Date of Birth: 1955Date of Call: 1981
Silk Date: 1997
Languages: French (working knowledge)
General Information
MA (Cantab). Dip Law (distinction)
Practice
• Commercial law
• Fraud in commercial contracts
• Shipping
• Insurance and reinsurance
• Trading, including hedging and derivatives
• Banking
• Energy
• Professional negligence
• Arbitration, including acting as arbitrator
• Jurisdiction disputes
Selected Cases
Important cases include:
Transfield v Mercator (the Achilleas) [2008] House of Lords (measure of damages in commercial contracts)
bailii.org/uk/cases/UKHL/2008/48.html [2008] UKHL 48, [2008] 3 WLR 345
Trafigura Beheer v MSC [2007] (CA) (fraudulent bill of lading, valuation of copper on physical and derivative market)
bailii.org/ew/cases/EWCA/Civ/2007/794.html [2007] EWCA Civ 794
MAN v Freightliner Limited [2005] (share sale: large commercial fraud) bailii.org/ew/cases/EWHC/Comm/2005/2347.html [2005] EWHC 2347 (Comm)
Glencore International AG v Alpina [2004] (the Metro litigation: insurance on oil stolen in storage)
bailii.org/ew/cases/EWHC/Comm/2003/2792.html [2003] EWHC 2792 (Comm), [2004] 1 All ER (Comm) 766 [2004] Lloyd’s L.R. 111
Sun Life v Feasey [2003] (CA) (insurable interest in modern commercial law)
bailii.org/ew/cases/EWCA/Civ/2003/1106.html [2003] EWCA Civ 1106
Scott v Copenhagen Re [2003] (CA) (loss of aircraft in Gulf War: the meaning of ‘any one event’ in reinsurance)
bailii.org/ew/cases/EWCA/Civ/2003/1106.html [2003] EWCA Civ 1106
Some Legal Directory Comments
Legal 500: 2008 edition.
On arbitration: “The set fields a number of experienced arbitration practitioners, including Dominic Kendrick QC who possesses “real intellectual acuity””
On insurance and reinsurance: “7 King’s Bench Walk is a leading insurance set in London… and Dominic Kendrick QC is “a very persuasive advocate.””
On shipping: “Dominic Kendrick QC recently dealt with the House of Lords Appeal in the Achilleas case”
Chambers and Partners: 2008 edition
On energy: ““Easy to work with and responsive”, Dominic Kendrick QC earns commendation as an advocate in commercial trials and arbitrations. He has made his mark as an insurance expert in the marine and energy fields, distinguishing himself in disputes involving offshore facilities”
On insurance: “Dominic Kendrick QC…boasts “a quietly spoken but extremely convincing style”. He is noted by clients for “working well with solicitors and really getting excited about cases.””
On international arbitration: “the “cerebral” Dominic Kendrick QC has covered disputes relating to such events as the fall of Yugoslavia, the invasion of Kuwait and the Exxon Valdez disaster”
Chambers and Partners 2007 edition describes Dominic Kendrick QC in different sections as being “among the busiest commercial silks”, “a big name in insurance…rigorous and thorough” and “he’s brilliant but that brilliance is grounded in commercial reality”
A little more detail
General commercial disputes
Recent cases range from acting for a hedge fund in a dispute on refinancing debt, and in a Chancery Court appeal from a VAT Tribunal decision on tax. In MAN A.G and ERF v Freightliner Ltd and Ernst & Young [2005] EWHC 2347 (Comm) the claimants for whom Dominic Kendrick QC acted, succeeded in a £350 million claim concerning the sale of a company, ERF, in a fraud trial which also featured consequential claims in professional negligence against auditors. This major Commercial Court trial spanned 6 months and concluded in June 2005. Interim payment of £250 million was ordered after trial on liability, believed to be the largest interim payment order made. Following trial, the Defendants obtained leave to appeal, but Dominic Kendrick QC succeeded in having the appeal struck out before hearing. Although a shipping case, the House of Lords decision in the Achilleas [2008] raised major points of importance on damages for all commercial contracts, from banking to trading as their Lordships recognised. Dominic Kendrick QC appeared for the successful appellants who had lost at all stages until the House of Lords decided unanimously in their favour by reappraising the principles of remoteness.
