Simon Kerry

Simon acts in a wide range of commercial disputes, covering contractual issues, liability in tort, restitution, insurance, and commercial fraud.

From his experience at PwC, Simon understands the needs of clients and the importance of adopting a commercial approach when dealing with the issues they face. His experience as a chartered accountant means he also has a strong ability to quickly grasp business accounts, management and financial information, and understand its impact on the issues in dispute.

Recent and on-going cases include:

• Assisting Nigel Jones QC and Laurence Page in the defence to a claim brought by SKAT, the arm of the Danish Government dealing with tax, to recover over £2 billion alleged to have been paid out pursuant to a fraudulent dividend withholding tax conspiracy.
• Acting for a professional motorbike racer and racing team in a dispute over sponsorship payments and ownership of team assets.
• Advising in respect of a multi-year maintenance services agreement entered into with a local authority, in particular the operation of provisions measuring performance of the relevant circumstances against defined Key Performance Indicators (KPIs).
• Assisting Nigel Jones QC and Aileen McErlean in a major commercial fraud dispute, including issues arising in an international arbitration, under the Consumer Credit Act 1974, and limitation.
• Acting for an Independent Financial Advisor in a breach of contract case concerning delay in delivery of promised computer software and website services.
• Acting for an insurance company in a dispute concerning ownership of IP rights in software developed by a third party supplier.
• Acting for a high street bank in a claim for unpaid debts, where confusion and dispute had arisen over whether the debt was owed by the individual personally or his company.

Simon’s time at PwC was spent advising on executive remuneration, with a particular interest in share plans. He therefore has experience dealing with the issues and documentation that accompany performance-related incentive schemes, and the contractual and employment law issues that can arise.

Simon specialised in the tax treatment of share incentive arrangements and tax-advantaged share schemes such as SIPs, CSOPs, SAYE/’Sharesave’ and EMI options. He has a detailed knowledge of the legislation and rules that accompany these plans.

Recent instructions include assisting in advising as to treatment of a ‘bad leaver’ under the terms of an LLP agreement, and problems concerning the exercise of contractual discretion as part of an individual’s performance-related bonus arrangements.

Simon frequently acts for financial institutions in consumer and B2B disputes, dealing with issues under the Consumer Credit Act 1974, contractual provisions and enforcement (including mortgage possession).

He also has experience of dealing with banking and financial regulations through his experience in PwC’s specialist Financial Services Reward team.

Recent instructions include acting for a hire-purchase finance company at trial in a claim for unpaid instalments.

Simon regularly accepts instructions through Hardwicke’s Fixed Fee Adjudication scheme, and has experience acting for both referring and responding parties.

Recent instructions include:

• Responding Party – an extension of time claim arising on a c. £4m private residential construction project.
• Responding Party – a subsequent adjudication in the same dispute, alleging numerous variations and seeking additional payments.
• Responding Party – a ‘smash and grab’ adjudication where neither party had strictly adhered to the payment/pay less notice regimes set out in the contract.
• Referring Party – a final account adjudication including claims for variations and prolongation costs.
• Responding Party – a valuation dispute arising from a major external wall insulation project, where both parties had relied heavily on oral instructions and there was a consequent lack of written records.
• Referring Party – a breach of contract claim by a property developer against a major lift manufacturer alleging that the lifts supplied did not meet the contractual specification.
• Referring Party – a claim for payment for additional works instructed informally and outside the contractual mechanism.

Simon is part of Hardwicke’s market-leading construction team, and has been involved in both major disputes led by more senior members and matters he has dealt with in his own right.

He has experience of dealing with issues arising under JCT and other standard form contacts (including payment provisions), professional negligence and breach of warranty claims.

Recent cases include:

• Acting for a major External Wall Insulation (EWI) subcontractor in a c. £3m TCC dispute, including drafting pleadings and appearing at the CMC.
• Acting as a junior to David Pliener in a c. £3m dispute over the supply of concrete in the course of motorway construction works.
• Assisting a Jersey-based advocate with ongoing litigation regarding defects in the construction of a c. £12m home, including water ingress and inadequate drainage.
• Advising in respect of potential claims arising from cladding works found to be defective during inspections carried out in the wake of the Grenfell tragedy.
• Acting for a Housing Authority in a dispute with an electrical subcontractor, alleging defective works leading to costs of repair and increased electricity charges.
• Together with Paul Reed QC and Michael Wheater, advising in respect of potential claims arising from the flooding of an underground carpark in a major development project, caused by a failure to correctly locate the groundwater level prior to construction.
• Assisting David Pliener in advising a major building contractor on their potential liability to their client following cracks developing in a floor slab, and of potential downstream claims against their sub-contractors in respect of such liability.
• Acting for the claimant in a claim against specialist external plastering subcontractors, alleging negligence and breach of warranty in failing to achieve a smooth external finish.

Simon has particular experience of disputes relating to cladding, fire stopping and other fire safety issuing following the Grenfell Tower disaster in 2017. Simon has acted for both claimants and defendants and has dealt with all relevant issues including the requirements of the Building Regulations, Approved Document B, and the Regulatory Reform (Fire Safety) Order 2005.

