Marion Smith QC

Banking & Finance

Marion has acted as 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:

• 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

• Acting for the defendants in a Commercial Court action seeking repayment of a US$20 million loan.
• 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

• 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 mediation arising out of a dispute involving the recoverability of commission, forward funding and cross-claims for loss of profit.
• Advising 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 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 UK telecommunications company in £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 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 individual 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 for many years in 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

“She provides very strong support.” Legal 500 Asia Pacific 2017

“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, infrastructure and rail. She also deals with yacht and power-boat building disputes. She has been involved in disputes involving many standard form contracts including the JCT standard forms, the NEC, the FIDIC suite of contracts and derivative standard form agreements as well as bespoke contracts. She has in-depth experience of complex PFI contractual arrangements in the UK. She has substantial experience of international arbitration and has significant expertise in arbitrations where the law of the contract is not the law of England & Wales.

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

Construction and Engineering

• 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 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.
• Acting for the Employer in a £5 million 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.
• Advising a major Community Housing Group in adjudications and TCC proceedings arising out of a facilities service agreement based on the NEC 3 form involving issues of contract performance and the use of KPIs.
• Advising a registered housing provider and social regeneration charity in relation to the interpretation of a bespoke development agreement for a large scale public housing development in Essex and related restitutionary issues.
• Acting for a civil engineering contractor and consulting engineer in TCC proceedings arising out of the pain share arrangements in a NEC3 Target Cost Contract.
• Advising the contractor in a TCC claim and adjudications arising out of the termination of a long term agreement, based on NEC 3, for highway maintenance and reactive repairs in various London boroughs.
• Appearing for the design and build contractor, and their insurers, in two related TCC actions arising out of a JCT standard form contract involving an alleged obligation to build retail premises with a specific Gross Internal Floor Area and the scope of the related professional indemnity insurance.
• Advising a Parochial Church Council in relation to the contract for the design and reconstruction of their Church and the operation of the contractual right to terminate for insolvency and repudiatory breach and the effect of these issues on a parent company bond.
• Appearing in a domestic arbitration on behalf of the freehold owner of an award winning development in relation to claims in contract, tort and statutory duty relating to the electrical installation including the fire detection and fire alarm systems.
• Advising the sub-contractor in relation to claims against the Main Contractor for the additional costs incurred in repairing latent defects in plasterwork at army barracks in the UK.
• Acting for the demolition and asbestos removal contractor in relation to two adjudications and subsequent TCC enforcement proceedings involving the ICE conditions and overlapping claims for additional loss and expense due to delay.
• Advising the design and build contractor in relation to a JCT standard form contract and the valuation of additional work carried out during the construction of new Police Headquarters in the North of England.
• Acting for a major UK Contractor in adjudication as to the identity of the Employer and the right of trusts to contract and their liability to be sued.
• Acting on behalf of the guarantor of a developer in a £20 million 8 party TCC dispute arising out of the construction of a night club and cinema complex in East Anglia.

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 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 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.