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.).

His recent work includes:

• Upham et Ors v HSBC (BPC, Commercial Court): Zachary acts for a number of investors who seek c.£1.4 billion from HSBC for, inter alia, alleged deceit, conspiracy, dishonest assistance and breach of FSMA in connection to the Eclipse/Disney film finance schemes (led by Philip Coppel KC).
• WWRT v Tyshchenko et Ors (BPC, Business List): Zachary is currently acting for the Deposit Guarantee Fund of Ukraine (led by Christopher Parker KC) in an action for c.£65million following the liquidation of JSC Fortuna-Bank
• Re X (ongoing): acting for the defendants in a claim brought by 73 individuals alleging, inter alia, breach of FSMA, deceit and a conspiracy to run an illegal collective investment scheme (CIS).
• X v Y (ongoing): advising on a cross-border fraud worth c.£90million
• Re Kahn (ongoing): defending claims for alleged deceit and conspiracy in the sum of £2.5million (leading Joe McBrien)
• X v Y (ongoing): ad hoc arbitration dealing with allegations of dishonest breach of a pension trust
• Raja v McMillan [2021] EWCA Civ 1103 (digest reported at [2021] All ER (D) 85 (Jul)): 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. a company of which he is sole director and majority shareholder) in a case of civil conspiracy. Zachary was led by Philip Coppel KC (recently referred to in Civil Fraud, 1st Ed. First Supplement)
• X v Y: Advising on questions of jurisdiction in a banking fraud estimated at c.$500million (as first junior counsel)
• X v Y: Advising on proposed cross-border fraud and restitution claims (with questions of banking law) 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 a worldwide freezing order
• Arif v Sanger [2021] EWHC 3475 (QB) (digest reported at [2021] All ER (D) 97 (Dec)): 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 the High Court relating to allegations of forgery, led by Simon Mills
• A deceit claim in the High Court worth c.£2.5million involving an international investment in a hotel development in South Asia (sole counsel)
• A four day shareholders dispute in the High Court over allegations of breach of contract and fiduciary duties (sole counsel)
• Homes of England Ltd v Horsham Holdings Ltd & Ors [2020] EWHC 1175 (Ch): one 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, having dealt with matters in the Commercial Court and Circuit Commercial Court, 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.

Zachary also has experience in disputes relating to the banking and finance sector including: international banking fraud, 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)

Recent work includes:

• Upham et Ors v HSBC (BPC, Commercial Court): Zachary acts for a number of investors who seek c.£1.4 billion from HSBC for, inter alia, alleged deceit, conspiracy, dishonest assistance and breach of FSMA in connection to the Eclipse/Disney film finance schemes (led by Philip Coppel KC)
• WWRT v Tyshchenko et Ors (BPC, Business List): Zachary is currently acting for the Deposit Guarantee Fund of Ukraine (led by Christopher Parker KC) in an action for c.£65million following the liquidation of JSC Fortuna-Bank
• X v Y (ongoing): a GAFTA arbitration arising out of the shipping of grain across three countries and issues of contractual interpretation in a CIF agreement
• Re X (ongoing): acting for the defendants in a claim brought by 73 individuals alleging, inter alia, breach of FSMA, deceit and a conspiracy to run an illegal collective investment scheme (CIS)
• Consulting Concepts International v Consumer Protection Association (Saudi Arabia) [2023] 4 W.L.R. 15, [2022] EWCA Civ 1699: Zachary appeared in an appeal to the Court of Appeal (Peter Jackson, Andrews and Whipple LJJ) from a decision of Jacobs J in the Commercial Court (led by Philip Coppel KC). The case was in relation to a claim worth c.£50million which was struck out on an issue of limitation in relation to, inter alia, when a cause of action accrues under a contract for services. The Court of Appeal’s judgment is the latest restatement of the law of limitation in the context of a claim for a debt arising out of services rendered
• Advising on a proposed investment treaty arbitration
• X v Y (ongoing): advising on a cross-border fraud worth c.£90million
• Raja v McMillan [2021] EWCA Civ 1103 (digest reported at [2021] All ER (D) 85 (Jul)): 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. a company of which he is sole director and majority shareholder) in a case of civil conspiracy. Zachary was led by Philip Coppel KC (recently referred to in Civil Fraud, 1st Ed. First Supplement);
• X v Y: Advising on questions of jurisdiction in a banking fraud estimated at c.$500million (as first junior counsel)
• X v Y: Advising on proposed cross-border fraud and restitution claims (with questions of banking law) 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 worldwide freezing order
• 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
• A 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 the High Court 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 (sole counsel)
• 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)
• Appearing in the Commercial Court in relation to a dispute over building materials (before Robin Dicker KC 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 is a recognised junior barrister for his insolvency work, having been ranked as a Rising Star in the Legal 500 2023 and being described as “exactly the sort of modern barrister that you would like on your team”.

