Stephen Kosmin

Stephen Kosmin’s practice extends across financial services law, commercial law, construction law and public law.  Stephen has extensive trial and appellate court experience.  Recently, Stephen has appeared in the Supreme Court in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 3) acting for the claimant, and in Cox v Ministry of Justice acting for the Government.

Stephen is very experienced in financial regulation and financial services law.  In particular:

  • Stephen’s expertise encompasses tax avoidance schemes and collective investment schemes, financial product mis-selling, insurance contracts, and jurisdictional issues concerning regulators.
  • Stephen has successfully represented the Financial Ombudsman Service in judicial review proceedings, both substantive and at the permission stage, including in R (Chancery (UK) LLP) v FOS [2015] (the leading case on the jurisdictional limits of the Financial Ombudsman Service), and R (Full Circle) v FOS [2016] (the leading case on the relationship between the FCA and the Financial Ombudsman Service).
  • Stephen has advised the Financial Services Compensation Scheme, including in relation to jurisdiction, quantum, and issues relating to judicial review.
  • Stephen has advised the Bank of England in respect of regulatory investigations and judicial review proceedings.
  • Stephen has both acted for the Serious Fraud Office and for a party under investigation by the Serious Fraud Office.

In his commercial and construction law practice, Stephen appears regularly in the High Court both by himself and as junior counsel.

  • In May 2018, Stephen appeared as junior counsel in Seadrill Ghana Operations Ltd v Tullow Ghana Limited, a month-long Commercial Court trial concerning the construction of a force majeure clause in an oil and gas contract upon a suspension of drilling in disputed waters between Ghana and Cote d’Ivoire.
  • Stephen has been instructed in disputes concerning insurance contracts, procurement processes, local government financing, NHS funding, company law, and professional negligence.
  • Stephen has also appeared overseas as junior counsel in high-value multi-party and multi-jurisdictional disputes.
  • Stephen has extensive experience of arbitrations, ranging from a nuclear technology dispute under the ICC Rules, to a dispute under the LCIA Rules concerning the financing of oil exploration, to a dispute concerning agents’ remuneration under Rule K of the Football Association Regulations.  In 2017, Stephen successfully appeared in Berkeley Burke SIPP Administration LLP v Charlton, now a leading case on the definition of an arbitration agreement under the Arbitration Act 1996.

Stephen is highly regarded in public law and is a member of the Attorney General’s B Panel.

  • Stephen is junior counsel in Kimathi and others v Foreign and Commonwealth Office (various judgments were handed down in [2016], [2017] and [2018]), in which the claimants are seeking damages arising from the alleged actions of the British colonial administration in Kenya during a State of Emergency declared in 1952 to deal with the Mau Mau uprising.
  • Stephen was junior counsel before the Supreme Court in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 3)[2018], which concerned the admissibility of Wikileaks cables, the operation of the Vienna Convention on Diplomatic Relations, and the standard of the ‘makes no difference’ test in judicial review proceedings.  Stephen successfully defended the Foreign Office in Kimathi v FCO [2018] EWHC 2066 (QB), in which Stewart J refused to exercise his discretion under section 33 of the Limitation Act 1980 in the claimant’s favour.
  • Stephen represented the Government in the Supreme Court in Cox v Ministry of Justice, the leading case on the first stage of the vicarious liability test.
  • Stephen appeared before the Court of Appeal in R (Tesfay) v SSHD, now the leading case concerning the allocation of costs upon the compromise of public law proceedings.
  • Stephen acts for the Government in national security cases of greatest sensitivity.

Stephen has considerable experience of public international law litigation. Stephen’s cases have raised issues of treaty interpretation, customary international law, and the extent to which public international law confers rights or causes of action in domestic law.

Specialisms

Banking & Finance

Stephen is very experienced in financial regulation and financial services law.  He specialises in disputes concerning the jurisdiction and operation of financial regulators and dispute resolution schemes, tax avoidance schemes, collective investment schemes, financial product mis-selling, insurance contracts, and the Bribery Act.

