Michael Holmes KC

Michael has been involved in many of the major issues to concern the insurance and reinsurance markets in the last fifteen years; from the film the finance litigation in the first few years of the millennium to the questions of insurance and reinsurance associated with the complicated derivative transactions that have recently come under the spotlight as a consequence of the banking crisis, and more recently to issues of aggregation associated with solicitors’ minimum terms. He has considerable experience of questions of construction of insurance and reinsurance contracts, coverage disputes, issues of non-disclosure and misrepresentation, questions of proper law and jurisdiction, issues particular to marine insurance contracts, contribution claims among insurers, the principles and practice associated with the Third Parties (Rights against Insurers) Act 1930 and cases involving the professional negligence of brokers and underwriting agents. In addition Michael also has experience of advising whether particular commercial activities constitute the making of insurance contracts under what was the FSMA, with the consequent need for registration of the commercial party.

In recent years Michael has become heavily involved in international arbitrations of high value liability claims on insurance policies written on “the Bermuda Form”, and now has considerable experience in the application of the modified New York law that typically governs those policies.

Selected cases:

• Michael acts for a European policyholder against its Russian insurer on a claim under a modified trade credit policy arising out of non-delivery of oil products.
• Michael acts for two insurers on claims made by policyholders on Bermuda Form policies arising out of the opioids crisis in the US.
• Michael is engaged in two London arbitrations concerning questions of coverage and aggregation associated with business interruption losses caused by COVID-19.
• Michael has advised policyholders, insurers, reinsurers and and regulators on coverage issues arising out of the COVID-19 pandemic.
• Michael acted with David Edwards QC for a large American insurer in a claim made by a pharmaceutical company on a Bermuda Form liability policy.
• Acted for a policyholder in an accelerated ad hoc arbitration against its ATE insurers for declarations as to the proper construction of the contract, if it existed at all.
• Acted for North Sea gas and oil producers in a large claim against their property damage and business interruption insurers arising from the upheaval buckling of an undersea pipeline.
• Michael and David Edwards QC successfully defended a large American insurance company facing a claim made by an international energy company in relation to the largest inland oil spill in North America.
• AXA v Arab Reinsurance Group [2016] Lloyd’s Rep IR 1 (Males J); [2017] Lloyd’s Rep IR 216 (Court of Appeal) – Acted for AXA against ARIG in a case where reinsurers under a first loss energy treaty sough to avoid the treaty on grounds of non-disclosure.  Axa established non-disclosure but the Judge was not satisfied that the failure of ARIG to disclose its historical losses induced the underwriter to enter into the treaty.  Michael was led by Charles Kimmins QC of 20 Essex Street.
• Michael has advised in a number of claims made by professional rugby players on income insurance designed to protect the player in the event that injury forced the player to retire.
• Acted for Brit and other hull and machinery and increased value insurers in a claim by owners for the loss of the tanker “ELLI”, which mysteriously broke its back in calm seas off Suez.  Michael was led by Alistair Schaff QC.
• Gard Marine & Energy v Tunnicliffe [2012] 1 Lloyd’s Rep 1 – Michael acted for Lloyd’s syndicate 780 in a Commercial Court claim relating to the meaning of an excess clause in a facultative energy reinsurance.
• Michael acted for hull & machinery insurers in claim by the insured owners arising from the loss of the vessel “FEDRA” on Gibraltar Point in October 2008.
• A Lloyd’s Syndicate v X [2012] 1 Lloyd’s Rep 123 – Acted for a reinsurance market expert in an injunction application made by a Lloyd’s syndicate in an attempt to prevent the expert from giving evidence in an arbitration on the basis that he had seen confidential information in a previous consultation with the syndicate.
