Stephen Kosmin

Year of call:
2011
Email:
stephen.kosmin@39essex.com

Clerks:
+44 (0)20 7832 1111

Stephen Kosmin’s practice extends across financial services law, commercial law, construction law and public law. Stephen appeared in two Supreme Court cases reported in 2016: in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs acting for the claimant, and in Cox v Ministry of Justice acting for the Government. He has a further Supreme Court appeal listed for 2017.

Stephen is very experienced in financial regulation and financial services law, particularly concerning tax avoidance schemes and collective investment schemes, financial product mis-selling, insurance contracts, and jurisdictional issues of regulators. He has successfully represented the Financial Ombudsman Service in judicial review proceedings, both substantive and at the permission stage, including in R (Chancery (UK) LLP) v FOS (to be heard by the Court of Appeal in 2017), R (Full Circle) v FOS, R (Shaw) v FOS and R (Fisher) v FOS. He has advised the Financial Services Compensation Scheme and the Bank of England, including in relation to jurisdiction, quantum, and issues relating to judicial review. Stephen has both acted for the Serious Fraud Office and for a party under investigation by the Serious Fraud Office.

In his commercial practice, Stephen appears regularly in the High Court both by himself and as junior counsel. Stephen has recently been instructed in disputes concerning insurance contracts, procurement processes, local government financing, NHS funding, company law, and professional negligence. Stephen has also appeared overseas as junior counsel in high-value multi-party and multi-jurisdictional disputes. In addition, Stephen has extensive experience of arbitrations, ranging from a nuclear technology dispute under the ICC Rules, to a dispute under the LCIA Rules concerning the financing of oil exploration, to a dispute concerning agents’ remuneration under Rule K of the Football Association Regulations.

Stephen is highly regarded in public law. He is a member of the Attorney General’s C Panel, in which role he is currently appearing at trial as junior counsel in the Kimathi and others v Foreign and Commonwealth Office, in which the claimants are seeking damages arising from the alleged actions of the British colonial administration in Kenya during a State of Emergency declared in 1952 to deal with the Mau Mau uprising. Stephen also acts for the Government in national security cases of greatest sensitivity.

Stephen has considerable experience of public international law litigation. Stephen’s cases have raised issues of treaty interpretation, customary international law, and the extent to which public international law confers rights or causes of action in domestic law. Indeed, Stephen has guest-lectured and appeared on the BBC to speak on international law issues.

Commercial


Stephen appears regularly in the High Court both by himself and as junior counsel. Stephen has acted in interlocutory hearings, particularly in relation to winding up proceedings, freezing injunctions and jurisdictional disputes. He has additionally appeared as junior counsel in High Court trials.

Stephen has appeared overseas as junior counsel in high-value multi-party and multi-jurisdictional disputes. He has experience of proceedings in Ireland, Barbados, and Saint Vincent and the Grenadines. He has also assisted in arbitral proceedings under the ICC Rules, the LCIA Rules and the Football Association Regulations (see further below under the heading ‘International Arbitration’).

Stephen has extensive experience of drafting pleadings and complex opinions and advising clients in conference, including in relation to commercial frauds, local government financing, NHS funding, company law, professional negligence, intellectual property and passing off, and multi-jurisdictional issues in private international law. Stephen has represented commercial clients as diverse as sole-trading dotcom entrepreneurs to multi-national corporate groups. Recently, Stephen has been instructed as a junior in a challenge to a multi-million pound NHS procurement process for mental health services.

Stephen has a developed knowledge and professional experience of company law, commercial remedies, and alternative dispute resolution, including in respect of:

  • Commercial law
  • Professional liability
  • Commercial fraud
  • Restitutionary remedies
  • Company law and directors’ duties
  • Insolvency
  • Agency
  • Private international law
  • International jurisdictional and forum disputes
  • Intellectual property

Stephen has close familiarity with a number of overseas jurisdictions, in particular New York, where he is a qualified attorney, and Israel, where he has been a Foreign Law Clerk in the Supreme Court.