Leading decisions in which Stephen appeared include:

  • Berkeley Burke SIPP Administration LLP v Charlton [2017] EWHC 2396 (Comm) before Teare J, concerning whether the Arbitration Act 1996 applied to the Financial Ombudsman Service’s statutory complaints procedure.
  • R (on the application of Full Circle Asset Management) v Financial Ombudsman Service [2017] EWHC 323, in which Nicol J considered a judicial review application by a firm of financial advisers who had been the subject of a section 166 skilled person review.  The case explored the key regulatory relationship between the FCA and the Financial Ombudsman Service.
  • P v SSWP (Child support – property and capital transfers) [2018] UKUT 60 (AAC) concerning the proper valuation of a quasi-partnership company.
  • Wick v Secretary of State for Work and Pensions [2016], in which the Upper Tribunal (Administrative Appeals Chamber) considered the definition of the term “money”, in the context of holdings of gold bullion and Krugerrands, and other non-traditional assets.
  • R (on the application of Chancery (UK) LLP) v Financial Ombudsman Service Ltd [2015] EWHC 407 (Admin), in which Ouseley J considered a judicial review application by a firm of chartered accountants challenging a jurisdiction decision in respect of a tax avoidance scheme (a limited liability partnership to exploit commercial rights in film and television products).
  • R (on the application of Shaw) v Financial Ombudsman Service Ltd [2015] EWHC 1657 (Admin), in which Haddon-Cave J considered the corporate knowledge of the Financial Ombudsman Service when considering complaints.
  • R (on the application of Fisher) v Financial Ombudsman Service [2014] in which Clare Moulder QC, sitting as a Deputy High Court Judge, considered whether the Financial Ombudsman Service was required to seek independent legal advice when resolving a dispute and whether its remit was limited to the determination of disputes on the basis of evidence presented to it.

Stephen has advised the following clients:

  • HMRC, including in respect of sophisticated tax avoidance schemes.
  • The Financial Services Compensation Scheme, including in relation to jurisdiction, quantum, and issues relating to judicial review.
  • The Bank of England, including by assisting with a large-scale investigation of corporate malpractice.
  • Both the Serious Fraud Office and separately a party under investigation by the Serious Fraud Office.
  • A group of individual claimants in respect of negligent tax avoidance advice, reaching a settlement on favourable terms with the financial advisor.
  • A number of individual claimants on the operation of the Payment Services Regulations 2009, enabling them to recover significant sums from banks.  Stephen has also advised on issues concerning consent and authorisation of payment transactions under the Payment Services Regulations 2017.
  • Prospective claimants on anti-money laundering compliance, particularly in respect of the new functions of the Financial Conduct Authority under the Financial Services (Banking Reform) Act 2014.

Stephen has advised on the following matters:

  • The relationship between various regulators and dispute resolution schemes, including the Financial Conduct Authority, the Financial Ombudsman Service, the Financial Services Compensation Scheme, the Bank of England and the Serious Fraud Office.
  • The definition and operation of unregulated collective investment schemes under section 235 of the Financial Services and Markets Act 2000.
  • Misselling of financial products.
  • Jurisdictional issues relating to regulators.
  • The functions of the Financial Conduct Authority under the Financial Services (Banking Reform) Act 2014.
  • Interpretation of insurance contracts, including in the context of the recent Digital Satellite decision.
  • Payment Services Regulations 2009.
  • Consumer credit and Plevin.
  • Anti-money laundering compliance.
  • Bribery Act.

Stephen has published an article on the topic: “Ensuring anti-money laundering compliance through the senior managers regime of the Financial Services (Banking Reform) Bill: Hansard brings comfort”, [2014] Butterworths Journal of International Banking and Finance Law, 179.  Stephen also assisted Justice Dr Yoram Danziger, Justice of the Israeli Supreme Court, with his article: “Changes in Methods of Freezing Funds of Terrorist Organisations since 9/11: A Comparative Analysis”, (2012) 15(2) Journal of Money Laundering Control 210.

Commercial & Procurement

Stephen has a developed commercial practice, focussed on high-value energy and finance disputes.  Stephen appears regularly in the High Court, both by himself and as junior counsel.

