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Mr Simon Kerr
 
Simon Kerr
Simon KerrDate of Birth: 1972
Date of Call: 1997
Languages: French (fluent) German (working knowledge)

General Information
B.A. (Oxon) (First Class Hons); M.A. (Oxon)
Hardwicke Entrance Scholar, Full CPE Award, Sunley Scholar (Lincoln’s Inn).  

Practice
Simon Kerr is an advocate specialising in commercial law in particular: insurance and reinsurance, shipping, carriage of goods, professional negligence and conflict of laws.   His practice involves appearance as counsel in litigation in the Commercial Court and appellate Courts in London and in arbitrations, as well as advisory work in Chambers.

Selected Cases
In the areas of insurance and reinsurance, Simon acts for a broad range of clients, in litigation and in arbitration.  Over the past 11 years, he has been instructed in many of the major disputes which have concerned the London market and in most classes of business (at an insurance and reinsurance level), including: third party liability, construction, D&O, energy, film finance, financial contingency, marine, political risks, professional indemnity, accident & health, sport and property.  Cases in which Simon has acted include the following:

  • Acted for Equitas, in 2009, in the large Commercial Court trial of its claims for indemnity under reinsurance contracts written within the LMX spiral.  The central issues relate to indemnity sums sought in respect of (a) the loss of aircraft by Kuwait Airways and British Airways in the first Gulf War and (b) the costs of cleaning up oil pollution caused by the grounding of the “Exxon Valdez” (in 1989).  The case represents the first attempt to deal with the consequences of the decisions of the Court of Appeal in Scott v. Copenhagen Re and King v. Brandywine.  Judgment is awaited.
  • Acted for AIG in its liability reinsurance claim in the Commercial Court relating to the construction of the world’s largest nitrogen production plant (in Mexico).  The claim (which settled in 2008) concerned the underlying liabilities of sub-contractors to their head contractor for alleged negligence in the design, construction and commissioning of the production plant.  The claim raised complicated issues of fact and law concerning: the detail of the construction project; the applicable foreign law; insurance/reinsurance contract interpretation; and the analysis of inter-related property damage and liability claims.
  • Acted for the successful insurers in Enterprise Oil Ltd v. Strand Insurance Co Ltd [2006] 1 Lloyd’s Rep. 500, a substantial liability insurance claim which was brought in the Commercial Court concerning the termination of a drilling rig contract.  The case raised important issues of principle regarding the proof of liability (under foreign law) and quantum in a claim for indemnity under a liability insurance and the threshold difficulties posed by the decision in Lumberman’s Mutual Casualty Co v. Bovis Lend Lease Ltd [2005] 1 Lloyd’s Rep. 494.
  • Acted for the English arm of a large North American insurer seeking to recover (in London arbitration) an indemnity for losses on its Accident & Health book from its whole account quota share reinsurers.
  • Acted for numerous London market and overseas marine insurers in litigation in the Commercial Court brought by an assured seeking to  recover under its Hull & Machinery policies in respect of damage alleged to have been caused to its vessel by sulphate reducing bacteria.
  • Acted for the North American whole account reinsurer in a London arbitration against the Lloyd’s Syndicate seeking indemnity for losses sustained on its Accident & Health book.
  • Acted for the successful Claimants in the Commercial Court in the lengthy, multi-party reinsurance trial in Bonner & Ors v. Cox & Ors (“The  Aon 77 Energy Cover” litigation) [2005] Lloyd’s IR 569.  The case resolved important issues of principle regarding the obligations of a reinsured towards its excess of loss reinsurer; in particular, the nature and extent of any obligation (i) to exercise reasonable care in the  conduct of underwriting, and (ii) not to “write against” the reinsurer.
  • Acted for contingency insurers in an arbitration concerning the postponement of an international sporting event following the terrorist attacks  of 9/11.
  • Acted (at first instance and in the Court of Appeal) for the reinsurer, Sun Life, in Feasey v. Sun Life; Steamship Mutual v. Feasey [2002]  Lloyd's Rep. IR 807; [2003] Lloyd’s IR 637 (CA).  The case, which involved insurance/reinsurance claims worth approximately US$100m, raised fundamental issues concerning the requirement at common law and under the Life Assurance Act 1774 for insurable interest.
  • Acted for Société Générale and the Royal Bank of Canada in the film finance litigation.
  • Acted, in late 2002, for three overseas reinsurers in a substantial trial in the Commercial Court (which settled).  The case concerned claims  for approximately US$200m under quota share reinsurances covering a Lloyd’s Syndicate in respect of energy business placed under an open cover.  In 2004, Simon acted for an excess of loss reinsurer in a related matter.
  • Acted for the successful Claimant in Jan de Nul (UK) Limited v. NV Royale Belge [2000] 2 Lloyd’s Rep. 700; [2002] 1 Lloyd's Rep. 583 (CA), both at first instance and in the Court of Appeal.  The case concerned claims under a liability insurance policy in respect of the Claimant’s liabilities in tort to third parties arising out of dredging operations.
  • Acted for a North American reinsurer in two major reinsurance arbitrations in 1999 involving the Personal Accident LMX Spiral. 
In the area of shipping, Simon has been involved in numerous arbitrations and in litigation concerning a wide range of charterparty and bill of lading issues.  Most notably, he acted for the successful cargo claimants in the large Commercial Court trial of The Eurasian Dream  [2002] 1 Lloyd's Rep. 719, a case which concerned a dramatic fire on a car carrier and involved the comprehensive treatment of issues of unseaworthiness.  Simon acted for the Claimant, MSC inThe Tychy (No.2) [2001] 1 Lloyd’s Rep. 10; 2 Lloyd’s Rep. 403 (CA).  The case involved claims by MSC for freights (in excess of US$3.6m) due under a slot charter party and raised important procedural issues as to whether a slot charterer is liable to be sued in rem and have its vessel arrested and substantive issues regarding novation.

