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Mek Mesfin

Call 2014

Mek Mesfin’s practice spans the range of chambers’ areas, with a particular emphasis on insurance, construction, professional negligence and commercial disputes. He is instructed in disputes which are litigated, arbitrated, adjudicated as well as those resolved through other fora and he appears in Court on an almost daily basis in trials, costs/case management conferences and procedural applications. He is on the Panel of Adjudicators for the Construction Plant Hire Association.

Mek read Philosophy, Politics and Economics at Oxford before completing his legal studies at City University. He has a wide range of other legal experience including working for the dispute resolution teams of two international law firms. This has given him a strong understanding of the different commercial issues faced by clients and both sides of the legal profession.

Commercial

Mek is regularly instructed to advise on and appear in Court in commercial disputes and has experience of a wide range of commercial areas including, sale of goods, supply of services, agency, bailment, jurisdiction, conflict of laws and insolvency.

Selected Cases

  • Settling a Particulars of Claim for a claim relating to the theft of a cheque following the distribution of a residuary estate; included consideration of conversion, restitution and unjust enrichment.
  • Instructed as sole counsel on an upcoming trial regarding a failed business venture; involving allegations of breach of contract / fiduciary duty and conversion.
  • Advising and settled Particulars of Claim for a claim in contract / negligence for the supply and installation of an allegedly defective nitrogen generator fitted within a laser cutting machine. Mek’s client achieved a favourable settlement shortly after service of his Particulars of Claim.
  • Advising on and settling Particulars of Claim against both a supplier and manufacturer of a defective heating system; involved issues of breach of contract, Sale of Goods Act 1979 and Consumer Protection Act 1987.
  • Successfully representing a local authority in a claim brought for alleged negligence / breach of statutory duty by failing to maintain security around local authority properties. The Court accepted Mek’s submissions on causation / novus actus (a criminal act which broke the chain of causation) and dismissed the claim.
  • Successfully defending a national estate agent at the trial of a claim that it had acted in breach of contract; Mek was successful on all points, namely, establishing that there was no contract, even if there was there was no breach of it, and even if there was a breach the losses alleged to have been suffered were not, in law, recoverable.
  • Advising and drafting a Defence for an IT company on claims brought against it for alleged breaches of a supply and maintenance contract. Issues included contractual and common law termination, exclusion/limitation clauses, admissibility of evidence and entire agreement clauses.
  • Successfully appeared on behalf of a commercial landlord defending a claim by a tenant alleging various breaches of a lease over a number of years.
  • Advising on whether defects in the quality of aircrafts supplied to a national carried permitted common law or contractual termination and on the effect of the agreements limitation / exclusion clauses.
  • Successfully represented a garage against a claim made by a taxi driver regarding an allegedly defective service of a premium vehicle. Successful on both of the key issues, namely, breach and causation.
  • Represented an asbestos removal company in a claim made against them following the removal of asbestos ceilings from a domestic property; the award of quantum was reduced by a factor of 10 from the value of the original claim.
  • Advising on the recovery of various losses that flowed from termination of a partnering agreement following the insolvency of one of the parties.
  • Advising a government department on issues of limitation and whether the Isle of Man or England was the correct jurisdiction in which to bring proceedings.
  • Advising a purchaser on whether a shipyard was in repudiatory breach of an Option Agreement and Shipbuilding Contract for failing to provide a Refund Guarantee. Issues included collateral contracts, entire agreement clauses, repudiatory breach, common law / contractual termination and frustration.
  • Advised on disputes relating to the Construction Plant Hire Association (CPA) terms, including issues of incorporation, exclusion / limitation clauses, vicarious liability and burdens of proof.
  • Drafting a Defence against a claim brought regarding the supply of allegedly defective IP68 quality water connectors; involved issues of incorporation, exclusion / inclusion clauses and UCTA.
  • Mek has appeared in several credit hire disputes in the County Court and has experience of all the main issues including need, period, rate, impecuniosity and intervention offers.
  • Advising on and settling Particulars of Claim for a leisure centre against a local authority for an indemnity and/or contribution.
  • Mek conducted the first two days of a trial in behalf of an insurer relating to significant damage caused to a Highway; concerning no loss arguments and detailed quantum. The matter settled at the conclusion of Mek’s cross examination on favourable terms for his client.
  • Advised on the prospects of successfully defending an appeal on a novel question of impecuniosity and credit hire.

Construction & Engineering

Mek has a wide range of experience of construction disputes and is familiar with the main contract forms including JCT, NEC, FIDIC, IChemE, LOGIC and RIBA forms.