  • In May 2018, Stephen appeared as junior counsel in Seadrill Ghana Operations Ltd v Tullow Ghana Limited, a month-long Commercial Court trial concerning the construction of a force majeure clause in an oil and gas contract upon a suspension of drilling in disputed waters between Ghana and Cote d’Ivoire.
  • Berkeley Burke SIPP Administration LLP v Charlton[2017] EWHC 2396 (Comm) before Teare J, concerning whether the Arbitration Act 1996 applied to the Financial Ombudsman Service’s statutory complaints procedure.  The decision is now a leading case on the definition of an ‘arbitration agreement’.
  • Stephen has appeared overseas as junior counsel in high-value multi-party and multi-jurisdictional disputes. He has experience of proceedings in Ireland, Barbados, and Saint Vincent and the Grenadines.
  • Stephen has acted in interlocutory hearings, particularly in relation to winding up proceedings, freezing injunctions and jurisdictional disputes.
  • Stephen has appeared in High Court proceedings concerning service out of jurisdiction and enforcement against high net-worth individuals and companies.
  • Stephen has appeared regularly in litigation both for and against insurance companies, and in complex, insurance-backed, disputes.
  • Stephen has also assisted in arbitral proceedings under the ICC Rules, the LCIA Rules and the Football Association Regulations (see further below under the heading ‘International Arbitration’).

Stephen has extensive experience of:

  • Drafting pleadings, complex opinions and advising clients in conference, including in relation to commercial frauds, local government financing, NHS funding, company law, professional negligence, intellectual property and passing off, and multi-jurisdictional issues in private international law.
  • Advising on the operation of section 2 of the Law Reform (Frustrated Contracts) Act 1943 in respect of an oil drilling contract.
  • Advising on a restitutionary claim arising in respect of facilitation agreement concerning a multi-million pound central London development.
  • Advising companies on adjusting their business offerings so as to achieve compliance with procurement rules, including in new technologies.
  • Providing commercially sensitive advice to businesses as diverse as sole-trading dotcom entrepreneurs to multi-national corporate groups.
  • Challenges to a multi-million pound NHS procurement process for mental health services.
  • Advising on and analysing expert reports.
  • Cross-examination in insurance and reinsurance disputes in the context of arbitral proceedings. In light of his experience, Stephen was recently invited to Germany, to address Hannover Re on insurance law, cross-examination, and litigation concerning underwriters’ negligence.

Stephen has a developed knowledge and professional experience of company law, commercial remedies, and alternative dispute resolution. Stephen has advised on:

  • Commercial contracts.
  • Professional liability.
  • Commercial fraud.
  • Restitutionary remedies.
  • Company law and directors’ duties.
  • Insolvency.
  • Agency.
  • Private international law.
  • International jurisdictional and forum disputes.
  • Intellectual property.

Stephen has close familiarity with a number of overseas jurisdictions, in particular New York, where he is a qualified attorney, and Israel, where he has been a Foreign Law Clerk in the Supreme Court.

Construction

Stephen has experience of a broad range of construction litigation and arbitrations, with a focus on the energy sector and leisure developments.

  • Stephen has appeared in the High Court and in the Commercial Court in Ireland in respect of large-scale construction disputes regarding an overseas hotel complex.
  • Stephen recently was instructed in a multi-million dollar arbitration concerning the defective construction of an oil rig.
  • Stephen successfully obtained a strike out of a claim against a large development project on a London brownfield site.
  • Stephen has been instructed in relation to international construction projects, including in Malaysia and the Caribbean.
  • Stephen regularly drafts pleadings and complex opinions in relation to standard form construction contracts (such as JCT and NEC3 standard building contracts) and non-standard form construction contracts.Stephen is also a contributor to ‘Wilmot-Smith on Construction Contracts’ (Oxford University Press, Third Edition), having written the chapter on mistake, frustration and misrepresentation.  Stephen, together with Marion Smith QC, has also spoken on expert evidence and recent developments in the handling of experts.

Additionally, Stephen marshalled in the Technology and Construction Court with Ramsey J and Edwards-Stuart J and has since been instructed in proceedings to enforce adjudicators’ decisions in the Technology and Construction Court.

Stephen is also a contributor to ‘Wilmot-Smith on Construction Contracts’ (Oxford University Press, Third Edition), having written the chapter on mistake, frustration and misrepresentation.  Stephen, together with Marion Smith QC, has also spoken on expert evidence and recent developments in the handling of experts.

International Arbitration

Stephen has extensive experience of arbitral proceedings, as well as adjudications and negotiations.

