Simon Picken QC

Date of Birth: 1966
Date of Call: 1989
Silk Date: 2006
Languages: French (working knowledge)

General Information
LLB (Wales) ; Edgar Buck Prize in Company Law

LLM (Cantab) First Class with Distinction (Starred First Class); British Academy Studentship Holder; C.J. Hamson University Prize in Comparative Law; Bundy Scholar; Norah Dias Prizewinner

Middle Temple Queen Mother’s Scholar; Middle Temple Major Blackstone Entrance Exhibitioner

Part-time supervisor in Company Law, Magdalene College, Cambridge, 1989-1992

Recorder (part-time judge) of the Crown Court (since 2004) and of the County Court (since  2009).

Chairman, Bar Disciplinary Tribunals (since 2009).

Member of Queen's Counsel Panel of Advocates for the Welsh Assembly in Commercial matters (since 2009). 

Practice
Simon Picken's practice is extensive, covering a wide spectrum of commercial law, involving all types of contractual disputes with a special emphasis on insurance/reinsurance disputes, energy, professional negligence and shipping. He also has experience in sports-related law and in relation to sovereign immunity.

A very experienced advocate, he is frequently instructed in proceedings before the Commercial Court and in reinsurance and shipping arbitrations.  He has also appeared a number of times in the Court of Appeal, House of Lords and Privy Council.

Particularly experienced in handling large-scale and high-value litigation, frequently leading a team of counsel, he has this year (2009) been involved in:

• a month-long business interruption arbitration, in September, involving a luxury New Orleans hotel and the impact of Hurricanes Katrina and Rita;
• acting for the Welsh Assembly Government in an action brought against it by the organisers of the Wales Rally GB in relation to a dispute over sponsorship;
• an arbitration appeal before the Commercial Court, in July, involving a novel point under the Carriage of Goods by Sea Act 1992;
• a very substantial Commercial Court action, due to last ten weeks from October-December, acting for a US insurance company in a claim against Willis, the insurance brokers (settled in late May); and
• a Commercial Court trial, in March, involving the supply of BSE-contaminated animal by-products.
  

Before this, he was for several years heavily involved in substantial commercial litigation concerning oil rig construction and financing, acting for Petrobras (instructed by Clifford Chance) in a four week Commercial Court trial in 2005 followed by a further three week hearing in 2007 and resulting in judgment for just under half a billion dollars.

Other cases in recent years have included:

• a series of high-profile cases involving film finance insurance/reinsurance (both in trial and in the Court of Appeal);
• a  Commercial Court trial  involving  a billion dollar claim for declaratory relief as to  the parties’ rights in an oil field in Brunei; 
• a series of major PA spiral reinsurance arbitrations;
• a series of ship-sale disputes;
• a substantial Commercial Court trial (and subsequent Court of Appeal hearing) involving a business interruption claim by a cruise company arising out of the 9/11 attacks;
• another Commercial Court trial involving a claim by GNER against Railcare arising out of a derailment;
• a very substantial reinsurance arbitration involving agency disputes;
• a Court of Appeal hearing concerning the right of a reinsurer to avoid;
• two lengthy and extremely complex ship construction arbitrations;
• a five week arbitration involving the construction of a superyacht; and
• advising in relation to matters concerning the construction of Wembley stadium;
  

He is also continuing to act in relation to various oil-related disputes relating to North Sea, Canadian and Middle Eastern concerns.

As well as his role as an advocate and as a Recorder, he is also co-author of the leading book on the duty of good faith in insurance, Good Faith and Insurance Contracts, 2nd Ed.  (Lloyd's of London Press, published in 2004).

He is recommended as a leading barrister in Legal 500 in relation to professional negligence and energy.

He frequently travels as part of his practice, most notably to the USA and to South America.

Selected Cases

Insurance/reinsurance

Pan Atlantic Insurance Co Ltd v Pine Top Insurance Co [1996] 1 A.C. 501 (House of Lords). The leading authority on non-disclosure/breach of duty of good faith in insurance/reinsurance law.

Haydon v Lo & Lo [1997] 1 W.L.R (Privy Council) Appeared unled. An insurance/reinsurance case originating in Hong Kong concerning the meaning of the words "any one claim".

Assicurazioni Generali SpA v Arab Insurance Group (BSC) [2003] 1 WLR 577 (Morison J, Commercial Court; and Court of Appeal). The leading case on the test to be applied by the Court of Appeal when determining an appeal under the CPR. The case involved a reinsurance dispute and whether in particular a reinsurer was entitled to avoid on the grounds of misrepresentation as to the participation of another reinsurer in the reinsurance.

Silversea Cruises Ltd v If P&C Insurance Ltd  [2004] EWCA Civ 769 (Tomlinson J, Commercial Court; and Court of Appeal) A claim brought by a cruise company against their business interruption insurers in relation to the 9/11 attacks and their effect on their cruises.  The first case to consider whether the 9/11 attacks were acts of war. 

HIH Casualty & General Insurance Ltd & Others v The Chase Manhattan Bank & Others [2001] 2 Lloyd's Rep 483 (Court of Appeal).  One of the leading cases in the film finance insurance litigation, involving various issues such as the question of whether it is possible to exclude liability for the fraud of an agent.

