Isabel Hitching KC

Isabel has extensive experience of acting in commercial disputes, including:

• Business interruption (i) how contractual terms under PFIs and other domestic and trans-national contracts allocate loss (impact on payment mechanisms, delay and force majeure) (ii) recoverability of loss from third and (iii) recoverability under insurance policies.  Matters have included calculation of losses due to catastrophic failure of power generators in SE Asia region (GE Energy Power Conversion UK Ltd v Anixter Ltd et al), interpretation of payment mechanism under a PFI contract for long term steam turbine outage at power plant in UK (ongoing) and the recoverability of contractual payments for business interruption under national rail franchises (Network Rail v Handy and Network Rail v House of Goodness).  (see further Property Damage and Insurance below.)
• Domestic and trans-national commercial contract disputes (sale of goods, provision of professional services, restrictive covenants, scope of guarantees and warranties)
• Isabel has particular specialism in issues of interpretation of contract terms, and related issues of implication and rectification. She publishes and lectures in this field and has been involved in leading cases at first instance and on appeal including Aspect Contracts (Asbestos) Ltd v Higgins Construction PLC Supreme Court: [2015] UKSC 38.
• Isabel has a growing specialism in payment and performance provision disputes under complex PFI contracts: road, infrastructure and defence.
• Civil fraud and misrepresentation Isabel is frequently instructed in cases involving allegations of fraud, breach of directors’ duties and misrepresentation. Recent matters have included allegations that a Tomlin Order was secured by fraud, fraudulent management of a £60m property development and diversion of funds and fraudulent mis-accounting of royalty payments. Isabel is also acting for the government in relation to investigations into mismanagement of Academies.
• The validity, construction and enforcement of financial instruments issued by domestic institutions, overseas banks and hedge funds. She is regularly instructed in cases connected with the financing of construction and engineering projects: bi-furcated finance, on-demand bonds and guarantees.

Selected Cases

• Connect Plus (M25) Ltd v Highways England Company Ltd [2018] EWHC 140 (TCC) Successfully acted on behalf of the Highways Agency, led by Anneliese Day KC (Fountain Court), identifying and interpreting the regime for calculation of sums due to the operating company in respect of critical incidents under the PFI for the maintenance and operation of the M25
• Acted for developers of a high value private property seeking to set aside a settlement reached with second level funders for fraud. White et al v PSM Residential Finance Limited and Pluto Finance Limited. Judgment on preliminary point [2017] EWHC 1925 TCC.
• Successfully acting for prospective deponents in relation to the AG of California’s pursuit of Morgan Stanley for alleged wrongful marketing and wrongful procuring of a Standard & Poor’s AAA rating for sub-prime investment vehicles which collapsed in 2007 with the notorious property crash resulting in the State investors losing many hundreds of millions of dollars, resulting in substantially reduced number and scope of depositions.
• Tetronics (International) Ltd v (1) HSBC Bank plc (2) BlueOak Arkansas LLC [2018] EWHC 201 (TCC) Isabel acted for Tetronics, who sold engineering plant to a US company. Obtained and preserved an interim injunction against HSBC preventing it from paying out on an on demand bond until the conclusion of an arbitration. Satisfied the court that HSBC was on notice of fraud – the first reported case where this has been achieved in the English courts. Interim injunction subsequently discharged on balance of convenience.
• Acting for bus company pursuing regional transport authority for substantial underpayments under regional transport scheme.
• Acting for MoD in relation to a number of naval, military, airforce and joint services contracts and construction projects.

Isabel has a long-established construction and engineering practice and is listed as a leading silk in the directories in both Construction and Construction Professional Negligence. She is instructed in contractual and professional negligence claims arising out of a wide variety of domestic, European and international construction and engineering projects.

Isabel has acted in disputes on a wide range construction projects ranging from refurbishments of super-prime London property, and the design and build of ‘the most important private house to be constructed in the country for many years’ (Cyden Homes Ltd (2) Geoffrey Dyson (3) Jacqueline Dyson v NMCN Developments Ltd v LJJ Ltd ), through construction of high rise tower blocks to design and build of domestic and international energy plants.  She acts for government and private employers, contractors, commercial and luxury domestic developers and professionals and their insurers. Recent and ongoing matters include interim and final account disputes, and liability disputes under all major standard term contracts (NEC, ICE, JCT, FIDIC etc).

