Marion Smith KC

Banking & Finance

Marion was junior counsel to the Commissions of Enquiry before Sir Antony Colman into the collapse of Colonial Life Insurance Company (Trinidad) Limited, CLICO Investment Bank Limited, British American Insurance Company (Trinidad) Limited and other entities in the CLF Financial Group and the Hindu Credit Union Co-operative Society Limited. She was admitted to the Bar in Trinidad & Tobago for these cases.

As a result of her involvement in the CLICO and HCU Enquiries she has extensive forensic experience in examining, analysing and reviewing:

• The performance of auditing and accounting firms, operating in the general commercial sector as well as the specialist banking, insurance and credit union sectors;
• Regulation, oversight and enforcement in the accounting, auditing and financial services sector (banking, insurance and credit union), and the implementation of international best practices in such sectors; and
• Corporate governance structures and practices, and the protection through civil litigation of the interests of depositors, investors, policyholders, creditors and shareholders.

Marion has also recently:

• Advised and represented parties seeking to challenge clearing banks using the Consumer Credit Act 1974 section 140A.
• Advised and represented a party seeking to recover funds lost from various bank accounts through a phishing and vishing scam.

Commercial

“Impressive in terms of her speed of response, she takes a commercial approach and has the ability to work as a member of the dispute team.” Chambers & Partners

“user friendly with a well-trained eye for detail” Legal 500

Marion has wide-ranging experience of both advisory and contentious work. She has dealt with interlocutory disputes, and first instance and appellate hearings. A substantial part of her practice takes place in arbitration, and in assisting in litigation in the courts of foreign jurisdictions.  In addition to her specific sector experience illustrated separately, the general commercial matters and contracts she has dealt with recently include:

Loans and guarantees

• Acting for a hedge fund in an application to vary a freezing order made in  Chancery proceedings related to the recovery of loans.
• Acting for the defendants in a Commercial Court action seeking repayment of a US$20 million loan under the loan agreement and the related guarantee.
• Advising a joint venture party in relation to the recoverability of loans made pursuant to oral agreements relating to the development of several holiday theme parks in Eastern Europe.

Product distribution and agency

• Advising a purchaser of pharmaceutical products and healthcare provider in relation to a contractual dispute with a manufacturer/supplier
• Acting on behalf of an international pharmaceutical company in an ICC arbitration arising out of the termination of a world-wide supply agreement.
• Advising a global media company on the damages recoverable for termination of a long-term supplier’s contract.
• Advising legal expenses insurer in a dispute involving the recoverability of commission, forward funding and cross-claims for loss of profit.
• Advising a UK telecommunications company in dispute arising out of the exercise of the right to terminate an outsourcing agreement “for convenience” and the application of a “cap” on liability for losses.

Sale of Goods

• Acting in the Commercial Court for a leading worldwide manufacturer and seller of heating units in a sale of goods claim alleging breach of warranties as to quality and fitness for purpose
• Acting for the seller of plant at a reclamation site in proceedings against the purchaser for contamination of the site during the removal of the plant.

Service Agreements

• Advising the provider of serviced office accommodation in QB proceedings relating to the termination of a licence agreement
• Advising a major European supplier of building materials in relation to disputes arising out of the minimum tonnage requirements and right to terminate a long-term services agreement.
• Advising a UK telecommunications company in a £multi-million dispute arising out of the construction of a Master Services Agreement, the accrual of the obligation to pay, the application of the exclusion clauses and the entitlement to loss of profit an account and restitutionary damages.

Share Purchase

• Appearing for the claimants in QBD action seeking interim injunctive relief and specific performance in relation to Loan Notes issued as part consideration for the purchase of a company’s issued share capital.
• Acting for the developer of a site in central London in a Chancery Division action involving emergency injunctive relief arising out of disputed profit share in a Share Sale and Purchase Agreement.
• Acting on behalf an off-shore investment company in relation to claims arising out of an agreement to purchase shares in an Australian company before the Commercial Court.