Adjudication

Mek has experience of all aspects of statutory and contractual adjudication from advising prior to initiating adjudication to the enforcement of adjudicators’ awards. He is on the Panel of Adjudicators for the Construction Plant Hire Association (the UK’s leading Construction plant hire association).

Selected Cases

Adjudication

  • Mek is instructed as sole counsel to defend an international contractor against a c. £3m claim brought against it by an M&E consultant for alleged misrepresentations.
  • Mek is advising an M&E consultant with respect to seeking retention sums and defending an intimated counterclaim for alleged defects on a £1.2m project.
  • Represented the responding party in a £850,000+ adjudication regarding conditions precedent, notice provisions, electronic service and valuation.
  • Advising a contractor on the most suitable method of pursuing a particular party in a near-insolvency situation; Mek is currently instructed in the adjudication in this £250,000+ dispute.
  • Instructed on behalf of an international contractor to draft submissions in an Adjudication relating to a £10m+ project; the dispute relates to whether £1m+ of liquidated damages were validly levied or whether the provisions were inoperable and/or penal.
  • Settling a Notice and Referral on behalf of a contractor in an Adjudication relating to (i) failed payments following interim payment applications (ii) losses suffered by employer caused delay and (iii) recovering the costs of adjudication.
  • Advising on grounds for resisting the enforcement of adjudicators’ awards.
  • Drafting a Response and Rejoinder in a multi-million pound claim against an architect and contractor on a substantial domestic construction project.
  • Drafting Particulars of Claim and skeleton arguments for the enforcement of adjudicators’ decisions; addressing issues including jurisdiction, dispute crystallisation, validity of the reference to adjudication, validity of adjudicator appointment, timetabling, waiver and natural justice.
  • Advising a parent company guarantor on its liability to indemnify its subsidiary in respect of an adjudicator’s decision made against the latter.

Arbitration

  • Instructed as sole counsel for a sub-contractor in relation to a multi-million pound International Arbitration arising out of M&E works at an alcohol plant (Law: English; Seat: Milan). Mek is instructed as sole counsel for a 3-day evidentiary hearing in Milan.
  • Advising on the likelihood of obtaining specific performance during the final stages of a long-term contract; involved issues of jurisdiction or whether the arbitral tribunal or the Courts of the lex fori was the correct forum for the application.
  • Advising on whether an employer was bound by the valuations of variations which his architect had agreed with the contractor; involved issues of agency in the context of a JCT Minor Works contract.
  • Advising a contractor in an ICC arbitration on obtaining security for costs in a dispute about the refurbishment of a jack-up drilling unit in the Caribbean.
  • Advising a party in an ICC arbitration on a proposed claim for breach of a Joint Venture Agreement; involved consideration of contract formation, condition precedents, implied terms, good faith and loss of a chance.

