Benedict Morillo

Benedict has experience in dealing with a wide range of professional liability matters involving a broad range of professionals including solicitors, brokers, company directors, consultants, engineers, architects, and surveyors.

He is increasingly instructed in professional liability matters involving construction and insurance professionals due to his complementary expertise in those practice areas. Recent instructions involving construction and insurance professionals include:

• Engineers – settling the Particulars of Claim in a £4,000,000 claim (as sole counsel) against a structural and civil engineering firm involving the issue of late and erroneous design information and drawings on a town centre redevelopment project;
• Engineers – settling the Defence in a claim against a structural engineer involving an allegedly negligent report on the structural soundness of a listed luxury Brighton property which led to extensive underpinning works being carried out. Involved complex structural engineering expert evidence on load-bearing in historic buildings through beams and partition walls;
• Directors – M W High Tech Projects UK Ltd v Greenhalgh and others – settling the 180-page Defence in this £320,000,000 TCC claim for breach of directors’ duties against three former directors arising out of the Claimant construction company’s entry into three large waste-to-energy plant projects (led by Daniel Shapiro KC and James Sharpe). During pupillage, Benedict also assisted Daniel and James with their skeleton argument for an interim hearing which variously involved applications for summary judgment, strike out, and initial and extended disclosure, and is reported at [2022] EWHC 2000 (TCC);
• Insurance brokers – (on secondment) advising on a prospective claim against brokers for placing inadequate D&O cover with unusually onerous exclusions compared to market norms;
• Insurance brokers – (during pupillage) drafted a Defence on behalf of an insurance broker specialising in luxury yacht insurance in an additional claim brought by an insurer for the broker’s failure to ask sufficient questions to elicit the insured’s claims history;
• Solicitors – (on secondment) advising on the prospects of a potential claim against a law firm that failed to make enquiries about the D&O cover available to a multi-national corporate group and failed to make notifications;
• Surveyors – advising and drafting a Defence on behalf of a surveyor who allegedly failed to identify signs of sulphate attack to a property during a RICS homebuyer’s survey. Benedict also produced an application for summary judgment on limitation grounds and successfully obtained discontinuance at an early stage in the litigation;
• Surveyors – (during pupillage) drafted a Defence on behalf of the Defendant Party Wall Act surveyor who faced allegations of negligence for failing to order an intrusive structural survey into the Claimant’s property before approving work pursuant to the Act;
• Planning consultants – (during pupillage) drafted pre-action correspondence on behalf of the Claimant in a claim concerning negligent advice on the scope of the permitted development regime for agricultural conversions. The Claimant’s newly built shed conversions had to be demolished pursuant to an enforcement notice;

Benedict has extensive experience of solicitors’ liability matters involving the usual run of issues involved in the negligent conduct of litigation (including commercial, land, general civil, family, immigration, and criminal litigation) and the negligent performance of non-contentious work (including conveyancing, drafting, transactional, and advisory work). Recent highlights from his solicitors’ liability practice include:

• Conveyancing – acting for Defendant solicitors at a CCMC for a claim put at £380,000 in which it was alleged that the Defendant firm had failed to comply with the RBS v Etridge requirements and had facilitated a mortgage transaction by undue influence;
• Conveyancing – pleading a Defence and Counterclaim against a firm of solicitors that were bringing a claim for a mistaken payment of £220,000 to a client (which ought to have been used to discharge a mortgage) that arose out of that firm’s own negligence;
• Conveyancing – advising on and settling Letters of Response in various conveyancing matters involving negligent SDLT advice including a failure to advise on the possibility of recovering higher rate SDLT;
• Commercial leases – advising on quantum and settlement strategy in a matter in which solicitors had allegedly failed to competently negotiate an £800,000 option to purchase in a commercial lease. Quantum advice involved assessing competing valuations of the option with reference to the underlying value of the site, its development potential, as well as a £200,000 figure floated during unsuccessful negotiations between the landlord and tenant for the release of the option;
• Real property litigation – advising on merits and quantum in a complex claim for alleged negligent advice and conduct in relation to a First-Tier Tribunal claim for adverse possession of a patio garden which was only successful in part and resulted in substantial costs liability;
• Real property litigation – advising and drafting a Defence in a claim against solicitors for their alleged failure to conduct easement litigation competently. Involved complex issues of land law given that there was difficulty tracing the easement through a series of conveyances dating back to the 19th century;
• Commercial litigation – advising and drafting the Letter of Response in relation to a debt claim for unpaid invoices which was struck out for breach of various rules and court orders;
• Family litigation – advising on and settling Letters of Response in various family litigation matters involving allegations of negligent preparation for FDR, failures to advise on costs liability, and generally negligent conduct of litigation;
• Crime and immigration – advising in relation to a matter in which it was alleged that a firm had given negligent advice to an asylum seeker about the prospects of defending various charges for using false documents to enter the country;
• Probate – advising in several White v Jones claims brought by disappointed prospective beneficiaries;
• Commercial advisory – (during pupillage) drafted a Defence on behalf of a solicitor’s firm which allegedly breached the no-conflict duty by advising its client on an agreement entered into between the directors of the firm and the client under which the directors would raise capital for the client in exchange for an allocation of shares.

