Nicholas Peacock QC
Commercial Chancery is the best description for Nicholas’ practice. The mainstays of his work are: commercial litigation in all its guises; financial services litigation and advice, particularly relating to regulation by the Financial Conduct Authority; insolvency, with a particular emphasis on litigation arising from the insolvency of financial institutions; litigation and advice relating to the SRA’s regulation of solicitors; general commercial Chancery litigation including civil fraud litigation, which involves him acting (both for claimants and defendants) from the obtaining or setting aside of freezing orders, through disclosure and summary judgment battles, into asset recovery by way of tracing; litigation and advice in relation to commercial or development property; and professional negligence relating to financial advisers, solicitors and accountants. In 2014 Nicholas was appointed by the Guernsey Financial Services Commission to sit as a ‘Senior Decision Maker’ to determine the outcome of their major enforcement cases.
Nicholas has experience of financial services regulatory litigation since the days of the Securities & Investments Board and the SROs. He regularly acts for (and against) the Financial Conduct Authority in relation to matters arising under the Financial Services and Markets Act 2000.
The work, for the most part, has involved (a) the closing down by various means of unauthorised investment businesses and unlicenced deposit-taking businesses and (b) the sorting out of the resulting mess. He has undertaken, from the commencement (usually involving the obtaining of without notice injunctions, including freezing orders, or the appointment of provisional liquidators) to the end of the process (involving the distribution of funds to investors), well over 30 such cases involving collective investment schemes, open ended investment companies, quasi-timeshares, spot forex trading, so-called high yield investment programmes etc. See, for example, FSA v Foster  All ER (D) 55 (Jul); FSA v Martin  2 BCLC 193.
The work has also included the closing down of authorised and unauthorised investment businesses through the route of compulsory insolvency procedures. See, for example, In re Inertia Partnership LLP  Bus LR 879; European Property Investments Ltd, 7 Dec 2012. Nicholas has also acted against the FSA in seeking to oppose the use of the compulsory insolvency procedures, most notably in relation to Keydata Investment Services Ltd 8 June 2009.
Mis-selling and interest hedging products
Nicholas has advised the FCA in relation to a number of cases of alleged mis-selling, most recently concerning card protection insurance: Card Protection Plan Limited Nov 2012. He is also in 2013 acting for the FCA in relation to its Interest Rate Hedging Product review and for a number of clients who are suffering under the burden of unexpected break costs in hedging products.
Nicholas has advised a number of financial institutions and clients in relation to swaps and is presently acting for a German bank which, whilst pursuing its client on a front end swap in litigation in Leipzig, is defending a claim brought by UBS in London under a back end swap.
Client money and client assets
Nicholas appeared in the first case to decide issues concerning the FCA’s client money rules: Global Trader Europe Limited, 24 March 2009. With the benefit of that experience, Nicholas was then instructed in relation to both client money (CASS7) and client asset (CASS 6) issues arising from the collapse of Lehmans: Lehman Brothers International (Europe) (In Administration), October 2009 (Ch D), December 2009 (Ch D) and 2 August 2010 (CA). More recently, Nicholas has advised creditors of MF Global UK Limited in relation to their client money claims and has also been instructed by the office holders of MF Global Australia Limited to act as an expert witness in relation to the requirements of CASS6 and CASS 7.
Added on to that litigious base, Nicholas has also advised individuals and businesses in relation to authorisation, institutions and firms of solicitors in relation to money laundering obligation, a number of internet start-up companies concerning the applicability of the UK statutory regime to their business, an issuer of a gold-backed investment product (in relation to collective investment scheme and UCITS issues), the operator of a real-time carbon trading platform and various businesses seeking to provide investment opportunities in areas such as storage units and car parking spaces.
He is, in particular, a recognised expert in relation to the scope of section 235 FSMA 2000, concerning collective investment schemes and, in this context, has advised the FCA in relation to crowdfunding.
Nicholas also has experience of acting against the FCA in the Financial Services and Markets Tribunal, now the Upper Tribunal.
Nicholas has advised the Pensions Regulator in relation to issues concerning collective investment schemes and, more recently, in relation to issues of self-investment.
General financial services litigation
Nicholas has litigated for clients seeking to make claims for breach of contract, breach of regulatory provisions (in particulars COB and COBS) and negligence in relation to a wide area of financial services business, most notably pension and interest rate hedging product mis-selling and discretionary portfolio management.
Over the almost 25 years of his practice Nicholas has had extensive experience of insolvency issues. With the publication in 2001 of the DTI report into Mirror Group Newspapers plc (which covered issues as diverse as corporate governance and regulation (then by IMRO) of pension funds), he finished a 9 year stint as Counsel to the Inspectors appointed by the DTI.
More recently, in addition to the Lehmans litigation, he has appeared in cases concerning third party debt orders Kier Regional Ltd v City & General (Holborn) Ltd & Others (2008) and concerning the proper construction of an inter-creditor agreement: In the Matter of Rayford Homes Ltd v Bank of Scotland Plc & Barclays Wealth Trustees Ltd (2011). He has also advised concerning the ownership of appointed representative commission payments held within the bank accounts of the Honister Group companies upon their insolvency.
Nicholas has extensive first-hand experience of the regulatory framework applicable in the event of the insolvency of solicitors’ firms. He has advised the SRA in relation to all three of the most recent high-profile insolvencies, namely Halliwells, Dewey & LeBeouf and Cobbetts.
Nicholas has particular experience of regulatory work relating to solicitors. He has acted both for and against the SRA (and previously, the Law Society) in many cases relating to interventions made into the practices of solicitors and, in doing so, has encountered a wide range of Human Rights issues. Moreover, his experience of interventions means that he has a detailed knowledge of the statutory trust issues that can arise concerning client and office monies See, for example, Gauntlett v Law Society  EWHC 1954 (Ch); Holder v Law Society  1 WLR 1059; Sritharan v Law Society  1 WLR 2708; Dua v SRA 19 Nov 2010.
Misconduct and IPS
Nicholas has regularly been instructed by the SRA to appear in the Solicitors’ Disciplinary Tribunal: see, for example, Ashoo Dua 10550/2010 and Baptist and ors 10494/2010. He has also advised in relation complaints of professional misconduct and inadequate professional services. Bramall, R (on the application of) v Law Society  EWHC 1570 (Admin)
General commercial disputes
Nicholas has acted in many and various commercial disputes. Perhaps amongst the most notable is acting for Chris Evans in the claims arising from his sacking by Virgin Radio. Other cases have involved property developers using Jersey trust structures: Intense Investments Ltd v Development Ventures Limited  EWHC 1586 (TCC); and Nearfield Ltd v Lincoln Trust Company (Jersey) Limited  EWHC 2421 (Ch)
Nicholas’ civil fraud practice has strong links to his financial services work. He has acted in many civil fraud cases (both for Claimants and Defendants) from the outset of proceedings, through disclosure and summary judgment battles and on to asset recovery. Of particular note in matters of civil fraud, he has acted successfully for a major PLC in obtaining relief against employees who had perpetrated a substantial fraud using numerous offshore entities, for a subsidiary of a large US publisher in making asset recovery against a former finance officer who had accumulated a vastly expensive collection of road and racing cars with his employer’s monies, and for an international businessman whose shipping business was being severely adversely affected by without notice orders obtained in the Commercial Court.