Litigation

  • Appeared as sole counsel in the High Court (TCC; Leeds District Registry) before HHJ Raeside QC, successfully obtaining summary judgment for the enforcement of a c.£200k Adjudicator’s decision. The Court considered whether the dispute arose from a separate agreement or a variation to the original contract (Tolent Construction v Benchmark, 2017).
  • Advised on and appeared as sole counsel in the High Court (TCC) before Mr Justice Fraser successfully obtaining summary judgment for the enforcement of an Adjudicator’s decision worth £750,000+ (Willmott Partnership Homes Ltd v Bethel Retirement Villages-Herne Bay Court Ltd, 2017)
  • Advising an international contractor on several potential claims to be brought against various members of a professional team who worked on three multi-million pound projects resulting from widespread defects claims; raising complex issues of causation and proof in the context of a Biggin v Permanite claim against multiple defendants (ongoing).
  • Advising on and representing an employer in a matter relating to whether retention sums purported to have become due to a contractor were validly assigned to a third party following the contractor’s insolvency and termination of the building contract. Mek is concurrently instructed in both litigation and adjudication on the matter and is instructed to appear at an upcoming strike out / summary judgment application.
  • Advising on and settling Particulars of Claim for an employer following the termination of a £150,000+ contract; issues relating to orally agreed contractual terms and termination.
  • Appeared as sole counsel in the High Court (TCC) before Sir Antony Edwards-Stuart successfully obtaining summary judgment for the enforcement of an Adjudicators award along with interest at 8% and full costs; involved issues of jurisdiction, natural justice and allegations of fraud and other impropriety.
  • Appeared as sole counsel in the High Court (TCC) before Mr Justice Fraser successfully obtaining summary judgment for the enforcement of an Adjudicators decision as well obtaining interest at 8% and costs on the indemnity basis.
  • Settled Particulars of Claim for a c. £75,000 High Court Final Account dispute; included matters relating to contract formation, contractual terms and expert quantity surveyor evidence.
  • Advising a contractor on whether multiple parties intimating claims against it have valid causes of action; includes matters relating to the existence and extent of a contractors tortious duty of care and the existence and extent of collateral contracts.
  • Advising on and drafting a Defence and Counterclaim relating to the supply of allegedly defective ductwork required for a Hospital; included consideration of contractual terms following a “battle of the forms”, the implication of terms and expert evidence.
  • Settling a Defence and advising on an application for summary judgment against a claim by an interior designer for allegedly unpaid fees.
  • Defending a claim for extensions of time and variations due to unforeseen ground conditions in the construction of an underwater piling system.
  • Advising a contractor regarding a claim it was facing and the prospects of bringing an additional claim; involved issues including the cheque rule and its interaction with total/partial failure of consideration, assignment and contractual standard terms purporting to exclude negligence.
  • Successfully defended a plumber sub-contractor at a trial of a claim for allegedly defective work; the Court accepted Meks informal strike out / summary judgment application and dismissed the claim on the basis that there was no assumption of no responsibility/duty of care in relation to pure economic loss was owed.
  • Advising a contractor on whether its allegedly defective work amounted to negligence or breach of contract / its duty under the Defective Premises Act 1972; required consideration of expert quantity surveyor evidence and contractual terms.
  • Advising on the binding effect of various collateral warranties.
  • Advising on and drafting Particulars of Claim in a dispute over defects in a render system installed on a residential apartment development.
  • Drafting a Defence and Counterclaim to a claim for payment under a final account in a Target Cost contract.
  • Advising on limitation, breach of contract / duty and settlement parameters in a potential claim arising of a domestic development project.
  • Advising on whether the provisions of a Target Cost contract could be retrospectively operated after the end of the project.
  • Advising on obtaining injunctive relief in a Party Wall matter in order to prohibit further construction and mandate the taking of steps to ensure the property remained structurally sound.

Insurance & Reinsurance

Mek has a wide range of experience in insurance disputes, covering a wide range of industries and sectors.

Selected Cases

  • Mek has just completed secondment at a City Law Firm in its Insurance/Property Damage team, where he dealt with a range of multi-million pound disputes raising a range of policy coverage and liability issues.
  • Instructed by insurers to draft a Defence for a global supermarket chain in support of an application to set aside judgment in default obtained against it. Upon receiving Mek’s Defence the Claimant conceded the application, the judgment in default was set aside, and the Claimant subsequently applied to amend its Particulars of Claim to completely alter its case. Mek has advised on resisting the Claimant’s application to amend and on making a concurrent strike-out / summary judgment application. He is instructed to appear at the hearing of those applications in February 2017.
  • Advising on and settling Particulars of Claim in a subrogated claim against the worlds second largest steel producing company regarding breach of a warranty it had provided for the manufacture and supply of galvanised steel panels for a warehouse roof; included consideration of notification provisions and expert engineering evidence.
  • Advising on and settling Particulars of Claim in a subrogated claim regarding significant damage to a large listed 19th century property arising from a road traffic accident.
  • Recently successfully appeared for an insurer defending a claim for property damage.
  • Frequently appears in Court on behalf of insurers and insureds in relation to coverage and underlying liability disputes across areas including property damage and personal injury.
  • Advising on a coverage dispute between an employers’ liability and a public liability policy in relation to a fatal accident at a school.
  • Advising a Lloyd’s syndicate on whether it was – and if so to what extent – contractually liable to indemnify the employee of an insured for costs incurred in defending a criminal prosecution brought against him.
  • Advising on the applicability of the Road Traffic Act 1988, its effect on contractual insurance and the statutory and European regimes in place for motor insurance.
  • Advising an insurer on issues of causation, liability and whether it could overcome a Mark Rowlands v Berni Inns defence in order to bring a subrogated claim against a tenant of its insured following a fire at a warehouse.
  • Advising a Lloyd’s syndicate on equitable and contractual set-off and limitation in relation to historic coverage for property damage and theft.
  • Advising an insurer on the applicability of a deliberate / illegal act clause in a coverage dispute.
  • Advising a school on a coverage dispute relating to its vicarious liability in matters of historic sexual abuse.
  • Advising and drafting a Defence on behalf of an insurer against a claim brought for flood damage to a domestic property; involved issues of claims co-operation, fraud, bankruptcy and warranties.
  • Advising on and settling Particulars of Claim for a leisure centre against a local authority for an indemnity and/or contribution.
  • Mek conducted the first two days of a trial in behalf of an insurer relating to significant damage caused to a Highway; concerning no loss arguments and detailed quantum. The matter settled at the conclusion of Mek’s cross examination on favourable terms for his client.

