Timothy Kenefick

It is relatively common for allegations of fraud or deceit to be made in commercial disputes, and many of the cases in which Tim has acted have involved fraud allegations, including some very substantial and high-profile fraud cases. For example, Tim is currently acting for two of the Defendants in the Autofocus/Accident Exchange litigation in the Commercial Court, in which the Claimants allege that there was a widespread conspiracy between a number of firms of solicitors and an expert evidence provider to defraud them and the rest of the credit hire industry by deploying false evidence in thousands of credit hire disputes. Another example of a case in which Tim has recently acted involving allegations of large-scale fraud is an insurance arbitration in which Tim was heavily involved in 2014 and 2015 involving claims for losses suffered by a major UK mortgage lender on about 1,000 allegedly fraudulent mortgages taken out by members of several sophisticated mortgage fraud rings.  Many of Tim’s other cases have also involved allegations of fraud:

Selected cases:

• Accident Exchange Ltd v Colin Mclean and others.  This is one of the largest and highest-profile fraud cases currently being litigated in the Commercial Court.  It involves claims for conspiracy, fraud and perverting the course of justice against the former directors of Autofocus (a company which specialized in providing evidence of car hire rates to defendants in credit hire disputes) against three firms of solicitors by which Autofocus were regularly instructed.  Autofocus and those firms of solicitors are alleged to have been involved in a mass conspiracy to defraud the Claimant and other credit hire operators, and to pervert the course of justice, by systematically deploying false and misleading evidence in thousands of credit hire disputes, resulting (allegedly) in about £125 million of losses to Accident Exchange.  Tim is acting as the lead junior in the counsel team for one of the firms of solicitors, who strenuously deny the allegations made against them.
• Excalibur Ventures LLC v. Texas Keystone Inc and others [2013] EWHC 2767: Tim was the lead junior in a team of barristers from 7KBW who acted for the Claimant in a five-month Commercial Court trial ending in 2012/2013, which involved a claim to a 30% share of the Defendants’ interests in four oil concessions in Kurdistan.  In addition to claims for breach of contract and various economic torts, the Claimant brought claims in deceit against the Defendants for having fraudulently excluded it from the deal and misled it into believing that it would be given a share in any oil concessions awarded to the Defendants.
• In 2014/2015, Tim acted for a number of London market insurers in a complex arbitration involving about 1,000 mortgage frauds allegedly perpetrated by a number of highly-sophisticated fraud rings during the credit crunch. The case involved marshalling and analyzing the evidence of fraud for a large number of transactions, and forensic analysis of the web of fraudsters alleged to be involved to work out how many different fraud rings were involved.  There were also complex quantum issues.  The case settled in early 2015 at a mediation at which Tim successfully represented his clients, together with a team from Reynolds Porter Chamberlain LLP.
• American Reliable Insurance Company and Bankers Insurance Company Ltd v. Willis Limited: Tim was the lead junior counsel in a team of four barristers acting for the Claimants in a US$230 million Commercial Court action arising out of the PA LMX reinsurance market in the 1990s, in which the Claimants alleged that the insurance broker, Willis, had conspired with one of their former underwriters to commit them fraudulently to a high volume of spiral business.  The case involved allegations of conspiracy, deceit, knowing assistance and breach of duty.
• MAN A.G and ERF v Freightliner Ltd and Ernst & Young [2005] EWHC 2347 (Comm): This was another very substantial fraud case, in which Tim acted with Dominic Kendrick QC for the successful Claimants in a six-month Commercial Court trial involving a £350 million claim under a Share Purchase Agreement relating to their purchase of the truck manufacturer, ERF.  The core allegation was that the target company’s accountant had fraudulently falsified several years’ worth of accounts in order to mask the fact that the company had been making heavy losses, as a result of which the company’s latest balance sheet was over-stated by about £100 million.  Tim spent about two years working on the case alongside a team of forensic accountants and a team from Slaughter & May LLP investigating the various frauds committed by the target company’s accountant, preparing the case for trial, and fighting the trial to a successful outcome.

