substantial international arbitrations. In addition to trials and arbitrations, David has considerable experience of interlocutory advocacy, particularly in relation to injunctions and jurisdictional disputes. He argued the Sea Maas (Article 5 of the Brussels Convention) and has acted in three cases (The Front Comor and Toepfer v Cargill on anti-suit injunctions and The Maciej Rataj on Articles 21 and 22) that resulted in references to the European Court of Justice. He has written the chapters on jurisdiction and arbitration in Mance et al. Insurance Disputes (2nd edition 2003) and regularly lectures on insurance, reinsurance and jurisdictional issues. David has also given expert evidence on English law for use in foreign proceedings and accepts appointments as an arbitrator in commercial cases.
Recent editions of the Legal 500 have described David as “highly rated indeed” (2009) and a “very popular and commercial” silk (2008). He is recommended as a leading silk in the fields of shipping (Legal 500), insurance and reinsurance (Legal Experts).
Selected Cases
Although much of David Bailey’s work is in arbitration (and therefore confidential), a selection of notable reported cases in which he has appeared is given below.
Insurance and Reinsurance
Pratt v Aigaion [2009] Lloyd’s Rep. IR Plus 2 (Insurance – construction of warranty)
Bank of Scotland v Euclidian [2008] Lloyd’s Rep. IR 182 (ATE insurance)
Dornoch v MUA [2006] Lloyd's Rep IR 127 (Reinsurance – jurisdiction)
Goshawk v Bank of Scotland [2006] 2 All ER 610 (ATE insurance)
GE Frankona v CMM Trust [2006] Lloyd’s Rep. IR 704 (Insurance - breach of warranty)
Equitas v Wave [2006] Lloyd’s Rep. IR 646 (Reinsurance- negative declaratory relief - Jurisdiction - Article 5 of Jurisdiction Regulation)
Munich Re v Commonwealth [2005] Lloyd's Rep IR 99 (Reinsurance – jurisdiction – significance of English law – related claim against the brokers – forum non conveniens)
Martini Investments v McGinn [2001] Lloyd’s Rep IR 374 (Insurance – explosion – proximate cause – whether property damage caused by tephra – indemnity costs)
Universities Superannuation Scheme v Royal Insurance [2000] Lloyd’s Rep IR 524 (Fidelity Insurance – discovery of fraudulent acts and limitation)
Royal Boskalis v Mountain [1999] Q.B. 674 (Insurance – illegaility and duress arising out of the first Gulf War)
Den Danske Bank et al v Skipton Building Society [1998] 1 EGLR 155 (Mortgage Indemnity Insurance – mortgage portfolio securitisation)
Municipal Mutual Insurance v Sea Insurance [1998] Lloyd’s Rep IR 421, [1996] L.R.L.R. 265 (Reinsurance – fs clause – proper and business like steps - time on risk)
Arig Insurance v Sasa (1998) (Reinsurance – as original – incorporation of terms from underlying insurance)
Bank of Nova Scotia v Hellenic Mutual, The Good Luck [1992] 1 A.C. 233 (Insurance – war risks – leading House of Lords authority on effect of breach of warranty).