Much of Benedict’s work contains an insurance element of some kind. Benedict has experience in a wide range of ‘pure’ insurance disputes arising from W&I, CAR, D&O, professional indemnity, buildings, and public and employer’s liability policies, involving issues such as coverage, estoppel, co-insurance,  late notification, and policy voiding.

On a recent secondment to a directory-ranked policyholder-side boutique firm, Benedict was involved in the following matters:

• A W&I coverage dispute valued in the millions of pounds;
• A complex D&O matter involving issues of Queensland (Aus) law;
• An early-stage W&I matter valued in the tens of millions of pounds;
• A professional indemnity coverage dispute involving a Maltese financial services firm.

Recent insurance instructions include the following:

• CAR – advising (led by Daniel Shapiro KC) on coverage and quantum in a complex claim put at over £2,000,000 arising out of the replacement of a seemingly defective low temperature hot water heating system at a luxury London residential development. Involved consideration of the DE3 exclusion and a suite of other exclusions;
• Co-insurance and CAR – (during pupillage) assisted Ben Quiney KC and Alex Macpherson in a claim arising out of a flood at a luxury London property development. Issues included the availability of a co-insured defence to a sub-contractor where the main contractor had taken out CAR insurance per Haberdashers‘ Aske’s Federation Trust Ltd v Lakehouse Contracts Ltd;
• Co-insurance – advising on the application of Berni Inns to various property damage claims arising out of floods and fires;
• Landlord insurance – advising a landlord policyholder on coverage in respect of an intimated claim for nuisance causing dry rot due to a long-undetected leak. Involved consideration of coverage estoppel on the basis of representations made by the insurer as to coverage;
• Buildings insurance – acting for the successful insurer at a buildings insurance coverage trial in a claim brought under the Third Parties (Rights against Insurers) Act 2010 in relation to negligently performed building work which had given rise to flooding. Benedict successfully demonstrated that all of the damage was excluded under an ambivalently worded defective work exclusion on a proper construction of the policy;
• Buildings insurance – acting for the successful insurer at a buildings insurance coverage trial involving the applicability of various exclusions including those for ‘gradually operating causes’;
• Notification – advising on the prospects of a declinature for late notification by a property management company arising out of a series of leaks and floods at a residential block being upheld;
• Fraud, policy voiding – advising on the prospects of raising fraud for a series of claims made in relation to damaged agricultural equipment which was suspected to result from wear and tear but which was alleged to have been caused by distinct accidents in dubious circumstances;
• Broker’s negligence – (on secondment) advising on a prospective claim against brokers for placing inadequate D&O cover with unusually onerous exclusions compared to market norms;
• Broker’s negligence – (during pupillage) drafted a Defence on behalf of an insurance broker specialising in luxury yacht insurance in an additional claim brought by an insurer for the broker’s failure to ask sufficient questions to elicit the insured’s claims history;
• Broker’s negligence, fraud – (during pupillage) assisted Daniel Shapiro KC and Carlo Taczalski in a claim brought by an insured against its broker for fraudulently representing that the insurer had agreed to an indemnity which involved the falsification of various documents. Issues concerned the broker’s vicarious liability for a rogue employee and attribution of the rogue employee’s dishonesty to the brokering firm;
• Employer’s liability – (during pupillage) assisted James Medd with a claim involving a landscape gardening insured making material misrepresentations about the nature of its business. The claim arose from a gas pipe explosion which caused a sub-contractor to suffer third-degree burns over his entire body;
• Public liability – (during pupillage) advised on whether coverage was triggered where a contractor had delegated hot roofing work to a bona fide sub-contractor and the sub-contractor had failed to take safety precautions which were conditions precedent for the contractor’s coverage under the policy;
• Business interruption – (during pupillage) advised on Covid-19 business interruption coverage for a beauty salon claiming under a ‘hybrid clause’ which was triggered upon the manifestation of a notifiable disease at the insured’s premises. Involved complex issues of causation in light of FCA v Arch as the insured could evidence the presence of Covid-19 at the premises at the start of the pandemic but not thereafter while it remained closed;
• Late payment under s. 13A(1) Insurance Act 2015 – (during pupillage) advised an insurer on liability for an alleged breach of its duty to pay a claim within reasonable time. The claim concerned the payment of an indemnity for reinstatement of a flooded home and the insured alleged that the delay in payment led to the development of a fungal respiratory infection due to having to live in a damp home.