Tim has specialized in commercial litigation for almost 20 years, during which time he has developed particular expertise in large-scale commercial disputes, both in Court and in arbitration.  He has been involved in a number of the largest cases to be litigated in the Commercial Court in recent years, as well as numerous very substantial commercial arbitrations.  His practice has spanned a variety of different specialist areas within the broad sphere of commercial litigation, as discussed in more detail in his other practice profiles. The practical skills and commercial awareness which he has acquired through his experience in those specialized fields are readily transferrable.

Selected cases:

• Accident Exchange Ltd v Colin Mclean and others.  Tim is acting for two of the defendants in this high-value, high-profile fraud case which is currently proceeding in the Commercial Court.  The case involves claims for conspiracy, deceit and perverting the course of justice against the former directors of a company which specialized in providing evidence of car hire rates to defendants in credit hire disputes, Autofocus, and three firms of solicitors who regularly instructed Autofocus to provide evidence on behalf of their clients, for allegedly producing and deploying false and misleading evidence against the Claimant and other credit hire operators in thousands of credit hire disputes.  These very serious allegations are strenuously denied by all of the defendants.
• Single Buoy Moorings Inc v Zurich Insurance Plc and others (the “YME MOPUstor”).  This is another example of the large-scale commercial litigation which Tim is regularly instructed.  He is acting with Jonathan Gaisman QC (also of 7KBW) for a number of insurers in this US$1.2 billion insurance dispute concerning damage which is alleged to have been caused to a now-abandoned North Sea oil platform, the YME MOPUstor, as a result of successive operational errors and delays which are said to have led to fatigue cracking in the platform’s legs and their supporting structure and the consequent evacuation of the platform.  The case is expected to come to trial in 2017 or 2018.
• Excalibur Ventures LLC v. Texas Keystone Inc and others [2013] EWHC 2767: This was another very substantial Commercial Court action in which Tim was heavily involved.  He was the lead junior in a team of barristers from 7KBW who acted for the Claimant in a five-month Commercial Court trial ending in 2012/2013, which involved a claim to a 30% share of the Defendants’ interests in four oil concessions in Kurdistan.  In addition to claims for breach of contract and various economic torts, the Claimant brought claims in deceit against the Defendants for having fraudulently excluded it from the deal and misled it into believing that it would be given a share in any oil concessions awarded to the Defendants.
• Another good example of a case in this category is MAN A.G and ERF v Freightliner Ltd and Ernst & Young [2005] EWHC 2347 (Comm).  Tim was instructed Dominic Kendrick QC (also of 7KBW) by Slaughter & May LLP to act for the Claimants in a £350 million claim under a Share Purchase Agreement against the sellers of the last British truck manufacturing company, ERF.  The case involved complex issues of contractual construction and accounting fraud (the core allegation was that ERF’s account had been falsifying the company’s accounts for several years prior to the fraud, so as to mask the fact that the company was loss-making), and resulted in judgment being given for Tim’s clients after a six-month Commercial Court trial.

In 2012/2013, Tim was involved in one of the largest Commercial Court trials in the energy and natural resources sectors to have taken place in recent years, Excalibur v Texas Keystone (see below).  Since then, his practice in these areas has continued to develop, and cases involving the energy and natural resources sectors now form a significant part of Tim’s workload.  He has advised on and acted in numerous cases in these fields involving a wide range of different issues, including  joint venture disputes, energy-related insurance claims, a dispute over the sale of a client’s interest in an off-shore oil field in Nigeria, disputes under gas supply contracts, a claim based on the rule in Rylands v Fletcher for damage to an oil-driven power station, and a contractual dispute concerning an ‘intelligent pig’ which became lodged in a North Sea gas pipeline.

