Stephen Kosmin

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, the liability of SIPP operators, tax avoidance schemes, collective investment schemes, financial product mis-selling (including the implications of Plevin v Paragon Personal Finance Ltd [2017] UKSC 23), insurance contracts, and the Bribery Act.  Stephen has also advised on the creation of pension superfunds.

Leading decisions in which Stephen has appeared include:

• R (oao Cobalt Data Centre 2 LLP) v Revenue and Customs Commissioners [2020] STC 23, in which Zacaroli J considered the availability of enterprise zone allowances in the context of two partnerships having acquired merely rights under a Golden Contract to construct two data centres in an enterprise zone.
• R (oao Berkeley Burke SIPP Administration Ltd v Financial Ombudsman Service Ltd [2019] Bus LR 437, in which Jacobs J determined the lawfulness of an ombudsman’s decision concerning the inadequacy of due diligence undertaken by a SIPP operator engaged on execution-only terms.
• 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) before UTJ Bano, 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] EWHC 4928 (Admin) in which Clare Moulder KC, 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:

• The Financial Services Compensation Scheme, including in relation to jurisdiction, quantum, and issues relating to judicial review.
• The Financial Ombudsman Service, including in relation to judicial review proceedings, European law, and jurisdiction.
• HM Treasury, including on pension scheme transfers.
• HMRC, including in respect of sophisticated tax avoidance schemes.
• The Bank of England, including by assisting with a large-scale investigation of corporate malpractice and judicial review proceedings.
• 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.
• Individual consumers challenging decisions of the Pensions Ombudsman.

Stephen’s expertise includes:

• The relationship between various regulators and dispute resolution schemes, including the Financial Conduct Authority, the Financial Ombudsman Service, the Financial Services Compensation Scheme, the Pensions Ombudsman, the Bank of England and the Serious Fraud Office.
• The liability of SIPP operators and administrators, whether acting on an advisory or on an execution-only basis. Stephen successfully represented the Financial Ombudsman Service in R (oao Berkeley Burke SIPP Administration Ltd v Financial Ombudsman Service Ltd [2019] Bus LR 437.  His article on the relationship between Berkeley Burke and Adams v Options SIPP UK LLP [2020] EWHC 1229 (Ch) appeared as the feature article in the 2020 Journal of International Banking and Finance Law.
• The interpretation and operation of the FCA Handbook, including the COBS Rules and the DISP Rules.
• The definition and operation of unregulated collective investment schemes under section 235 of the Financial Services and Markets Act 2000.
• Pension transfers and pension superfunds.
• Mis-selling of financial products.
• Jurisdictional issues relating to regulators.
• The functions of the Financial Conduct Authority under the Financial Services (Banking Reform) Act 2014.
• MiFID I and MiFID II.
• Interpretation of insurance contracts, including in the context of the recent Digital Satellite decision.
• Payment Services Regulations 2009 and 2017.
•  Consumer credit and Plevin v Paragon Personal Finance Ltd [2017] UKSC 23.
• Anti-money laundering compliance.
• Bribery Act.

Stephen specialises in procurement disputes.  As well as being instructed regularly in procurement litigation, Stephen also advises on procurement processes and challenges.

Stephen’s recent procurement cases include:

• Stephen appeared for the defendant in Alstom Transport UK Ltd v Network Rail Infrastructure Ltd [2019] EWHC 3585 (TCC), in which O’Farrell J lifted an automatic suspension on the award of a contract worth approximately £1.8billion for the delivery of digital signalling on the East Coast Mainline.
• Stephen appeared for the defendant in in Alstom Transport UK Ltd v Network Rail Infrastructure Ltd [2020] EWHC 1421 (TCC), in which Jefford J considered the level of knowledge required for time to run against the Claimant under Regulation 107 of the Utilities Contracts Regulations.
• Stephen appeared for the defendant in Alstom Transport UK Ltd v Network Rail Infrastructure Ltd [2020] EWHC 1422 (TCC), in which Jefford J considered the test for breach of a common law duty of confidence in the context of a specific disclosure application.
• Stephen appeared for the defendant in Alstom Transport UK Ltd v Network Rail Infrastructure Ltd [2020] EWHC 1432 (TCC), in which O’Farrell J considered the application of the French Blocking Statute (and the application of Bank Mellat v HM Treasury [2019] EWCA Civ 449) in the context of a specific disclosure application.
• Stephen appeared in Kenson Contractors (Benington) Ltd v Haringey LBC [2019] EWHC 1230 (Admin), in which the High Court refused injunctive relief preventing the award of a road improvement contract around Tottenham Hotspur FC’s new stadium.
• Stephen appeared for the defendant in Marston Holdings Ltd v Oxfordshire County Council [2019] EWHC 2359 (TCC) concerning the proper order for costs upon adjournment of an application to lift an automatic suspension.