Recent instructions include:

• Acting as junior to Paul Reed QC defending a c.£40m claim brought against a timber framed building manufacturer alleging inadequate design and construction of fire stopping elements. Simon has been extensively involved in all aspects of the case, including drafting the Defence and liaising with expert witnesses in relation to the numerous technical issues.
• Advising a liquidator in relation to a c. £7m proof of debt submitted by a building owner in the liquidation of an insolvent construction contractor.
• Advising on settlement in relation to a dispute concerning cladding remedial works, including funding issues arising under an agreement between the building owner and the GLA.
• Drafting Adjudication documents seeking damages against a building contractor in respect of unsafe and combustible cladding.

Simon has experience of cases dealing with construction, property and property damage matters.

Recent instructions include:

• Acting for the defendants to a potential claim alleging work in one flat caused damage to other flats in the same building. The allegations raised issues of duty of care and complex structure theory.
• Drafting particulars in a neighbour dispute, including issues of trespass, Party Wall Act claims and negligence.

Simon’s insurance experience has also involved him in professional indemnity claims.

Recent instructions include:

• Acting for insurers of conveyancing solicitors, responding to a potential claim alleging negligence in respect of ground rent escalation provisions.
• Drafting particulars of claim on behalf of professional indemnity insurers in a claim by their insured for unpaid invoices. The defence and counterclaim alleged professional negligence against the insured professional accountant.

Simon regularly acts in insurance matters, including coverage disputes and professional negligence claims.

Recent instructions include:

• Assisting Nigel Jones QC and Sarah McCann in relation to insurance coverage points arising from the liquidation of Enterprise Insurance Company.
• Represented a major health insurance provider at the trial of a claim brought by a customer. Successfully argued that the policy had ended prior to the relevant treatments being carried out, and accordingly that the insurer had no liability in respect of them.
• Drafting a letter of response to a claim brought against an insured construction contractor, alleging negligence in carrying out work in a flat leading to damage to the building and other flats within it.
• Drafted the defence in an insurance coverage dispute, arguing that the healthcare treatments for which the claimant sought coverage did not fall within the definitions set out in the policy.

Simon has a particular interest in professional negligence, commercial fraud and other disputes involving tax advisors and finance professionals.

He has gained experience of this type of work through assisting others in chambers during pupillage and in practice, and has had published an article in Tax Journal examining limitation issues in professional negligence claims against tax advisors.

Recent instructions in this area include:

• Assisting Sarah Clarke in the preparation of a claim by an insolvent company against delinquent directors. The directors had entered into a potentially fraudulent transaction with a Dubai entity, which had taken over liabilities of over £1m owed by the directors to the insolvent company.
• Assisting Sri Carmichael in a claim by a company in liquidation against a de facto director for breach of duty and misappropriation of company funds.

Simon regularly appears in corporate insolvency matters, dealing with winding up petitions and applications in insolvency proceedings, including injunctions to restrain a petitioning creditor from presenting a petition.

Simon has also acted pro-bono for companies needing advice and assistance in winding up petitions via the Company Insolvency (CO.IN) scheme run by City Law School. Issues he has dealt with include the need to apply for a validation order, the impact of a winding up order against the top company in a group, and the steps needed following adjournment of a petition to minimise the chance of the company being wound up at a subsequent hearing.

Recent cases include:

• Assisting Nigel Jones QC and Sarah McCann in relation to the insolvency of Enterprise Insurance Company.
• Acting for the respondent to an application for an injunction restraining winding up proceedings.
• Assisting Sarah Clarke in the preparation of a claim by an insolvent company against delinquent directors. The directors had entered into a potentially fraudulent transaction with a Dubai entity, which had taken over liabilities of over £1m owed by the directors to the insolvent company.
• Instructed on behalf of shareholders petitioning to wind up their company on just and equitable grounds, on the basis of deadlock with their fellow shareholders.
• Assisting Sri Carmichael in a claim by a company in liquidation against a de facto director for breach of duty and misappropriation of company funds.

Simon has extensive experience of bankruptcy proceedings, and frequently represents debtors, petitioners and trustees in all manner of bankruptcy hearings.

Recent cases include:

• Acting for the trustee in bankruptcy in an application for a possession and sale order in respect of the bankrupt’s home. The matter was complicated by the bankrupt’s claim that his interest was reduced by an order made in family proceedings, and the bankrupt’s refusal to cooperate or provide documentation to the trustee.
• Acting for the trustee in an application for a possession and sale order, in circumstances where the bankrupt was facing a serious family emergency.
• Acting on numerous occasions for a bankrupt seeking an adjournment of a bankruptcy petition on the basis of previous payments made.

Simon frequently advises in matters involving combined issues of insolvency and construction law.

Recent instructions include:

• Acting for a plastering and finishing subcontractor resisting an injunction restraining winding up proceedings against a major residential property developer.
• Advising on the effect of clauses in a bespoke construction contract designed to operate in the event of contractor insolvency, and in particular whether they offended the anti-deprivation principle.