Construction


Stephen has experience of a broad range of construction litigation. He has appeared in the High Court and in the Commercial Court in Ireland in respect of large-scale construction disputes. He also regularly drafts pleadings and complex opinions in relation to standard form construction contracts (such as JCT and NEC3 standard building contracts) and non-standard form construction contracts, and advises clients on proper courses to pursue when disputes arise in the course of a construction project. Recently, Stephen successfully obtained a strike out of a claim against a large development project on a London brownfield site.

Stephen has been instructed in relation to international construction projects, including in Malaysia and the Caribbean. Stephen also marshalled in the Technology and Construction Court with Ramsey J and Edwards-Stuart J and has since been instructed in proceedings to enforce adjudicators’ decisions in the Technology and Construction Court.

Stephen is a contributor to Wilmot-Smith on ‘Construction Contracts’ (Oxford University Press, Third Edition), having written the chapter on mistake, frustration and misrepresentation. Stephen, together with Marion Smith, has also spoken on expert evidence and recent developments in the handling of experts.

International Arbitration


Stephen has extensive experience arbitral proceedings, as well as adjudications and negotiations.

Stephen has assisted in multiple arbitrations as a Secretary or Clerk to the Tribunal. The arbitral proceedings have included a nuclear technology dispute under the ICC Rules, a dispute under the LCIA Rules concerning the financing of oil exploration, and a dispute concerning agents’ remuneration under Rule K of the Football Association Regulations. Stephen also has demonstrated cross-examination of underwriters and experts in the context of a reinsurance arbitration under the ARIAS Rules.   As counsel, Stephen has drafted pleadings for arbitral proceedings in respect of disputes arising under multi-party standard form contracts, and has advised on the implementation and subsequent operation of the Directive for Alternative Dispute Resolution (Directive 2013/11/EU).

Further, Stephen Kosmin was invited to speak on the role and responsibilities of an Arbitral Tribunal Secretary as part of the CIArb Arbitral Secretaries’ Course in September 2016. Stephen has co-authored an article on arbitration, namely: “The Enforcement of Arbitral Awards in UAE”, (2013) Lexis PSL Arbitration.

Administrative & Public


Stephen is highly regarded in public law, acting both for claimants and the government in public law matters. In January 2015, Stephen Kosmin was successful in his application to join the Attorney General’s C Panel of Junior Counsel to the Crown.  In that role, he is currently appearing at trial as junior counsel in Kimathi and others v Foreign and Commonwealth Office, in which the claimants are seeking damages arising from the alleged actions of the British colonial administration in Kenya during a State of Emergency declared in 1952 to deal with the Mau Mau uprising.  Stephen also appeared in two Supreme Court cases reported in 2016: in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs acting for the claimant, and in Cox v Ministry of Justice acting for the Government. He has a further Supreme Court appeal listed for 2017. Stephen also acts for the Government in national security cases of greatest sensitivity.

Stephen has appeared regularly in judicial review permission and substantive hearings, and frequently drafts judicial review pleadings, complex opinions, and grounds of appeal to the Court of Appeal and Supreme Court, as well as skeleton arguments. Stephen has a particularly developed knowledge of costs in public law proceedings, having appeared in Tesfay v Secretary of State for the Home Department [2016] EWCA Civ 415, which is now the leading judgment on the point, explaining R (M) V Croydon London Borough Council [2012] 1 WLR 2607.

Stephen has advised investors on the effect of recent statutory reforms and regulatory changes to funding arrangements in public private partnership schemes and has assisted companies involved in regulatory investigations. Stephen also advises local councils and NHS authorities, including on the likelihood of judicial review proceedings being successful. Recently, Stephen has been instructed as a junior in a challenge to a multi-million pound NHS procurement process for mental health services.

