Professional practice

“An amazing advocate… not just fantastic with the law… absolutely phenomenal in court” Daniel Oudkerk QC has a broad-based trial and advisory practice. A “skilled tactician and a formidable cross-examiner” he is recognised as a leading silk in Commercial Dispute Resolution and Employment Litigation. He is routinely instructed in high profile High Court disputes including cross-border team moves, employee fraud, breach of confidence actions, bonus and share scheme disputes and urgent applications for injunctions. He has appeared in many of the landmark commercial employment disputes of recent years. He acts in arbitrations and has particular experience of partnership and LLP disputes involving competition and restraint of trade issues. Much of his work is cross-border encompassing multi-jurisdictional team moves and contracts governed by foreign law. He is also instructed in very high value tribunal claims, particularly whistleblowing claims where reputational, regulatory or jurisdictional issues arise.

Daniel Oudkerk QC’s general commercial practice includes CIS work, fraud, directors’ duties, contractual disputes, shareholder actions and partnership disputes. Chambers & Partners (Commercial Dispute Resolution) says “You definitely want him on your side. He is experienced, measured, a skilled tactician and a formidable cross-examiner.” “He has the confidence of the court, is very assured and has the knack of coming up with common-sense points.” He has substantial experience of financial services sector litigation and is listed Whos Who Legal Banking (fintech). His clients range from hedge funds, IDBs, investment banks, fintech companies, insurers and regulators to individuals.

Other quotes from the Directories include: “a class act who is very bright and very personable…he always manages to imbue a sense of confidence” and “You know he will fight your client’s corner tooth and nail” (Chambers & Partners) and “The best for employment cases with commercial flavour” (The Legal 500). Chambers & Partners notes his “amazing work on team moves”.

His practice has significant regulatory aspects. For example, in the landmark Tullett Prebon litigation he also advised on the US FINRA arbitration and the FSA proceedings.

 

What others say

Chambers and Partners 2018:

“Dan is one of the leaders in the field for restrictive covenant work and a real master of the topic. He is also very good to work with. He’s responsive, easily accessible and commercial. He identifies the issues quickly, thinks strategically and knows what clients want.” (Employment)

“A great strategist able to see the big picture, he inspires confidence in clients and is a real team player.” “He’s not afraid to get stuck into the nitty-gritty.” (Commercial Dispute Resolution)

Chambers and Partners 2017:

“He inspires confidence in the client and has a very clear vision of how a case should be run.” “The confidence that he oozed held us together.” (Commercial Dispute Resolution)

“He is extremely bright and is the voice of reason in high-octane disputes.” (Employment)

Legal 500 2016:

“One of the best; he really gets stuck in, and has a fantastic tactical and technical brain.” (Employment)

Chambers and Partners 2016:

“You definitely want him on your side. He is experienced, measured, a skilled tactician and a formidable cross-examiner.” “He has the confidence of the court, is very assured and has the knack of coming up with common-sense points.” (Commercial Dispute Resolution)

“He is deeply commercial, has a real eye for detail and has a very engaging style.” “Very good on his feet and very punchy.” “A dynamic, feisty and highly astute litigator.” (Employment)

Chambers and Partners 2015:

“Very user-friendly and very good at working in a team. He is strategically, commercially and legally very astute, and brilliant on his feet”. (Commercial Dispute Resolution)

“He always manages to imbue a sense of confidence. You know he will fight your client’s corner tooth and nail.” “He is a class act who is very bright and very personable. He really gets to grips with the issues.” (Employment)

Legal 500 2015:

“The best for employment cases with a commercial flavor” (Employment)

Chambers and Partners 2014:

“an amazing advocate… not just fantastic with the law… absolutely phenomenal in court” (Employment 2014)

“he simplifies complex matters and knows how to get results” (Commercial Dispute Resolution 2014)

Other quotes from the directories include:

“A tenacious advocate who is never afraid to take new and innovative points.”
“a really authoritative punchy silk”
“good for hauling you out of a hole”
“exceptionally intelligent, strategic and commercial”
“clients go to Oudkerk for anything that is heavy-duty or complex” “combines extreme intellect with a fantastic sense of strategy”
“full of ideas and gifted with great judgment he adapts his knowledge to the commercial realities of a case and is definitely someone you want on your side”
“approachable, adaptable and a great team player”

 

Examples of recent cases

Gruber Ors v AIG & Ors [2018] EWHC 3030 Comm acting for the successful claimants on contract claims which turned on the construction of Connecticut law governed deferred compensation schemes. The amount subject to claims at trial was c.US$108 million. Following a 3 week trial the court found for the claimants on the breach of contract claim and gave directions for the assessment of damages. The Court also considered issues of alter ego liability and interference with contract under Delaware and Connecticut law, concluding that whilst the relevant decisions were  made by AIG Inc in New York, and probably by AIG Inc’s CEO personally, AIG Inc’s conduct was not tortious.