Stephen has recently advised on:

• The abandonment of procurement exercises.
• Re-procurements.
• Modifications of procured contracts during their terms.
• The proper interpretation of terms of procurement documentation.
• The process of evaluating tenders.
• The relationship of the laws of state aid and procurement.
• Issues arising from Faraday Development Ltd v West Berkshire Council [2019] PTSR 1346.
• During the Coronavirus pandemic, Stephen has been instructed to advise on the interpretation of tendered contracts, including their force majeure clauses and the doctrine of frustration. Stephen has also advised on the effect of various Coronavirus Regulations.

In his commercial law practice, Stephen appears regularly in the High Court both by himself and as junior counsel, as well as in arbitral proceedings.  His particular expertise is in relation to complex contractual claims.

During the Coronavirus pandemic, Stephen has been instructed to advise on the interpretation of high-value and complex commercial contracts, including their force majeure clauses, the doctrine of frustration, and issues regarding wrongful termination.  Stephen has also advised on the effect of various Coronavirus Regulations.

Stephen’s recent experience of commercial litigation and disputes includes:

• Stephen appeared in R (Cobalt Data Centre) v Revenue and Customs Commissioners [2022] EWCA Civ 1422 CA; [2022] STC 2041, where the Court of Appeal’s judgment analysed the fundamental question in contract law of when a purported variation of a contract between two parties creates a new contract as a matter of law.
• Stephen appeared as junior counsel in Seadrill Ghana Operations Ltd v Tullow Ghana Limited [2019] 2 Lloyd’s Rep 628, 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.  It is a leading decision on the interpretation of ‘reasonable endeavours’ clauses.
• Stephen appeared as counsel in Cobalt Data Centre 2 LLP v HMRC [2019] UKUT 342 (TCC), [2020] STC 23, a three week trial concerning the application of the contractual doctrine of rescission to contracts for the construction of data centres in the North East.
• Stephen appeared in Berkeley Burke SIPP Administration v Charlton [2018] 1 Lloyd’s Rep 337, concerning whether the Arbitration Act 1996 applied to the Financial Ombudsman Service’s statutory complaints procedure.  It is now the leading case on the definition of an ‘arbitration agreement’ under the Arbitration Act 1996.
• 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 is regularly instructed in interim proceedings in the High Court concerning injunctive relief, specific disclosure applications, applications for service out of jurisdiction, and enforcement proceedings (including against high net-worth individuals and companies, domestically and overseas).
• Stephen has been instructed in disputes concerning high value public sector contracts, including contracts concerning local government financing, NHS funding, PFI contracts, the operations of concessions, tendered contracts, and the provisions of services to the public sector.
• Stephen has experience of a broad range of construction litigation and arbitrations, with a focus on the energy sector. Stephen recently was instructed in a multi-million dollar arbitration concerning the defective construction of an oil rig.
• Stephen has appeared regularly in litigation both for and against insurance companies, and in complex, insurance-backed, disputes.
• Stephen has advised on the operation of section 2 of the Law Reform (Frustrated Contracts) Act 1943 in respect of an oil drilling contract.
• Stephen has advised on an unjust enrichment claim arising in respect of facilitation agreement concerning a multi-million pound central London development.

