Simon Devonshire KC

In the High Court, Simon regularly acts in fraud, business diversion and employee competition disputes. Recent cases have involved: the wide-scale misappropriation of confidential information and associated recruitment opportunities in an attempt to set up a global image rights business; the tracing of assets acquired by an employee who secretly diverted nearly £2.5m from his employer’s accounts; the attempted diversion by two departing employees of the opportunity to open a multi-million pound luxury car dealership in the Midlands; the control of abusive attempts to re-litigate issues already decided against the applicant; a substantial fraud action, involving the alleged miss-sale of a freight forwarding business; multiple team move disputes (in both the employment and the LLP settings); and historical music rights disputes. Other areas of expertise include actions for injunctions to restrain or control domestic disciplinary proceedings (particularly in the NHS context) and strike litigation.

Recent reported and/or important cases include Samara –v- MBI Partners [2016] EWHC 441 (QB) (abuse of process arising out of recidivist litigation); Dorma UK Ltd –v- Batemen [2015] EWHC 4142 (QB) [2016] IRLR 616 (springboard relief arising out of an alleged team move); Miller –v- Gardiner & Ors [2015] EWHC 1712 (Ch) & [2015] EWHC 288 (Ch) (extended CRO against litigant repeatedly bringing misconceived claims); Thomson Ecology –v- APEM [2014] IRLR 184 (summary judgment and disclosure orders in team move cases); CEF Holdings -v- Mundey & Ors [2012] FSR 35 (the limits of springboard relief and the obligations of a party moving the court without notice); BGC –v- Rees & Tullett Prebon [2011] EWHC 2009 (QB) (Tullett did not procure Rees to breach his contract of employment with BGC when recruiting him); Capital for Enterprise -v- Malik & Ors [2010] EWHC 343 (Ch) (disclosure obligations and freezing injunctions); Bezant –v- Rausing & Ors [2007] EWHC 1118 (QB) (it was an abuse of process for a claimant, after his claims under employment law had failed, to seek to invoke the law of tort against directors and other professionals associated with his employment/dismissal, to seek to recover his alleged losses).

In the LLP context, Simon has acted in a large number of confidential arbitrations, including for a hedge fund in a multi-million pound claim against a departing member alleged to have orchestrated a team move, for a substantial solicitor’s practice in the enforcement of anti-team move covenants agreed by the membership as a whole after serious damage to its business from a series of team moves, and for a leading London Firm on the question whether the repudiatory breach doctrine can be relied upon to terminate an LLP agreement.

On the statutory front, Simon recently acted for a major bank in defending unfair dismissal, race and disability discrimination claims by its global head of treasury. He continues to handle a large number of whistle-blowing disputes, arising particularly in the financial services sector. He also advises on contentious and no-contentious TUPE issues, particularly in respect of outsourcing and change of contractor disputes and on the TUPE implications of commercial transactions. He has acted for a number of NHS bodies following the outsourcing of care to persons with learning disabilities, and successfully defended a firm of solicitors against a claim that it had inherited TUPE liabilities for the employees of one of its competitors.

Recent reported and/or important cases include: Allsop –v- Christiani & Nielsen Ltd (in Administration) [2012] UKEAT/0241/11/JOJ (limitation and jurisdiction in Wages Act claims); Royal Cornwall Hospital Trust –v- Watkinson [2011] Med LR 636 (whistleblowing in an NHS trust); Ward Hadaway –v- Love & Ors [2010] UKEAT/0471/09/SM (the winning of a contract to provide legal services to the NMC did not constitute a service provision change within the meaning of TUPE 2006, and the successful tenderer did not assume liability for the dedicated team of lawyers retained by his predecessor); New ISG –v- Vernon & Ors [2008] ICR 319 (a purposive construction should be given to reg 4(7) of TUPE 2006, so as to accord with the fundamental freedom of the employee to choose who he works for, and to permit and recognise the effectiveness of a post transfer objection where the employee does not know of the identity of the transferee or of his right to object pre transfer. In consequence, the transferee could not enforce post termination restrictive covenants against ‘objecting’ employees); Croke –v- Hydro [2007] ICR 1303 (an individual providing services through his own limited company to an end user via an employment agency was a worker for the purposes of the whistle-blowing provisions); Perkin –v- St George’s NHS Trust [2006] ICR 617 (awkward personality as the justification for the dismissal of a self-proclaimed whistleblower).

Simon has a busy High Court practice in the fields of commercial and business law, typically (though not exclusively) arising out of commercial diputes with an employment twist. Simon’s practice encompasses: (i) civil fraud and associated injunctive, monetary and proprietary remedies; (ii) the construction and interpretation of commercial contracts; (iii) partnership and LLP disputes; and (iv) business protection, including the enforcement of post termination restrictive covenants, the enforcement of obligations of confidence, fiduciary obligations, data recovery, and associated injunctive and springboard relief. He also has particular experience in cases involving judicial control of vexatious and abusive litigation.