  • Stephen recently was instructed in a multi-million dollar arbitration concerning the defective construction of an oil rig.
  • Stephen has advised on arbitral proceedings concerning an unjust enrichment claim arising from participation in a unitised oil field in Africa.
  • Stephen has advised on an appeal/challenge to the jurisdiction of a LMAA arbitral award pursuant to sections 67-69 of the Arbitration Act 1996.
  • Stephen appeared in Berkeley Burke SIPP Administration LLP v Charlton [2017] EWHC 2396 (Comm) before Teare J, now a leading case on the definition of an ‘arbitration agreement’.
  • Stephen has drafted pleadings for arbitral proceedings in respect of disputes arising under multi-party standard form contracts.
  • Stephen has advised on the implementation and subsequent operation of the Directive for Alternative Dispute Resolution (Directive 2013/11/EU).
  • Stephen has assisted in multiple arbitrations as a Secretary or Clerk to the Tribunal.  The arbitral proceedings have included a nuclear technology dispute under the ICC Rules, a dispute under the LCIA Rules concerning the financing of oil exploration, and a dispute concerning agents’ remuneration under Rule K of the Football Association Regulations.
  • Stephen was invited to speak on the role and responsibilities of an Arbitral Tribunal Secretary as part of the CIArb Arbitral Secretaries’ Course in September 2016.
  • Stephen has demonstrated cross-examination of underwriters and experts in the context of a reinsurance arbitration under the ARIAS Rules.
  • Stephen has co-authored an article on arbitration, namely: “The Enforcement of Arbitral Awards in UAE”, (2013) Lexis PSL Arbitration.

Administrative & Public

Stephen is highly regarded in public law, acting both for claimants and the Government in public law proceedings.  Stephen has appeared regularly in judicial review permission and substantive hearings, both in the High Court and the Upper Tribunal.  He frequently drafts judicial review pleadings, complex opinions, and grounds of appeal to the Court of Appeal and Supreme Court.  Stephen has a particularly developed knowledge of costs in public law proceedings.

Stephen taught Administrative Law and Constitutional EU Law at university and has since advised frequently on EU law.  Accordingly, Stephen is a position to advise on Brexit and associated matters.

From 2018, Stephen has been on the Attorney General’s B Panel of Junior Counsel to the Crown.  Stephen acts for the Government in national security cases of greatest sensitivity.  Further, he has appeared for and against the Government in some of its highest profile recent litigation, including:

  • Acting as junior counsel for the appellant (against the Government) in the Supreme Court in R (on the application of Bancoult) v Secretary of State for the Foreign and Commonwealth Office [2018] UKSC 3, which concerned the admissibility of Wikileaks cables, the operation of the Vienna Convention on Diplomatic Relations, and the standard of the ‘makes no difference’ test in judicial review proceedings.
  • Stephen appears in Kimathi and others v Foreign and Commonwealth Office [2018] EWHC 605 (QB), [2017] EWHC 2703 (QB), [2017] EWHC 2145 (QB), [2017] EWHC 938 (QB), [2017] EWHC 203 (QB), in which the claimants are seeking damages arising from the alleged actions of the British colonial administration in Kenya during a State of Emergency declared in 1952 to deal with the Mau Mau uprising.  Stephen has drafted pleadings, cross-examined claimants, undertaken various interim applications, and regularly advised on issues as varied as double actionability, the Limitation Act 1980, relief from sanctions, the application of customary international law, the application of legislation promulgated during the State of Emergency, and the merits of the claims.
  • Stephen was junior counsel in the Supreme Court in Cox v Ministry of Justice [2016] UKSC 10, [2016] AC 660, which is now the leading case on the test to impose vicarious liability on non-employees.
  • Stephen appeared in the Court of Appeal in Tesfay v Secretary of State for the Home Department [2016] EWCA Civ 415, which is now the leading judgment on costs in public law proceedings, explaining R (M) V Croydon London Borough Council [2012] 1 WLR 2607.