Fraud in commercial contracts
Fraud, and the consequences of fraud, lies at the heart of much of the case load of Dominic Kendrick QC. Examples include MAN A.G and ERF v Freightliner Ltd and Ernst & Young [2005] EWHC 2347 (Comm), in which the vicarious liability of a company for the deceit of a person, not employed by it, in the course of sale negotiations was established, leading to damages in the order of £350 million; an internationally organised fraud concerning the sale and shipment of copper to China in Trafigura Beheer v MSC [2007], a fraud on a bank in Shinhan Bank v Sea Containers [2000] 2 LLR 406. In arbitration, Dominic Kendrick QC was leading counsel for the claimant which first established that there had been a ‘rigged market,’ creating an artificial and lethal spiral of losses for Personal Accident reinsurers.
Shipping
Dominic Kendrick QC was the leading counsel in the successful appeal to the House of Lords in the Achilleas which concerned the measure of damages on a time charter for premature redelivery. He was also successful leading counsel in the Court of Appeal case, the MSC Amsterdam [2007] concerning the misdelivery of a valuable cargo of copper in China due to the production of fraudulent bills of lading Many cases in this area are in arbitration and therefore confidential. A recent arbitration concluded in a successful Award for substantial damages for the failure to deliver four newbuildings. Current cases include a major safe port claim arising from the loss of an almost new Cape size bulker. Reported cases include Tychy [2001] 2 LLR 403 (slot charters), Rio Assu [1999] 1 LLR 115 (claim on a P&I letter of guarantee), Manatee and Coastal v Oceanbulk [1999] 2 LLR 227 brokers commission on ship sales, and further back the Sanix Ace [1987] 1 LLR 465 (title to sue and the right to substantial damages), the Nogar Marin [1987] 1LLR 456 (indemnity against consequences of signing bills of lading). Dominic Kendrick was also leading counsel in Commercial Court actions arising out of some large oil tanker and bulk cargo casualties such as the Kirki and the Silimna which raised issues of naval architecture and computer modelling of considerable complexity.
Insurance/Reinsurance
Dominic Kendrick QC has been involved in disputes arising from most of the large events to hit the insurance world over the last 20 years, including the problems at Lloyd’s in the nineties, the Eastern European disputes arising out of the fall of Yugoslavia and the Soviet Union, the Exxon Valdez disaster, the invasion of Kuwait, the PA spirals, pension mis-selling and claims arising out of 9/11. Insurance/reinsurance covers a wide area, and so some illustrations in various sub categories are set out below.
General insurance: Quorum v Schramm [2002] 1 LLR 249: Loss of value of a Degas masterpiece damaged by smoke in a fire. This case raised basic problems of what constitutes ‘damage’ and how it should be valued.
Sun Life v Feasey (CA) [2003] EWCA Civ 885. This case concerned the meaning and definition of insurable interest in modern commercial insurance. John Wyeth & Brothers Ltd. v. Cigna Insurance Company of Europe SA/NV and Ors [2001] 2 Lloyd’s Rep. IR 420 (CA): This case, which arose in the wake of the collapse of the largest single UK group action, concerned the interface between London market product liability insurance and US ‘duty to defend’ type insurance. Dominic Kendrick QC has also acted in numerous ‘Directors and Officers’ insurance disputes.
Marine Insurance Newfoundland Explorer [2006] EWHC 429 Loss of a vessel through fire and the construction of a marine insurance warranty. Interpart v Lexington Insurance [2004] LRIR 690. This case concerned the significance of a back-dated surveyors certificate in marine insurance. Glencore International AG v Alpina and Others [2004] 1 Lloyd’s Rep. 111. Dominic Kendrick was lead counsel in this 8 week trial which concerned claims on a trader’s worldwide marine insurance policy arising out of the loss through theft and fraud of about $300 million of oil in floating storage.
