Neil Kitchener KC
Barrister
Call 1991 Silk 2008
Neil Kitchener KC is regularly instructed in the most significant disputes of the day. He has particular expertise in civil fraud, company (litigation and advisory), life sciences, banking and financial services, energy & natural resources, professional liability and arbitration.
Current and recent cases include;
Acting for the successful Defendant in IQVIA v. Cardiorentis [2022] EWHC 250, defeating a claim for over US$300 million against a Clinical Research Organisation for alleged failures in the conduct of a clinical trial for a new drug to treat heart failure. This was the first ever claim of this kind to come to trial in England (and possibly in any common law jurisdiction) and losing it would have had serious repercussions for the clinical research industry as a whole. Neil has acted in numerous other life sciences cases both in the High Court and in arbitration.
Lonestar Communications v Kaye, Marziano, Cellcom, Polani and Orange
Acting for Orange in Commercial Court proceedings arising out of alleged cyberattacks on a telecommunications company in Liberia. The case is one of The Lawyer’s “top cases for 2022”.
Castle Water Ltd –v- Thames Water Utilities Limited [2021] Bus. L.R. 1452
Acting for the Claimant in a claim for breach of contract against Thames Water Utilities Limited of its non-household retail division of water and sewerage services to CWL. The case was one The Lawyer’s “top cases for 2021”. It settled shortly before trial.
The Tesco Profit Overstatement litigation [2019 – 2021]
Acting for 58 institutional investors claiming over £440 million from Tesco PLC in respect of its profit overstatement revealed in Autumn 2014. The claim is made under s.90A of the Financial Services and Markets Act 2000 (a statutory provision in respect of which there is no decided authority), and alleges fraudulent misrepresentations by Tesco senior management and their subordinates. The proceedings generated a string of reported judgments. The judgment on the correct legal analysis of the intermediated securities market ([2020] Bus. L.R. 250) has important repercussions for financial services litigation generally and has already been the subject of much academic commentary. The case settled shortly before trial. It was one of The Lawyer’s “top cases for 2020”.
Acting and advising in relation to some of the largest and most high-profile fraud cases worldwide, such as BTA v. Ablyazov (& Ors), Nissan v. Ghosn, Libyan Investment Authority v. Société Générale (and Ors).
Halliburton Co v Chubb Bermuda Insurance Ltd [2021] A.C. 1083
acting for the Claimant in its appeal to the Supreme Court in the leading case on apparent bias in international commercial arbitration.
Koza Ltd v. Koza Altin [2021] 1 W.L.R. 170 (and other judgments)
Acted for the Defendant in hotly contested proceedings concerning the control of the corporate Claimant.
BGC Brokers LP v Tradition (UK) Ltd (QBD) (2020)
Acted for the Defendant, one of the City’s main inter-dealer brokerage firms, in high-value and bitterly fought claims by one of its main competitors. The claimants alleged breaches of confidence and a “team move” of brokers. The case settled during cross-examination of the claimants’ key witnesses.
Acting and advising on boardroom and shareholder disputes and mergers and takeovers including (recently) Avast PLC, Petropavlovsk PLC, Amigo Holdings PLC, Tonstate Group Ltd [2019] B.C.C. 990.
