Timothy Harry

He has extensive experience of commercial litigation and arbitration not only in England but also in Hong Kong, Singapore, the Eastern Caribbean and Samoa. He has been instructed in domestic arbitrations, and also in long running international arbitrations subject to LCIA, HKIAC, SIAC and ICC Rules. This has included court applications relating to an arbitration such as successfully opposing the disqualification of an arbitrator for bias in an UNCITRAL arbitration, and successfully opposing an UNCITRAL award being set aside for procedural unfairness.

He has frequently been instructed in cases involving commercial litigation interim remedies (freezing injunction and Chabra, Anton Piller and Norwich Pharmacal applications).

By way of example, he has completed two substantial commercial arbitrations, one ICC arbitration in Singapore under the laws of Thailand relating to a joint venture for the production of eucalyptus pulp; and the other an LCIA arbitration under the laws of New York relating to an IT royalties arrangement; he has acted for Hanson plc in relation to an interference by a pipeline with its aggregates dredging operation in the North Sea; he has acted on behalf of Danone for the purpose of obtaining a Norwich Pharmacal order to support economic tort proceedings in California (Danone Asia PTE Ltd v SB Chow & Co); he has successfully opposed the disqualification of an arbitrator for bias in an UNCITRAL arbitration (Jung Science Information Technology Co Ltd v ZTE Corpn); he has successfully opposed an UNCITRAL award being set aside for procedural unfairness; he has acted for a hedge fund in a BVI case in relation to a hotel project joint venture on the mainland of China; he has acted in a case which deals with the principles relating to contempt of court in the context of a freezing injunction (Gill v Darroch); and has appeared in the Court of Appeal of Samoa on the issue of whether the confidentiality provisions of the companies legislation can be overridden by Norwich Pharmacal principles. He has frequently been instructed in cases involving commercial litigation interim remedies (Mareva, Chabra, Anton Piller and Norwich Pharmacal applications).

He has frequently been instructed in litigation relating to shareholders’ disputes, derivative actions, joint ventures and the lawfulness of shareholder and Board resolutions.

He acted for the claimants in the long running Macro litigation, which covers all of the major issues relating to an unfair prejudice petition; the circumstances in which rights of pre-emption can be triggered; and the conclusiveness of an expert’s determination in the context of a share valuation directed by the court.

He has acted successfully in a recent HKIAC arbitration relating to the triggering of “buyout” provisions for “material breach” of a shareholders’ agreement.

He has appeared in the only reported case on the allocation of costs in a double derivative action in an offshore (St Vincent) trusts context (Popely v Popely).

He has acted successfully in an appeal in the Eastern Caribbean Court of Appeal dealing with the threshold requirements of a derivative action in the BVI (Basab Inc).

He has acted for the Taiwanese offshore shareholders in the major shareholders’ dispute relating to what was one of Hong Kong’s terrestrial TV channels, ATV.

He also appeared in the Court of Appeal in Samoa on the issue of whether the confidentiality provisions of the local companies legislation can be overridden by Norwich Pharmacal principles. 

He has a wide-ranging breadth of experience. His work includes general conveyancing disputes, issues in relation to commercial leases, rent reviews, break options, overage, easements, restrictive covenants, contaminated land, adverse possession and the Electronic Communications Code.

By way of example, he has been instructed on issues relating to the extent of a beneficial interest (Lennox Lewis v Eliades); for Barclays Bank in the Court of Appeal as to whether time was of the essence for triggering a rent review clause (Barclays Bank v Savile Estates); in relation to one of the seminal cases on the Trusts of Land Act 1996 (The Mortgage Corporation v Shaire); on the interpretation of a standard form covenant in a Crown Lease in Hong Kong (Expressluck Development v the Secretary for Justice); in the Court of Appeal in relation to the interpretation of a building restrictive covenant (Jarvis Holmes v Marshall); on the issue of whether a property transaction or a trust can be struck down as a sham (Nightingale Mayfair v Mehta); on one of the leading authorities on the meaning of a “house” in the context of the Leasehold Reform Act 1967 (Howard de Walden v Malekshad); on how a licensee can obtain a title by way of adverse possession (J Alston v BOCM); and on the previously unexplored issue of whether an unincorporated association can adversely possess (Mitchell v Watkinson).

His expertise includes claims against solicitors, barristers, surveyors, auditors, project managers, quantity surveyors and Lloyds agents. He has been one of the contributing editors of Professional Negligence and Liability, and is contributing the chapters relating to solicitors', valuers' and accountants' negligence for the next edition of the publication 'Lender Claims'.

He has been in some of the leading authorities including Platform Home Loans v Oyston (valuers’ negligence, damages, House of Lords); Mortgage Express v Bowerman (extent of solicitor’s duty to a lending institution); Zwebner v The Mortgage Corporation (solicitor’s liability on an undertaking); Paratus v Countrywide Surveyors (effect of securitisation on a professional negligence claim, margin of error and contributory negligence); and D B Bank v Edmunds & Co (extent to which solicitors can be held liable for breach of trust in a conveyancing transaction).

He has, by way of example, acted for HSBC in the 10 year long litigation relating to the liquidation of the electronics conglomerate Akai (Kong Wah Holdings Ltd v HSBC); in Lord v Sinai Securities (the test for a transaction at an undervalue); in Greenhaven Motors (the principles for the sanctioning of a compromise by the court in an insolvency context); and in Re Rosshill Properties (when a mortgagee can be given permission to enforce its security against a company in administration).

Most recently he appeared successfully in Re E Realisations Ltd 2020 Ltd in obtaining relief for administrators from strict compliance with their obligations when obtaining consent from creditors for the renewal of their term in office, and also in obtaining permission from the court for an extension of the period of administration; and also separately in obtaining a Mawer v Bland order extending the period of bankruptcy until the bankrupt complied with his duty to the trustee in bankruptcy.

He has recently also been involved in litigation relating to Brexit and the effect of the Recast Insolvency Regulation.

He is an accredited mediator, having qualified with ADR Chambers. He has been instructed on multiple occasions as a mediator in disputes across the spectrum of Chancery and Commercial litigation, and he has also appeared as Counsel on many occasions in such disputes.