Reinsurance Commercial Union v NRG, Skandia v NRG [1999] 2 All E.R. 434. This case arose out of the Exxon Valdez disaster. It is a leading authority on what must be proved by Reinsureds to recover under reinsurance in respect of foreign judgments and settlements. Scott v Copenhagen [2003] EWCA Civ 688. This case concerns the loss of Kuwaiti and a BA aircraft in the Gulf war. It is a leading CA case on aggregation of claims ‘arising out of one event’. Dominic Kendrick QC has acted in numerous disputes concerning aggregation, including 9/11 cases. Lincoln v Sun Life and Phoenix. [2004] EWHC 343 (Comm). This case concerned the effect in a reinsurance dispute of a previous award and defined the limits of issue estoppel.
Dominic Kendrick QC has also acted in Alternative Risk Transfer arbitrations and in numerous reported contingency insurance disputes and (in arbitration) the postponement of the Ryder Cup after 9/11.
Trading including hedging and derivatives.
Dominic Kendrick QC has acted in disputes over trading contracts of commodity suppliers in arbitration before the relevant commodity board, in disputes where the hedging of risk is either the subject of the action or the mainstay of a claim in damages- such as Trafigura Beheer v MSC, where the hedging takes the form of a credit insurance or financial guarantee (an increasing category), and where the case involves a trader’s strategy as in Glencore International AG v Alpina [2004] 1 All ER (Comm) 766.
Banking
Two current cases include a major bank loss in the trading and holding of gold bullion, and a derivative contract dispute, akin to insurance. He has also been involved in various arbitrations concerning the interface between credit counterparty risk, the risk of financial default, financial guarantee and Alternative Risk Transfer insurance. In past years, Dominic Kendrick QC was leading counsel in Shinhan Bank v Sea Containers [2000] 2 LLR 406 (Claim by Bank arising out of the financing of sale by presentation of fraudulent documents), and was counsel in Glencore v Bank of China [1996] 1 LLR 135 (construction of the ICC rules for international credits) and Future Express [1993] 2 LLR 542 (presentation of fraudulent documents and bills of exchange).
Energy and energy insurance.
Dominic Kendrick QC acted as leading counsel for major UK power suppliers in actions concerning the breakdown of generators and large consequential economic losses. In international arbitration, he has acted in disputes over off-shore projects in the North Sea, Far East, Abu Dhabi and the US Gulf. He has acted in various disputes concerning the sale (and charter) of semi-submersible rigs. An example is BMBF v Harland and Wolff [2001] 2 LLR 227 (CA) concerning the sale of drilling rig platforms. Dominic Kendrick acted for Harland and Wolff the successful rig manufacturer. In energy insurance, he has acted in major disputes between insurers and oil majors, as well as major disputes with large independent traders, such as Glencore International AG v Alpina [2004] 1 All ER (Comm) 766.
Professional negligence
Dominic Kendrick QC has acted in numerous cases of professional negligence of agents and intermediaries in the above fields, including insurance brokers, ship brokers, solicitors, and the personal liability of directors and officers of a company. Dominic Kendrick QC also acts frequently in insurance disputes concerning E&O and D&O coverage for professional misconduct.
Arbitration
A large number of Dominic Kendrick QC’s hearings take place in arbitration, which requires a slightly different form of advocacy from High Court or appellate court work. Although primarily an advocate, Dominic Kendrick QC is frequently appointed as an arbitrator in commercial disputes, particularly shipping, insurance and trading disputes. He is a member of the London Court of International Arbitration.
Jurisdiction disputes
Bringing the claim in the right forum is an essential step in international litigation. Dominic Kendrick QC has been involved in many forum disputes; England versus another jurisdiction (whether a country within the EC or elsewhere); Court versus Arbitration. Examples include Inco v First Choice (House of Lords) [2000] 1 WLR 1586 (arbitration jurisdiction), Glencore v Metro and Banque Trad [1999] 2 LLR 632 (European Convention on Jurisdiction), HIB Insurance v Guardian [1997] 1 LLR 412 (jurisdiction for negative declaration), Federal and Chubb v Transamerica [1999] 2 LLR 227 (arbitration) and Anna H [1995] 1 LLR 111 (Admiralty jurisdiction).