Waste disposal and environmental indemnities

Marion has advised and acted for companies, developers and local authorities in relation to the construction and implementation of long-term waste disposal agreements and remediation of contaminated land.

Professional Negligence

Marion has many years’ experience acting and advising in professional negligence claims: making and defending claims of negligent, unethical and irresponsible conduct by professionals. She acts for defendants and their insurers, and for claimants whether individuals or businesses in a wide variety of commercial contexts. Whatever the claim, and whoever she is acting for, Marion gives clear and practical advice to her clients, reflecting her appreciation of the financial, personal and commercial risks they face. Her recent work has included:

• Acting for a party to unsuccessful litigation in a claim against his solicitors.
• Acting for the purchaser of various development freehold and leasehold properties in claims against its solicitors.
• Acting for individual and corporate claimants in a claim against their former solicitors arising out of their negligent conduct and management of litigation.
• Acting for a foreign resident  in a claim against his previous accountants arising out of negligent tax advice relating to direct and indirect tax liabilities.
• Advising group companies and their directors involved in a corporate acquisition, as to claims against UK and US lawyers in relation to their tax and immigration law advice.
• Advising a trade union member’s widow in relation to a claim against the trade union for negligent pensions advice.
• Advising the owner of a number of buy-to-let properties in relation to a claim against her previous solicitors for sub-standard advice relating to inheritance tax, trusts and conveyancing.
• Acting for solicitors defending claims arising out of the conduct of Chancery passing off and trade mark proceedings involving allegations of conflict of interest and raising issues of legal professional privilege in the context of a joint retainer.
• Advising a land owner in relation to claims against a planning consultant and leading counsel relating to investigations of the site’s planning history in the context of an enforcement notice.

Relevant sector experience is set out in:

Banking and Financial Services

Energy

Insurance

Media and Entertainment

Retail

Civil Fraud

Civil fraud takes many forms. For many companies the biggest threat comes from within: from the fraudulent conduct of its own management or employees, agents or intermediaries. Marion has been involved in many such cases. She provides thorough, swift and tactical advice. She has experience of claims in deceit, conspiracy, misrepresentation and restitution, for money laundering and breaches of fiduciary duty as well as accessory liability for dishonest assistance and receipt. The fraud matters she has dealt with recently include advising and acting for:

• A professional services firm, the victim of a substantial online banking fraud, in relation to claims against its Bank.
• The accountant defendant in Chancery proceedings involving freezing relief and associated tracing orders.
• A European group of companies in the chemicals industry, bringing QB proceedings arising out of in-house and suppliers’ use of fraudulent invoices. The claim started with obtaining freezing injunctions, leading to summary judgement and charging orders including relief under section 346 of the Insolvency Act 1986.
• Vendors sued in a QBD action in fraud and for breach of warranties in a share sale agreement relating to the specialist manufacturer of rescue vehicles.
• The Management Receiver appointed under applicable proceeds of crime legislation in relation to claims against an investment company in conspiracy and resulting and constructive trusts involving tracing.

Construction

“Experience representing domestic and international clients.” Legal 500

“She provides very strong support.” Legal 500 Asia Pacific

“She is forceful, provides clear and concise advice, and has a no-nonsense approach.” Chambers & Partners

“Recommended for large-scale construction disputes” Legal 500

Marion works with, advises and represents employers, main contractors, sub-contractors and construction professionals in a broad range of construction sectors including bridges and roads, housing and retail, hotels and leisure, hospitals and rail. She also deals with yacht and power-boat building disputes. She has been involved in disputes involving many standard form contracts including JCT standard forms, NEC, FIDIC  and derivative  agreements as well as bespoke contracts. She has in-depth experience of PFI/PPP contractual arrangements in the UK. She is a regular speaker at international conferences on dispute resolution and construction issues including in 2019 speaking at GAR Live Dubai and the SCL Singapore Annual Construction Law Conference.

