Zachary Kell

Zachary has considerable experience of civil fraud matters, primarily in a commercial or corporate context. He often deals with cases involving serious allegations of dishonesty including in relation to: deceit/fraudulent misrepresentation; conspiracy; breach of fiduciary duty and breach of trust; dishonest assistance and accessory liability and interlocutory relief (freezing injunctions, search orders, etc).

Recent work includes:

• Raja v McMillan [2021] EWCA Civ 1103: an appeal to the Court of Appeal (before Underhill, Poppelwell and Nugee LJJ) in relation to a claim for unlawful means conspiracy. This is the first time the Court of Appeal has looked at the question of whether a director can conspire with his own ‘one-man’ company (i.e. of which he is sole director and majority shareholder) in a case of civil conspiracy. Zachary was led by Philip Coppel QC;
• X v Y: Advising on proposed cross-border fraud and restitution claims estimated at c.$250million (as second junior counsel);
• Arif v Sanger CA-2022-000024: Successfully resisted, in the Court of Appeal, the Defendant’s application for permission to bring a second appeal (and further application for permission to appeal a costs order) after producing a respondent’s statement under CPR 52CPD para 19(1);
• Circumference v Martin [2021] EWHC 2691 (Ch): various applications following the grant of worldwide freezing injunctions and an unless order in England and a freezing order in Luxembourg (led by Simon Mills; instructed by Dentons UK and Middle East LLP). The case was also reported in Law360 which can be read here;
• Circumference v Martin [2021] EWHC 2389 (Ch): successfully obtained an application for an unless order in respect of breaches of a worldwide freezing order covering £5.44m (led by Simon Mills; instructed by Dentons UK and Middle East LLP). Zachary was also led by Simon Mills in the previous application for the WFO;
• Arif v Sanger [2021] EWHC 3475 (QB): Zachary successfully resisted (led by Rachel Sleeman) an appeal before Bourne J. in relation to an application for summary judgment on the basis that a claim in deceit was statute barred under the Limitation Act 1980 and that the Claimant had no real prospect of successfully relying upon ss. 32(1)(a) (actions based upon the fraud) and 32(1)(b) (where any relevant fact has been deliberately concealed). In particular, the Appellant argued that because the Respondent was a director and therefore subject to the general duties of a director set out in ss.171-177 of the Companies Act 2006, the Respondent was legally obliged to make enquiries which would have uncovered the fraud. However, this argument failed because the relevant sections of the Companies Act 2006 and the Limitation Act 1980 have different purposes;
• Arif v Sanger [2021] EWHC 1183 (QB): successfully defeated, as junior counsel to Rachel Sleeman, an application for summary judgment in a deceit claim before Senior Master Fontaine on complex questions of limitation and what it means when a claimant “could have with reasonable diligence discovered” the fraud or concealment for the purposes of ss. 32(1)(a) and (b) of the Limitation Act 1980;
• committal proceedings in QBD relating to allegations of forgery, led by Simon Mills;
• ongoing deceit claim in the High Court worth c.£2.5million involving an international investment in a hotel development in South Asia (sole counsel);
• 4-day shareholders dispute in the High Court over allegations of breach of contract and fiduciary duties (sole counsel);
• instructed on a deceit claim in the High Court involving a purported joint venture (sole counsel);
• 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 including the question of whether the application had to satisfy the test for a freezing injunction (cited in the recent 7th Ed. of Gee on Commercial Injunctions).

Zachary has a broad commercial practice representing both individuals and large corporate entities. He has expertise in disputes relating to the sale of goods; the supply of goods and services; breach of contract; all matters involving interpretation of contracts; and the assignment of debts and other choses in action.

Recent work includes:

• Raja v McMillan [2021] EWCA Civ 1103: an appeal to the Court of Appeal (before Underhill, Poppelwell and Nugee LJJ) in relation to a claim for unlawful means conspiracy. This is the first time the Court of Appeal has looked at the question of whether a director can conspire with his own ‘one-man’ company (i.e. of which he is sole director and majority shareholder) in a case of civil conspiracy. Zachary was led by Philip Coppel QC;
• X v Y: Advising on proposed cross-border fraud and restitution claims estimated at c.$250million (as second junior counsel);
• Arif v Sanger CA-2022-000024: Successfully resisted, in the Court of Appeal, the Defendant’s application for permission to bring a second appeal (and further application for permission to appeal a costs order) after producing a respondent’s statement under CPR 52CPD para 19(1);
• Circumference v Martin [2021] EWHC 2691 (Ch): various applications following the grant of worldwide freezing injunctions and an unless order in England and a freezing order in Luxembourg (led by Simon Mills; instructed by Dentons UK and Middle East LLP). The case was also reported in Law360 which can be read here;
• Circumference v Martin [2021] EWHC 2389 (Ch): successfully obtained an application for an unless order in respect of breaches of a worldwide freezing order covering £5.44m (led by Simon Mills; instructed by Dentons UK and Middle East LLP). Zachary was also led by Simon Mills in the previous application for the WFO;
• Arif v Sanger [2021] EWHC 3475 (QB): Zachary successfully resisted (led by Rachel Sleeman) an appeal before Bourne J. in relation to an application for summary judgment on the basis that a claim in deceit was statute barred under the Limitation Act 1980 and that the Claimant had no real prospect of successfully relying upon ss. 32(1)(a) (actions based upon the fraud) and 32(1)(b) (where any relevant fact has been deliberately concealed). In particular, the Appellant argued that because the Respondent was a director and therefore subject to the general duties of a director set out in ss.171-177 of the Companies Act 2006, the Respondent was legally obliged to make enquiries which would have uncovered the fraud. However, this argument failed because the relevant sections of the Companies Act 2006 and the Limitation Act 1980 have different purposes;
• Arif v Sanger [2021] EWHC 1183 (QB): successfully defeated, as junior counsel to Rachel Sleeman, an application for summary judgment in a deceit claim before Senior Master Fontaine on complex questions of limitation and what it means when a claimant “could have with reasonable diligence discovered” the fraud or concealment for the purposes of ss. 32(1)(a) and (b) of the Limitation Act 1980;
• assisting, as sole English counsel, in a multi-jurisdictional trusts and share dispute in Cyprus worth c.€2million;
• acting in an arbitration relating to a corporate trustee’s breach of fiduciary duty;
• ongoing deceit claim in the High Court worth c.£2.5million involving an international investment in a hotel development in South Asia (sole counsel);
• committal proceedings in QBD relating to allegations of forgery, led by Simon Mills;
• advising on the construction of a share purchase agreement in a dispute worth c.£750,000;
• 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 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;
• appearing in the Commercial Court in relation to a dispute over building materials (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.