• Acted for Japanese reinsurers defending claims brought by the members of a London-based aviation insurance pool.
• Dunlop Haywards v Barbon [2010] Lloyd’s Rep IR 149 – Acted for subsidiary companies of the Erinaceous Group Plc in a claim against their producing broker, giving rise to a third party claim against the placing broker as well as issues of rectification against the excess insurers.  The case culminated in a five-week trial in the Commercial Court where Michael was led by Alistair Schaff QC.  The case also gave rise to questions on costs relating to Bullock and Sanderson orders and the appropriate interest uplift in respect of Part 36 offers [2009] EWHC 3479 (QB).
• Acted for subsidiaries of the Erinaceous Group plc in a dispute with their professional indemnity insurers concerning issues of aggregation arising from a series of fraudulent valuations carried out by a senior surveyor and director of one of the subsidiary companies.
• Acted for a French “assistance” insurer defending claims on policies of property insurance for risks situated in Nigeria entered into by agents of the insurers in excess of their authority.
• Acted for a large French reinsurer defending claims made in arbitration by a Bermudan reinsured on the basis of gross loss underwriting on the part of the reinsured.
• Acted for Equitas in claims against Mexican and Israeli reinsurers.
• Encia Remediation v Canopius Managing [2008] Lloyd’s Rep IR 79 – Acted for the insured remediation contractor in a claim on its professional indemnity policy relating to defective piling designed by the insured.  The case gave rise to issues relating to the breadth of coverage offered by the environmental consultants Michael was led in the trial of the preliminary issue by Siobán Healy.
• Acted for the Law Society to recover from innocent partners and their professional indemnity insurers sums paid by the Solicitors’ Indemnity Fund to clients whose monies had been misappropriated by the solicitor Dixit Shah.  Michael acted initially with Julian Flaux QC and then with David Edwards QC.  The case gave rise to issues relating to s.35 of the Limitation Act 1980 reported as Law Society v Wemyss [2009] 1 WLR 2254, [2009] 1 All ER 752.
• Acted with Adam Fenton QC for Romanian insurers defending a claim under a marine insurance policy arising from the grounding of a vessel on Meroe Island off Little Nicobar Island in the Indian Ocean.
• Acted with Christopher Butcher QC for AIG Re defending claims made by Frankona on two highly-funded, sometimes called “finite”, reinsurance treaties.
• Acted with Gavin Kealey QC for Gerling, Zurich and others in a contribution/ double insurance claim against five Lloyd’s syndicates relating to litigation compromised in Indiana arising from an explosion in the largest blast furnace in the United States.
• Acted for an international pool of reinsurers in a Commercial Court claim against Hannover Re and others arising out of a series of contracts of bodily injury carve-out reinsurance in the general aviation market.
• In 2003 Michael acted for the insured with Gavin Kealey QC in an arbitration arising out of the postponement of a high-profile international golf tournament as a result of the events of September 11.
• Acted for a substantial firm of solicitors defending an economic tort and deceit claim arising out of the insurance-backed film finance transactions known as Hollywood 4, 5 and 6 underwritten by Lexington.
• HIH v Chase [2003] Lloyd’s Rep IR 203, [2003] 2 Lloyd’s Rep 61, [2003] 1 All ER (Comm)349 – Acted for the JP Morgan Chase Bank in the film finance litigation arising out of the Phoenix Slate and the three Paramount Slates.  He appeared in the Court of Appeal in July 2001 and in the House of Lords in July 2002, led by Lord Grabiner QC and Colin Edelman QC on preliminary issues in the Phoenix Slate and subsequently in the trial of the Phoenix Slate before Langley J.
• Acted for the Bank of Scotland and the National Bank of Canada in coverage disputes arising from insurance-backed film finance transactions.
• Acted for Deutsche Rückversicherung AG in claims against fronted-for companies arising from their participation in the ICRA pools in the 1970s.