In addition to her specific sector experience illustrated below, the construction matters she has dealt with recently include:

Construction and Engineering

• Acting for the employer in an ICC arbitration involving claims for delay and liquidated damages.
• Acting in an adjudication for the sub-contractor for the façade works on a major project involving claims for an indemnity and damages for delay.
• Advising a management company and owners of an exclusive development in relation to its cladding
• Advising a UK Government Department in relation to a project agreement relating to a PFI initiative and performance regimes.
• Advising an NHS Trust in relation to the development and construction agreement in PFI arrangements and related consortium and financing arrangements.
• Advising an owner and operator of railway infrastructure in relation to a dispute arising out of the provision of plant.
• Appearing in the TCC for the Main Contractor in its application to stay court proceedings under the Arbitration Act 1996.
• Advising the main contractor on an expedited appeal in a foreign jurisdiction in a claim by residents of a condominium arising out of alleged construction defects. The dispute concerned the existence and application of the independent contractor defence.

• Advising the Main Contractor in an arbitration arising out of a road building project. In addition to contract construction issues the claim involved technical issues relating to the design and construction of motorway and the treatment of provisional sums, variations and rectification works.
• Acting for the owner of a Hotel in an adjudication with the main contractor under the JCT Intermediate Building Works Contract with Contractor’s Design 2011.
• Acting for the Employer in a dispute with its main contractor involving obligations to use “all reasonable endeavours”.
• Acting for a NHS Trust in relation to a delayed hospital project. The claim arose out of PFI arrangements (FIDIC based) and related to the site ground conditions, involving claims for extensions of time and  associated additional costs.

• Acting for the Employer in a TCC action involving the design and construction of concrete floor slabs and pavings under a FIDIC Short Form (Design and Build) contract. The matter involved difficult technical issues of the adequacy of industry accepted engineering guidance.

• Acting for a MRT Operator in a £327 million adjudication claim with disputes relating to:
  • upgrade of the signalling system (software and hardware design, integration, testing and commissioning ) including causation, programming and quantum issues
  • rolling stock (design, approval, installation and testing) and including programming and quantum issues
  • radio communications and the provision of emergency services

• Advising a Housing Association in disputes related to the administration of the inter-related construction contracts on JCT standard forms for an urban regeneration project involving the construction of a mixed use development, car park and apartment blocks.

Professional Negligence

Construction related professional negligence is a significant part of Marion’s practice. She has acted both for and against professionals in claims involving complex and difficult issues relating to liability, causation and loss. Her recent cases include:

• Acting on behalf of the owners of Grade II listed building in relation to claims arising out of an air conditioning installation.
• Acting on behalf of the purchaser of a Grade II listed building in relation to claims in negligence against a chartered surveyor.
• Acting on behalf of the vendors of industrial land in a claim for professional negligence against its chartered surveyors and property agents.
• Acting for engineers in a professional negligence claim arising out of the design and construction of a housing estate.

Relevant sector experience is set out in:

Banking and Financial Services

Energy

Insurance

Media and Entertainment

Retail

Regulatory & Disciplinary

In addition to her experience in professional negligence matters, Marion is instructed in professional liability actions and arbitrations and regulatory matters. She has also sat as a Visitor and as a member of the BSB’s Disciplinary Tribunal. Recently the matters she has been instructed in include:

• Appearing before the ICAEW Appeal Tribunal to set aside a Tribunal decision to exclude her client from membership.
• Advising in relation to applications for waiver from the BSB and the SRA to enable employed lawyers to provide advice.
• Advising in relation to the obligation to produce privileged documentation in the face of a SRA notice under s.44B Solicitors Act 1974.
• Advising solicitors in an application to setting aside statutory demands issued on behalf of Qualifying Insurers to the Assigned Risks Pool based on the rights created by, and construction of, the Solicitors Indemnity Insurance Rules.
• Advising solicitors in relation to the conflict arising between co-defendants and the obligation to cease to act and the implementation of such an obligation.

Appearing in an appeal to the Visitors by a barrister on an appeal against a finding of professional misconduct and a 12 month suspension.