Isabel has wide experience of High Court trials, domestic and international arbitrations and adjudications.  She regularly appears at appellate level including in the Supreme Court case on the adjudication regime Aspect v Higgins [2015] UKSC 38.  Isabel also acts as an arbitrator in domestic and international arbitrations.  Current appointments include acting as President of an ICC arbitration in relation to a dispute arising out of the construction of a power plant in Southern Africa (co-arbitrators are Lord Nicholas Wilson and Martin Bowdery KC).

Prior to her appointment to silk Isabel was the most senior specialist on the Attorney-General’s panel and has  has extensive experience advising and acting in relation to government PFI and framework agreements: road, rail, defence, energy and supply of IT services.  She continues to act for and against the government in silk.

Isabel has noted expertise in the issues arising in relation to high rise premises (including Remediation and Remediation Contribution Orders in the FTT and BLOs in the TCC).  She appeared in the first case on the Building Safety Act 2022 to establish the ability of a contractor to flow down liabilities to a sub-contractor LDC (Portfolio One) v (1) George Downing Construction Limited (2) ESL [2022] EWHC 3356 (TCC).

Infrastructure and energy: Isabel acts for both government and private companies in relation to construction and maintenance of roads, rail, tram systems, flood defences, prisons, court premises, MOD premises (individual and Joint Services), airfields, power and utilities (on and offshore oil and gas, wind, renewables and waste energy).  Isabel is also instructed by the Ministry of Defence) in cases concerning shipbuilding. 

IT: Isabel acts for government and private companies in relation to disputes arising out of the provision and operation of long-term hardware and software and IT support services for central and local government.  She is also defending the first litigated claim against a search engine optimization (‘SEO’) professional, working with domestic and US leading experts in this emerging professional field.

Given Isabel’s commercial and insurance expertise (in which she is also listed as a leading silk by the directories) she is able to provide construction and engineering clients a ‘joined up service’ acting in disputes over interpretation and enforcement of bonds in the context of sale of engineering plant and over finance obligations and structures (including offshore and bi-furcated Shariah compliant funding) in relation to property development, and insurance coverage issues including claims under CAR, PI, Property and Liability policies.

Selected Cases

Current cases include:

• Defending the first litigated claim against a search engine optimisation (‘SEO’) professional, working with domestic and US leading experts in this emerging professional field.
• Acting for main contractors in potential FTT Remediation Order proceedings arising out of alleged defective cladding and fire safety defects, and in parallel seeking to pass on any liabilities to third party professionals including architects, fire engineers, and specialist designers in TCC proceedings.
• Acting for a main contractors in a portfolio of claims relating to alleged defective cladding (water ingress and fire safety defects) to high rise tower blocks, defending claims and seeking to pass on liabilities to third parties including manufacturers of non-compliant materials, under Building Safety Act 2022 provisions.
• Acting for and against parties defending claims under Defective Premises Act brought long after completion of project due to extension of limitation periods by Building Safety Act 2022.
• Acting for a private individual against architects and contractors in relation to the defective refurbishment of a prestigious super-prime central London property, with gas and M&E defects rendering the property unsafe.

Further cases are listed under Professional Negligence.

Selected past cases:

• LDC (Portfolio One) v (1) George Downing Construction Limited (2) ESL [2022] EWHC 3356 (TCC) test case post Grenfell and the Building Safety Act 2022 establishing the strict obligation of sub-contractors to comply with building regulations and the ability of the contractor to flow down their entire losses.
• Cyden Homes Ltd (2) Geoffrey Dyson (3) Jacqueline Dyson v NMCN Developments Ltd v LJJ Ltd. The claim concerned a property described as ‘the most important private house to be constructed in the country for many years’.  I acted successfully for the third party specialist sub-contractors brought in to the final round of litigation between the employers and main contractors (following eight adjudications and a Court of Appeal decision) obtaining a mediated resolution (2022).
• Connect Plus (M25) Ltd v Highways England Company Ltd [2018] EWHC 140 (TCC) Successfully acted on behalf of the Highways Agency, identifying and interpreting the regime for calculation of sums due to the operating company in respect of critical incidents under the PFI for the maintenance and operation of the M25.
• Tetronics (International) Ltd v (1) HSBC Bank plc (2) BlueOak Arkansas LLC [2018] EWHC 201 (TCC) Isabel acted for Tetronics, who sold engineering plant to a US company. Obtained and preserved an interim injunction against HSBC preventing it from paying out on an on demand bond until the conclusion of an arbitration. Satisfied the court that HSBC was on notice of fraud – the first reported case where this has been achieved in the English courts. Interim injunction subsequently discharged on balance of convenience.
• (1) White (2) Weybridge Enterprises Ltd v (1) PSM Residential Ltd et al [2017] EWHC 1925 (TCC) and [2017] EWHC 3500 (TCC) Isabel acted for developers of a high value private residential property seeking to set aside a settlement agreement reached with second level funders on the grounds of fraud including the fraudulent procuring and provision of a certificate of practical completion.
• Acting in adjudications and negotiations for the Environment Agency in relation to a range of projects from footpaths to flood defences. Working effectively to lead a multi-disciplinary team of to ensure productive outcomes in context of long term projects.
• GE Energy Power Conversion UK Ltd v Anixter Ltd et al Successfully acted for 4th party manufacturer of components which allegedly failed in generators manufactured by GE for use in the oil and gas industry. Issues of traceability of the components through the contractual chain and cause of failure.
• Aspect Contracts (Asbestos) Ltd v Higgins Construction PLC Supreme Court: [2015] UKSC 38 Court of Appeal: [2013] EWCA Civ 1514 First instance: [2013] EWHC 1322 (TCC) – Preliminary issue concerning identification of the cause of action and applicable limitation period for a party paying monies following an adjudication decision to seek a final determination and, if successful, recovery.
• Worked closely with an extensive legal and expert team in relation to claims for breach of a gas infrastructure agreement and abuse of dominant position.

Isabel advises upon and acts at trial and appellate level in a wide range of insurance disputes, acting for both insurers and insured.  She adopts a strategic and robust approach, including, where appropriate, successfully seeking declarations, Part 8 and preliminary trials in relation to coverage.  Recent appeal cases include University of Exeter v Allianz Insurance Plc [2023] EWCA Civ 1484 and Rabot v Hassam [2024] UKSC 11.  Issues have included:

Non-disclosure, breach of warranty, failure to notify and moral hazard.

Construction of the policy and scope of insuring and exclusion clauses.

Disputes as to timing, both as to the inception of cover and the occurrence of the insured event.  Subrogation.

• Valuation of claims.
• Insolvent insureds and claims under Third Party (Rights Against Insurers) Act 2010.

Many of Isabel’s instructions in construction, professional negligence and property damage cases are on behalf of insurers.  Isabel is recognised in the current directories as a leading silk in each of insurance, construction, professional negligence and property damage fields.

In addition Isabel has a niche specialism in motor insurance.

She is instructed by the Attorney General on an ongoing portfolio of cases (in this jurisdiction, and leading locally qualified lawyers in Scotland and Northern Ireland) where claimants are seeking Francovich damages against the Secretary of State for Transport for alleged failure correctly to implement EU Directives on motor insurance. Issued claims have included Richards, Lewis v Tindale [2019] EWCA Civ 909, Olver, Telling-Evans and Tierney.   She has also advised the government on the implications of Brexit on domestic motor insurance legislation.

Isabel has acted in the leading cases concerning whether loss arises out of ‘the use of a vehicle’.  Cases include her successful defence of a multi-million pound claim against motor insurers by a passenger abandoned by a criminal taxi driver Carroll v (1) Michael Taylor (2) Michael Doyle (3) Emms Taxis Limited (4) QBE Insurance (Europe) Limited [2020] EWHC 153 (QB). This instruction followed her successful defence of motor insurers (led by Andrew Bartlett KC and instructed by the same solicitors) in the claims by victims of the ‘black cab’ serial sex offender AXN v Worboys [2012] EWHC 1730 (QB) | [2012] 6 WLUK 554 | [2013] Lloyd’s Rep. I.R. 207 | [2013] L.L.R. 256.