Capital Markets Co v Tarver & Ors (2016 – 18) Ch.D acting for the claimant fintech companies in this conspiracy claim relating to IP rights in blockchain banking platforms and diversion of business opportunities. The claim, for in excess of £200 million, is listed for a 7 week trial in 2019. He also advised in the related arbitration.

Acting for a global management consultancy in an LCIA arbitration (2018).

Instructed in an LCIA arbitration arising out of a cross-border partnership dispute (2018).

Pease v Henderson [2018] EWHC 661 acting for Henderson in litigation arising out of a scheme of arrangement to transfer of a fund due to be heard by the Court of Appeal in 2019.

Tillman v Egon Zehnder Ltd [2017] EWCA Civ 1054 instructed by the successful appellant in litigation concerning the enforceability of a non-competition clause. The decision of the Court of Appeal gives guidance on the correct approach to the severance of post termination restraints. The case is due to be heard by the Supreme Court in January 2019.

Acting for a major financial services company in relation to a cross-border team move executed simultaneously in Dubai, New York, Hong Kong and London (2018). This is one of numerous international team move cases Daniel Oudkerk has handled.

ICAP v Berry & BGC [2017] EWHC 1321 QB. Instructed by the successful claimant in this high profile IDB dispute. The Defendants sought to establish that the share acquisition of a global IDB business was a TUPE transfer releasing brokers from their contracts. Daniel Oudkerk obtained interim injunctive relief and final injunctive relief at trial. The case gives guidance on global share acquisitions and the impact of TUPE. Substantial costs orders were made against both defendants.

Tradition v Gamberoni & Ors [2017] EWHC 768 QB instructed by the claimant IDB successfully enforcing post-termination restraints at a speedy trial together with judgment for inducing breach of contract against the new employer.

Acheson v McAlpine & Ors (one of The Lawyer’s top 20 cases of 2016) QB instructed for several defendants in the high profile Construction Industry Vetting Information Group Litigation, a group action involving allegations of a conspiracy to ‘blacklist’, defamation and breaches of the DPA (see e.g. FT 9 May 2016).

Willis v JLT (2016) QB. acting for the defendants to this insurance industry claim for US$100m arising out of an alleged team move in the UK and the US.

Standard Chartered Bank v X & Ors (2016) acting for a senior Dubai banker in relation to regulatory, disciplinary and contractual issues governed by DIFC law.

Chodiev & Ors v Stein [2015] EWHC 1428 (Comm) fraud action in relation to a judgment for US$30m brought by the oligarch founders of ENRC with related proceedings in Cyprus and France and an arbitration. Daniel Oudkerk acted for the defendant to the fraud claim which was successfully dismissed.

Gallagher v Ross & Ors (2015) QB. Claim for conspiracy and breach of fiduciary duty arising out of the alleged diversion of maturing business opportunities and a team move in the insurance industry with cross claims arising out of surveillance. Daniel Oudkerk acted for the claimants who obtained interim relief (FT 27 March 2015) and recovered £20m under the subsequent settlement of the action (The Times 27 August 2015 ‘Towergate to pay £20m over poaching claim’).

Pabani v ESS & Ors (EAT) instructed by the Respondents in a high profile whistleblowing claim relating to a CIS country involving allegations of fraud (2014-16). Daniel Oudkerk overturned both the ET’s decision to allow the whistleblowing claim to proceed (EAT UKEAT/0161/15/DA) and the separate decision to allow Press access to certain documents (see Compass Group Plc v Guardian News and Media Ltd UKEAT/0441/14/DA).

Rokos v Brevan Howard (2015) instructed by the hedge fund, Brevan Howard, in this high profile Jersey law partnership dispute with a founding partner in the Jersey High Court relating to garden leave and other restrictions in a partnership agreement and the applicability of the restraint of trade doctrine (FT 21 January 2015 ‘Brevan Howard settles dispute with star trader’).

Stein v Patokh Chodiev & Ors [2014] EWHC 1201 (Comm) acting for the successful claimant against the 3 oligarch founders of ENRC Plc. The claimant alleged an oral contract for fees and interest of approximately US$30m arising out of a syndicated loan and IPO. The oral contract was established following Daniel Oudkerk’s cross-examination of the oligarchs at trial. He also advised in relation to the related arbitration.

Anthony Allen -v- Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A. (2015) instructed for the claimant in a Commercial Court action relating to LIBOR litigation and criminal regulatory proceedings in the US.

Bahar v Lotus & DRB Hicom-Berhad (2014) (QB) acting for the former CEO of Lotus in a claim against Lotus and its parent DRB for a share of the enterprise value of Lotus together with substantial damages.

