Zachary Kell

Zachary has developed experience in disputes relating to the banking and finance sector including:

• enforcement of loans, debentures, guarantees, indemnities, securities and mortgages (including matters with undue influence or misrepresentation elements);
• factoring, invoice discounting and trade finance (with all related issues under the law of assignment);
• merchant services, such as card processing agreements and terms relating to charge backs;
• consumer credit.

Recent work includes:

• instructed on a summary judgment application relating to chargeback provisions under a merchant card agreement for a major international payment processing company;
• a costs dispute in the Commercial Court following the withdrawal of an application (before Robin Dicker QC sitting as a Judge of the High Court).

Zachary has developed experience in general commercial disputes, and accepts instructions in matters relating to:

• sale of goods, and supply of goods and services;
• breach of contract, and all matters involving interpretation of contracts;
• assignment of debts, and any other chose in action;
• civil fraud (including deceit, fraudulent misrepresentation, and conspiracy);
• insurance policies (in particular commercial polices or those relating to real estate).

Recent work includes:

• instructed, as junior counsel, on an appeal to the Court of Appeal, due to be heard in 2021, looking at the law of conspiracy and deceit;
• ongoing deceit claim in the High Court relating to a joint venture;
• advising on an unlawful means conspiracy claim in the Chancery Division;
• appearing for the 8th and 11th Respondents in Homes of England Limited v Horsham Holdings Limited et Ors (variation of an injunction before Ms Pat Treacy sitting as a Judge of the Chancery Division);
• successfully extended the administration of a tailoring company to allow for the realisation of assets related to a sale of commercial property;
• successfully resisting an application for Mareva relief and an access injunction relating to a commercial property and having the same marked totally without merit (before His Honour Judge Rawlings sitting as a Judge of the High Court, Queen’s Bench Division);
• drafting proceedings and appearing at the hearing of an emergency injunction to access a multi-million pound property (before Snowden J.);
• advising on a claim under an insurance policy following the theft of a luxury car;
• a costs dispute in the Commercial Court following the withdrawal of an application (before Robin Dicker QC sitting as a Judge of the High Court);
• appearing for a claims purchaser in its appeal to a circuit judge against a major British airline on the question of whether assignment of a cause of action under Regulation (EC) No 261/2004 amounted to assignment of a bare cause of action, and therefore champertous;
• drafting a shareholders’ agreement for a media firm;
• drafting the standard contract used by a claims management company for all new business;
• drafting pleadings for a fraudulent misrepresentation claim;
• advising on the tracing of trust funds wrongly paid to a company in administration;
• Houghton v PB Donoghue (Haulage & Plant Hire Ltd) and others [2017] EWHC 1738 (Ch): Morgan J considered an application for permission under CPR 36.11(3)(d) to accept a defendant’s Part 36 offer (made almost six months previously) two days after trial began (with Simon Mills).

Zachary has developed experience in disputes relating to companies, corporate governance and shareholders, and accepts instructions in matters relating to:

• shareholder disputes and shareholder activism such as unfair prejudice petitions;
• derivative claims;
• directors’ duties and corporate governance;
• joint ventures;
• Companies Act advice.

Recent work includes:

• 4-day shareholders dispute in the Chancery Division over allegations of breach of contract and fiduciary duties (relisted, part-heard to the end of the year);
• Homes of England Ltd v Horsham Holdings Ltd & Ors [2020] EWHC 1175 (Ch): 1-day hearing of an injunction attempting to restrain payment between companies until determination of two unfair prejudice petitions. Zachary appeared as sole counsel for the 8th and 11th Defendants and successfully resisted the grant of the injunction on the basis of the court ordering indemnities;
• instructed on a claim in the Chancery Division for a director requesting inspection of company documents pursuant to Companies Act 2006, Pt 15, Ch 2 and the common law;
• instructed on a deceit claim in the High Court involving a purported joint venture;
• acting for a major international supplier of construction equipment in a joint venture dispute.

Zachary has developed experience in insolvency matters, and accepts instructions relating to:

• corporate insolvency, including misfeasance;
• applications to extend administrations;
• applications restraining presentation or advertisement of a winding-up petition
• personal insolvency, including insolvency administration orders of a deceased’s estate;
• transactions at an undervalue;
• rescission, annulment, and setting aside statutory demands.