Other cases in which Stephen has appeared include:

  • R (on the application of Full Circle Asset Management) v Financial Ombudsman Service [2017] EWHC 323 (Admin), concerning a judicial review application by a firm of financial advisers who had been the subject of a section 166 skilled person review.  The case explored the key regulatory relationship between the FCA and the Financial Ombudsman Service.
  • R (Lovett) v Health and Care Professions Council [2016] EWHC 2193 (Admin) before Cheema-Grubb J, concerning whether the decision to continue a disciplinary hearing after a lengthy delay breached Article 6 ECHR and the requirement to conduct proceedings in a reasonable time under the relevant statutory scheme.
  • HCPC v Waring [2016] EWHC 696 (Admin), concerning an interim suspension order of a registered social worker.
  • R (Chancery (UK) LLP) v Financial Ombudsman Service [2015] EWHC 407 (Admin) before Ouseley J, concerning whether a complaint concerning a tax avoidance scheme fell within the jurisdiction of the Financial Ombudsman Service.
  • R (on the application of Hanuman) v University of East Anglia [2014] EWHC 3299 (Admin), in which Stephen successfully obtained civil restraint orders, so bringing a dispute lasting around twenty years to a satisfactory conclusion.  The case is cited in the White Book.
  • HCPC v Moody [2015] EWHC 3039 (Admin), concerning an interim suspension order of a registered social worker.
  • P v SSWP (Child support – property and capital transfers) [2018] UKUT 60 (AAC) before UTJ Bano, concerning the proper valuation of a quasi-partnership company.
  • Liksenaj v SSHD [2017] JR/900/2016 before Nicol J, concerning a certification challenge involving an allegedly longstanding victim of child sexual and physical abuse.
  • Wick v Secretary of State for Work and Pensions [2016]: concerning an appeal of the definition of the term “money” for the purposes of the Child Support Variation Regulations, in the context of holdings of gold bullion and Krugerrands.
  • Information Tribunal in The Chagos Refugees Group v Information Commissioner and ors [2012] UKFTT 2011/0300, which concerned whether information was ‘held’ by the FCO, and the scope of the Environmental Information Regulations exception for internal communications of a public authority.

Stephen has advised the following clients:

  • Government departments.
  • Local councils and NHS authorities.
  • Financial regulators and financial dispute resolution schemes, including the Bank of England, Serious Fraud Office, Financial Services Compensation Scheme, and Financial Ombudsman Service.
  • Professional regulators, including the HCPC.
  • Investors on the effect of recent statutory reforms and regulatory changes to funding arrangements in public private partnership schemes.
  • Companies involved in regulatory investigations.
  • Businesses participating in public procurement exercises.
  • Educational institutions, including in respect of judicial review claims brought upon candidates’ failure to be awarded a place at or a degree from an institution.
  • Private individuals, including in proceedings against the Parole Board.

Stephen has advised on:

  • Jurisdictional limits of public bodies.
  • Lawful expenditure of public funds.
  • PFI contracts.
  • Public procurement procedures.
  • Legitimate expectations.
  • The operation and application of the Human Rights Act 1998.
  • Natural justice and procedural errors.
  • Cross-examination in public law proceedings.
  • Public law costs.
  • The domestic application of unincorporated treaties and customary international law (see ‘Public International Law’ below).
  • Various issues of EU law, including the direct effect of directives, the applicability of regulations, and the effect of Brexit.
  • During his BCL Degree, Stephen also was awarded the Ralph Chiles CBE Prize for the best performance in Human Rights Law at Oxford University.

Public International Law

Stephen has considerable experience and expertise in public international law.  Stephen’s practice regularly encompasses advising on and litigating issues of public international law in the English courts.  Stephen is currently instructed by the Foreign Office in respect of a number of public international law issues.

Leading decisions in which Stephen has appeared include:

  • R (on the application of Bancoult) v Secretary of State for the Foreign and Commonwealth Office [2018] UKSC 3, in which the Supreme Court considered the admissibility of Wikileaks cables and the operation of the Vienna Convention on Diplomatic Relations.  He was instructed to address the issues of international law, including the Vienna Convention on the Law of Treaties 1969, the Vienna Convention on Diplomatic Relations 1961, and the Vienna Convention on Consular Relations 1963.
  • Tesfay v Secretary of State for the Home Department [2016] EWCA Civ 415, in which the Court of Appeal considered the operation of the Dublin Convention.