Stephen has extensive experience of education law, in particular judicial review claims against educational institutions. These include claims in respect of a candidates’ failure to be awarded a place at or a degree from an institution. Stephen has successfully obtained civil restraint orders in a number of such cases, including in one case bringing a dispute lasting around twenty years to a satisfactory conclusion: R (on the application of Hanuman) v University of East Anglia [2014] EWHC 3299 (Admin).

Stephen has also been instructed or assisted in:

  • R (on the application of Full Circle Asset Management) v Financial Ombudsman Service [2017], concerning a judicial review application by a firm of financial advisers who had been the subject of a section 166 skilled person review. The case explored the key regulatory relationship between the FCA and the Financial Ombudsman Service.
  • Kimathi and others v Foreign and Commonwealth Office [2017] EWHC 203 (QB), concerning claims arising from the conduct of colonial forces during the Mau Mau Rebellion in Kenya.
  • HCPC v Waring [2016] EWHC 696 (Admin), concerning an interim suspension order of a registered social worker.
  • Wick v Secretary of State for Work and Pensions [2016]: concerning an appeal of the definition of the term “money” for the purposes of the Child Support Variation Regulations, in the context of holdings of gold bullion and Krugerrands.
  • Tesfay v Secretary of State for the Home Department [2016] EWCA Civ 415, which is now the leading judgment on costs in judicial review proceedings, explaining R (M) V Croydon London Borough Council [2012] 1 WLR 2607
  • Cox v Ministry of Justice [2016] UKSC 10, [2016] AC 660, concerning whether a prison is vicariously liable in respect of prisoners operating within a prison.
  • R (on the application of Lovett) v HCPC [2016] EWHC 2193 (Admin), concerning whether a decision to continue a disciplinary hearing in the registrant’s absence after a delay of two and a half years was in breach of Art 6 ECHR.
  • R (on the application of Chancery (UK) LLP) v Financial Ombudsman Service Ltd [2015] EWHC 407 (Admin), concerning a judicial review application by a firm of chartered accountants challenging a jurisdiction decision in respect of a tax avoidance scheme (a limited liability partnership to exploit commercial rights in film and television products).
  • HCPC v Moody [2015] EWHC 3039 (Admin), concerning an interim suspension order of a registered social worker.
  • R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2014] EWCA Civ 708 (Supreme Court granted permission for appeal), acting for the appellant in a Supreme Court appeal concerning the Government’s decision to ban fishing around the Chagos Islands and to establish a Marine Protected Area.
  • R (on the application of Hanuman) v University of East Anglia [2014] EWHC 3299 (Admin), concerning the inherent jurisdiction of the High Court to make an extended civil restraint order.
  • XX v Secretary of State for the State Department [2012] EWCA Civ 742, concerning deportation with assurances of a terrorist suspect and particularly the admissibility of evidence about arbitrary detention and ‘flagrant breach’ of Article 6.
  • MM (Zimbabwe) v Secretary of State for the Home Department [2012] EWCA Civ 135, concerning alleged ‘conspicuous unfairness’ on account of a delay.
  • SS (Libya) v Secretary of State for the Home Department [2011] EWCA Civ 1547, concerning the procedural and substantive approach of SIAC to the application of Article 1(F)(c) of the Refugee Convention.
  • R (on the application of the Badger Trust) v Secretary of State for the Environment, Food and Rural Affairs [2012] EWHC 1904 (Admin), involving a judicial review of a licensing scheme for the culling of badgers.
  • Information Tribunal in The Chagos Refugees Group v Information Commissioner and ors [2012] UKFTT 2011/0300, which concerned whether information was ‘held’ by the FCO, and the scope of the Environmental Information Regulations exception for internal communications of a public authority.
  • Statutory appeals to the High Court, including in Sea & Land Power & Energy Ltd v Secretary of State for Communities and Local Government [2012] EWHC 1419, concerning the treatment of regional policy after the Cala Homes litigation.
  • Court of Protection, including capacity and best interest assessments.
  • Special Immigration Appeals Commission.

