James Berry

As an experienced commercial disputes lawyer acting for both claimants and defendants, James’ expertise encompasses a broad range of commercial disputes. These include breach of contract claims, corporate transactional issues, shareholder and partnership disputes and professional negligence. He also has expertise in seeking injunctive relief and dealing with enforcement matters.

He is a trusted adviser to his clients and is often consulted at an early stage before disputes arise; he has considerable experience of dealing with senior board members of companies across SMEs, PLCs, AIM and Fortune 500. James has a proven track record of performance and success and ensures that the advice he and his team offer is commercial, pragmatic and cost effective.

Recent work

• Acted in defence of high court proceedings for a claim worth in excess of £1.8 million arising from the alleged supply of defective components. The court’s jurisdiction was successfully challenged in order to deal with the matter pursuant to the arbitration clause contained in the contract. Thereafter, given the inherent weaknesses with defending the claim, early disclosure of financial information was given in order to facilitate open settlement negotiations, which resulted in a commercial settlement being achieved and the survival of the business.
• Acted for his client in a complex and long-running claim brought against five defendants involving issues of fraud and theft in respect of high-value scrap metals. Among the defendants were the company’s former Commercial Director and former in-house solicitor, as well as two companies involved in receiving the misappropriated stock. The proceedings culminated in one of the companies being wound up, the in-house solicitor being imprisoned and a judgment of £3.2 million being obtained.
• Acted for his client in a £1.3 million claim arising from the supply of contaminated meat products. This was a high profile claim and, from the outset, a coordinated PR strategy was required given the national press coverage, particularly in order to mitigate damage to his client’s brand.

James has wide experience of dealing with disputes that arise from corporate transactions (both claimant and defendant) including the proper construction of agreements, shareholder disputes, warranty and indemnity claims, completion and escrow account disputes, and issues of fraud.

In dealing with such disputes, James and his team work closely with the Corporate department to add value and help ensure that practical and pragmatic solutions are achieved for his clients.

Recent work

• Acted for the sellers in relation to various warranty, covenant and indemnity claims made by the buyers pursuant to a Share Purchase Agreement (SPA) under which the buyers sought payment from funds held in escrow. After lengthy negotiations, matters settled realising circa £4 million of the sum held in escrow for the benefit of the sellers.
• Acting for a creditor in respect of regulated supplies to a listed company which was to be acquired by an overseas company. The acquisition was subject to an investigation by the Competition and Markets Authority (CMA) and was carried out in accordance with the city code on takeovers and mergers. The takeover represented the best opportunity for repayment to be secured; however, ensuring repayment immediately following the acquisition required very delicate handling and careful thought in order that the takeover itself was not jeopardised. Payment in full was secured.

In dealing with enforcement of restrictive covenants (whether non-compete, non-dealing or non-poaching), James has acted for both employers and employees. He understands the importance to employers of being able to enforce restrictive covenants and the importance of protecting legitimate business interests including confidential information.

Recent work

• Acted regularly for various specialist recruitment firms who have needed to enforce restrictive covenants of former employees who have sought to move to a competing firm and poach workers and customers. In most instances, this has meant having to seek a prohibitory injunction, often without notice.
• Successfully sought delivery up of confidential information (both electronic and hard copy) which had been stolen by a former employee with a view to setting up a new and competing business. Due to the former employee’s IT background, forensic analysis and data recovery was key to evidencing the steps that he had taken in stealing the information and to then identify and retrieve the information stolen.

James has extensive experience of applying to court for urgent injunctive relief as well as in respect of defending such applications. The nature of dealing with applications for injunctive relief requires a team that are willing to commit to an intense period of activity over three or four days, which he and his team relish given the importance that hangs on a successful outcome.

He has strong relationships with a selected group of forensic experts and barristers who he can call upon to form the specialist team needed to collate, examine and interpret all relevant evidence and to work round the clock to present this as quickly as possible to a judge.

Recent work

• Acted for a long standing manufacturer client who discovered that circa £1 million had been stolen by two members of its accounts team over an eight year period. Urgent freezing injunctions were sought against various bank accounts and monies recovered before the matter was referred to the police for criminal proceedings to be brought.
• Successfully acted for a high net worth individual whose assets had been frozen on a without notice basis and had the injunction dismissed with the applicant ordered to pay legal costs and damages
• Has dealt with various applications to restrain the presentation of winding up petitions usually in circumstances where a debt is validly disputed and the presentation of a winding up petition would be damaging if not catastrophic to his clients’ businesses.

James has considerable experience of pursuing negligence claims against a variety of professionals. Claims against professionals (and their indemnity insurers) encompass a wide variety of professions but common examples include solicitors, barristers, financial advisers, accountants, surveyors, valuers, architects and insurance brokers.

James is passionate about achieving the right outcome for his clients particularly in circumstances where another professional has failed to perform to the standard required. He and his team deal with all values and complexity of claims and are able to offer a range of funding options to support their clients.

James has acted in respect of numerous shareholder disputes (both claimant and defendant) and claims for unfair prejudice pursuant to s.994 of the Companies Act 2006. Common issues involve exclusion from management, payment of excessive salary/benefits, decisions being made without a board meeting and decisions being made for the sole benefit of majority shareholders. He is an active proponent of using mediation to settle disputes in order to try to avoid costly court proceedings.

Recent work

• Acted for the directors of an IT company in a shareholder/director dispute relating to the misappropriation of company money by a fellow director. This involved successfully defending an unfair prejudice petition brought against the Managing Director and working with forensic accountants in order to favourably resolve all claims against the Managing Director and the company as part of a settlement that brought about the fellow director’s exit from the business and the acquisition of their shareholding at a discount.
• Acted in relation to the dismissal of his client’s Managing Director for gross misconduct who was found to have been misappropriating the company’s own products and selling them on eBay. Once dismissed, a shareholder dispute ensued and court proceedings were issued. Notwithstanding his dismissal, subsequent forensic IT evidence revealed evidence of further thefts and urgent injunctive relief was obtained. Following an ex-parte injunction being obtained, a favourable settlement agreement was agreed with the opponent selling his shareholding back to the company.
• Acted for a shareholder/director of a national commercial office furniture supplier in a dispute arising from the fellow directors’ breaches of their duties to the company including in relation to them seeking to oust the company’s Managing Director and exclude his client from participation in the business; ultimately resolving the matter in a favourable deal for his client who exited the business by the company purchasing the shareholding at a premium to the value ascribed to it by a forensic accountant.