Simon Howarth

Simon Howarth

General Information

BA (Oxon).

Simon joined 2 Crown Office Row as a tenant in 1992, following completion of his pupillage with Roger ter Haar QC. He has practised from Crown Office Chambers since its formation in 2000.

Practice

From an initially wide ranging practice, covering all areas of Chambers work, he has come to specialise in professional negligence and commercial law, especially insurance related matters, this forming the bulk of his practice. He also carries out construction work, and has experience in company and insolvency law.

The majority of Simon's work is in the High Court: he appears in the Queen's Bench and Chancery Divisions, the Commercial Court, and in the TCC.  He is increasingly instructed to appear at mediations and enjoys the challenge presented by this form of advocacy/negotiation. He is admitted to the DIFC Dubai.

He accepts instructions, in appropriate cases, on a CFA and Direct/Licensed Access basis.


PROFESSIONAL NEGLIGENCE

Recommended as a 'Leading Junior' (Legal 500 2007)

Simon acts for both Claimants and Defendants across a broad range of different professions.

Solicitors and Barristers

He deals with a wide range of cases involving both contentious and non-contentious business.

Reported cases include Johnson v Gore Wood & Co [2002] 2 AC 1, in which (led by Roger ter Haar QC) he represented the successful Claimant. This case remains the leading modern authority in relation to the rule preventing recovery of reflective loss, and in relation to the principle in Henderson v Henderson.

Current and recent instructions include:

  • Re: VB (successfully recovered damages for a woman given negligent advice by solicitors as to her equitable interest in property which was subsequently charged by her husband as security for his debts).
  • C v M (claim against solicitor arising out of allegedly§ negligent conduct of serious personal injuries claims and related probate matters, all arising from a light aircraft accident; settled at a mediation which Simon attended.  The late John Slater QC led Ben Quiney for the Claimants).
  • Re: JC (claim in relation to negligent drafting of will involving consideration of the scope of the rule in White v Jones).
  • Re: A Firm of Solicitors: instructed on behalf of a leading City firm in relation to alleged negligence on their part with respect to the drafting and negotiation of a Share Purchase Agreement.
  • Re: DM: instructed on behalf of solicitors accused of mishandling complex litigation; damages are claimed in excess of £1.5M plus interest.

He has also defended solicitors’ disciplinary proceedings.

Accountants

Simon conducts all types of accountant’s negligence actions, ranging from negligent advice as to tax mitigation schemes to failure to detect fraud in the course of audit work. He has also been instructed in relation to disciplinary hearings. Clients include one of the "big four" firms.

He has been instructed in relation to a number of matters involving allegedly negligent advice relating to offshore investment arrangements and other tax saving strategies.  He appeared for one of the Defendant firms in Dhillon v Siddiqui and others [2008] EWHC 2020 Ch.  The Claimant failed after a 7 trial in all bar one of his many claims against the Defendants. The Court found that the Defendants had been the real winners of the litigation.  The Claimant had declined to negotiate and had rejected a very substantial Part 36 offer.  Consequently, the Court ordered that the Claimant should pay 80% of the Defendants' costs before the offer, and 100% of the costs thereafter, applying Painting v University of Oxford [2005] PIQR Q5.

He recently concluded a contested disciplinary case involving the consideration of audit work.

Insurance Brokers

Reported cases include Stowers v Helm and others [2003] Ll Rep IR 403, in which Simon successfully defended the broker at trial. He has considerable experience in this area of work, in relation to all types of insurance cover (e.g. liability risks, contractors' all risks cover) and the liabilities of both placing and retail brokers.  He is currently instructed as junior to Michael Harvey QC in a large broker's negligence claim arising out of alleged failure to negotiate suitable terms with underwriters in relation to a professional indemnity policy.

He was recently instructed to assist with the drafting of standard terms and conditions for a major firm of brokers.

Independent Financial Advisers

Simon has dealt with many cases of alleged mis-selling of financial products. He is familiar with the statutory and common law aspects of this area of work.  With Andrew Bartlett QC, he appeared for the successful firms in Bunney v Burns Anderson [2007] 4 AER 246, in which Lewison J gave the first judicial guidance on the ambit of the powers of the Financial Services Ombudsman and the distinction between money awards and directions made by him.  Appeals by the Claimants were not pursued to a hearing. 

He has also successfully defended proceedings against a Network arising out of an allegedly negligent reference (Milverton v BAIN, claim dismissed at trial and permission to appeal refused).

Construction Professionals

He deals with cases involving architects, engineers and other professional parties.

Reported cases in this area include the successful appeal in Glauser v Khan [2002] BLR 224.