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Examples of Recent Cases
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Commercial Litigation
- Langston Group Corp & Mr Samir-Georges Hammam v Cardiff City Football Club Limited & Mr Vincent Tan
For the Claimants in Commercial Court proceedings. The Claimants seek damages against Cardiff City Football Club and its owner, Mr Tan, in relation to a £22 million settlement agreement between Langston Group and Cardiff City which was procured by fraudulent misrepresentations. Mr Hammam also claims damages against Cardiff City for breaches of his rights to be the Life President of Cardiff City pursuant to the settlement agreement. The case is the latest in the long running dispute between Langston/ Mr Hammam, and Cardiff City/Mr Tan, following proceedings between the parties in 2007 and 2015. - Libyan Investment Authority v Societe Generale SA [2017] EWHC 2631 (Comm)
This was one of the biggest banking cases in London in recent years. Neil has been instructed on behalf of 5th Defendant in the Commercial Court claim brought by the Libyan sovereign wealth fund, the Libyan Investment Authority (the LIA), against Société Générale and Walid Giahmi, a Dubai-based businessman. The claim relates to investments totalling around USD 2.1 billion made by the LIA with Société Générale during the Gaddafi era, and alleges that the investments were procured by a ‘fraudulent and corrupt scheme’ involving bribery and intimidation by the Gaddafis or their associates. The claim seeks the rescission of the investments or damages in excess of USD 1.5 billion. Neil has been involved in several interlocutory hearings, the most recent being the receivership application concerning assets of LIA. - (1) KOZA LTD (2) HAMDI AKIN IPEK v KOZA ALTIN AS
Acting for the Defendant A highly sensitive case in which the English court is being asked to refuse to recognise the authority of those who are the proper officers of a Turkish company to act for that company in relation to its dealings with an English subsidiary on what are essentially human rights/public policy grounds. Neil appeared successfully in the Court of Appeal this year (see [2020] EWCA Civ 1081 and 1263). - The Tesco Profit Overstatement litigation [2019] EWHC 2858 (Ch)
Acted on behalf of 58 institutional investors claiming over £440 million from Tesco PLC in respect of its profit overstatement revealed in Autumn 2014. The claim is made under s.90A of the Financial Services and Markets Act 2000 (a statutory provision in respect of which there is no decided authority), and alleges fraudulent misrepresentations by Tesco senior management and their subordinates. The proceedings have generated a string of reported judgments (most recently [2019] EWHC 109 (Ch), [2019] EWHC 2858 (Ch), [2019] EWHC 3312 (Ch)), The judgment on the correct legal analysis of the intermediated securities market ([2019] EWHC 2858 (Ch)) has significant repercussions and has already been the subject of material academic commentary. The case is one of The Lawyer’s “top cases for 2020”. - Castle Water Ltd –v- Thames Water Utilities Limited
Acting for Castle Water Limited, a privately-owned water and wastewater retail service provider. The dispute concerns multiple breaches of contract alleged both by and against CWL, in relation to the sale by Thames Water Utilities Limited of its non-household retail division of water and sewerage services to CWL. The case involves thirteen separate heads of claim in contract and tort and two contractual counterclaims raising a host of difficult contractual construction, damages, causation and mitigation issues in a difficult technical context. Trial fixed for Michaelmas 2021. - Lonestar Communications v Kaye, Marziano, Cellcom, Polani and Orange
Acting for Orange in Commercial Court proceedings arising out of alleged cyberattacks on a telecommunications company in Liberia, involving allegations of vicarious liability for economic torts in connection with the alleged cyberattacks. Trial fixed for 2022. - BGC Brokers LP v Tradition (UK) Ltd (QBD)
Acted for Tradition, one of the City’s main inter-dealer brokerage firms, from high-value and bitterly fought claims by one of its main competitors. The claimants alleged breaches of confidence and a “team move” of brokers.. The case settled during cross-examination of the claimants’ key witnesses. - Halliburton Co v Chubb Bermuda Insurance Ltd [2018] I W.LR. 3361
For the Claimant in its appeal to the Supreme Court in late 2019 in relation to apparent bias in international commercial arbitration. Awaiting Judgment. - Libyan Investment Authority (Claimant) v Societe Generale SA & 5 Ors (Defendants) & Person B
For the main personal defendant in the well-known corruption claim brought by the LIA (ongoing). - Marathon Asset Management
For the Claimant in a series of related arbitrations and High Court proceedings. High Court judgments include
(a) Hosking v. Marathon [2017] Ch. 157, establishing (for the first time) the l liability of a partner for the repayment of his profit share in a case of breach of fiduciary duty;
(b) Marathon v. Seddon [2017] ICR 791, the well-known claim against employees of Marathon for the theft of confidential information. - Dana Gas v. Dana Gas
For the Claimant in an action concerning the enforceability of Islamic finance arrangements. - Copley Motorcars Corporation & Anr v Bonhams 1793 Limited & Ors
For the Claimant buyer of the most expensive Ferrari racing car sold at auction in a fraud claim against the auction house. - Kleanthous v. Paphitis [2012] 1BCC 676
Successfully defending Theo Paphitis against a fraud claim arising out of the acquisition of La Senza. - Capita (Banstead 2011) Limited v RFIB Group Limited [2017] EWCA Civ 1032
Acting for the seller in a claim on an indemnity in a share sale agreement, given in relation to liabilities arising from advice and services in the pensions industry. Upheld Judgment on appeal. - Caldero Trading Ltd v (1) Leibson Corp Ltd (2) Belinda Capital Ltd (3) Igor Lazurenko (4) Lawson Trading Ltd (5) Sergey Scheklanov (2014) [2014] EWCA Civ 935
Following the making of an agreed order for the winding up of a company, a judge had been entitled to determine that sums invested by the company's major shareholder had been invested by way of capital rather than loan. The arrangement amounted to no more than a financing arrangement which was terminable on notice, and it was not commercially improbable that the shareholder would have agreed to it. - CPC Group v. Qatari Diar [2010] CILL 2908
Establishing breach of contract for the Candy Brothers in their claim concerning the development of the Chelsea Barracks site following the intervention of the Prince of Wales.