Benedict’s construction practice primarily involves UK construction projects carried out on JCT standard terms, but he also has experience of projects utilising bespoke contracts and FIDIC contracts, and extensive experience of the usual run of informal contracts used in small-scale domestic projects or as between contractors.

Benedict’s cases involve projects ranging in size from domestic works involving the construction of an extension, to urban regeneration projects and large infrastructure projects.

Recent instructions include:

• Adjudication – acting for the Responding Party in a ‘smash and grab’ adjudication related to sub-contracted mechanical works in a Central London development;
• Adjudication – acting for the Responding Party in an adjudication involving allegations of ‘vexatious and unreasonable termination’ by the employer on a luxury property build under a 2016 JCT Minor Works with Contractor’s Design;
• Adjudication enforcement – appeared as sole counsel on behalf of the successful Claimant to enforce an adjudication award of over £130,000 in the TCC. A winding-up order had been made against the Defendant between the adjudication decision’s issuance and the enforcement hearing so Benedict also had to obtain leave to proceed under s. 130(2) of the Insolvency Act 1986;
• FIDIC Silver Book – settling the 180-page Defence in this £320,000,000 TCC claim for breach of directors’ duties against three former directors arising out of the Claimant construction company’s entry into three large waste-to-energy plant turnkey projects on FIDIC Silver Book terms (led by Daniel Shapiro KC and James Sharpe);
• Bespoke contract (professional adviser) – drafting a Particulars of Claim for a £4,000,000 claim brought by a JCT Design and Build main contractor on an extensive urban redevelopment project against its structural engineer for issuing negligent and late design deliverables (as sole Counsel). Involved technical engineering evidence relating to load-bearing, reinforcement requirements in concrete, and piling;
• Bespoke contract (professional adviser) – successfully obtaining setting aside of default judgment (and eventually obtaining favourable settlement) in a dispute between the main contractor and their project manager/quantity surveyor arising out of a £2,000,000 refurbishment to an Oxfordshire hotel;
• Bespoke contract (arbitration) – (during pupillage) assisted Carlo Taczalski with a multi-million pound arbitration which concerned delay on civil engineering works at a powerplant under a bespoke contract;
• Informal contract (specialist subcontract) – Drafting a Defence and Counterclaim in a final account/defective work claim involving the damming and dredging of a canal by a specialist subcontractor as part of the redevelopment of a former gasworks;
• Informal contract (professional adviser) – settling the Defence in a claim against a structural engineer involving an allegedly negligent report on the structural soundness of a listed luxury Brighton property which led to extensive underpinning works being carried out. Involved complex structural engineering expert evidence on load-bearing in historic buildings through beams and partition walls;
• Informal contract (design and build) – (during pupillage) assisted Richard Sage in Caudle Developments Limited v Warren, a three-day Central London CC TCC trial involving a dispute over which party was responsible for obtaining the regulatory approval for moving hibernating bats, and competing claims that the opposing party was in repudiatory breach of contract. Widely reported in the media and available here;
• JCT Home Owner/Occupier – drafted Particulars of Claim and a Reply and Defence to Counterclaim on behalf of a homeowner whose home was ruined by a cowboy builder following a botched renovation. Involved issues of defective works, delay, and the valuation of additional works. Favourable settlement was obtained following the CCMC;
• Various matters involving the Defective Premises Act 1972 that have involved allegations of unfitness for habitation because of damp/mould, susceptibility to flooding, and fire risk;
• Party Wall Act disputes – advised on and pleaded a nuisance claim involving noise, dust, and vibration arising out of work done in excess of what was authorised by the Party Wall Act surveyor;
• Party Wall Act disputes – (during pupillage) drafted a Defence on behalf of Party Wall Act surveyor who faced allegations of negligence for failing to order an intrusive structural survey into the Claimant’s property before approving work pursuant to the Act.