Selected cases:

• Excalibur Ventures LLC v. Texas Keystone Inc and others: Tim was the lead junior in a team of barristers from 7KBW who acted for the Claimant in a five-month Commercial Court trial ending in March 2013, which involved a claim to a 30% share of the Defendants’ interests in four oil concessions in Kurdistan.  The core dispute involved a contractual claim under a joint venture agreement but the case also involved a wide range of other legal and factual issues concerning the operation of the upstream oil industry.
• Single Buoy Moorings Inc v Zurich Insurance Plc and others (the “YME MOPUstor”).  Tim is currently acting, together with Jonathan Gaisman QC, for a number of insurers in this US$1.2 billion insurance dispute concerning damage which is alleged to have been caused to a now-abandoned North Sea oil platform, the YME MOPUstor, as a result of successive operational errors and delays which are said to have led to fatigue cracking in the platform’s legs and their supporting structure and the consequent evacuation of the platform.  The case is expected to come to trial in 2017 or 2018, and looks set to be one of the highest-profile cases proceeding in the Commercial Court between now and then.
• Statoil (Nigeria) Ltd v Allied Energy (Nigeria) Ltd .  Tim is currently acting in this case on behalf of the Claimant, an international oil company, in a dispute relating to the sale of Statoil’s interests in an offshore oil field in Nigeria to the Defendant.  The case involved a contractual claim for outstanding sums due under the Purchase Agreement, and a counterclaim for damages for the alleged non-production of historic financial records relating to the exploration and development of the field.
• RWE NPower v. NGET and others: Tim recently acted for RWE NPower, the owners and operators of the Littlebrook power station, in a Commercial Court action and related arbitration concerning claims under the CUSC and various other contracts for losses resulting from damage to one of the power station’s generators.  The case involved an unusual claim under the rule in Rylands v Fletcher arising from a short-circuit which occurred while electrical work was being carried out at a sub-station adjacent to the power station, resulting in a surge of high-voltage electricity which flowed from the national grid into the power station, causing extensive damage to one of the power station’s generators.
• TDW Offshore Services AS v. Chevron North Sea Ltd: Tim was instructed in this case by the operators of the Erskine North Sea gas field in a £20m dispute in the Technology and Construction Court involving the blockage and consequent shut-down of the Erskine to Lomond pipeline in 2007/2008 caused by an ‘intelligent pig’ become lodged in the pipeline.

Insurance and reinsurance litigation has been a major focus of Tim’s practice for many years, and he has been involved in a huge number of disputes in this area of all shapes and sizes. His experience in this field includes an 18-month stint working for the award-winning Reinsurance and International Risk Team at Barlow Lyde & Gilbert.

Selected cases:

• Single Buoy Moorings Inc v Zurich Insurance Plc and others (the “YME MOPUstor”).  Tim is acting, together with Jonathan Gaisman QC, for the insurers of the first excess layer of the Claimant’s ‘Contractors’ All Risks’ insurance programme, defending a US$1.2 billion insurance claim for damage which is alleged to have been caused to a now- abandoned North Sea oil platform, the YME MOPUstor, as a result of successive operational errors and delays which are said to have led to fatigue cracking in the platform’s legs and their supporting structure and the consequent evacuation of the platform.  The case is expected to come to trial in 2017 or 2018, and looks set to be one of the highest-profile cases proceeding in the Commercial Court between now and then.
• One of the most topical issues in insurance law in recent years has been the scope of insurers’ and reinsurers’ liability for mesothelioma (asbestos) claims, and how those claims fall to be allocated amongst the insurers, reinsurers and employers who are potentially liable to compensate victims of mesothelioma.  Tim is currently acting, together with Alastair Schaff QC of 7KBW, for one of the UK’s largest employers’ liability insurers in a confidential arbitration against a number of London-market reinsurers concerning the allocation of mesothelioma claim between insurers and their reinsurers.  The case involves interesting and as-yet undecided issues of law which could have widespread implications for the handling and allocation of of mesothelioma reinsurance claims between employers’ liability insurers and their reinsurers.
• Tim recently acted for a number of London market insurers in a confidential insurance arbitration involving a £30 million claim under a crime policy for losses allegedly suffered by one of the UK’s largest mortgage lenders as a result of about 1,000 mortgage frauds perpetrated by several UK fraud rings during the credit crunch.  The case settled in 2015 at a successful mediation, at which the insurers were represented by Tim and a team from Reynolds Porter Chamberlain LLP.  The case involved complex forensic analysis of the web of fraudsters alleged to be involved, as well as allegations of misrepresentation/non-disclosure relating to the assured’s anti-fraud systems, and a number of other coverage issues.  Tim was the lead junior counsel on a team of four barristers, headed by David Railton QC from Fountain Court.
• James Aldridge v (1) Liberty Insurance Company; and (2) Arch Insurance Company.  Tim was instructed on this case by Reynolds Porter Chamberlain LLP, on behalf of the Second Defendant, to defend a group action worth about £1 million brought by about a large number of pensions investors who alleged that they had lost substantial sums as a result of the activities of a rogue investment advisor.  Tim acted for the insurers of the pension fund’s trustees, who alleged that they were entitled to avoid the policy for material misrepresentation/non-disclosure, against two well-known senior QCs.  The claim against Tim’s clients settled in late 2015.
• During 2014 and 2015, Tim acted for the UK Government’s Shareholder Executive in a US$30 million reinsurance arbitration involving claims against the captive reinsurer for British Nuclear Fuels Ltd arising from the marketing of testing devices for nuclear power stations in the US. The case involved complex issues of reinsurance law and technical issues concerning the operation of nuclear power stations.  It settled at a successful mediation in 2015, at which Tim advised representatives from the Shareholder Executive, together with a team from Clyde & Co.
• Société Générale v. Württembergische Versicherung-AG and others: This case is typical example of the large-scale, high-value commercial cases in which Tim has regularly been instructed in the past.  Tim acted, together with Tom Adam QC and a team from Ince & Co, for a French insurance broker defending a US$500 million claim in the Commercial Court relating to the alleged loss of gold bullion in Turkey and Dubai.  Tim was able to combine his good working knowledge of French with his experience of large-scale insurance litigation in the Commercial Court to help his clients successfully to defend the claim against them.
• American Reliable Insurance Company and Bankers Insurance Company Ltd v. Willis Limited: This is another example of the sort of big-ticket insurance litigation in which Tim has specialized over the years.  In this case, Tim was the lead junior counsel in a team of four barristers acting for the Claimants in a US$230 million Commercial Court action arising out of the PA LMX reinsurance market in the 1990s, in which the Claimants alleged that the insurance broker, Willis, had conspired with one of their former underwriters to commit them fraudulently to a high volume of spiral business.  Tim was also involved in a number of related arbitrations between American Reliable and various other reinsurers involved in the PA LMX spiral.
• Midland Mainline and others v. Commercial Union and others [2003] EWHC 1771and [2004] EWCA: Tim acted for the National Express Group in the Commercial Court and the Court of Appeal, in a dispute with their business interruption insurers arising from the Hatfield rail crash.

A great deal of Tim’s practice is arbitral and he has experience of representing clients in numerous forms of arbitration, both domestic and international, including Bermuda Form arbitrations, LCIA arbitrations, CDP arbitrations, LMAA arbitrations, IBA arbitrations and ad hoc arbitrations.  He also has experience of arbitration applications and applications for anti-suit injunctions in favour of arbitrations in the Commercial Court.