Stephen has detailed knowledge of public law, having taught Administrative Law and Constitutional EU Law at London Metropolitan University. During his BCL Degree, Stephen also was awarded the Ralph Chiles CBE Prize for the best performance in Human Rights Law at Oxford University.

International


Stephen has appeared in the Court of Appeal in R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2014] EWCA Civ 708 (to be heard by the Supreme Court in 2017) and Tesfay v Secretary of State for the Home Department [2016] EWCA Civ 415, and in the High Court in Kimathi and others v FCO [2017] EWHC 203 (QB) in cases concerning the applicability and operation of public international law. Stephen’s cases have raised issues of treaty interpretation, customary international law, and the extent to which public international law confers rights or causes of action in domestic law.  Further, Stephen has also assisted in cases about the effects of non-ratification of treaties and of ius cogens norms of public international law (R (Al Saadoon) v Secretary of State for Defence [2016] EWCA Civ 811, XX v Secretary of State for the State Department [2012] EWCA Civ 742, and SS (Libya) v Secretary of State for the Home Department [2011] EWCA Civ 1547). Stephen also acts for the Government in national security cases of greatest sensitivity.

In particular, Stephen is familiar with treaty interpretation. Stephen’s cases have concerned the Vienna Convention on the Law of Treaties 1969, the Vienna Convention on Diplomatic Relations 1961, the Vienna Convention on Consular Relations 1963, and the United Nations Convention Against Torture 1984. When counsel for the Home Office before the First Tier Tribunal (Immigration), Stephen gained extensive experience of the interpretation and application of the UN Refugee Convention and the European Convention on Human Rights.

In the course of his cases raising public international law, Stephen has worked extensively with leading academics, including Professor Robert McCorquodale (the Director of the British Institute of International and Comparative Law and Professor of International Law and Human Rights at the University of Nottingham) and the late Professor Vera Gowlland-Debbas (Honorary Professor of Public International Law at the Graduate Institute of International and Development Studies in Geneva and a Visiting Professor at University College London). Stephen is also an experienced researcher of complex public international law problems, not least as a result of his time as a Foreign Clerk with the Supreme Court of Israel, which is at the forefront of international law jurisprudence.

In 2015, Stephen Kosmin was invited by the BBC to speak on the public international law and maritime law implications of the seizure by the Iranian Revolutionary Guard’s naval forces of a Danish-owned, Marshall Islands-flagged cargo vessel in the Strait of Hormuz earlier that day. The seizure sparked a diplomatic incident and came at a critical moment, with the Iranian Nuclear Talks ongoing and US warships having recently arrived in the area.

Civil Liability


Stephen acts for both claimants and defendants in a range of civil liability disputes. Stephen recently represented the defendant in proceedings in the High Court to strike out claims in defamation, negligence and personal injury proceedings. Stephen appeared before the Supreme Court in Cox v Ministry of Justice [2016] UKSC 10, [2016] AC 660, concerning whether a prison is vicariously liable in respect of prisoners operating within a prison. This is now the leading decision on vicarious liability. Stephen also assisted in Fairclough Homes v Summers [2012] UKSC 26, the leading Supreme Court authority on the availability of a strike-out in partially false personal injury claims. Stephen frequently appears before the Queen’s Bench Division Masters in civil liability disputes.

Stephen also advises clients and drafts pleadings in respect of civil litigation. In particular, he has experience of appearing in court and advising clients in relation to professional liability, employer’s liability, contribution and indemnities, and breach of confidentiality.