Current and recent instructions include:

acting on behalf of a development company pursuing various professional advisers for losses arising out of allegedly negligent advice in relation to 2 separate developments;

acting on behalf of a Defendant engineer in relation to allegedly negligent advice as to the design of piling works;

acting for an architect alleged to have made errors in relation to site plans, causing delay and additional expense to the project;

defending engineers accused of negligent advice in relation to an "iconic" building planned by a Local Authority.  Compensation is sought for alleged wasted expenditure.

Surveyors and Valuers

Simon has undertaken surveyors’ and valuers’ negligence work for almost all of his career, and was involved in a significant number of cases arising out of the property crash in the 1990s. He is familiar with the issues arising in such litigation in relation to existence and scope of duty, contributory negligence (including poor lending practice by banks) and quantum.


COMMERCIAL WORK

Simon is instructed in a broad range of commercial work, including insurance claims, contractual disputes, and cases raising insolvency and company law points.

Insurance

Simon is instructed to advise and litigate a broad range of cases, encompassing fraudulent claims, disputes as to the interpretation of policies, and questions as to compliance with policy conditions including notification clauses. He is instructed directly by insurers to advise on policy issues. He also deals with all forms of subrogated recovery work, claims pursuant to the Third Party (Rights Against Insurers) Act, and public liability claims with a particular emphasis on losses by fire and flood.

Recent instructions include defending insurers who dispute their liability to provide indemnity in favour of financial advisers facing multi million pound liabilities in group litigation (settled at a 2 day mediation at which Simon was briefed, all other parties instructing Leading Counsel), successfully defending a major insurer in relation to a product liability claim which had not been properly notified (claim discontinued) and (led by Michael Harvey QC) defending Lloyds insurers against a contribution claim brought by co-insurers in relation to a major loss sustained in the USA.

Recent liability cases include an action arising out of a serious fire in the centre of Canterbury.  Simon was instructed on behalf of electrical contractors, who were joined to the action late, and released from it, on confidential terms, during the trial.  He has also acted for the Defendant in a claim relating to the destruction by fire of a listed building, involving questions of the liability of children and the extent of an adult's duty to supervise.

Commercial Contract

Simon is familiar with all types of contractual claims. Current instructions include a major claim in the Commercial Court in relation to alleged breaches of technology sharing agreements (led by Roger ter Haar QC). Simon has experience of claims in relation to contracts for the sale of items as diverse as strawberry fertiliser, racehorses, and companies.

Company and Insolvency Law

As a result of his involvement in Johnson v Gore Wood [2002] 2 AC 1, Simon receives instructions to advise particularly on cases involving the reflective loss principle. He has dealt with claims involving the breach of fiduciary duties by directors, and with petitions under s.459 of the Companies Act. Simon also has expertise in insolvency law and, in particular challenges to unlawful transactions and the restoration of companies to the register.  He is frequently instructed on behalf of liquidators dealing with doubtful transactions and other enquiries into the affairs of insolvent companies.
 

CONSTRUCTION

In addition to his professional negligence work in this area, he has considerable experience of claims arising out of construction projects, including defect and delay claims, and claims in nuisance and negligence arising out of damage caused to adjoining buildings. He is joint editor (with Andrew Rigney) of a chapter of Emden.

Publications/Seminars

Simon regularly participates in Chambers’ nationwide seminar programme, and provides in-house talks on request.

He is an editor of Emden’s Construction Law.

Contributor to Construction Insurance and UK Construction Contracts (2008, co-editor Roger ter Haar).

Selected Cases

Dhillon v Siddiqui & Others  [2008] EWHC 2020 Ch: alleged accountant's negligence, claim largely failed as a result of the collapse of Claimant's factual and expert case during the course of a 7 day trial. Claimant recovered only 2% of sum claimed, Court held that Defendants had succeeded in the litigation and were entitled to their costs.

Bunney v Burns Anderson [2007] 4 AER 246, Lewison J: extent and powers of the Financial Services Ombudsman under section 229 FSMA.  Distinction between money awards and directions.  Whether abuse of process to raise illegality of award at enforcement stage.

Stowers v GA Bonus plc and another [2003] Ll Rep IR 403 (CLCC) : insurance broker's negligence; waiver of non disclosure; claim dismissed after trial.

Robert v Momentum Services [2003] 2 AER 74 (CA) : civil procedure; extension of time for service of pleadings.

Johnson v Gore Wood [2002] 2 AC 1 (HL) : solicitor's negligence; duty of care/implied retainer; scope of rule in Prudential Corp v Newman; scope and application of rule in Henderson v Henderson.

Glauser v Khan [2002] BLR 224 (CA) : building dispute: delay claim: principles on which court should act in striking out for procedural default and where second action sought to be commenced on basis of same cause of action.

Phelps v LB of Hillingdon : [1999] 1 WLR 500 (CA) : liability of local education authorities for failure to diagnose dyslexia.

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