Due to her expertise in motor insurance, and her role on the CPRC involving the implementation of the OIC portal, Isabel recently appeared in the Supreme Court on behalf of defendant motor insurers in the test case mixed injury litigation establishing the basis of calculation of awards where both a statutory tariff and common law damages are recoverable, successfully achieving a ruling that double recovery is impermissible.  The decision will impact the level of premium for every motor policy written, and the number of claims that can proceed through the OIC portal.  Rabot v Hassam [2024] UKSC 11.

Selected Cases

Ongoing matters in TCC, Commercial Court and arbitration include:

• Coverage issue as to meaning of ‘escape of water’.
• Non-disclosure in a number of cases (of illegal activities, of commercial profile of contracts undertaken, of intimated claims and of existence of public enquiries into activities).
• Advising insurers on coverage in a test case further clarifying when an accident arises ‘out of the use of a vehicle’ and to which compulsory motor insurance responds.
• Acting for main contractor against insurers disputing coverage for multi-million pound construction project.
• Acting for main contractor seeking to enforce judgment obtained against an insolvent sub-contractor under the Third Party (Rights Against Insurers) Act 2010.

Selected past cases:

• Rabot v Hassam [2024] UKSC 11
• University of Exeter v Allianz Insurance Plc [2023] EWCA Civ 1484. First case decided on whether a war exclusion covers damage caused by an act of war (the dropping of a bomb in second world war raids on Exeter) but occurring long after the war’s cessation. Isabel successfully acted for insurers seeking a declaration of entitlement to avoid.
• Neil Carroll -v- (1) Michael Taylor (2) Michael Doyle (3) Emms Taxi Limited (4) QBE Insurance (Europe) Limited [2020] EWHC 153 (QB).
• Lewis v Tindale and MIB and Secretary of State for Transport Court of Appeal [2019] EWCA Civ 909; first instance [2018] EWHC 2376 (QB).
• AXN v Worboys [2012] EWHC 1730 (QB) | [2012] 6 WLUK 554 | [2013] Lloyd’s I.R. 207 | [2013] L.L.R. 256

Isabel has extensive experience of acting in professional negligence claims in the Technology and Construction Court, Chancery Division and Commercial Court. She acts both for and against defendants. She also regularly appears at mediations, working closely with the clients to secure successful outcomes that both focus on the immediate claim and the clients’ wider business needs.

Given her expertise in large scale construction projects many such cases involve construction professionals (building and quantity surveyors, architects, engineers, employer’s agents, fire safety and cladding specialist designers, valuers and stock condition surveyors).  Notable cases include Aspect v Higgins [2015] UKSC 38 (the first case in the Supreme Court on adjudication, confirming professional negligence cases could be pursued through that regime) Reflecting the TCC’s expertise in technology as well as construction matters Isabel is acting in the first case to be brought against an SEO professional alleging negligence in designing search engine optimization leading to catastrophic drop in rankings and c£25m losses.  Isabel is identified as a leading silk in this area in the latest directories.  Isabel also has experience in acting in cases involving legal advisors (barristers and solicitors), accountants and auditors.

Selected Cases

Current matters include:

• Defending the first litigated claim against a search engine optimization (‘SEO’) professional, working with domestic and US leading experts in this emerging professional field.
• Acting for main contractors seeking to pass on claims for defective cladding and fire safety defects (under contract and Building Safety Act 2022) to third party professionals including architects, fire engineers, and specialist designers.
• Acting for town planners defending £25m claim by a construction work rendered paraplegic by collapsing joists, where contractors worked to early stage planning submission drawings rather than construction drawings. Arshdeep v Peter Pendleton & Associates Limited and 7 other Defendants.
• Acting for a contractor defending claims arising out of the collapse of the Piccadilly theatre ceiling during the performance of Death of a Salesman, and seeking to pass any liabilities on to the co-defendant structural engineers and project manager/contract administrator.
• Acting for main contractors seeking to pass on claims for defective cladding and water ingress to third party specialist designers.
• Acting for a private individual against architects in relation to the defective refurbishment of prestigious super-prime central London property, with gas and M&E defects rendering the property unsafe.