The vast majority of Benedict’s work is commercial in flavour. Through his insurance, construction, and professional liability practice he regularly deals with the full suite of contractual issues such as formation, incorporation of terms, interpretation and implication of terms, mistake, frustration, termination; and rescission for misrepresentation, duress, or undue influence.

Benedict studied Commercial Remedies and Restitution of Unjust Enrichment on the BCL (the latter of which he was taught by Lord Burrows of the Supreme Court), and as a Trusts tutor at Oxford he had a particular interest in remedies for breaches of fiduciary duties. His academic background means that he is familiar with issues of equity, trusts, and unjust enrichment that would more typically be encountered in a commercial chancery practice rather than a common law commercial practice; Benedict is comfortable dealing with disputes that straddle this distinction.

Highlights of recent work include:

• Commercial chancery, director’s duties – M W High Tech Projects UK Ltd v Greenhalgh and others – settling the 180-page Defence in this £320,000,000 TCC claim for breach of directors’ duties against three former directors arising out of the Claimant construction company’s entry into three large waste-to-energy plant projects (led by Daniel Shapiro KC and James Sharpe). During pupillage, Benedict also assisted Daniel and James with their skeleton argument for an interim hearing which variously involved applications for summary judgment, strike out, and initial and extended disclosure, and is reported at [2022] EWHC 2000 (TCC);
• Commercial chancery, unjust enrichment, civil fraud – acting in relation to a claim put at £100,000 involving a Seettu, a type of Tamil lending and investment syndicate. Involves allegations of breach of trust and a claim for an account of profits;
• Unjust enrichment – drafting a Defence and Counterclaim in an unjust enrichment and breach of trust claim valued at over £220,000 arising out of a solicitor’s mistaken payment of loan funds under a second mortgage to a homeowner instead of using the intended funds to discharge a first mortgage. Issues included resulting Quistclose trusts, the ‘at the expense of’ element of the unjust enrichment cause of action, and the nature of enrichment;
• Unjust enrichment, recission for undue influence – advising and drafting grounds of appeal in a claim involving the assignment of a lease procured by alleged undue influence. Issues included the availability of damages in recission claims and the requirement to give counter-restitution upon recission;
• Sale of goods – DIPT & Ors v Sanglier; Sanglier v Apollo [2023] EWHC 426 (TCC) assisted Carlo Taczalski and Michael Harper who were successful in this important case which provides guidance on the test for recoverability of losses in the form of sums paid out by way of settlement of claims. Benedict provided research assistance on issues including the enforceability of limitation and exclusion clauses, concurrent causes, and the test for satisfactory quality. The case involved the supply of an allegedly defective adhesive and it hinged upon complex chemistry and materials science expert evidence;
• Sale of goods – drafting a Defence on behalf of a supplier of topsoil and landscape gardening supplies in a claim worth over £130,000 in which it was alleged that the soil was unfit for purpose and of unsatisfactory quality due to it containing glass shards. Involved issues of legal causation and assumption of responsibility given that the damages claimed are over 100x the value of the goods supplied;
• Supply of goods and services – drafted a Defence and Counterclaim on behalf of a supplier of kitchen worksurfaces facing allegations of goods supplied being of unsatisfactory quality and the installation of the same being defective;
• Supply of goods and services – advised on prospects and quantum in a claim involving a drill bit breaking and causing damage to a routing machine used to cut worksurface materials. Remoteness of loss was the central issue in this classic Hadley v Baxendale-type case;
• Contracts for services – drafting a Defence, an Additional Claim, and advising in a contractual dispute between a recruitment agency and a construction company. The recruitment agency had purportedly assigned its rights to payment under the contract to a factoring company, who brought the main claim for unpaid invoices against the construction company. The construction company sought a refund for commission fees it had paid to the recruitment agency. Issues concerned assignment, contractual interpretation, and incorporation of terms;
