Practice

Nicholas Cox is a senior junior with a silk-level practice and extensive experience in acting for and against public sector clients. As a member of the Attorney General’s Panel of Counsel since 1999 and as ‘A’ Panel Counsel since 2005 he has been instructed by almost every department of state and has acted for a wide range of other public bodies. He is frequently instructed to advise on matters of national significance or particular sensitivity and is security cleared and has experience in managing disputes involving classified information. Nicholas is a very versatile advocate with extensive experience of arbitrations, litigation and mediation in the areas of commercial litigation and arbitration, insolvency and company law, civil fraud and civil recovery actions under the Proceeds of Crime Act 2002 (“POCA”) and Administrative and Public Law. Private clients involved in public sector disputes benefit from his impressive experience and insights in this area. He is recognised for his expertise in public sector contractual disputes, including those arising from PFI/PPP contracts and rail franchises.

Nicholas appears in all divisions of the higher courts; he frequently leads junior counsel and is also led by silks at 4 Stone Buildings and other chambers. He has conducted a number of high value arbitrations under statutory schemes as a sole arbitrator.

He is frequently instructed to advise on matters of national significance or particular sensitivity and is experienced in the conduct of disputes involving classified information.

 

“A Charming advocate who is well-liked by the courts, also works well as part of a team”.

“Circumspect and deliberate”.

“A shrewd operator who looks at all the available evidence”.

Legal 500 (2015) : Rated in insolvency.

Chambers & Partners: Treasury Counsel (Chancery) listings. Band 1 of leading juniors.

Practice areas

Commercial dispute resolution

Nicholas has expertise in all forms of commercial dispute resolution, including arbitration and mediation as well as litigation within the jurisdiction of the Chancery and Queen’s Bench Divisions and the Commercial Court.

He has particular experience in disputes involving public sector contracts, including high value PFI Contract and outsourcing disputes over a wide range of business sectors and specialisations. These have included disputes involving the MOD, Dept of Health/NHS, DWP, FCO, DECC, the Home Office and a number of cases involving railways and rail franchising. His expertise includes breach, delay and termination disputes, contractual interpretation (including limitation and exclusion clauses and penalty regimes) and he is very familiar with the superadded statutory and regulatory contexts within which these disputes are determined.

He is security cleared and experienced in the handling of classified information.

Recent Cases

  • Confidential MOD Arbitration. Nicholas acted for the MOD from 2012 to 2014 in a technically and legally complex £88m dispute concerning the termination of two related ‘Category B’ contracts for the design, build, test and maintenance of critical military capability. The subject matter of the dispute was classified SECRET- UK Eyes Only. Contract termination; breach of contract; delay; contractual interpretation; interpretation of MOD DEFCONS, causation and quantification of loss, losses recoverable by Govt. Arbitration, multiple rounds of structured mediation; drafting arbitral pleadings and mediation position statements; multi-disciplinary technical experts; dealings at all levels from Warrant Officers to Head of MOD legal; Cabinet Office and operation of the Strategic Suppliers Risk management policy.
  • Dept of Health/NHS PFI Contract Disputes: Between 2013 and 2014 Nicholas advised the Secretary of State for Health/DofH in two sensitive hospital Design, Build and Operate/PFI Contract disputes, both with a significant media profile. The Clinicenta case involved termination of a large hospital PFI contract following breaches of clinical standards. In the Hinchingbrooke Hospital case Nicholas advised the Dept of Health in connection with the termination of the UK’s first ‘privatised’ hospital operating contract.
  • National Employment Savings Trust (NEST): NEST is the statutory body established to deliver the Government’’s workplace auto-enrolment employee contributory pension reforms. During 2012 Nicholas advised and represented NEST in arbitral proceedings relating to the interpretation of the national Personal Accounts Scheme Administration Services contract. Contractual and statutory interpretation, public procurement issues and the impact of the Public Contracts Regulations 2006. Tactics were central to this politically sensitive and highly time critical dispute.
  • Berlin Embassy PFI: Advising the FCO in connection with the interpretation and operation of the PFI contract for the Design, build and operation of the Berlin Embassy.