Michael has substantial experience in shipping and the international carriage of goods.  He has been involved in numerous charterparty disputes involving issues of seaworthiness, cargo worthiness, cargo management, dangerous cargoes (in particular liquefaction of nickel and iron ore cargoes), refrigeration systems, negligent navigation, unsafe ports, force majeure, piracy, quarantine, questions of laytime and demurrage, stowaways, stevedore damage and General Average, as well as claims by cargo interests under bills of lading. Many of these disputes were the subject of LMAA and other forms of arbitration.  As a consequence, Michael also has considerable experience of the involvement of the Commercial Court in arbitration references. He has been involved in a number of freezing injunction applications, both pre-reference and post award.  He has also been involved with applications for anti-suit injunctions, the enforcement of peremptory orders and the delivery up of documents by third parties, as well as appeals from arbitration awards.

Michael has been involved in a number of disputes involving the vetting of traditional tankers and LNG carriers, advising both on the meaning of the vetting clauses in charters and as to whether the requirements of particular clauses have been met.

Michael has also acted in a number of ship construction and finance cases, including the “Swallowfalls” super-yacht claims.

Selected cases:

• Pan Oceanic Chartering v Unipec UK Co Ltd and another [2017] 1 Lloyd’s Rep Plus 32 – Michael acted for a Hong Kong based subsidiary of Unipec in relation to a claim made by a New Jersey broker for commission under a 3-year COA that was not performed by the charterer.  Claims in excess of US$100 million were made in implied contract (under New Jersey law) as well as for tortious interference with contract and conspiracy.  The case is an important authority on how to determine the application of Rome I or Rome II to an obligation implied into a contract by law.
• Michael acts for owners of a container vessel that was damaged by the explosion of an undisclosed dangerous cargo on the vessel’s approach to the Suez Canal.
• Acts for Canadian mining interests in a claim by owners for non-performance of a long-term COA owing to the refusal of Brazilian buyers to meet the minimum purchase obligations under a supply contract.
• Michael acted with David Bailey QC for LNG traders in the position of intermediate charterers in a chain of charterparties for a large LNG carrier that was refused permission to load cargo in West Africa as a consequence of a very negative SIRE report.
• Dolphin Tanker SRL v Westport Petroleum Inc [2010] 1 Lloyd’s Rep 550, acted for charterers in arbitration and the subsequent appeal to the Commercial Court in relation to the proper interpretation of a tanker vetting clause.
• Michael acts for a large US-based owner in disputes against two charterers relating to issues of intermediate hold cleaning, speed and performance, warm water fouling and the costs of anti-piracy measures.
• Acts for a large US petroleum trading company in a dispute relating to the vetting of a chartered vessel by oil majors.
• Acts for a large P&I Club seeking to recover sums due under a letter of undertaking given by a large Dutch insurer.
• Acts for charterers and cargo interests in a dispute involving general average contributions and the construction of a jurisdiction and proper law clause in a general average bond.
• Acts for an intermediate charterer in a chartering chain in a claim for ice damage.  The reference has given rise to issues relating to the involvement of an assignee in an arbitration reference.
• Acted for a Bermuda- based intermediate charterer who successfully recovered from sub-charterers the costs of passing up the line against owners an unsuccessful claim originated by sub-charterers for a refusal to load cargo for discharge in Iraq.
• Acted for charterers in a dispute arising from a six-month charterparty of a vessel for the purpose of receiving, storing and discharging crude oil exploited or processed on the IMA oilfield in Nigeria. Charterers obtained a worldwide freezing injunction and associated disclosure orders.
• Statoil ASA v Louis Dreyfus Energy Services (“the Harriette N”) [2008] 2 Lloyd’s Rep 685; Shipping & Trade Law, 05 Nov 2008 , (2008) 8 STL 94 – Acted for Louis Dreyfus in an action brought by the claimant sellers, Statoil ASA, against the defendant buyers, Louis Dreyfus Energy Services LP, claiming a balance of demurrage under a cif contract for the sale of a cargo of liquid propane gas carried on board the vessel “Harriette N”.  The case raised a number of important issues relating to the law of unilateral mistake.
• Acted for Owners of a large reefer vessel in respect of alleged damage to a cargo of Cavendish bananas carried from Ecuador to Hamburg.
• Ease Faith v Leonis [2006] 1 Lloyd’s Rep 673 – Acted for tug owners in a three-handed dispute before Andrew Smith J in the Commercial Court which touched on a number of issues relating to the proper construction of the TOWCON form and the implied terms as to speed within that contract.
• Acted for South Korean builders and guarantors in a dispute over the delivery of a harsh environment jack-up drilling rig.
• Acted for Greek mortgagees in relation to disputes associated with the finance of 11 Spanish-built super trawlers operated by Russian interests in the Russian exclusive economic zone.
• Acted for Charterers in relation to the contamination of a cargo of cocoa loaded in Abidjan as a consequence of the corpses of stowaways being discovered in the holds at New York.

Michael has been involved in claims arising out of the trading of oil and gas.  He has also been instructed in relation to insurance and reinsurance disputes relating to Energy risks, particularly in the Gulf of Mexico.  In addition he has experience of disputes arising out of the lease of drilling wells.

Selected cases:

• Acted for a group of North Sea oil and gas producers pursuing a very large property damage and business interruption claim against insurers arising from upheaval buckling of an undersea pipeline.
• Acted for a North Sea oil and gas producer in a dispute with its joint venture partner relating to the use of drilling assets involving allegations of wilful misconduct.
• Acted with Dominic Kendrick QC for a Lloyd’s syndicate in a Commercial Court claim relating to the meaning of an excess clause in a facultative energy reinsurance: Gard Marine & Energy v Tunnicliffe[2012] 1 Lloyd’s Rep 1.
• Acted for a Lloyd’s syndicate specialising in the insurance of energy risks in a dispute with their reinsurers relating to hurricane losses.
• Acted for a large Swiss Energy trader in an action against a Monegasque company arising from the delivery of off-spec Gasoil into tanks at Fos-sur-Mer.
• Acted for reinsurers in disputes with reinsureds arising out of the reinsurance of an open facility provided to a major UK-based energy exploration company.

Many of the cases on which Michael is instructed include serious allegations of deceit, conspiracy and bribery in a commercial context.  Most of those cases have an international flavour and they frequently involve issues of jurisdiction and questions regarding the applicable law.