Additionally,

• Stephen marshalled in the Technology and Construction Court with Ramsey J and Edwards-Stuart
• Stephen was also a contributor to ‘Wilmot-Smith on Construction Contracts’ (Oxford University Press, Third Edition), having written the chapter on mistake, frustration and misrepresentation.
• Stephen has close familiarity with a number of overseas jurisdictions, in particular New York, where he is a qualified attorney (currently non-practising), and Israel, where he has been a Foreign Law Clerk in the Supreme Court.

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 v Charlton [2018] 1 Lloyd’s Rep 337, concerning whether the Arbitration Act 1996 applied to the Financial Ombudsman Service’s statutory complaints procedure.  It is now the leading case on the definition of an ‘arbitration agreement’ under the Arbitration Act 1996
• 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.

Stephen is highly regarded in public law, having been ranked for a number of years in Chambers and Partners.  Stephen is a member of the Attorney General’s B Panel. He acts both for claimants and the Government in public law proceedings. Stephen has appeared regularly in judicial review proceedings in the Supreme Court, Court of Appeal, High Court and the Upper Tribunal. He frequently drafts judicial review pleadings, 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’s recent public law cases include:

• R (Bridges) v Chief Constable of South Wales [2020] EWCA Civ 1058, CA, August 21 2020, which concerned the legality of the deployment of Automatic Facial Recognition technology by South Wales Police. It was the first appellate decision globally to do so.
• D v Lord Chancellor [2020] EWHC 736 (Admin), which concerned the costs consequences of the participation of a tribunal in discontinued judicial review proceedings.
• R (oao Cobalt Data Centre 2 LLP) v Revenue and Customs Commissioners [2020] STC 23, in which Zacaroli J considered whether two partnerships, which acquired merely rights under a Golden Contract to construct two data centres in an enterprise zone, had a legitimate expectation of receiving the benefit of enterprise zone allowances.
• R (Farmiloe) v Secretary of State for Business, Energy and Industrial Strategy [2019] EWHC 2981 (Admin), in which Lang J held that Ofgem had the power to require a homeowner to provide a second energy performance certificate when applying for accreditation under the Domestic Renewable Heat Incentive Scheme.
• Kenson Contractors (Benington) Ltd v Haringey LBC [2019] EWHC 1230 (Admin), in which Waksman J refused injunctive relief preventing the award of a road improvement contract around Tottenham Hotspur FC’s new stadium.
•  Kamoka v The Security Service [2019] EWHC 290 (QB), which concerned the legality of deportation and detention orders of members or associates of the Libyan Islamic Fighting Group.
• R (oao Berkeley Burke SIPP Administration Ltd v Financial Ombudsman Service Ltd [2019] Bus LR 437, in which Jacobs J determined the lawfulness of an ombudsman’s decision concerning the inadequacy of due diligence undertaken by a SIPP operator engaged on execution-only terms
• Kimathi and others v Foreign and Commonwealth Office[2018] EWCA Civ 2213, in which the FCO successfully defended an application for permission to appeal a final judgment in the first of 25 test cases arising from the acts of the British colonial administration in Kenya during a State of Emergency declared in 1952 to deal with the Mau Mau uprising.  Stephen was also junior counsel in Kimathi and others v Foreign and Commonwealth Office [2018] EWHC 3144 (QB), [2018] EWHC 2066 (QB), [2018] EWHC 853 (QB), [2018] EWHC 605 (QB), [2017] EWHC 2703 (QB), [2017] EWHC 2145 (QB), [2017] EWHC 938 (QB), [2017] EWHC 203 (QB), in which he successfully defended approximately 40,000 claims for damages arising from the alleged actions of the British colonial administration in Kenya during the State of Emergency.
•  R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 3) [2018] UKSC 3, [2018] 1 WLR 973,  in which the Supreme Court considered 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.
• 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
• Cox v Ministry of Justice [2016] AC 660, in which the Supreme Court restated the first stage of the vicarious liability test in the context of prisoners undertaking work in prison.
• R (Tesfay) v SSHD [2016] 1 WLR 4853, in which the Court of Appeal considered the allocation of costs upon the compromise of public law proceedings, explaining R (M) V Croydon London Borough Council [2012] 1 WLR 2607.
• 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.
•  Health and Care Professions Council v Waring [2016] EWHC 696 (Admin), concerning an interim suspension order of a registered social worker.
• 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
• 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
• 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 The case is cited in the White Book.