Other cases of interest 

  • Railway Franchising and Track Access Agreements disputes: Instructed on behalf of the Department for Transport jointly with Treasury Counsel James Eadie QC. Advice in connection with disputes with train operating companies, Network Rail and the DfT relating to payments under Track Access Agreements. Statutory and contractual interpretation, Affordability and financial models, incorporation of terms, breach of warranty, misrepresentation, mistake, implied terms; estoppels and collateral agreements; October 2010
  • British Coal Phurnacite Litigation: Instructed in the QBD as a specialist adviser and advocate on behalf of the Dept. for Energy and Climate Change (DECC) to contest DECC’s liability in consolidated industrial disease/injury litigation involving liabilities dating back to 1942. Complex historical, legal and factual analysis of statutory provisions, corporate restructurings and insolvencies, commercial agreements and indemnities, as well as the impact of statutory insurance and compensation provisions in the context of broader policy level issues regarding state compensation obligations. March-May 2009
  • Secretary of State for the Home Department v Atos Origin: Expert Determination. Instructed on behalf of the Home Office in a complex and technical dispute arising from the contract to provide the Home Office’s central IT function. A successful and speedy resolution was critical to the HO’s operations. November 2007
  • Home Office Immigration Service Provider disputes: Conduct of a series of seven high value disputes involving allegations of serious fraud, overcharging and/or defective performance of commercial service contracts between the Home Office and various companies providing accommodation and support to asylum seekers. Arbitration, mediation and litigation. Contractual interpretation; termination; step-in rights; penalty points regimes. Sensitive cases involving media interest. 2007-2009  
  • Yarl’s Wood Immigration Centre fire: Harmondsworth Immigration Centre Riots 2002-2008: Nicholas advised the Home Office in connection with contractual, statutory and insurance related aspects of the fall-out from the riots at these two major PFI facilities. Significant media interest.
  • Colchester Garrison Redevelopment PFI dispute. Instructed on behalf of MOD in arbitral dispute concerning termination of the consultancy and related services contract pertaining to the high-value redevelopment of the Colchester Barracks site. Contractual interpretation; professional negligence; misrepresentation; wrongful termination; causation and quantification of loss; the ‘value for money’ test for public contracts; procurement : 2007.
  • Norwich Union Life Insurance Society v Qureshi [1998] CLC 1605 Aldrich and Ors v Norwich Union Life Insurance Co. Ltd [1998] CLC 1621 Leading Authority on scope and effect of s 47 of Financial Services Act 1986. Guarantees – Insurer’s duty of disclosure- Effects of illegality – Unconscionable Conduct – Fraud – Restitution – Remedies – Striking Out.
POCA work & asset forfeiture

Nicholas is frequently instructed on behalf of the National Crime Agency (and formerly the Assets Recovery Agency and the Serious Organised Crime Agency) in their more complex civil asset recovery cases.  He has appeared in leading cases since the earliest days of the Proceeds of Crime Act 2002 legislation as well as conducting interim applications (PFOs and release of funds for legal expenses etc) and full trials.  He is instructed for his chancery expertise and his experience of statutory interpretation and is one of a very few chancery counsel with experience of Public Interest Immunity (PII) applications.