Selected past cases:

Construction and technology professionals:

• Acted for an employer’s agent in a multi-party dispute over defective refurbishment of sheltered accommodation. Test case on scope of employer’s agent duties.  London Borough of Hillingdon v (1) Paradigm Homes Charitable Housing Association Ltd (2) Paradigm Development Services Ltd (3) Amtrust Europe Ltd (4) Peak Group London Ltd (4) Peak Group M&E Ltd (5) Arcus Consulting Ltd.  Settled pre trial 2024.
• Acted for contractor successfully obtaining a 100% flow down of liabilities for defective cladding (fire safety and water ingress) to third party specialist cladding designers LDC (Portfolio One) v (1) George Downing Construction Limited (2) ESL [2022] EWHC 3356 (TCC).
• Acted for developers against architects alleging that a practical completion certificate had been issued negligently.
  Nick Joyce Architects LLP v Rudders & Payne Ltd – Secured discontinuance of a contribution claim by architects against specialist damp proofing contractor for allegedly negligent advice as to a damp proofing scheme. Isabel persuaded architects that contractor did not owe requisite duty of care.
• Acted for a property developer of a block of luxury apartments in central London in connection with potential claims in negligence against architects, engineers and employers’ agents, following flooding. Legally complex as the developer had operated at arms’ length through a subsidiary, now insolvent, which had entered into a contract with a main contractor that was now also insolvent.
• Acted for developer against quantity surveyor / employer’s agent for undervaluation of the build-out costs of a housing estate.

Valuers:

Acting for property developers against valuers alleging negligent valuation of property relied on to obtain lending.

Stock condition surveyors:

Sefton Metropolitan Borough Council v (Def) One Vision Housing Ltd (Part 20 Def 1) Savills Commercial Ltd (Part Def 2) Curtins Consulting Engineers PLC – Isabel appeared for Savills, stock condition surveyors, defending professional negligence claims arising out of the fascia to tower blocks detaching in high winds. The claim was one of the first in relation to stock condition surveys. Isabel acted from pre-issue to settlement shortly before trial following a two day mediation.

In Donnelly v Camden Borough Council, Savills Commercial Ltd and Savills PLC Isabel appeared for both Savills’ entities. The claimant suffered head injuries at a property owned by the Council which had been surveyed as part of a stock condition survey by Savills Commercial ltd. Isabel successfully secured a discontinuance and settlement for her clients.

Legal Advisors:

Advised a claimant on a potential professional negligence claim against former solicitors who had acted for her in connection with a negligence claim against property developers.

Advising a client on potential professional negligence claim against a barrister who failed properly to advise on the correct cause of action and the limitation period attached resulting in the potential loss of a claim valued at c£3.5m.

Auditors and Accountants:

Acting against auditors of a school who failed properly to carry out audit of accounts and identify misuse and misallocation of funds.

Acted for liquidator of company against accountants for failure properly to draw accounts to ensure monies withdrawn by sole director over a period of years were repayable loans.

Isabel is identified as a leading silk in this area in the latest directories.

She is regularly instructed in property damage claims for trespass, nuisance and negligence. Cases have included chemical contamination, flood and water escape, fire, collision and damage occurring during construction and engineering works.

Given her expertise in large scale construction projects many property damage claims in which she acts relate to damage caused during such works: damage by cranes collapsing, flood, fire and chemical contamination.  She also brings that expertise to bear in effectively challenging the scope and cost of repair programmes for property damage in wider cases.

As the most senior specialist on the Attorney General’s panel Isabel was instructed, prior to taking silk, in many factually complex and high value claims by Highways England for damage to roads and bridges (through collision, fire and contamination). She also advised the government on a claim arising out of extensive damage caused to listed, government department buildings by the collapse of a crane and acted for the Environment Agency in a number of cases concerning flooding.  She continues to be instructed as a silk in the highest value claims, and in particular those that raise novel or complex legal issues.

Isabel has a niche specialism in claims relating to damage to railway infrastructure (bridge strike, rail incursion, damage by trees and flood, and contamination following derailment): scope of duties of landowners adjacent to railway, and the recoverability and calculation of loss arising out of damage to railway infrastructure. She acted for insurers in test cases as to the recoverability of ‘Schedule 8 losses’ (contractual payments by Network Rail to train operating companies for business interruption) Network Rail v Handy et al [2015] EWHC 1175 (TCC) and now acts for a number of defendants and insurers in cases concerned with the calculation of such claims.  She also acts for parties involved in disputes arising out of derailment and contamination, She has extensive experience of the interlocking contractual arrangements between infrastructure owners, rolling stock maintainers, owners and operators, and the interface with the CAHA framework.