• Contracts for services, consumer law – acting on behalf of a major national food delivery company in a claim for a refund for undelivered food under the Consumer Rights Act 2015;
• Contracts for services, consumer law – drafting a Defence on behalf of a ‘life coach’ in a dispute concerning a contract to provide ‘life coaching’. Issues included the interaction of certainty of terms and the implication of terms under the CRA 2015;
• Rectification for mistake – advising in relation to a claim for rectification of an agreement to purchase real property in which an incorrect price was inserted into the agreement by the purchaser’s legal representatives;
• PD51U – (during pupillage) assisted Carlo Taczalski in a PD 51U disclosure guidance hearing. Researched the scope and nature of an agent’s duty to disclose documents to the principal following termination of the agency;
• Civil fraud – (during pupillage) assisted Daniel Shapiro KC and Carlo Taczalski in a claim brought by an insured against its broker for fraudulently representing that the insurer had agreed to an indemnity which involved the falsification of various documents. Issues concerned the broker’s vicarious liability for a rogue employee and attribution of the rogue employee’s dishonesty to the brokering firm;
• General commercial, unjust enrichment – drafting the Particulars of Claim in a debt claim arising out of a loan agreement for the purchase of residential property. The existence of the loan agreement, its terms, and the circumstances of its formation were strongly in contention;
• General commercial, interim injunctions – (during pupillage) assisted Jason Evans-Tovey with an interim application for an injunction to prevent a business’ bank accounts from being closed by its bank;
• General commercial – (during pupillage) drafted a Particulars of Claim and Reply and Defence to Counterclaim in a case involving a packaging and logistics company’s claim for the value of reusable storage containers which the Defendant client had hired and seemingly lost.

Benedict deals with a range of matters arising from the manufacture and supply of products. His construction and professional liability practices have made him comfortable with technical evidence in complex claims that involve the supply of chemicals, machinery, and component parts. His buildings insurance and CAR insurance practices have provided him with particular expertise on the defect/damage distinction and complex structure theory.

Recent cases include:

• DIPT & Ors v Sanglier; Sanglier v Apollo [2023] EWHC 426 (TCC) assisted Carlo Taczalski and Michael Harper who were successful in this important case which provides guidance on the test for recoverability of losses in the form of sums paid out by way of settlement of claims. Benedict provided research assistance on various issues. The case involved the supply of an allegedly defective chemical adhesive which was incorporated into a commercial glue product and it hinged upon complex chemistry and materials science expert evidence;
• Advising on prospects and quantum in a claim involving the supply of a drill bit incorporated into a routing machine which broke and caused damage to the routing machine, other property, and a loss of profits;
• Settling the Particulars of Claim in a fire damage mixed property damage and personal injury claim involving the failure of an electrical component in a washing machine;
• Various personal injury matters involving the Consumer Protection Act 1987 involving the supply of food, household appliances, and medical products;
• (On secondment) – advising on prospects in a claim put at over £150,000 involving the failure of an electrical component in an industrial glass-manufacturing device which caused damage to the device as well surrounding pieces of equipment, as well as a loss of profits;
• (During pupillage) advising on a prospective subrogated claim concerning a defective switchboard component which caused a fire at a domestic property. A claim under the Consumer Protection Act 1987 was time-barred and the advice concerned which parties to pursue at common law out of the component’s manufacturer, retailer, installing electrician, and maintaining electrician.