Banking & Financial Services


Stephen is very experienced in financial regulation and financial services law, particularly the jurisdiction and operation of financial regulators and dispute resolution schemes, tax avoidance schemes and collective investment schemes, financial product mis-selling, insurance contracts, and the Bribery Act. Leading decisions in which Stephen appeared include:

  • R (on the application of Full Circle Asset Management) v Financial Ombudsman Service [2017], in which Nicol J considered a judicial review application by a firm of financial advisers who had been the subject of a section 166 skilled person review. The case explored the key regulatory relationship between the FCA and the Financial Ombudsman Service.
  • Wick v Secretary of State for Work and Pensions [2016], in which the Upper Tribunal (Administrative Appeals Chamber) considered the definition of the term “money” for the purposes of the Child Support Variation Regulations, in the context of holdings of gold bullion and Krugerrands, and other non-traditional assets.
  • R (on the application of Chancery (UK) LLP) v Financial Ombudsman Service Ltd [2015] EWHC 407 (Admin), in which Ouseley J considered a judicial review application by a firm of chartered accountants challenging a jurisdiction decision in respect of a tax avoidance scheme (a limited liability partnership to exploit commercial rights in film and television products).
  • R (on the application of Shaw) v Financial Ombudsman Service Ltd [2015] EWHC 1657 (Admin), in which Haddon-Cave J considered the corporate knowledge of the Financial Ombudsman Service when considering complaints.
  • R (on the application of Fisher) v Financial Ombudsman Service [2014] in which Clare Moulder QC, sitting as a Deputy High Court Judge, considered whether the Financial Ombudsman Service was required to seek independent legal advice when resolving a dispute and whether its remit was limited to the determination of disputes on the basis of evidence presented to it.

He has successfully represented the Financial Ombudsman Service in judicial review proceedings, both at the substantive and at the permission stages.  He has advised the Financial Services Compensation Scheme, including in relation to jurisdiction, quantum, and issues relating to judicial review.  He has been instructed by the Bank of England to assist with a large-scale investigation of corporate malpractice. Stephen has both acted for the Serious Fraud Office and for a party under investigation by the Serious Fraud Office.

Stephen was recently instructed by a large group of individual claimants in respect of negligent tax avoidance advice, reaching a settlement on favourable terms with the financial advisor. Additionally, Stephen has successfully advised a number of clients on the operation of the Payment Services Regulations 2009, enabling them to recover significant sums from banks. Stephen has advised on anti-money laundering compliance, particularly in respect of the new functions of the Financial Conduct Authority under the Financial Services (Banking Reform) Act 2014. Stephen has advised on the following matters:

  • The relationship between various regulators and dispute resolution schemes, including the Financial Conduct Authority, the Financial Ombudsman Service, the Financial Services Compensation Scheme, the Bank of England and the Serious Fraud Office.
  • The definition and operation of unregulated collective investment schemes under section 235 of the Financial Services and Markets Act 2000.
  • Misselling of financial products.
  • Jurisdictional issues relating to regulators.
  • Interpretation of insurance contracts, including in the context of the recent Digital Satellite decision.
  • Interpretation of mortgage contracts.
  • Consumer credit.
  • Anti-money laundering compliance.
  • Bribery Act.

Stephen has published an article on the topic: “Ensuring anti-money laundering compliance through the senior managers regime of the Financial Services (Banking Reform) Bill: Hansard brings comfort”, [2014] Butterworths Journal of International Banking and Finance Law, 179. Stephen also assisted Justice Dr Yoram Danziger, Justice of the Israeli Supreme Court, with his article: “Changes in Methods of Freezing Funds of Terrorist Organisations since 9/11: A Comparative Analysis”, (2012) 15(2) Journal of Money Laundering Control 210.

Insurance and Reinsurance


Stephen has appeared regularly in litigation both for and against insurance companies. He is instructed to appear in complex, insurance-backed, disputes. As a result, Stephen has a good understanding of the insurance and reinsurance markets, which he uses to obtain beneficial settlements for his clients. In particular, Stephen has experience of cross-examination in insurance and reinsurance disputes in the context of arbitral proceedings. In light of his experience, Stephen was recently invited to Germany, to address Hannover Re on insurance law, cross-examination, and litigation concerning underwriters’ negligence.

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