Simon has considerable experience in dealing with complex jurisdictional issues.  Most recently, Simon acted for Equitas in Equitas v. Allstate [2009] Lloyd’s Rep. IR 227 on Allstate’s application for a stay of the proceedings.  One of the principal questions raised was whether the controversial principles of EC law laid down in Owusu v. Jackson could be side-stepped by invoking the English Court’s case management discretion.  That question was answered (in Equitas’ favour) in the negative.  Simon also acted in Mediterranean Shipping Company SA v. Atlantic Container Line & Ors, appearing for MSC, both at first instance and in the Court of Appeal, on its application for anti-suit injunctions.  The case involved important consideration in the Court of Appeal of the principles laid down in The Angelic Grace.

Finally, Simon has acted in numerous cases of a general commercial nature, involving issues of general contract or tort law, agency, fraud and restitution.  Cases in which he has acted include the following:

  • Acted for the successful claimant, MAN, in the commercial fraud litigation in MAN AG v. Freightliner Limited and Ernst & Young [2005] EWHC 2347, in relation to its successful application for the interim payment of £250m and in relation to Freightliner’s appeal.
  • Acted for a major international oil trading company in relation to its claim in arbitration for a substantial amount of commission on the sale of crude oil in the Middle East.
  • Acted for the Respondents to charging orders over property in London at the trial in the Commercial Court of issues concerning the beneficial ownership of the property (Walker International Holdings v. Republique Populaire du Congo & ors [2005] EWHC 2813).
  • Acted for a former French international footballer, advising on disputes concerning his advertising contracts.
  • Acted for the Nigerian National Petroleum Corporation and its brokers in complex litigation (which eventually settled) concerning the substantial sum paid in connection with the Comprehensive Insurance Programme protecting its onshore and offshore assets, loss of profits and third party liability risks.
  • Acted for the Claimant at trial in Frank Shipbroking Limitada v. Gammon Shipping Limited (The Lucky Ocean) in its claim in the Admiralty Court for commission arising out of a ship sale/purchase.