- Langston Group Corp & Mr Samir-Georges Hammam v Cardiff City Football Club Limited & Mr Vincent Tan
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Banking and Financial Services
- Tsareva & Ananyev; Galagaev & Ananyev [2019] EWHC 2414 (Comm)
For D2, in very substantial fraud proceedings arising out of the collapse of PSB Bank, a large Russian private bank, in early 2018. Cs alleged a conspiracy perpetrated by Ds, involving fraudulent misrepresentations to induce investors to purchase certain Notes, which caused losses in the hundreds of millions. The Claimant's applied for a WFO, whilst the Defendant's challenged jurisdiction. - JSC BTA Bank v Mukhtar Ablyazov, Ilyas Khrapunov, Bulat Utemuratov and ors - Launching and achieving settlement of major new front in long-running BTA Bank v Ablyazov litigation saga arising out of multi-billion-dollar fraud and embezzlement by Mukhtar Ablyazov, when chairman of the claimant Kazakh bank, and the subsequent fraudulent schemes to defeat the Bank’s enforcement efforts by Ablyazov and his associates. Urgent worldwide freezing and other interim relief obtained in November 2020 over US$ billions of assets held by (among others) Bulat Utemuratov, one of Kazakhstan’s richest businessman, in connection with Ablyazov fraud and a massive alleged conspiracy to conceal and launder Ablyazov’s stolen billions.
- Bank of Ireland v. Jaffery and Gill [2012] EWHC 734 (Ch) (adjournment) [2012] EWHC 1377 (Ch) (trial) - Neil Kitchener KC acted for the Bank of Ireland in a claim whereby the bank's former senior executive had acted in breach of fiduciary duty by taking secret interests in projects financed by the bank's lending, in taking a bribe and in concealing that wrongdoing from the bank. The main case issues were alleged breach of fiduciary duty, deceit, dishonest assistance and bribery.
- Parabola Investments Ltd & Anr v. Man Financial Ltd & Anr (Comm Ct and CA) [2010] 3 WLR 1266; [2010] Bus LR 1446 - Neil Kitchener KC acted for Parabola Investments Ltd in a matter regarding establishing the right of a victim of fraud to recover, as damages, the profits he would have made had he not been defrauded out of his investment fund.
- Groveholt v. Hughes (Chan & CA) [2010] EWCA (Civ) 538; [2005] 2 BCLC 421 – the leading reported case on the effect on commercial mortgages of a disclaimer of the underlying agreement under the Insolvency Act 1986.
- Advisory: Considering claims and interim relief that a Russian Bank might bring outside Russia, in particular in the BVI and Cyprus.