HIH Casualty & General Insurance Ltd v New Hampshire Insurance Co & Others [2001] 2 Lloyd's Rep 161 (Court of Appeal).  Another of the cases involving film finance insurance case, this time a reinsurance dispute concerned with questions of breach of warranty and waiver/affirmation.

HIH Casualty & General Insurance Ltd v JLT Risk Solutions Ltd [2006] EWHC 485 (Comm) (Langley J, Commercial Court) & [2007] EWCA Civ 710 (Court of Appeal). A case against a firm of reinsurance brokers which established that brokers owe continuing duties of care.

Great North Eastern Railway v Avon Insurance PLC [2001] Lloyd's Rep (Court of Appeal).  A business interruption claim brought by GNER against their insurers in respect of a derailment.

Great North Eastern Railway v JLT Corporate Risks Ltd [2006] (Cresswell J). A case involving allegations of negligence against an insurance broker; continuing duties; limitation; and abuse of process.

Energy

Braspetro Oil Services Co v FSO Construction Inc [2005] EWHC 1316 (Comm) and [2007] EWHC 1359 (Comm) (Cresswell J, Commercial Court). Acting for the state oil company of Brazil in substantial commercial litigation involving claims amounting to about half a billion dollars and concerning oil rig construction and financing.

Loon Energy Inc v Integra Mining (B) Sendirian Berhad [2007] EWHC 1876 (Comm) (Langley J, Commercial Court): a billion dollar claim for declaratory relief as to the parties’ rights in an oil field in Brunei. The case also raised jurisdictional issues and an application for a stay under section 9 of the Arbitration Act 1996.

Shipping/Arbitration

Pace Shipping of Malta v Churchgate Nigeria [2009] EWHC 1975 (Comm) (Teare J, Commercial Court). An arbitration appeal involving a novel point under the Carriage of Goods by Sea Act 1992.
 
Koch Petroleum Group LP v Total International Ltd, unrep.  July 2001 (Gross J, Commercial Court). Sale of gas oil, construction of supply contract.

The "Imvros" [1999] 1 Lloyd's Rep 848 (Langley J, Commercial Court).  A leading case in the context of time charters on the responsibility for safety of stowage/loading.

Global Container Lines Ltd v State Black Sea Shipping Co [1999] 1 Lloyd's Rep.127 (Court of Appeal).  A case involving the sale of several former USSR ships.  After an expedited trial the case went to the Court of Appeal where the main issues were validity of contract issues.

The "Marinor" [1996] 1 Lloyd's Rep 301 (Colman J, Commercial Court).  A case involving a time charter and the incorporation of the Hague/Hague-Visby Rules.

Covington Marine Corp v Xiamen Shipbuilding Industry Co Ltd [2005] EWHC 2912 (Comm) (Langley J, Commercial Court). Acting for the successful claimant buyers in a series of shipbuilding disputes, including on appeal.

The "Baltic Universal" [1999] 1 Lloyd's Rep.497 (Moore-Bick J, Commercial Court).  A case involving the question of when, for the purposes of the Arbitration Act 1996, an arbitration is commenced.

Vosnoc Ltd v Trans Global Projects Ltd [1998] 1 Lloyd's Rep.711 (Jack J, Commercial Court).  Another case involving issues as to when arbitration is commenced.  The first case and one of the few cases in which an extension of time under Section 12 of the Arbitration Act 1996 was granted.

Miscellaneous

The "Griparion" (No 3) [1997] 2 Lloyd's Rep. 112 (Court of Appeal).  A leading case concerning the power of the Court to award costs against a non-party, a P&I club.

Great North Eastern Railway v Railcare Ltd, unrep.  July 2003 (HHJ Dean QC, Commercial Court).  A case brought by GNER against Railcare in relation to the neglect overhaul of a wheelset resulting in a derailment of one of GNER's trains and consequent business interruption.  The trial concerned issues such as how the extent of the lost revenue should be calculated and whether GNER was guilty of contributory negligenve in not detecting a hole caused by Railcare's negligence.

Sabah Shipyard (Pakistan) Ltd v The Islamic Republic of Pakistan [2003] 2 Lloyd's Rep. 503 (Court of Appeal).  A case involving the right of the Government of Pakistan to rely upon the State Immunity Act 1978 in the context of an anti-suit injunction
 
Webster Thompson Ltd v JG Pears (Newark) Ltd. [2009] EWHC 1070 (Comm) (HHJ Mackie QC, Commercial Court). A case involving the supply of BSE-contaminated animal by-products, and concerning the Sale of Goods Act, in particular the test for satisfactory quality.

Other
Good Faith and Insurance Contracts, 2nd Ed.  (Lloyd's of London Press, published in 2004). 

Commercial and Maritime Statutes (Lloyd’s of London Press, 2000), Peter MacDonald Eggers and Simon Picken.

Slips, policies, and supersession: Youell v Bland Welch no more? Shipping and Trade Law (July/August 2001).

Lumbering assureds with difficulties when settling claims: ascertainment of loss and liability insurance. Insurance & Reinsurance Law Briefing (December 2004).

 
Simon also frequently gives lectures, both here (British Insurance Law Association, 2002; WCLA Commercial Law Update, 2003) and abroad (Prague, 2002; New York, 2003).