Clive Freedman

Clive’s practice includes advising on data protection legislation. He contributed to the guidance on the General Data Protection Regulation for barristers generally which has been published by the Bar Council, and participated in lobbying the Government and MPs on proposed amendments to the Data Protection Bill when it was going through Parliament.

He produced a website to assist in identifying the exemptions and derogations from the GDPR which are contained in the Data Protection Act 2018, but he no longer maintains this website as there is now a great deal of guidance about GDPR and the Data Protection Act available elsewhere.

Clive is a Chartered Arbitrator, a member of the Panel of Adjudicators for the Society for Computers and Law Adjudication Scheme and an Arbitration panel member of the Kuala Lumpur Regional Centre for Arbitration.

He has been appointed as Arbitrator by the Chartered Institute of Arbitrators (a dispute concerning payment for professional services), by the British Computer Society (licensing of software), and by a party to a dispute (licensing of software). He was also the arbitrator in an ad hoc appointment concerning interpretation of a commercial contract. He has conducted two Early Neutral Evaluations for CEDR.

As Counsel he has been involved in a number of domestic and international arbitrations, including:

• defects in a petrochemical plant (ICC, hearings lasted over three months, claim of £32 million)
• insurance claim following an oil refinery explosion (claim of $150 million)
• directors and officers insurance for a failed US Savings Bank (claim of $60 million)
• oil and gas exploration joint venture (ICC, claim in excess of $1billion)
• dispute concerning electronic instrumentation in a process plant
• acting on behalf of a foreign government in a commercial dispute
• several building contract arbitrations in UK.

Arbitration disputes

• China Agribusiness v. Balli Trading [1998] 2 Lloyds Rep 76; enforcement of CIETAC arbitration award.

Expert Determination

• Co-author of Kendall on Expert Determination, Sweet & Maxwell, 2008 (with John Kendall and James Farrell).
• He also contributed the section on Expert Determination to Westlaw Insight.

He has been instructed in disputes concerning expert determination in relation to:

• insurance: Halifax Life Ltd v The Equitable Life Assurance Society [2007] EWHC 503 (Comm)
• completion accounts
• a gas supply contract.

He has acted as expert in expert determinations concerning IT services contracts, and has advised experts on questions of law arising in expert determinations. He has given talks on expert determination.

Article in the New Law Journal, with Christopher Harris, on Ackerman v. Ackerman [2011] EWHC 3428 (Ch), [2012] EWCA Civ 768 (whether an expert in an expert determination had materially departed from instructions).

Clive’s practice includes:

• liability of banks for commercial fraud (AMF v. Hashim [1991] 2 AC 114 – international commercial fraud/constructive trust/conflict of laws)
• syndicated lending (GE Capital v. Bankers Trust – management buyout of Magnet Kitchens)
• letters of credit
• banking regulation (deposit-taking and electronic money)
• payment services regulations
• fraudulent payments
• online account aggregation
• derivative transactions under ISDA (advisory duty, capacity to contract): Standard Chartered Bank v Ceylon Petroleum Corporation [2011] EWHC 1785 (Comm), [2012] EWCA Civ 1029
• bitcoins and other cryptocurrencies, and blockchain

Clive co-wrote the chapter on electronic banking in Banking Litigation (edited by Hewetson and Elliott, Sweet & Maxwell, 1999, 2005 and 2011).

Commercial fraud cases include:

• liability of banks for commercial fraud (AMF v. Hashim [1991] 2 AC 114, The Times 17 June 1993 – international commercial fraud/constructive trust/conflict of laws)
• cheque fraud
• liability under bank guarantees
• fraudulent investment schemes
• theft of money by an employee using a company’s online banking facility
• applications for freezing orders.

Clive has given talks on commercial fraud to firms of solicitors.

Clive has been involved in many cases concerning defect claims, loss and expense claims, extension of time disputes, and professional negligence allegations concerning architects, engineers and surveyors. Examples include:

• Balfour Beatty v. Docklands Light Railway (1996) 78 BLR 42 (Court of Appeal): heavy civil engineering dispute – conclusiveness of certificate
• allegations of professional negligence against an engineer concerning water penetration into a basement
• adjudications
• international and domestic arbitrations (including drilling problems in an oil and gas joint venture, and defects in a petrochemical plant)
• various cases concerning buildings in Hong Kong.

Clive is a TECBAR approved Adjudicator.

Clive has dealt with many cases of alleged professional negligence.

Examples:

• solicitors and barristers (eg concerning trade mark infringement proceedings brought against an online auction site)
• accountants and auditors (eg reconciliation errors in annual accounts; failure to detect fraud; GE Capital v. Bankers Trust – due diligence report for syndicated lenders concerning management buyout of Magnet Kitchens)
• software developers and consultants (eg software for banks, civil engineering contractors and builders’ merchants)
• architects (negligent supervision of construction)
• engineers (negligent design of basement water-proofing system)
• surveyors and valuers (valuations for mortgage lenders)
• investment advisers (negligent investment advice and liability for fraud).

Cases have included:

• disputes regarding aggregation clauses
• liability under a D & O policy
• calculation of liability for rebuilding costs following an oil refinery explosion.

Employment (breach of restrictive covenants and misuse of confidential information, including cases requiring an application for an interim injunction)

Company law (breach of directors’ duties and misuse of confidential information by directors, claims based on warranties in share sale agreements)

Financial services: advising on deposit-taking and electronic money, questions concerning MiFID, liability of investment advisers for negligence, fraudulent investment schemes

Sale of goods (including product recalls), and international trade

Oil and gas (international arbitration concerning drilling problems in an oil and gas joint venture)

Insolvency (setting aside statutory demands, injunction against presentation of a petition, priorities between creditors)

Cases concerning sale of horses and bloodstock breeding.

Clive Freedman qualified as a CEDR mediator in 1997, and has conducted around 30 mediations. He has also carried out two early neutral evaluations through CEDR.

Most of the mediations conducted by Clive have concerned IT disputes, although he also mediates in other commercial fields. Clive believes that his professional experience in dealing with IT cases and IT clients and his own experience of computers, networks and programming assists parties in the resolution of disputes in this area. He has given talks on mediation of IT disputes.

Examples of mediations:

• a claim for £16 million against the supplier of an integrated accounting and stock control system for a nationwide retailer
• a claim for £11 million relating to satellite TV technology
• a cancelled project for design of an e-commerce website
• a highly-charged dispute between two companies who had shared office premises and administrative staff but who had fallen out
• a dispute relating to ownership of farmland
• a dispute concerning alleged copying of software.

Clive was a member of the working party chaired by former Senior Master Whitaker which drafted CPR Practice Direction 31B dealing with Disclosure of Electronic Documents, and was involved in the preparation of the TeCSA eDisclosure Protocol for use in the TCC. He maintains a website dealing with cases on electronic disclosure at www.edisclosure.uk.com and gives talks on the subject. He co-wrote the section dealing with electronic disclosure for the 3rd edition of Electronic Evidence (LexisNexis Butterworths, 2012).

He is available as a mediator to assist parties in reaching agreement in relation to the process of giving disclosure of electronically stored information.