Personal Injury

Mek has growing experience of personal injury. He regularly appears at trials and applications on small, fast and multi-track personal injury matters, including settlement and MOJ Stage 3 hearings. He also advises on liability and quantum issues, and has done so on claims valued up to £100,000.

He has experience of advising on employers and public liability policy coverage and related subrogated claims arising from serious personal injury claims as well as matters relating to the Package Travel Regulations.

Professional Liability

Mek’s experience of professional negligence includes matters involving engineers, contractors, solicitors, architects, insurance brokers, auctioneers and auction houses, consultants and surveyors. His work in this area is frequently tied to instructions relating to professional indemnity insurance and related coverage / policy matters.

Selected Cases

  • Defending a solicitors’ firm against an allegation of professional negligence with respect to information provided during a residential property conveyancing transaction.
  • Drafting a Defence and Counterclaim to a claim raised by a government body alleging that a geotechnical engineer failed to appreciate and incorporate into its design ground conditions that were reasonably foreseeable.
  • Drafting a Defence for an architectural technologist against a claim brought by subsequent purchasers of a property for breach of a tortious duty alleged to have been owed on the basis of a certificate issued by the architectural technologist to the original purchasers.
  • Advising on a surveyor’s standard of care in conducting valuations.
  • Drafting a Defence on behalf of an architects’ firm against a claim made by a school alleging defective design and a failure to inspect.
  • Advising on the likelihood of successfully relying on an exclusion clause to defend a claim alleging professional negligence against engineering consultants relating to historic asbestos removal.
  • Settled a Defence in a claim against a fine art auction house for breach of contract and negligence on the basis of an alleged failure to provide accurate pre-auction estimates and an allegation of allowing items to be sold at an undervaluation.
  • Settled a Defence in a claim against a surveyor for allegedly negligent structural calculations; involved issues of continuing duties and repudiatory breach of contract.
  • Defending a solicitors’ firm against an allegation of professional negligence with respect to probate litigation.
  • Bringing a claim against a solicitors’ firm for negligent handling of immigration applications.

Property Damage

Mek has extensive experience of Property Damage and Product Liability matters, including issues relating to insurance policy coverage and subrograted claims. His extensive Construction and Professional Liability practices mean he is comfortable considering expert evidence on technical matters. Examples of his current and recent work load include:

 

Selected Cases

  • Mek is currently on secondment at a City Law Firm in its Insurance/Property Damage team, and is dealing with a range of multi-million pound disputes raising a range of policy coverage and liability issues.
  • Advising on and drafting pleadings on a significant fire claim.
  • Advising on an ongoing subrograted claim relating to a significant oil spill (c. £300k)
  • Advising on the merits of claims against a statutory undertaker under the Water Industry Act 1991 and at common law.
  • Advising on a claim against a statutory undertaker raising issues of negligence, nuisance, limitation and the interplay between common law and statutory duties.
  • Advising on claims relating to the CPA 1987.
  • Drafting a Defence in a claim for serious personal injury caused by the failure of a bicycle.
  • Settling a Defence for a local authority relating to allegations of subsidence from tree roots.
  • Settling a Defence in relation to property damage to a classic car.

Awards


  • Best Memorandum (Honourable Mention), Willem C. Vis Moot (2014)
  • Monckton Chambers European Law Essay Prize, Finalist (2013)
  • Prince of Wales BPTC and Residential Scholar, Grays Inn (2013)
  • Bar Council Law Reform Essay Competition, Prize Winner (2012)
  • Herbert Smith/The Times Advocacy Competition, Prize Winner (2012)
  • David Karmel GDL Scholar, Gray’s Inn (2012)
  • One Essex Court / The Times Law Awards, Finalist (2012)
  • Oxford Law Society Essay Prize, Winner (2011)
  • Sir Isaiah Berlin Prize, Corpus Christi College, Oxford (2011)
  • Sharpston Scholarship, Corpus Christi College, Oxford (2010)
  • SSE Scholar, English Speaking Union (2009)

News


Qualifications


  • Bar Professional Training Course, City Law School (2013 – 2014)
  • Graduate Diploma in Law, City Law School (2012 – 2013)
  • BA (Hons), Corpus Christi College, University of Oxford (2009 – 2012)

Memberships


  • COMBAR
  • TECBAR
  • SCL
  • PIBA
  • PNBA
  • BILA
  • TECBAR Adjudicator
  • Member of Panel of Adjudicators for the Construction Plant Hire Association.

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