Recent Cases

  • NCA v Robb [2014] EWHC 4384 (Ch); [2015] 3 W.L.R. 23; [2015] Lloyd’s Rep. F.C. Nicholas represented the NCA before the Chancellor in the leading case on s 281 of POCA which considered how victims of fraud/theft establish proprietary interest in bank accounts linked to the defendant and said to be the traceable proceeds of fraud. Nicholas was instrumental in developing a cost-effective and innovative case management approach in this multi-party case involving over 70 victims of crime which attracted favourable comment from the bench. Statutory interpretation; human rights (A1P1); constructive trusts; fraud; asset tracing.
  • Robb v National Crime Agency [2014] EWCA Civ 171 Court of Appeal (Civil Division); Civil procedure. Permission to appeal. Proceeding in the absence of a Respondent in Civil recovery proceedings; Right to fair trial. Nicholas’ written submissions provided at the request of the CA were described as “compelling”.
  • SOCA v Robb [2012] EWHC 803 (QB); [2012] Lloyd’s Rep. F.C. 485: Interim applications and trial of complex civil recovery claim involving large scale fraudulent property scheme in Turkish-controlled Northern Cyprus . PFO’s, legal expenses costs exclusions; extra-territorial application of POCA; overseas jurisdiction; foreign law/overseas criminality; Northern Cyprus; abuse of process; burden and standard of proof; fraud; constructive trusts; asset tracing; costs. 2010-2012
  • Mirza & Ors v Dayman: [2015] EWHC 1902 (QBD) Nicholas represented the receiver appointed by the court under DTA and CJA restraint orders. Application of English law of trusts in context of traditional asian hawalla money trading. Constructive trusts; resulting trusts; ‘Quistclose’ trusts; Human Rights (A1P1); recovery of receiver’s remuneration and expenses from third party assets.
  • Tax credit fraud: Nicholas has advised HMRC in connection with the scope and extent of its powers of direct recovery from bank accounts in cases of fraud. Civil fraud; POCA and the Money Laundering Regulations; asset tracing; Human Rights (A1P1) ; administrative law; statutory interpretation.

Other cases of Interest

  • Hill v Director of National Savings: Instructed by the National Savings Bank to assist in Crown Court proceedings. Application of Money Laundering Regulations 2007 and POCA in the statutory, regulatory and contractual context of the National Savings Bank and upon NSB’s powers to refuse requests for payment. Statutory interpretation; Civil fraud; SARs; restitution of deposits; statutory adjudication.
  • SOCA v ‘X: Instructed on behalf of the Assets Recovery Agency and the Serious Organised Crime Agency to conduct their first Public Interest Immunity application in a civil case. Bennet J observed that he had been much assisted by the way in which the hearing had been prepared and conducted by ARA’s Counsel. November 2007
  • Director of the Assets Recovery Agency v Green [2005] EWHC 3168 (admin): Leading case on the interpretation of and state’s burden of proof under the new Proceeds of Crime legislation.
Chancery: commercial

Nicholas has particular expertise in the areas of asset tracing and constructive trusts, and related interim and proprietary remedies which he has developed through work with public sector bodies including the Insolvency Service, HMRC and the National Crime Agency and civil fraud claims.  

Cases of Interest

  • NCA v Robb [2014] EWHC 4384 (Ch); [2015] 3 W.L.R. 23; [2015] Lloyd’s Rep. F.C. This leading authority involved consideration of constructive trusts and asset tracing through international banking accounts in the context of the POCA civil recovery provisions.
  • Mirza & Ors v Dayman [2015] EWHC 1902 (QBD) Representing the receiver appointed under DTA and CJA restraint orders. Application of English law of trusts in context of traditional asian hawalla money trading. Constructive trusts; resulting trusts; ‘Quistclose’ trusts; Human Rights (A1P1); recovery of receiver’s remuneration and expenses from third party assets.
  • Rangers Football Club: Nicholas represented HMRC in proceedings relating to competing proprietary claims over the ownership of funds in the hands of solicitor trustees following the administration and liquidation of Rangers FC: banking; insolvency; asset tracing; Scots Law; Expert evidence; Revenue law. 2014.
Fraud – civil

Nicholas has experience of civil fraud litigation including the tactical considerations surrounding freezing and interim injunction applications, inter-partes and third party disclosure issues and asset tracing and recovery strategies.  Through his ‘A’ panel work he has gained insights into aspects of civil fraud which are unusual and distinctive, for example Nicholas has been involved in cases involving tax fraud, MTIC/VAT fraud, the major criminal attack on the European Carbon Emissions trading market, defrauding of NHS practices and serious organised criminal frauds through his work on POCA civil asset recovery.