Instructed in an LLP dispute relating to carry provisions and good leaver/bad leaver terms under LLP agreements in the hedge fund industry.

Woods Bagot v Arney & Ors (ChD 2014) instructed by the architects firm Woods Bagot in a breach of fiduciary duty/diversion of business opportunities claim.

BMS v Tiger Risk & Ors (2013) QB, instructed by Lloyds brokers BMS in an action for damages arising out of a team move.

ContiCap v GFI (Comm) (2013) acting for the Swiss IDB ContiCap in its CHF40m Commercial Court claim under the Swiss Unfair Competition Act against GFI for damages caused by a raid on its emerging markets business in Switzerland (one of The Lawyer’s top 20 cases of 2013).

Tullett Prebon v BGC [2011] EWCA Civ 13 acting for the successful claimant in this ground-breaking conspiracy/team move litigation. He was instructed throughout the 3 years of litigation from the first injunctions, through 3 months of liability and quantum trials and in the Court of Appeal (Maurice Kay, Hooper, Tomlinson LJJ) where the Court noted his “devastating” oral submissions

Commercial dispute resolution

“You definitely want him on your side. He is experienced, measured, a skilled tactician and a formidable cross-examiner.” “He has the confidence of the court, is very assured and has the knack of coming up with common-sense points” (Chambers & Partners 2016 – Commercial Dispute Resolution).

Daniel Oudkerk QC has a broad-based commercial practice which spans CIS work, civil fraud, financial services & banking, contractual claims, and partnership and shareholder disputes. He has extensive experience of heavy conspiracy claims in the financial services sector with clients ranging from interdealer brokers, hedge funds, Lloyds brokers and fintech companies to individuals. Significant cases include (1) appearing for the successful claimant against the oligarch founders of ENRC in a three week Commercial Court trial on an oral contract relating an IPO and syndicated loan; (2) a related Commercial Court fraud claim successfully dismissed at a five day summary judgment hearing; (3) a group action in the Commercial Court for US$100m arising out of the $85 billion bail out of AIG (substantive law Delaware, Connecticut, New York and English law) 2018; (4) a high profile Jersey partnership dispute for a leading European hedge fund and (5) acting for several defendants in the widely reported construction industry group litigation. The nature of his financial services client base means that he is often instructed in complex claims raising regulatory or disciplinary issues, LIBOR related claims, business loss or fraud claims arising on trading desks and claims where the substantive law is not English law.

Conspiracy, bribery and employee fraud: he has acted in numerous conspiracy cases involving multimillion pound claims for damages, secret profits, the recovery of confidential information or injunctive relief. In Capital Markets Co v Tarver & Ors (2018 ChD) he acts for the claimant fintech companies in a conspiracy claim relating to blockchain banking platforms and diversion of business opportunities. The claim is for £200 million. He also advised in the related arbitration. In Chodiev & Ors v Stein [2015] EWHC 1201 Daniel Oudkerk acted for the Defendant to a fraud claim brought by the oligarch founders of ENRC which was successfully dismissed. In 2013 he acted for Otkritie in a series of Commercial Court Norwich Pharmacal claims against the investment banks and brokers said to be mixed up in an alleged $160m Argentinian warrants fraud.

Contractual claims: In Stein v Patokh Chodiev & Ors [2014] EWHC 1201 (Comm) Daniel Oudkerk QC acted for the successful claimant in a Commercial Court action for US$30m against the 3 oligarch founders of ENRC. The claimant alleged an oral contract for fees on a syndicated loan and an IPO worth in excess of US$3bn. The oral contract was established following cross-examination of the oligarchs .

Partnership disputes, shareholder disputes and fiduciary duties: Much of his work in this area is confidential but he has been instructed in numerous hedge fund disputes relating to remuneration (including good leaver/bad leaver provisions), carry, and restraint of trade issues. He has particular experience of competition disputes that arise on partners/shareholders exiting a business both in arbitration and in the High Court (including in jurisdictions other than England & Wales). He is regularly instructed in claims involving breach of fiduciary duty from diversion of business opportunities and conflicts of interest through to dishonest assistance claims (see, for example, Capital Markets Co v Tarver & Ors (2018 Ch.D), Gallagher v Ross (QB 2015), Woods Bagot v Arney & Ors, (ChD 2014) Bahar v Lotus (QB 2014), BMS v TigerRisk (QB 2013), and the Tullett litigation).

Confidential information, breach of confidence, database rights, data protection: he is routinely instructed in claims involving breach of confidence where injunctions are required to protect or recover confidential information or databases. He has very extensive experience of obtaining and resisting injunctive relief. He is often instructed where data imaging orders are required in relation to computers, servers, mobile phones and PDAs as part of the broader injunctive relief. His recent data protection work includes the high profile ‘blacklisting’ conspiracy claim in the construction industry (Acheson & Ors v McAlpine & Ors (one of The Lawyer’s top 20 cases of 2016) and Gallagher v Ross & Ors (2015)).