Shipping
The Reborn [2008] 2 Lloyd’s Rep. 628 (voyage charter - safe berth – implied warranty)
Scan Shipping v APL [2008] EWHC 634 (agency – injunction – arbitration)
Sea Trade v Hellenic [2007] 1 Lloyd’s Rep. 280 (Arbitration - total loss)
Caribbean Petroleum v Cristal Limited [2004] 1 Lloyd’s Rep. 48 (Oil pollution – construction of the Cristal contract)
Gefco v Mason (No 2) [2000] 2 Lloyd’s Rep. 555 (carriage of goods – exclusion of damages for delay)
Cero Navigation v Jean Lion, The Solon [2000] 1 Lloyd’s Rep. 292 (strike clause – proper approach to construction of charterparty)
Rank Enterprises v Gerard [2000] 1 Lloyd’s Rep. 403, [1999] 2 Lloyd’s Rep 666 (Sale of ship – construction of MOA – claims against the ship – aggregate financial limits)
The Sea Maas [1999] 2 Lloyd’s Rep. 281 (Admiralty practice – arrest of vessel – unseaworthiness - jurisdiction)
Manatee Towing v Oceanbulk, The Bay Ridge [1999] 2 Lloyd’s Rep. 227 (Sale of ship – whether negotiations resulted in binding contract of sale)
Gefco v Mason [1998] 2 Lloyd’s Rep. 585 (carriage by road – umbrella contract – application of CMR)
Laceys v Bowler [1997] 2 Lloyd’s Rep. 369 (carriage by road – wilful misconduct – limitation of liability)
Philipp Brothers v Republic of Sierra Leone [1995] 1 Lloyd’s Rep 289 (garnishee order – intervention of EC Commission)
Gidrixslme Shipping v Tantomar Transportes [1995] 1 W.L.R. 299 (Freezing injunction – scope – jurisdiction in relation to disclosure order)
Aqualon v Vallana [1994] 1 Lloyd’s Rep 669 (Title to sue – parties to contract of carriage)
Arbitration
The Front Comor [2008] 2 Lloyd’s Rep. 661 (anti-suit injunction in aid of arbitration)
Scan Shipping v APL [2008] EWHC 634 (scope of section 44 of the Arbitration Act)
The Athena (No 2) [2007] 1 Lloyd’s Rep 280 (incorporation of arbitration agreement)
West Tankers v RAS & Generali [2007] EWHC 2184 (power to appoint an arbitrator)
The Athena [2006] 2 Lloyd’s Rep. 147 (costs – power to publish additional award)
Toepfer v Cargill [1998] 1 Lloyd’s Rep. 379 (breach of arbitration agreement – anti-suit injunction)
Jurisdiction/Conflict of Laws
The Front Comor [2008] 2 Lloyd’s Rep. 661 (anti-suit injunction against subrogated insurers - proper law of arbitration agreement)
Dornoch v MUA [2006] 2 Lloyd’s Rep. 475 (Reinsurance - jurisdiction agreement)
Equitas v Wave [2005] EWHC 923 (Article 5 of Jurisdiction Regulation - Negative declaratory relief)
Munich Re v Commonwealth [2005] Lloyd's Rep IR 99 (Reinsurance – jurisdiction – significance of English law – related claim against the brokers – forum non conveniens)
The Sea Mass [1999] 2 Lloyd’s Rep 281 (Article 5 of the Brussels Convention)
Toepfer International v Cargill [1998] 1 Lloyd’s Rep 379, [1997] 2 Lloyd’s Rep 98 (anti-suit injunctions – arbitration – Brussels Convention).
Unicargo v Flotec, The Cienvik [1996] 2 Lloyd’s Rep 395 (injunction – jurisdiction to serve out of the jurisdiction)
The Maciej Rataj [1992] 2 Lloyd’s Rep 552 (Articles 21 and 22 of the Brussels Convention.
Professional Negligence
Barings Futures v Coopers & Lybrand [2003] Lloyd’s Rep IR 566 (Audit negligence – collapse of Barings – derivatives trading - causation – contributory negligence – misrepresentation – relief under Companies Act, section 727)
Barings Futures v Coopers & Lybrand [2002] Lloyd’s Rep PN 395 (Deceit – recklessness – causation – circuit of action)
Barings Plc v Coopers & Lybrand [2002] Lloyd’s Rep PN 127 (Reflective loss – scope of duty - strike out of shareholder’s claim)
Barings Plc v Coopers & Lybrand [2001] Lloyd’s Rep 379 (Banking – admissibility of expert evidence)
Other
Contributor to Insurance Disputes, (2nd ed.2003).