• Libyan Investment Authority v Credit Suisse and others Michael acts for a Cayman-Island registered company defending a claim by the Libyan Investment Authority for the recovery of commission payments said to have been used to bribe officers of the Authority. A six-day jurisdiction hearing took place in the Commercial Court in July 2021. Judgment is awaited.
• Michael successfully challenged the jurisdiction of the English Court in a claim by an entity within the VTB group for US$300 million made against Michael’s client, JSC VO Machinoimport, and Sberbank for an alleged fraudulent conspiracy (governed by Russian law) to divert oil products from VTB to other purchasers; VTB Commodities Trading DAC v JSC Antipinsky Refinery [2021] EWHC 1758.
• Libyan Investment Authority v JP Morgan Markets and others  [2019] EWHC 1452 (Comm) Michael, acting for a Cayman client, successfully challenged the jurisdiction of the English Court on the dual bases that the claims made by the LIA were time-barred, and there had been a serious breach of the duty to give full and frank disclosure in the ex parte application for permission to serve out.

Michael has experience of high value disputes arising from commercial paper programmes, collateralised debt obligations and credit default swaps.  He has recently been involved in an LCIA arbitration relating to the movement of monies between Russian telecoms companies and US investors.  In addition, he is regularly involved in banking issues arising from guarantees, letters of credit and letters of undertaking in the context of shipping and international trade.

Selected cases:

• Advised a large European client on the availability of an anti-suit injunction to prevent litigation being commenced against the client in Nevada.
• Acted for New York based investors in a Russian satellite communication company in relation to funds transfers that were fraudulently routed to Belize accounts with competing claims being made in LCIA arbitration and the Commercial Court in Moscow.
• Credit Agricole Corporate and Investment Bank v IKB – Acts with Gavin Kealey QV and Alan Maclean QC of Brick Court Chambers for Credit Agricole Corporate and Investment Bank in the dispute with the German Bank IKB arising out of the substantial investment banking transaction known as “Havenrock II”, whereby IKB sought to obtain liquidity support for its asset-backed commercial paper programme.  The case involves allegations of fraud on the part of IKB inducing Credit Agricole and FGIC to enter into, respectively, a put-option and two credit default, and a master financial guarantee policy.  It is scheduled for trial in October 2011.

Michael is regularly involved in disputes relating to the negligence of solicitors, insurance brokers and underwriting agents, and has also acted for and against insurers in cases involving the negligence of engineers, remediation contractors and surveyors.

Selected cases:

• AB Orlen Lietuva v AON Plc – Michael acted for a Lithuanian power company Insured in a very high value claim (in excess of $100m) against their insurance brokers (AON) arising from deficiencies within a business interruption policy insuring the largest petroleum refinery in the Baltic States, led by Gavin Kealey QC. The matter settled shortly after the broker gave evidence in the Commercial Court trial.
• Dunlop Haywards v Barbon [2010] Lloyd’s Rep IR 149 – Acted for subsidiary companies of the Erinaceous Group Plc in a claim against their negligent producing broker, giving rise to a third party claim against the placing broker as well as issues of rectification against the excess insurers.  The case culminated in a five-week trial in the Commercial Court where Michael was led by Alistair Schaff QC.  The judgment of Hamblen J sets out in detail the obligations owed by a producing broker to its client, and in turn by a Lloyd’s placing broker to the producing broker.  The judgment also deals with apportionment between professional brokers and an allegation of contributory negligence against the assured.
• Acted for subsidiaries of the Erinaceous Group plc, in relation to a series of claims made by various banks arising out of the negligence and/or fraud of a senior London-based surveyor.
• Acted for the Law Society to recover from innocent partners and their professional indemnity insurers sums paid by the Solicitors’ Indemnity Fund to clients whose monies had been misappropriated by the solicitor Dixit Shah.  Michael acted initially with Julian Flaux QC and then with David Edwards QC.  The case gave rise to issues relating to s.35 of the Limitation Act 1980 reported as Law Society v Wemyss [2009] 1 WLR 2254, [2009] 1 All ER 752.
• HIH v Chase [2003] Lloyd’s Rep IR 203, [2003] 2 Lloyd’s Rep 61, [2003] 1 All ER (Comm)349 – Acted for the JP Morgan Chase Bank in the film finance litigation arising out of the Phoenix Slate and the three Paramount Slates, which involved allegations of negligence on the part of the bank’s brokers, C E Heaths.

Michael has experience of high value disputes arising from commercial paper programmes, collateralised debt obligations and credit default swaps.  In addition he is regularly involved in banking issues arising from mortgages, guarantees, letters of credit and letters of undertaking in the context of shipping and international trade.

Selected cases:

• Credit Agricole Corporate and Investment Bank v IKB – Acted with Gavin Kealey QC and Alan Maclean QC for Credit Agricole Corporate and Investment Bank in the dispute with the German Bank IKB arising out of the substantial investment banking transaction known as “Havenrock II”, whereby IKB sought to obtain liquidity support for its asset-backed commercial paper programme.  The case involved allegations of fraud on the part of IKB inducing Credit Agricole and FGIC to enter into, respectively, a put-option and two credit default, and a master financial guarantee policy.