Benedict has experience dealing with a wide range of property damage matters involving fire, flood, chemical spills, road traffic accidents, and other incidents, which overlap greatly with his insurance practice. Much of his advisory and drafting work involves subrogated recoveries.

Recent instructions include:

• Oil spill – advising and drafting the Particulars of Claim for a nuisance claim valued in excess of £150,000 arising out of a leak of heating oil in agricultural and holiday let buildings;
• Oil spill – drafting a Defence on behalf of fuel tank engineers in a claim brought in respect of a substantial fuel leak at a large lorry depot;
• Flood – drafting a Defence on behalf of a plumber who had allegedly failed to properly insulate a copper pipe which burst at primary school;
• Flood – advising and acting on behalf of the Claimant in a case involving an escape of water at a luxury London lingerie boutique involving a contentious contents and loss of profit claim. Benedict successfully obtained favourable settlement of the claim at close to its full value following exchange of skeleton arguments;
• Flood – (during pupillage) assisted Ben Quiney KC and Alex Macpherson in a claim arising out of a flood at a luxury London property development. Issues included the availability of a co-insured defence to a sub-contractor where the main contractor had taken out all-risks project insurance;
• Fire – advising on the application of Berni Inns to a lease in a subrogated claim following a fire at a quasi-charitable social housing property which had been started by a third party;
• Fire – settling the Particulars of Claim in a fire damage mixed property damage and personal injury claim involving the failure of an electrical component in a washing machine;
• Fire – (during pupillage) advising on a prospective subrogated claim concerning a defective switchboard component which caused a fire at a domestic property. A claim under the Consumer Protection Act 1987 was time-barred and the advice concerned which parties to pursue out of the component’s manufacturer, retailer, installing electrician, and maintaining electrician;
• Fire – (during pupillage) advising on the merits of a prospective subrogated claim where an insured’s leisure centre was heavily damaged by fire seemingly caused by a sub-contractor during hot roofing work;
• Fire – (during pupillage) advising an insurer on quantum in a claim brought by an insured for an indemnity after its private psychiatric ward burnt down. Involved issues of compensating advantages/collateral benefits and betterment, as the ward the insured proposed to reinstate would have been more profitable than the destroyed ward;
• Tree root subsidence – advising on limitation in a complex tree root subsidence claim with contentious causation evidence;
• Animals – drafting a Defence in an unusual claim relating to the escape of a heifer from a slaughterhouse which led to significant damage to property, including to third party motor vehicles when the heifer re-appeared on a motorway several weeks after its escape. Benedict also acted for the successful Defendant at trial;
• Cavity wall insulation – drafting Defences and acting in various CWI cases;
• Vermin – (during pupillage) drafted a Defence on behalf of a self-storage company in a claim involving a vermin infestation which led to the Claimant’s stored property being damaged and contaminated with droppings.

Benedict maintains a general personal injury practice alongside his specialist commercial work. He is an experienced trial advocate, having conducted over 100 final hearings since getting on his feet in April 2022. He particularly welcomes trial instructions in Fast Track and Intermediate Track personal injury matters.

Benedict has experience drafting, advising, and representing in the following areas:

• Employers’ liability;
• Occupiers’ liability;
• Liability for injuries caused by animals;
• Food contamination and allergies;
• Road traffic accidents.

Recent advocacy includes:

• Representing the Defendant at a Multi-Track RTA personal injury trial involving four disciplines of medical expert evidence and a complex causation case on chronic pain;
• Representing the successful Defendant primary school in a seven-witness slip and trip at work claim;
• Representing the successful Defendant landlord at trial for a carbon monoxide poisoning claim. Benedict obtained dismissal of the claim on every basis – that no duty of care at common law was owed, that there was no breach of the covenant of repair, and in any event the Claimant had caused her own losses;
• Representing the Defendant manufacturing company at an employer’s liability trial that involved allegations of an unsafe system of work on the shop floor. Benedict successfully obtained a substantial contributory negligence deduction and a favourable quantum outcome;
• Representing the successful Defendant trampoline park and obtaining dismissal of an occupier’s liability claim by a trampolining client that resulted in an open fracture to the ankle;
• Acting in various personal injury CCMCs.