Cases of Interest:

  • Europeans Ltd v HMRC [2011] EWHC 948 (Ch); [2011] B.C.C. 527: Nicholas acted for HMRC on this test case which successfully established the right for HMRC to recover from directors personally its costs of MTIC fraud cases against potentially insolvent companies.
Insolvency & restructuring

Nicholas has extensive experience of corporate insolvency advice and litigation. Nicholas is among a small number of senior juniors with the specific combination of public law and Chancery expertise to provide advice or representation in unusual and specialist areas of insolvency practice. He acts also accepts instructions both for directors and the Insolvency Service in directors’ disqualification cases and has previously acted on behalf of government in public interest winding up cases and in relation to the bankruptcy restrictions regime.

Cases of interest

  • Rangers Football Club: Nicholas represented HMRC in proceedings relating to competing proprietary claims over the ownership of funds in the hands of solicitor trustees following the administration and liquidation of Rangers FC: banking; asset tracing; Scots Law; Expert evidence; Revenue law. 2014.
  • Bona vacantia property of dissolved companies: Nicholas was instructed by the bona vacantia department of the Treasury Solicitor’s Department in connection with the enforcement of the bona vacantia provisions in the Companies Acts 1986 and 2006 relating to corporate bank accounts of dissolved companies, bank compliance and company restoration. 2014.
  • Strategic oil stocks: Nicholas has advised DECC in connection with oil and petrochemical refinery insolvencies and the UK’s European and international strategic oil stockholding obligations. Insolvency; European law and oil/petroleum products directives; liquidation; administration; international treaty obligations; floating charges; Cross-border insolvency; statutory interpretation ; Energy Acts 1976 and 2004. 2012
  • British Seafood Limited: Instructed by the Insolvency Service in connection with Directors Disqualification proceedings arising from the collapse of British Seafood Limited and SFO inquiry.
  • Re Kaupthing Singer & Friedlander Ltd: Nicholas represented HM Treasury in the High Court on the application by the FSA for an order placing the UK subsidiary of an Icelandic banking group into administration under the Banking (Special Provisions) Act 2008.
  • Insolvency aspects of Potters Bar rail crash: Nicholas advised the Office of Rail Regulation in connection with special rail insolvency related aspects of the Potters Bar train crash and subsequent criminal prosecutions of insolvent companies.
  • Water Industry (Special Administration) Rules: Nicholas advised OFWAT on the form, content and effect of proposed Special Administration Rules for regulated Water Industry undertakings. 2008.
  • Official Receiver v Tilbrook [2008] EWHC 2732 (Ch) : Acting on behalf of the Official Receiver in an appeal to consider the factors relevant to the, then, new Bankruptcy restrictions regime. Legal advice; Time; Transactions at an undervalue.
  • Secretary of State for Trade & Industry v Rawbone: EAT/1255/00 : 2001 WL 34008529: Employment Appeal Tribunal: determination of the incidence of SofS liability for statutory redundancy and holiday pay in connection with insolvency.
Administrative & public law

Nicholas’ work as ‘A’ Panel Counsel since 2005 has involved him advising on or appearing in a variety of administrative and public law cases, primarily arising out of contractual, commercial or property relationships. He has advised in relation to the interpretation of European and domestic legislation, the application of the Human Rights Act 1998 (in particular rights to peaceful enjoyment of possessions under ECHR A1P1) and public procurement. His experience has included acting for almost every principal department of state and a wide variety of non-departmental public bodies and agencies. His advice has been influential in formulating and applying legislation in relation to the water industry, railways, Carbon Emissions trading and the Proceeds of Crime.

Cases of Interest:

  • Tax credit fraud: Nicholas has advised HMRC in connection with the scope and extent of its powers of direct recovery from bank accounts in cases of fraud. Civil fraud; POCA and the Money Laundering Regulations; asset tracing; Human Rights (A1P1) ; administrative law; statutory interpretation.
  • Bona vacantia property of dissolved companies: Nicholas was instructed by the bona vacantia department of the Treasury Solicitor’s Department in connection with the enforcement of the bona vacantia provisions in the Companies Acts 1986 and 2006 relating to corporate bank accounts of dissolved companies, bank compliance and company restoration. 2014.
  • Strategic oil stocks: Nicholas has advised DECC in connection with oil and petrochemical refinery insolvencies and the UK’s European and international strategic oil stockholding obligations. Insolvency; European law and oil/petroleum products directives; liquidation; administration; international treaty obligations; floating charges; Cross-border insolvency; statutory interpretation ; Energy Acts 1976 and 2004. 2012
  • Land Registry: Nicholas was instructed by the Land Registry in connection with the largest ever claim against it under the statutory indemnity provisions of the Land Registration Act 2002 arising from errors in the Register. Statutory interpretation, causation of loss, mitigation, quantum. 2011-2012.
  • Carbon Emissions Trading Schemes: Nicholas was Counsel to DECC and the Environment Agency and advised the UK Govt in connection with proprietary, compliance and European Law aspects of a major international fraud on the European Carbon Emissions Trading Scheme spot market. He represented the EA in related ‘in camera’ proceedings in the UK for proprietary relief and freezing injunctions. Nicholas’ advise to HMG was considered at European level. Previously Nicholas had advised and participated in drafting the rules for the UK’s own first Carbon Emissions Trading Scheme. 2011
  • Water Industry (Special Administration) Rules: Nicholas advised OFWAT on the form, content and effect of proposed Special Administration Rules for regulated Water Industry undertakings. 2008.
  • SOCA v ‘X: Instructed on behalf of the Assets Recovery Agency and the Serious Organised Crime Agency to conduct their first Public Interest Immunity application in a civil case.
Alternative dispute resolution

Arbitration and mediation are often mandatory in government contracts or pursued in the public interest.  Nicholas’ 10 plus years of service as an ‘A’ Panel Counsel on the Attorney General’s panel means that he has extensive experience of arbitration and mediation at the highest levels and a full appreciation of the unique tactical challenges which arise.

As well as acting as an advocate, Nicholas has previously been nominated by the Minister of Transport to conduct and has sat as a sole arbitrator to determine several statutory arbitrations under the Railways Acts.

See separate sections above for cases in which Nicholas has appeared, many of which have involved mediation and/or arbitration.

Cases of interest

  • Confidential MOD Arbitration. Nicholas acted for the MOD from 2012 to 2014 in a technically and legally complex £88m dispute concerning the termination of two related ‘Category B’ contracts for the design, build, test and maintenance of critical military capability. The subject matter of the dispute was classified SECRET- UK Eyes Only. Contract termination; breach of contract; delay; contractual interpretation; interpretation of MOD DEFCONS, causation and quantification of loss, losses recoverable by Govt. Arbitration, multiple rounds of structured mediation; drafting arbitral pleadings and mediation position statements; multi-disciplinary technical experts; dealings at all levels from Warrant Officers to Head of MOD legal; Cabinet Office and operation of the Strategic Suppliers Risk management policy.
  • Railways Act Arbitrations: British Transport Police Authority v Arriva Trains plc and others: Nicholas was nominated by the Secretary of State for Transport (and in subsequent cases by the parties themselves) as sole arbitrator to conduct statutory arbitrations under the Railways and Transport Safety Act 2003 and earlier legislation. The disputes related to the allocation of the £100m pound annual cost of the British Transport Police Authority between Train Operating Companies. He conducted multiple arbitrations with witnesses before Leading Counsel and determined a range of jurisdictional, contractual, factual and statutory matters (including in connection with European State Aid Treaty and Regulation provisions) and produced reasoned awards. The awards have precedent status within the Railway industry. 2002-2008

Additional info

Career & appointments

Member of the Commercial Bar Association and Chancery Bar Association
July 2005 –  Junior Counsel to the Crown (‘A’ Panel )
July 2002 – 2011   Appointed as nominee of the Secretary of State for Transport to conduct arbitrations under the Railway and Transport Safety Act 2003
July 1999-July 2005 Junior Counsel to the Crown (‘B’ Panel)

 

Publications

Butterworths Practical Insolvency

Education & awards

1982-1985 B.A (Hons.) Jurisprudence (2:1).   St Edmund Hall, Oxford – Exhibitioner 1983-1985
1990- 1991 M.B.A. Warwick Business School
1992 Bar Final Examinations Very Competent (Top 2%)