Selected Cases

Current matters include:

• Acting for contractors defending claims arising out of the collapse of the ceiling of the Ambassador Theatre during a performance of Death of a Salesman due to alleged water damage.
• Acting for suppliers of a drinks machine that is alleged to have caused a catastrophic fire at a restaurant and hotel complex.
• Acting for insurers of insolvent contractors alleged to have caused catastrophic fire to hotel premises during roofing operations.
• Acting for a local authority defending claims that it is liable to undertake works to prevent flooding of railway lines.
• Acting for a party seeking to recoup multi-million pound contamination clean up costs incurred under the CAHA framework from parties causing the derailment.

Contamination

• Fulwood (& 24 Others) v Secretary of State for the Department for Energy & Climate Change, Walsall Metropolitan Borough Council & Others – Acting for a local authority defending action by residents alleging breach of duties in connection with dismantling of gas works and the reclamation of the site on which their properties were built. Claims include alleged damage to property and environmental pollution.
• Thames Water Utilities Limited v Viridor Waste (Thames) Limited – Acted for Viridor defending a multi-million pound claim for chemical contamination of a sewage treatment plant and pollution of a drinking water supply and bringing a cross-claim for damages for breach of contract. Five disciplines of expert were involved, including hydrologists, biochemists and surveyors specialising in the construction and operation of sewage treatment plants. Isabel acted from pre action until settlement following mediation.

Road

• Highways England Company Limited v Morris, RSA et al Extensive damage caused to bridge by two separate collisions. Vast disclosure and complex expert issues was successfully analysed by Isabel and two juniors leading to a settlement shortly before trial in 2020.
• Highways England Company Limited v (1) B.G Rodwell Limited (2) Robert Cheadle (3) Allianz Insurance [2017] EWCH 118 (QB) (recently settled). Bridge strike causing extensive damage. Isabel was brought in to take over the case for Highways England after issue of proceedings, successfully resisting an application to strike out the claim and obtaining a favourable settlement.

Rail

• Network Rail v Handy et al [2015] EWHC 1175 (TCC) – Test case concerning the scope of damages payable to Network Rail by drivers causing line incursions or bridge strikes (the recoverability of ‘Schedule 8’ losses). Isabel was previously instructed in Conarken Group Ltd v Network Rail Infrastructure Ltd on the application to the Supreme Court for permission to appeal from the decision of the Court of Appeal ; [2011] EWCA Civ 644; [2012] 1 All E.R. (Comm) 692; [2011] 2 C.L.C. 1; [2011] B.L.R. 462;
• Network Rail v House of Goodness Ltd scope of liability of a landowner for tree falling onto line, and calculation of Schedule 8 losses.

Defective manufacture

• GE Energy Power Conversion UK Ltd v Anixter Ltd and Cooper & Turner Distribution Ltd and Clyde Fasteners Ltd – Acting for 4th party manufacturer of components which allegedly failed during test operation of generators manufactured by GE for use in the oil and gas industry causing extensive damage. Thorough analysis of conflicting expert metallurgist evidence successfully obtained a settlement shortly before trial.

In addition to appearing as an advocate for parties in arbitrations, Isabel is regularly instructed as an arbitrator in both domestic and international arbitrations in construction and engineering, insurance and commercial disputes.

Recent matters include acting as sole arbitrator to determine a motor insurance coverage dispute arising out of the catastrophic injury of a minor. Isabel was appointed jointly by the parties following her appearance in the leading case of Carroll v (1) Michael Taylor (2) Michael Doyle (3) Emms Taxis Limited (4) QBE Insurance (Europe) Limited [2020] EWHC 153 (QB), where Isabel successfully defeated a multi-million pound claim against motor insurers by a passenger who suffered catastrophic injury following his abandonment by a criminal taxi driver.

Current matters include acting as President of an ICC arbitration (co-arbitrators are Lord Nicholas Wilson and Martin Bowdery KC) in relation to a dispute arising out of the construction of a power plant in Southern Africa.

Isabel also acts as an adjudicator (through the TECBAR scheme) and accepts appointments to Dispute Resolution Boards.

She is a member of the LCIA and, as the General Editor of Emden on Construction Law oversees the chapters on Arbitration and Adjudication and authors the chapter on Alternative Dispute Resolution.