James Malam

Call 2002

Malam@exchangechambers.co.uk

“Technically sound, accessible, thorough, reliable and commercial.”

The Legal 500 2021
Photo of James Malam

Commercial

James’ practice covers a wide range of commercial litigation and the skills and experience learned from his other practice areas frequently complement that commercial practice.

In the purely commercial sphere James’ experience extends to:

  • Contract disputes generally, including disputes over the proper interpretation of contractual terms and as to whether and to what extent a party’s standard terms have been incorporated into the parties’ contract.
  • Securities, including in particular the interpretation of and surety’s liability on guarantees and indemnities.
  • Acting in arbitrations both domestically and internationally, including under the LCIA and ICC rules and under bespoke rules.
  • Dealing with substantial interim applications such as freezing injunctions and other relief and dealing with disputes against the background of a continuing interim injunction.

Commercial Cases

Cases of particular interest include:

  • Successful arbitration in London under ICC arbitration rules following a 2-day hearing. Represented a consultant claiming fees arising from its procurement on behalf of a FTSE 100 company of contracts with the Mauritian government. The FTSE 100 company sought to avoid paying the fees on the basis of alleged ‘red flags’ suggesting possible fraud on the part of the consultant. The FTSE 100 company’s allegations were rejected and the consultant awarded its fees in full.
  • Long running dispute regarding the retirement of three of seven partners from a farming partnership with several million pounds of assets. Dispute revolved around the proper interpretation of the partnership deed regarding the 3 retiring partners’ half share in the partnership and whether and when that half share fell due so as to trigger an acceleration of the payments due. Liddle v. Liddle [2019] EWCA Civ 346, [2019] B.P.I.R. 947; [2017] EWHC 2261 (Ch), [2017] B.P.I.R. 1538.
  • Successful 3-day TCC trial. Dispute as to the specification of a sewage treatment plant serving a large care home. Question of interpretation of parties’ informal contract in which the engineer agreed to design ‘sewers’ and whether that obliged it to specify the type of package sewage treatment plant to be used. Limitation issues revolving around when the Defendant’s right to a contractual indemnity accrued under the terms of the contract. Baylham Care Centre Ltd v. Mixbrow Ltd [2019] EWHC 2645 (TCC).
  • Appeal to Marcus Smith J. against dismissal of application to set aside a settlement agreement on the basis of mistake of law. Raised issues as to whether it is possible to set aside compromise agreements in circumstances where the matter about which the parties were mistaken was not the subject matter of the compromise between them, but a matter on which they both held the same view, and as to what constitutes a mistake versus a misprediction. Elston v. King [2020] EWHC 55 (Ch), [2020] B.P.I.R. 501; [2018] B.P.I.R. 1281.
  • Resisting appeal to Court of Appeal (David Richards, Newey LJJ.) against judge’s refusal to award indemnity costs of enforcing judgment. Judgment makes clear that conduct need not be ‘unusual’, only ‘out of the norm’ (ie. unacceptable) to attract indemnity costs. Whaleys (Bradford) Ltd v Bennett [2017] 6 Costs L.R. 1241.
  • Defending claim for injunction and damages for breach of confidence based on provisions in a recruitment consultant’s contract of employment. Issues as to the construction of the employee’s confidentiality/non-compete covenants and whether the new employer was liable as having procured the employee’s breach of those covenants.
  • Dispute regarding the incorporation by reference or conduct of standard terms substantially curtailing supplier’s liability for defects, including requirement of notice within 30 days of supply, when it was known the products were to be incorporated into an oil refinery and would be exported by sea to Baton Rouge, Louisiana so would not be used for more than 30 days.
  • C.£1m claim on an allegedly unpaid loan subject to several variations of disputed effect. Questions of construction of the variations, whether breaches of those variations rendered them void and whether the alleged breaches were waived. Resisting a freezing injunction over the client’s assets.
  • Representing the Defendants to an action on a guarantee which raised questions of private international law, the EU Insolvency Regulation and the impact of Irish insolvency law on the enforceability of a guarantee which was subject to English law but given over the indebtedness of an Irish company.
  • Successfully represented the Respondent in first Court of Appeal case on interpretation of s.1032 Companies Act 2006: whether restoration of a company to the Register was retroactive so as to validate proceedings issued against it while struck off. Peaktone Ltd v. Jodrell [2013] 1 WLR 784, [2013] 1 All ER 13.
  • Representing debtors at first instance and on appeal in test cases against banks arising from section 78 of the Consumer Credit Act 1974, led by David Uff and Lawrence West QC. Teasdale v. HSBC [2010] 4 All ER 630 and Brookes v. HSBC [2011] EWCA Civ 354.
  • Drafting Grounds of Appeal and representing a Swiss property investment company at an oral application for permission to appeal against findings of fraud and judgment on a c. €14m bond claim.