Stephen has also advised the following clients:

• Government departments.  Stephen acts for the Government in national security cases of greatest sensitivity.
• Local councils.
• NHS authorities.
• Network Rail.
• 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, the GMC, and the Information Commissioner.
• 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 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.

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.

Stephen’s recent instructions concerning public international law have included:

• Kamoka v The Security Service [2019] EWHC 290 (QB), in which Jay J considered the legality of deportation and detention orders of members or associates of the Libyan Islamic Fighting Group. Various public international law issues concerning ‘extraordinary rendition’ were in dispute.
• R (on the application of Bancoult) v Secretary of State for the Foreign and Commonwealth Office [2018] UKSC 3, [2018] 1 WLR 973, in which the Supreme  Court  considered  the  admissibility of Wikileaks cables and the operation of the Vienna Convention on Diplomatic Relations.  Stephen 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.
• Kimathi and others v Foreign and Commonwealth Office[2018] EWCA Civ 2213, in which the FCO successfully defended an application for permission to appeal a final judgment in the first of 25 test cases arising from the acts of the British colonial administration in Kenya during a State of Emergency declared in 1952 to deal with the Mau Mau uprising.
• Kimathi and others v Foreign and Commonwealth Office[2018] EWHC 3144 (QB), [2018] EWHC 2066 (QB), [2018] EWHC 853 (QB), [2018] EWHC 605 (QB), [2017] EWHC 2703 (QB), [2017] EWHC 2145 (QB), [2017] EWHC 938 (QB), [2017] EWHC 203 (QB), in which Stewart J dismissed claims for 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.  The public international law issues concerned 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
• Tesfay v Secretary of State for the Home Department [2016] 1 WLR 4853, in which the Court of Appeal considered the operation of the Dublin Convention.
• R (Al Saadoon) v Secretary of State for Defence [2016] EWCA Civ 811 concerning the effects of non-ratification of treaties and of ius cogens norms of public international law.
• Stephen has advised on the incorporation and operation of the Palermo Convention against Transnational Organised Crime.
• Stephen has advised the Government on the Geneva Conventions, the Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954, the Bonn-Paris Conventions, and the Hague Convention Concerning the Laws and Customs of War on Land 1907.
• Stephen has advised on customary international law governing restitution and compensation, including in respect of cultural artefacts.

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). He recently authored “Wikileaks and International Law: Inviolability v Inadmissiblity” [2017-18] 9 UK Supreme Court Yearbook 92 with Professor Robert McCorquodale.

Information law and data protection matters form a substantial part of Stephen’s practice.  He is regularly instructed by the Information Commissioner and public bodies on appeals under the Freedom of Information Act and Environmental Information Regulations as sole counsel.  He was also instructed in R (Bridges) v Chief Constable of South Wales, the first appellate decision globally to address the legality of the use of Automatic Facial Recognition technology by the police.

Stephen’s recent instructions have included:

• Acting for the Surveillance Camera Commissioner in R (Bridges) v Chief Constable of South Wales [2020] EWCA Civ 1058, CA, August 21 2020, which concerned the legality of the deployment of Automatic Facial Recognition technology by South Wales Police. In particular, the Court of Appeal considered the adequacy of the statutory data protection regime.
• Advising the Information Commissioner on the application of a penalty under the GDPR in respect of a mass data breach affecting millions of consumers’ payment information.
• The Chagos Refugees Group v Information Commissioner and ors, 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
• Advising an NHS Trust on the disclosure of reports of an internal regulatory investigation into medical malpractice in the context of anticipated multi-party proceedings.
• Successfully defending a Cambridge College in a complex claim under the Data Protection Act and GDPR, for which the claimant was seeking damages of over £2 million.
• Acting for the ICO on a number of appeals under the FOIA, in particular in respect of matters of national security, police investigations, and medical records.

Stephen also acts for the Government in national security cases of greatest sensitivity.  He is experienced in closed material proceedings.