- Tsareva & Ananyev; Galagaev & Ananyev [2019] EWHC 2414 (Comm)
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Civil Fraud and Investigations
- Allergy Therapeutics Ltd v Inflamax Inc
Acted for the Claimant (ATL) in a complex claim based on allegations of fraud (in the form of concealment of serious equipment problems) in the conduct of a clinical trial. The case involved a heavy interlocutory dispute over a freezing injunction and a jurisdiction challenge by individuals associated with Inflamax, both of which were compromised on the eve of the hearing. The claim settled on the eve of trial in May 2019. - Tsareva & Ananyev; Galagaev & Ananyev [2019] EWHC 2414 (Comm)
For D2, in very substantial fraud proceedings arising out of the collapse of PSB Bank, a large Russian private bank, in early 2018. Cs alleged a conspiracy perpetrated by Ds, involving fraudulent misrepresentations to induce investors to purchase certain Notes, which caused losses in the hundreds of millions. The Claimant's applied for a WFO, whilst the Defendant's challenged jurisdiction. - JSC BTA Bank v Mukhtar Ablyazov, Ilyas Khrapunov, Bulat Utemuratov and ors - Launching and achieving settlement of major new front in long-running BTA Bank v Ablyazov litigation saga arising out of multi-billion-dollar fraud and embezzlement by Mukhtar Ablyazov, when chairman of the claimant Kazakh bank, and the subsequent fraudulent schemes to defeat the Bank’s enforcement efforts by Ablyazov and his associates. Urgent worldwide freezing and other interim relief obtained in November 2020 over US$ billions of assets held by (among others) Bulat Utemuratov, one of Kazakhstan’s richest businessman, in connection with Ablyazov fraud and a massive alleged conspiracy to conceal and launder Ablyazov’s stolen billions.
- The Tesco Profit Overstatement litigation [2019] EWHC 2858 (Ch)
Acted on behalf of 58 institutional investors claiming over £440 million from Tesco PLC in respect of its profit overstatement revealed in Autumn 2014. The claim is made under s.90A of the Financial Services and Markets Act 2000 (a statutory provision in respect of which there is no decided authority), and alleges fraudulent misrepresentations by Tesco senior management and their subordinates. The proceedings have generated a string of reported judgments (most recently [2019] EWHC 109 (Ch), [2019] EWHC 2858 (Ch), [2019] EWHC 3312 (Ch)), The judgment on the correct legal analysis of the intermediated securities market ([2019] EWHC 2858 (Ch)) has significant repercussions and has already been the subject of material academic commentary. The case is one of The Lawyer’s “top cases for 2020”. - BGC Brokers LP v Tradition (UK) Ltd (QBD)
Acted for Tradition, one of the City’s main inter-dealer brokerage firms, from high-value and bitterly fought claims by one of its main competitors. The claimants alleged breaches of confidence and a “team move” of brokers.. The case settled during cross-examination of the claimants’ key witnesses. - Leni Gas and Oil v Malta Oil Pty Ltd [2014] EWHC 893 (Comm) - Acting for an AIM listed oil exploration company alleging that it was fraudulently induced by a co-participant to sell its interest in an oil and gas exploration block at an undervalue.
- For the Defendant in a dispute re. a Trust Agreement and sale of shares. The parties were two of the five major shareholders in a Cyprus registered company, which was the ultimate owner of the majority of issued shares in two major Russian banks. The Claimant was imprisoned and prior to that had transferred his ownership of shares to the defendant on the understanding that he would have the option to buy them back at the original sale price but subsequently alleged that the Defendant sold them on.
- Marathon v Hosking – Very substantial claim being heard in the Commercial Court. The action involves a fraud and “team move” claim in relation to a leading City investment management firm.
- Allergy Therapeutics Ltd v Inflamax Inc
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Energy and Natural Resources
- Leni Gas and Oil v Malta Oil Pty Ltd
For the Claimant oil exploration company in a fraud claim resulting from the sale of its interest in offshore projects. - W$x Representing a major foreign gas supplier in arbitrations and regulatory proceedings concerning pipeline access, network code, physical infrastructure and other issues.
- Acting in a number of disputes relating to gas metering technology.
- Advising a major gas producer in relation to a North Sea gas pipeline dispute.
- Leni Gas and Oil v Malta Oil Pty Ltd
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Arbitration
- For the Respondent bank, in dispute with a Claimant (SPV) over a contract through which the C obtained a ca. 60% stake in a third, target bank; and pursuant to which, the C now seeks to enforce an option in the contract allowing it to obtain the remaining 40% from the Respondent, for free. The Respondent seeks to resist this. The Respondent is, in substance, the Claimant, because it has to persuade the Tribunal that the contractual option is not enforceable. It seeks to do so on various grounds, including: that the SPV entered into the contract for illegal purposes; that SPV defrauded the Respondent; and that SPV bribed the Respondent’s general manager. The case raises complex and significant issues, in particular in relation to the law of illegality and the law of remedies, e.g., as to rescission of tripartite agreements (the target bank is also a party to the various contractual arrangements) and the requirement to make counter-restitution.