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.

His recent work includes:

• Upham et Ors v HSBC (BPC, Commercial Court): Zachary acts for a number of investors who seek c.£1.4 billion from HSBC for, inter alia, deceit, conspiracy, dishonest assistance and breach of FSMA in connection to the Eclipse/Disney film finance schemes (led by Philip Coppel KC).
• WWRT v Tyshchenko et Ors (BPC, Business List): Zachary is currently acting for the Deposit Guarantee Fund of Ukraine (led by Christopher Parker KC) in an action for c.£65million following the liquidation of JSC Fortuna-Bank
• X v Y (ongoing): a GAFTA arbitration arising out of the shipping of grain across three countries and issues of contractual interpretation in a CIF agreement.
• Re X (ongoing): acting for the defendants in a claim brought by 73 individuals alleging, inter alia, breach of FSMA, deceit and a conspiracy to run an illegal collective investment scheme (CIS).
• Falodun v Secretary of State for Business, Energy and Industrial Strategy; Re V1CE Ltd [2023] B.C.C. 511, [2023] EWHC 182 (Ch): an application under the Company Directors Disqualification Act 1986 s.17 to act as a company director despite his disqualification by way of an undertaking of a company with several millions of pounds of turnover. This is an important judgment as to the evidence required to satisfy the court to grant an application. On the revised application, Zachary successfully obtained the order. Zachary wrote an article on this case which can be found here
• Defending a s.212, alleged unlawful dividend and tracing action worth c.£2.7million (ongoing, sole counsel)
• Acting for interested parties in an application to remove receivers over a company subject to a worldwide freezing order and ancillary issues of winding-up proceedings in the Isle of Man pursuant to the Isle of Man Companies Act 1931
• working on s.426 proceedings for recognition of a liquidation in Jersey
• 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:

• Acting for the respondents to an alleged minority prejudice claim pursuant to s.180 of the Isle of Man Companies Act 2006 (ongoing), in June 2023, the First Deemster granted Zachary a temporary advocate’s licence to appear in this matter
• Falodun v Secretary of State for Business, Energy and Industrial Strategy; Re V1CE Ltd [2023] B.C.C. 511, [2023] EWHC 182 (Ch): an application under the Company Directors Disqualification Act 1986 s.17 to act as a company director despite his disqualification by way of an undertaking of a company with several millions of pounds of turnover. This is an important judgment as to the evidence required to satisfy the court to grant an application. On the revised application, Zachary successfully obtained the order. Zachary wrote an article on this case which can be found here.
• Acting for interested parties in an application to remove receivers over a company subject to a worldwide freezing order and ancillary issues of winding-up proceedings in the Isle of Man pursuant to the Isle of Man Companies Act 1931
• Working on s.426 proceedings for recognition of a liquidation in Jersey
• 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 (sole counsel)
• Homes of England Ltd v Horsham Holdings Ltd & Ors [2020] EWHC 1175 (Ch): a one-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)
• A four-day shareholders dispute in the Chancery Division over allegations of breach of contract and fiduciary duties (sole counsel)
• Successfully obtained an urgent interim order per s.17 of the Company Directors Disqualification Act 1986 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)
• Acting for a major international supplier of construction equipment in a joint venture dispute.