Recent work includes:

• a High Court appeal regarding an application to set aside a statutory demand on the basis of a substantial dispute, issues regarding a limitation defence and questions of security (ongoing, led by Rachel Sleeman);
• bankruptcy proceedings involving a debtor resident overseas, service out of the jurisdiction, COMI and the EU Regulation 2015/848;
• an urgent application for an administration order to take retrospective effect per the jurisdiction set out in Re Biomethane (Castle Eaton) Ltd [2019] EWHC 3298 (Ch);
• advising on the implications of a life tenancy granted under a trust deed and how it affects a debtor’s bankruptcy estate;
• defending a misfeasance claim against directors;
• bankruptcy proceedings involving a cryptocurrency trader;
• successfully extended the administration of a tailoring company to allow for the realisation of assets related to a sale of commercial property;
• responding to an application restraining advertisement of a winding-up petition which included arguments on full and frank disclosure;
• advising on the tracing of trust funds wrongly paid to a company in administration;
• successfully obtaining an emergency validation order for both prospective and retrospective transactions.

Zachary is developing a real property practice, and accepts instructions relating to:

• easements;
• covenants;
• overage agreements;
• service charges;
• boundaries;
• auctioning of land, and specific performance under the Law of Property (Miscellaneous Provisions) Act 1989;
• party walls;
• the Land Registration Act 2002, including its application following a bankruptcy in the First-tier Tribunal (Property Chamber – Land Registration).
• forfeiture;
• disputes under the Landlord and Tenant Act 1954 including the grant of new tenancies, expert disputes over market rent, and rent review applications;
• issues of non-protected commercial leases;
• possession proceedings (both commercial and domestic);
• issues of common law tenancies

Recent work includes;

• successfully resisting an application for Mareva relief and an access injunction relating to a commercial property and having the same marked totally without merit (before His Honour Judge Rawlings sitting as a Judge of the High Court, Queen’s Bench Division);
• drafting proceedings and appearing at the hearing of an emergency injunction to access a multi-million pound property (before Snowden J.);
• Partridge v Gupta [2017] EWHC 1110 (QB): an appeal focused on the correct interpretation of CPR 83.13(8) with regards to applying for permission to issue a writ of possession, and considering what constituted sufficient “notice of the proceedings” within the meaning of the rule (with Ben Maltz). See an article on the case co-written with Ben Maltz here;
• R (on the application of Letizia Esposito) v Camden LBC QBD (Admin) (May J) 31/07/2017: an application in the High Court for an urgent interim injunction against the London Borough of Camden. The order was sought by a resident of Dorney Towner on the Chalcots Estate who alleged that it was Wednesbury unreasonable and in breach of her rights under Article 8 of Schedule 1 of the Human Rights Act 1998 for Camden to stop providing temporary accommodation to her, especially following the Grenfell Tower tragedy (with Stephen Evans and Brynmor Adams);
• appearing for the applicant in the hearing of an emergency proprietary injunction (before Carr J.).

BPTC, City University London, 2015.
GDL, City University London, 2014.
BA English Literature, University College London, First Class, 2013.

• International professional and legal development grant programme (provided for by COMBAR and the Young Barristers’ Committee) to speak at the Bar Council and Cyprus Bar Association’s joint English-Cypriot Law Day.
• BPTC Major Exhibition, Inner Temple, 2014.
• Duke of Edinburgh Entrance Award, Inner Temple, 2014.
• Second Prize – Senior Moot, City University London, 2014.
• GDL Major Scholarship, Inner Temple, 2013.
• John Oliver Hobbes Memorial Prize, University College London, 2013.

Gough on Company Charges, 3rd Edition (Ch 27 Invalidation, Ch 28 Registration extension, and Ch 29 Constructive notice). Date TBA.

“Arkin uncapped: Chapelgate and the future of litigation funding.” Zachary Kell and Joel Goschalk. Journal of International Banking and Financial Law. June 2020.

Keeping the shutters up: retail CVAs and property rights following Debenhams. R3 RECOVERY Magazine. Spring 2020.

“Opening Pandora’s Box? PSD2, consumer control and combatting fraud.” Emily Georgiades and Zachary Kell. Journal of International Banking and Financial Law. January 2020.

“Disclosure: co-operation in an adversarial system.” Zachary Kell and Laura Sutton. Journal of International Banking and Financial Law. July 2019.

“Sit up and take notice! Partridge v Gupta.” Ben Maltz and Zachary Kell. Property Litigation Association. September 2017.

• Commercial Bar Association (COMBAR);
• Property Bar Association (PBA);
• R3 Association of Business Recovery Professionals (R3).