Civil Fraud

In the fraud context, Simon is currently acting for an employer seeking to trace some £2.5M of stolen money into substitute assets. He acted for the successful employer in a case involving the attempted diversion by two departing employees of the opportunity to open a multi-million pound luxury car dealership in the Midlands.  He acted for the claimant in a £50M fraud action arising out of the alleged miss-sale of a freight forwarding business. He acted for three venture capital funds in Capital for Enterprise -v- Malik & Ors [2010] EWHC 343 (Ch), in successfully resisting claims by multiple defendants to set aside freezing inunctions obtained on the basis of an alleged fraud/conspiracy in running a ‘Ponzi Scheme’ bridging loan business.

Commercial Contract

Simon is frequently called upon to advise on the meaning, effect, enforcement and proper construction of commercial contracts, including post termination restrictions, indemnities and repayment clauses, Romalpa or retention of title clauses, and commercial TUPE provisions. He has been noted in the Directories for “taking a commercial, practical approach to problems … [and] his ability to boil things down and explain them concisely”.

Partnership

In the LLP context, Simon has acted in a large number of confidential arbitrations, including for a hedge fund in a multi-million pound claim against a departing member alleged to have orchestrated a team move, for a substantial solicitor’s practice in the enforcement of anti-team move covenants agreed by the membership as a whole after serious damage to its business from a series of team moves, and for a leading London Firm on the question whether the repudiatory breach doctrine can be relied upon to terminate an LLP agreement.

Business Protection

Simon regularly acts in business protection cases, in cases involving the misuse of confidential information, breaches of fiduciary obligation, pre-termination employee competition and post termination restrictive covenants.   Simon has been noted in the directories for his excellence on “restrictive covenants, team move and breach of fiduciary duty cases … He’s outstanding – his depth of knowledge and his ability to consolidate serious issues and make sense of it all is superb”. In addition to the fraud and LLP work already described, Simon is currently acting for the claimants in a case involving the wide-scale misappropriation of confidential information and associated recruitment opportunities in an attempt to set up a global image rights business. He acted for the claimants in a substantial claim for breach of fiduciary duty and intellectual property infringement by an employee who set up a friends reunite style website in Russia, in competition with his former employer (a case which settled on the first day of a 5 week trial). Recent reported and/or important cases include Dorma UK Ltd –v- Batemen [2015] EWHC 4142 (QB) [2016] IRLR 616 (springboard relief arising out of an alleged team move); Thomson Ecology –v- APEM [2014] IRLR 184 (summary judgment and disclosure orders in team move cases); CEF Holdings -v- Mundey & Ors [2012] FSR 35 (the limits of springboard relief and the obligations of a party moving the court without notice); ); BGC –v- Rees & Tullett Prebon [2011] EWHC 2009 (QB) (Tullett did not procure Rees to breach his contract of employment with BGC when recruiting him); New ISG –v- Vernon [2008] ICR 319 (the enforcement of restrictive covenants against an employee who had opted out of TUPE); and Allan Janes –v- Johal [2006] ICR 742 (the enforceability of a restrictive covenant in a solicitor’s contract).

Procedural

Simon has particular experience in the judicial control of vexatious litigation. Examples include: Samara –v- MBI Partners [2016] EWHC 441 (QB) (abuse of process arising out of recidivist litigation); Miller –v- Gardiner & Ors [2015] EWHC 1712 (Ch) & [2015] EWHC 288 (Ch) (extended CRO against litigant repeatedly bringing misconceived claims in respect of his alleged rights to exploit recordings of performances by the late Jimmi Hendrix); Bezant –v- Rausing & Ors [2007] EWHC 1118 (QB) (it was an abuse of process for a claimant, after his claims under employment law had failed, to seek to invoke the law of tort against directors and other professionals associated with his employment/dismissal, to seek to recover his alleged losses, and such conduct justified the making of an Extended CRO); and (in the statutory employment context); and Allsop –v- Christiani & Nielsen Ltd (in Administration) [2012] UKEAT/0241/11/JOJ (dismissal of wages act claims brought substantially out of time by an ‘employee’ on long term sick leave, alleging the adoption of his contract by the administrators).

Simon has considerable experience of recording, publishing, copyright and management disputes in the music, media and entertainment industry. Clients have included the Musicians Union, All Saints, Echobelly, the Cradle of Filth, the Gypsy Priests, Right Said Fred, Vital Distribution, Mungo Jerry and Gordon Ramsay. Simon recently acted for various representatives of the Hendrix Estate and their advisers in resisting claims that the defendant was free to exploit recordings of live performances given by the late Jimmi Hendrix; Miller –v- Gardiner & Ors [2015] EWHC 1712 (Ch) & [2015] EWHC 288 (Ch)

Simon specialises in contractual disputes in the sporting field. He has acted for World and European champion boxers, boxing promoters, various professional football and rugby league clubs, and a Formula One racing driver. He recently acted for Hull Football Club in their dispute with Jimmy Bullard (who was summarily dismissed for alleged misconduct at the beginning of 2011-2012 season).