Zachary has a strong international practice with a particular focus on (i) offshore jurisdictions such as the Isle of Man (where he also acts as a consultant to a Tier 1 firm of advocates) and the Channel Islands; and (ii) the CIS, and former CIS states. In this context he has experience in (i) commercial litigation; (ii) fraud claims; (iii) insolvency and company law (iv) trusts disputes; and (v) all related issues of jurisdiction and private international law.

Recent work includes:

• Acting for the respondents to an alleged minority prejudice claim pursuant to s.180 of the Isle of Man Companies Act 2006 (ongoing), in June 2023, the First Deemster granted Zachary a temporary advocate’s licence to appear in this matter
• Advising on a proposed investment treaty arbitration
• Acting for interested parties in an application to remove receivers over a company subject to a worldwide freezing order and ancillary issues of winding-up proceedings in the Isle of Man pursuant to the Isle of Man Companies Act 1931
• 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)
  assisting, as sole English counsel, in a multi-jurisdictional trusts and share dispute in Cyprus worth c.€2million
  working on s.426 proceedings for recognition of a liquidation in Jersey
• 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 experience in chancery matters, usually within a commercial context, namely issues of trusts, breach of fiduciary duties, partnership disputes and charities.

Recent work includes:

• Kaur v Malhi [2022] EWHC 2219 (Ch) acting for the Executive Committee of the largest Gurdwara organisation outside of India and successfully resisting an interim injunction brought by individuals seeking to prevent the charity from holding an election of its executive committee and to force it to allow persons with limited leave to remain to become charity members in circumstances where the charity’s constitution contained a mediation clause. Michael Green J. considered the binding nature of a mediation clause in a charitable constitution (which is one of the first recorded cases on this issue). Zachary was led by Satinder Gill.
• assisting, as sole English counsel, in a multi-jurisdictional trusts and share dispute in Cyprus worth c.€2million.
• X v Y (ongoing): ad hoc arbitration dealing with allegations of dishonest breach of a pension trust.
• Acting for the claimants in their action to wind up a partnership with questions of the interpretation of a partnership agreement and what constituted partnership property.

Articles:

• “Trust, not distrust: Can Quincecare apply to cryptocurrency transactions on exchanges?” James Morgan KC and Zachary Kell. Journal of International Banking and Financial Law. February 2024.
• “Apply without notice at your peril! Piroozzadeh v Persons Unknown.” Zachary Kell and Alexander Kingston-Splatt. Corporate Rescue and Insolvency. October 2023.
• “Hunt v Singh [2023] EWHC 1784 (Ch).” James Morgan KC and Zachary Kell. Corporate Rescue and Insolvency. August 2023.
• “Hopelessly insolvent—application to strike out or restrain advertisement of winding up petition dismissed (Re Time GB Group Ltd).” Zachary Kell. Lexis PSL. August 2023.
• “Hackers for Hire: Lonestar Communications v Kaye [2023] EWHC 421.” Zachary Kell and Alexander Kingston-Splatt. TL4 Disputes Magazine Issue 9. June 2023.
• “A candid approach? Section 17 CDDA applications and evidence (Re V1CE Ltd).” Zachary Kell. Lexis PSL. March 2023.
• “Service, lies and NFTs: litigation and the blockchain.” Zachary Kell and Callum Reid-Hutchings. Journal of International Banking and Financial Law. November 2022.
• “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.
• “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. (Also cited in Sealy & Milman)
• “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.

Books:

Atkin’s Court Forms Vol. 33(1) Receivers. Zachary Kell and Alexander Kingston-Splatt. Date TBA.

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

• Chancery Bar Association (ChBA)
• Commercial Bar Association (COMBAR)
• R3 Association of Business Recovery Professionals (R3)
• Eurasian & CIS Legal Professionals’ Forum

• 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 2019. Zachary wrote a piece on the experience which can be found here.
• 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.