Selected cases:

• Tim has recently acted, together with David Edwards QC (also of 7KBW), in a reinsurance arbitration between German and Bahraini insurance and reinsurance companies, involving claims under a series of international energy reinsurance treaties.  The case was initially heard by a multi-jurisdictional panel of arbitrators and then referred to an umpire, and raised unusual procedural issues concerning the role of an umpire following the conclusion of the substantive hearing and the procedures to be adopted for the re-hearing of the dispute.
• Excalibur Ventures LLC v. Texas Keystone Inc and others [2011] EWHC 1624 (Comm).  As discussed elsewhere in Tim’s practice profile, Tim was instructed by the Claimant in this Commercial Court action, which involved a US$1.6 billion claim over oil rights in Kurdistan.  During the early stages of the action, Tim acted with Simon Picken QC (now Mr Justice Picken) represented the Claimants in an anti-suit injunction application in the Commercial Court to restrain the pursuit of related arbitration proceedings in the ICC in New York.
• Tim has also been involved in a number of Bermuda Form arbitrations, which typically involve claims under New York being resolved in English arbitration by arbitrators from a variety of different jurisdictions. For example, in 2013, Tim acted with Christopher Butcher QC (also of 7KBW) in a Bermuda Form arbitration involving claims under a D&O policy governed by New York law, arising from securities and bankruptcy claims in the US brought by the shareholders of a US electricity company against its former directors.

Tim has been instructed in several substantial professional negligence disputes involving insurance and reinsurance brokers and also has experience of professional negligence claims in other areas. He was also one of the original authors of the auditors’ negligence chapter of LLP’s loose-leaf “Professional Liability: Law and Practice”, one of the leading practitioner texts in this area.

Selected cases:

• Société Générale v. Württembergische Versicherung-AG and others:  Tim was instructed on this case by Ince & Co to act for a French insurance broker defending a US$500 million claim in the Commercial Court relating to the alleged loss of gold bullion in Turkey and Dubai.  The case involved issues of French and English insurance broking law, as well as evidence on the differences between insurance broking practice in the two jurisdictions.  Tim was able to combine his good working knowledge of French with his experience of large-scale insurance litigation in the Commercial Court to help his clients successfully to defend the claim against them.
• American Reliable Insurance Company and Bankers Insurance Company Ltd v. Willis Limited.  This was the last of the LMX spiral disputes, and involved claims for fraud and breach of duty against the insurance broker, Willis, for having knowingly heavily loss-making spiral business to the Claimant over a number of years, resulting in losses of about US$230 million to the Claimants.  Tim was the lead junior in a team of four barristers acting for the Claimants.
• Accident Exchange Ltd v Colin Mclean and others.  Tim is currently acting for two of the defendants in this action, which is currently proceeding in the Commercial Court.  The case is principally concerned with allegations of fraud against three firms of solicitors and the former directors of a company which they instructed to provide expert evidence for their clients in credit hire disputes, but also involves issues concerning the scope of solicitors’ and expert witnesses’ duties in relation to the production and use of expert evidence.
• William Jackson & Son Ltd v. Oughtred & Harrison (Insurance) Ltd [2002] Lloyd’s Rep IR 230): Tim acted for the Claimants in a negligence and breach of contract claim against their insurance brokers relating to the under-insurance of their factory, which was damaged in a fire.

Like most members of 7KBW, Tim has been involved in numerous shipping and ship building disputes throughout his time in Chambers. The cases in which he has acted span the entire spectrum of dry shipping and ship-building disputes, from small shipping arbitrations to large-scale multi-party Commercial Court cases and arbitrations in which he has acted as junior counsel alongside more senior members of Chambers. Since rejoining Chambers in 2007 after his 18-month stint at BLG, Tim has been instructed in a number of ship-building arbitrations, and has also acted for the former owners of a luxury cruise liner in an arbitration involving a US$15m claim by the vessel’s operators arising from the early termination of a long-term charter. He has also been instructed in a wide range of dry shipping cases throughout his career, including charterparty disputes, cargo claims, demurrage claims, claims against cargo surveyors and so forth.