Zachary has a busy insolvency practice working for IPs, individuals and companies in distress. His experience includes matters relating to: corporate insolvency, including misfeasance, fraudulent trading and wrongful trading; 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:

• advising on a multi-million pound s.212 & s.213 dispute (sole counsel, ongoing);
• Re Laptev: acting for the financial administrator of a bankrupt’s estate, which encompassed debts of the equivalent of c.£40 million, successfully obtaining interim relief pursuant to Art 19 of the CBIR 2006, recognition pursuant to Art 15, and declarations at a final hearing as to the extent of the bankrupt’s estate pursuant to article 213.25 of the Federal Law No. 127-FZ “On Insolvency (Bankruptcy)” in a CIS state (sole counsel, instructed by Gateley Legal);
• obtained a bankruptcy order against Crypto entrepreneur Mr. Datta (sole counsel, instructed by Watson, Farley & Williams, referenced in the Daily Mirror here);
• drafting 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 (led by Rachel Sleeman);
• bankruptcy proceedings involving a debtor resident overseas, service out of the jurisdiction, COMI and the EU Regulation 2015/848 (sole counsel);
• 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).

Zachary often acts in or advises on cases involving disputes over companies and the rights and obligations of directors and shareholders, including shareholder disputes and shareholder activism such as unfair prejudice petitions; derivative claims; directors’ duties and corporate governance; joint ventures; Companies Act advice; directors disqualification proceedings under the Company Directors Disqualification Act 1986.

Recent work includes:

• assisting, as sole English counsel, in a multi-jurisdictional trusts and share dispute in Cyprus worth c.€2million;
• advising on an international share dispute worth c.$30million (led by Simon Mills);
• advising on the construction of a share purchase agreement in a dispute worth c.£750,000;
• 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 the determination of two unfair prejudice petitions including the question of whether the application had to satisfy the test for a freezing injunction (cited in the recent 7th Ed. of Gee on Commercial Injunctions);
• 4-day shareholders dispute in the Chancery Division over allegations of breach of contract and fiduciary duties (sole counsel);
• successfully obtained an urgent interim s.17 order for an applicant seeking to be concerned or take part in the promotion formation or management in a business tech company (before Chief ICC Judge Briggs);
• 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 (sole counsel);
• instructed on a deceit claim in the High Court involving a purported joint venture (sole counsel);
• acting for a major international supplier of construction equipment in a joint venture dispute.

Zachary has developed a practice in cases relating to CIS. In this context he has experience in (i) commercial litigation; (ii) fraud claims; (iii) trusts disputes; and (iv) all related issues of jurisdiction and private international law.

Recent work includes:

• Re Laptev: acting for the financial administrator of a bankrupt’s estate, which encompassed debts of the equivalent of c.£40 million, successfully obtaining interim relief pursuant to Art 19 of the CBIR 2006, recognition pursuant to Art 15, and declarations at a final hearing as to the extent of the bankrupt’s estate pursuant to article 213.25 of the Federal Law No. 127-FZ “On Insolvency (Bankruptcy)” in a CIS state (sole counsel, instructed by Gateley Legal);
• X v Y: Advising on proposed cross-border fraud and restitution claims estimated at c.$250million (as second junior counsel);
• X v Y: Acting in a professional negligence claim in relation to CIS litigants;
• X v Y: Advising on a corporate dispute between an English company and a CIS entity and related trust law issues.

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:

• successfully defended a major international bank against a claim for removal of fraud markers from the National Hunter and Cifas databases in a case which considered the application of Durkin v DSG Retail Ltd [2014] UKSC 21;
• instructed on a summary judgment application relating to chargeback provisions under a merchant card agreement for a major international payment processing company;
• appearing in the Commercial Court in relation to a dispute over building materials (before Robin Dicker QC sitting as a Judge of the High Court).

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.

“Could’ve, would’ve, should’ve: commercial fraud and the reasonably diligent claimant.” Rachel Sleeman and Zachary Kell. Journal of International Banking and Financial Law. April 2022.

“Sanctions on the Rise: The 6th Anti-Money Laundering Directive and the Post-Brexit Landscape.” Emily Georgiades and Zachary Kell. Journal of International Banking and Financial Law. March 2021.

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.

• Chancery Bar Association (ChBA);
• Commercial Bar Association (COMBAR);
• Property Bar Association (PBA);
• R3 Association of Business Recovery Professionals (R3);
• Russian Speaking Legal Professionals’ Forum (RusFor).