- Halliburton Co v Chubb Bermuda Insurance Ltd [2018] I W.LR. 3361
For the Claimant in its appeal to the Supreme Court in late 2019 in relation to apparent bias in international commercial arbitration. - For the Claimant in an arbitration concerning the development of property in India
- For the Defendant in a claim concerning the operation of a computer business in Russia.
- For the Defendant in claim concerning the same of medical equipment in Serbia
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Sports, Gaming and Licensing
- Acting in actions and disputes relating to the employment and representation of well known sports figures.
- Advising in relation to the legality of Premier Rugby League salary cap regulations.
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Fine Art Litigation
- Garcia v. de Aldama and Christies
Injunction to restrain the sale of the original manuscript of Lorca’s Poeta en Nueva York. - Copley v. Bonhams
For the Claimant in a fraud claim against the auction house in relation to the purchase of the most valuable Ferrari racing car sold at auction. - Various actions involving the authenticity and value of a wide range of art works and antiques.
- Garcia v. de Aldama and Christies
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Group Litigation
- The Tesco Profit Overstatement Litigation
Acting for 58 institutional investors claiming over £440 million from Tesco Plc in respect of its profit overstatement revealed in Autumn 2014. The claim was made under s.90A of the Financial Services and Markets Act 2000 (a statutory provision in respect of which there is no decided authority), and alleged fraudulent misrepresentations by Tesco senior management and their subordinates. The proceedings generated a string of reported judgments (most recently [2019] EWHC 109 (Ch), [2019] EWHC 2858 (Ch), [2019] EWHC 3312 (Ch)). - The Construction Industry Vetting Information Group Litigation
This group litigation concerned alleged blacklisting in the construction industry, involving over 1,000 claimants and dozens of defendants (including James’s client, Amec). The claimants were construction workers who alleged that they were unlawfully denied employment by construction firms who subscribed to an alleged “blacklist”. The claimants’ claims were settled shortly before trial in May 2016. 30 of the defendant construction companies have now issued Part 20 claims against Amec, seeking a contribution towards the sums which they paid in settlements to the individual claimants.
- The Tesco Profit Overstatement Litigation
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General
- Advising major public companies and Government agencies in relation to various non-litigious matters.
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What the Directories Say
"Neil Kitchener is tactically brilliant. A very effective leader, he brings everyone on board, but is enough of a team player that he is not afraid to ask questions and take on input." (Commercial Dispute Resolution, Chambers UK 2024)
"Neil is a technically very strong, highly capable advocate, who is excellent to work with. His willingness to be bold and take firm decisions makes him stand out." (Commercial Dispute Resolution, Chambers UK 2024)
"Neil is extremely powerful and carries great gravitas. He makes very strong, forceful arguments that grab the attention of the court." (Commercial Dispute Resolution, Chambers UK 2024)
"Neil is a gifted advocate with a very persuasive and articulate style. His strategic nous is second to none. He is also great fun to work with."(Civil Fraud, Chambers UK 2024)
"He is a highly experienced KC who has a superb intellect and develops innovative and effective strategy in the most complex cases, with devastating cross-examination skills." (Civil Fraud, Chambers UK 2024)
"He's very bright, he has a good eye for what is going to work in terms of evidence and his judgement calls are very good." (Banking and Finance, Chambers UK 2024)
"Neil Kitchener is my go-to silk. He is a fierce advocate and not shy of taking points." (International Arbitration, Chambers UK 2024)
"He is incredibly hard-working, responsive and always available. He is savvy, a fantastic strategist and excellent advocate. He's a go-to KC for fraud/injunctive work and in cross-examinations he is one of the best." "He's fantastic on his feet and is a dogged, effective and tenacious advocate." (Civil Fraud, Chambers UK 2021/2022)