Kimathi and others v Foreign and Commonwealth Office [2017] EWHC 203 (QB), in which the High Court is considering concerning issues of interpretation regarding the United Nations Convention Against Torture 1984, pleading and proving customary international law, and the extent to which public international law confers rights or causes of action in domestic law, including by reason of the European Convention on Human Rights.

Further, Stephen has also assisted in cases about the effects of non-ratification of treaties and of ius cogens norms of public international law: (R (Al Saadoon) v Secretary of State for Defence [2016] EWCA Civ 811, XX v Secretary of State for the State Department [2012] EWCA Civ 742, and SS (Libya) v Secretary of State for the Home Department [2011] EWCA Civ 1547).  Stephen has advised on the incorporation and operation of the Palermo Convention.  Stephen also acts for the Government in national security cases of greatest sensitivity.

In the course of Stephen’s practice, he has worked extensively with leading academics, including Professor Robert McCorquodale (the Director of the British Institute of International and Comparative Law and Professor of International Law and Human Rights at the University of Nottingham) and the late Professor Vera Gowlland-Debbas (Honorary Professor of Public International Law at the Graduate Institute of International and Development Studies in Geneva and a Visiting Professor at University College London).

Stephen is also an experienced researcher of complex public international law problems, not least as a result of his time as a Foreign Clerk with the Supreme Court of Israel, which is at the forefront of international law jurisprudence.  During his BCL Degree, Stephen also was awarded the Ralph Chiles CBE Prize for the best performance in Human Rights Law at Oxford University.

Stephen has appeared on the BBC to speak on the public international law and maritime law implications of a diplomatic incident sparked by the actions of the Iranian Revolutionary Guard in the Strait of Hormuz.

Memberships

COMBAR

South Eastern Circuit

New York State Bar Association

American Bar Association

UKAJLJ

Qualifications

2010/2011: Bar Professional Training Course, City University.

2011: Admitted as an Attorney to the New York Bar.

2009/2010: LL.M., University of Pennsylvania Law School, Distinction.

2008/2009: BCL, University of Oxford, Lincoln College.

2005/2008: BA Law Tripos, University of Cambridge, Gonville and Caius College.

Scholarships and Prizes

2010, Queen Mother’s Scholarship, Middle Temple.

2009, Thouron Award to study at University of Pennsylvania.

2009, Ralph Chiles CBE Prize for the Best Performance in Human Rights Law in Oxford University.

2008, W M Tapp Scholarship for Postgraduate Studies, Gonville and Caius College.

2008, James William Squire Scholar, University of Cambridge Law Faculty.

2008, Frere-Smith Prize for Law, Gonville and Caius College.

2007, Senior Scholar, Gonville and Caius College.

2006, Sir William McNair Law Prize, Gonville and Caius College

Publications

  • “Wikileaks and International Law: Inviolability v Inadmissiblity”, co-authored with Professor Robert McCorquodale (to be published in 2018).
  • “Supreme Court rules Wikileaks cable document should have been admitted into evidence”, in Lexis Nexis Butterworths News, February 2018.
  • Ensuring anti-money laundering compliance through the senior managers regime of the Financial Services (Banking Reform) Bill: Hansard brings comfort”, [2014] Butterworths Journal of International Banking and Finance Law, 179.
  • Chapter 8 on ‘Mistake, Misrepresentation and Frustration’, in Wilmot-Smith on ‘Construction Contracts’ (Third Edition, 2014).
  • The Enforcement of Arbitral Awards in UAE”, (2013) Lexis PSL Arbitration.
  • Assistant to Justice Dr Yoram Danziger, Justice of the Israeli Supreme Court, ‘Changes in Methods of Freezing Funds of Terrorist Organisations since 9/11: A Comparative Analysis’, (2012) 15(2) Journal of Money Laundering Control 210.
  • Interviewed as an International Law expert by BBC Newshour, 29 April 2015.

Additional Information

  • Marshall in the Technology and Construction Court, March 2013.
  • Foreign Clerk with the Supreme Court of Israel, July to August 2011.
  • Admitted as an Attorney to the New York Bar, 2011, currently non-practicing.
  • Lecturer in Administrative Law at London Metropolitan University, 2011.
  • Lecturer in Constitutional Law of the European Union at London Metropolitan University, 2010.
  • German, advanced.
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