"He really fights the case, he is on top of the facts and he is very strategic." "He is fantastic on his feet." "He is incredibly bright, as well as personable and approachable." (International Arbitration, Chambers UK 2021/2022)
"Decisive and authoritative, he really homes in on what is important." (Commercial Dispute Resolution, Chambers UK 2021/2022)
"His intellect and commercial judgement shines through and he is great fun to work with." (Civil Fraud, Legal 500 2021/2022)
"An incredibly hard-working and tenacious advocate." (Banking & Finance, Chambers UK 2021/2022)
"An analytical mind and good on paper." (International Arbitration, Legal 500 2021/2022)
"An outstanding trial lawyer and a terrific personality who fights hard and is great fun to work with." "He obviously knows his way around the courtroom." (Commercial Litigation, Chambers Global 2020)
"As an advocate he is razor sharp and has a very good appreciation of the law. He is prepared to be adventurous but will always provide a calm assessment of the case." "Neil is very good at wading through material to get to the nub of the issue." (Banking & Finance, Chambers UK 2020)
"He's tenacious and will defend his client's and instructing solicitor's position to the end." "He's easy to work with and happy to take questions and discuss. He's also honest and will tell you when something is a bad idea." (Civil Fraud, Chambers UK 2020)
"An incredibly well-prepared silk who is very easy to work with and responsive." "Smart, creative and a strong advocate." (International Arbitration (Counsel), Chambers UK 2020)
"Displays excellent judgement, and keeps the client's needs at the forefront of his mind." "A man with a lively sense of humour, he's the consummate can-do lawyer who always give a cool, calm assessment of the matter at hand." (Commercial Litigation, Chambers UK 2020)
‘Never shies away from a fight and is not afraid of being imaginative.’ (Commercial Litigation, Legal 500 2019-20)
'A stellar performer.’ (Civil Fraud, Legal 500 2019-20)
‘An absolutely brilliant advocate, you really don't want him on the other side.' (International Arbitration (Counsel), Legal 500 2019-20)
"An outstanding trial lawyer and a terrific personality who fights hard and is great fun to work with." "He obviously knows his way around the courtroom." (Commercial Dispute Resolution, Chambers UK 2019)
"Extremely hard-working and really gets into the detail. He's a fantastic advocate, who's a real rottweiler when you let him loose." "A great team player who wants to win and will fight in the trenches for you." (Banking and Finance, Chambers UK 2019)
"Very intelligent." "Incredibly responsive and very hard-working. He is a particularly strong cross-examiner." "A fantastic advocate who really gets into the detail." (Civil Fraud, Chambers UK 2019)
"Extremely bright and on top of the detail." "He fights the client's claim hard and is great fun to work with." (International Arbitration (Counsel), Chambers UK 2019)
‘A top-level trial lawyer who is great at cutting to the chase.’ (Commercial Litigation, Legal 500 2018-2019)
‘A lightning rod of enthusiasm and fresh ideas, and a very measured advocate.’ (Civil Fraud, Legal 500 2018-2019)
‘Sensationally clever but also a very humble and supportive team member.’ (International Arbitration (Counsel), Legal 500 2018-2019)
"He combines superb intellect with excellent strategic nous and judgement." (Chambers and Partners 2018 - Banking & Finance)
“A great team player with a ferocious intellect.” (Legal 500 – Asia Pacific 2018 – Commercial)
Other directoy recommendations include: "Has outstanding tactical and advocacy skills, and is seen by clients as a passionate representative who is always willing to fight their corner."" A great, really energetic cross-examiner.", “The silk of choice for fraud claims.”, “A first class cross-examiner.”, "He's brilliantly intelligent, quite aggressive in his approach without being reckless, and just great to deal with.", "He is excellent. All over the factual detail and can come up with extremely complex analysis off the top of his head.", 'He sees technical points which other barristers may not pick up and he is extremely hard working.", 'He is confident, self assured and a very skilled, aggressive cross examiner.', "He combines superb intellect with excellent strategic nous and judgment"., "A courtroom star and an absolute joy to work with. Combines intellectual prowess with a no-nonsense approach to advocacy.", "A tremendously good lawyer and a fantastic fighter who has great human intelligence and intuitively knows the client's needs."