Conflict of laws/jurisdiction disputes: see Gruber Ors v AIG & Ors [2018] EWHC 3030 Comm acting for the successful claimants on contract claims which turned on the construction of Connecticut law governed deferred compensation schemes. The amount subject to claims at trial was c.US$108 million. Following a 3 week trial the court found for the claimants on the breach of contract claim and gave directions for the assessment of damages. The Court also considered issues of alter ego liability and interference with contract under Delaware and Connecticut law, concluding that whilst the relevant decisions were  made by AIG Inc in New York, and probably by AIG Inc’s CEO personally, AIG Inc’s conduct was not tortious.

 

Employment

The Directories describe Daniel Oudkerk as “The best for employment cases with commercial flavour” (The Legal 500) and “a class act who is very bright and very personable… he always manages to imbue a sense of confidence. You know he will fight your client’s corner tooth and nail” (Chambers & Partners). His employment practice focuses on heavy High Court litigation and high value ET cases involving reputational risk or a regulatory aspect. He is frequently instructed in multi-jurisdictional disputes and major commercial employment litigation. He brings to his employment work very extensive commercial expertise. Most of the employment disputes he is instructed in will have a broader commercial or reputational dimension, for example, ancillary defamation claims, intellectual property claims, civil fraud, or FCA disciplinary issues and related arbitration proceedings. He has appeared in many of the leading commercial employment cases including the landmark Tullett litigation where he acted for the successful claimant, ContiCap’s Commercial Court ‘poaching’ claim against the IDB GFI under the Swiss Unfair Competition Act, and the widely reported construction industry group litigation

Daniel Oudkerk acted for the successful appellant in Tillman v Egon Zehnder Ltd [2017] EWCA Civ 1054 now the leading case on severance which is due to be considered by the Supreme Court in 2019. In 2015 he acted for Gallagher its high profile poaching claim recovering £20m under the subsequent settlement of the action (Times 27 August 2015). He acted for JLT in its defence of a poaching claim for US$100m brought by Willis. He has appeared in numerous of heavy High Court employment disputes in the financial services sector with clients ranging from IDBs through to Lloyds brokers, hedge funds and private equity firms. He is routinely instructed to make or defend urgent applications for injunctions or interim relief. The focus of his ET practice is very high value claims, group litigation, whistleblowing claims, claims where there are overlapping High Court proceedings and appellate work.

Team moves: Chambers & Partners notes his “amazing work on team moves”. He is usually instructed in the ‘big ticket’ team moves particularly in the financial services sector. In 2017/18 he has acted for a major financial services company in relation to a cross-border team move executed simultaneously in Dubai, New York, Hong Kong and London. This is one of numerous international team move cases Daniel Oudkerk has handled. He acted for Tullett in the landmark team move case Tullett Prebon v BGC which set the legal framework for subsequent team move litigation. In 2015 he acted for Gallagher in its high profile action against its former CEO and members of its senior management team which settled for £20m. He has handled substantial team move litigation arising out of poaching operations in numerous jurisdictions including: Switzerland (ContiCap v GFI (a Commercial Court claim for CHF40m), the UK and US (Tullett v BGC and Willis v JLT), the UK and Singapore (Seaco v Buss Capital). Much of his work in this area is confidential but he has extensive experience of global team moves with concurrent litigation or arbitration proceedings in more than one jurisdiction or where the substantive law is not English law. His diverse experience spans IDBs, fintech companies, insurers, hedge funds, architects, agronomists, shipping, city solicitors and asset managers. Many of his clients are partnerships or LLPs and he has wide experience of the particular restraint of trade issues that arise in the partnership field.

Injunctions, restrictive covenants, and garden leave: “brilliant on restrictive covenants”

Urgent injunctive work has always made up a substantial part of his practice from bespoke computer imaging, data recovery and disclosure orders through to springboard and garden leave injunctions. He has appeared in a number of the leading cases. In Tillman v Egon Zehnder Ltd [2017] EWCA Civ 1054 he acted for successful appellant in litigation concerning a non-competition clause. The decision of the Court of Appeal is now the leading case on the correct approach to the severance of post termination restraints and is due to be considered by the Supreme Court in January 2019. He has a track record of securing effective emergency injunctive relief; obtaining the first reported ‘no-poach’ injunction in the Tullett litigation (one aspect of wide-ranging injunctive relief). In Tradition v Gamberoni & Ors [2017] EWHC 768 QB he was instructed by the claimant IDB successfully enforcing post-termination restraints at a speedy trial. In ICAP v Berry & BGC [2017] EWHC 638 QB instructed by the claimant inter-dealer broker successfully obtaining interim injunctive relief in respect of garden leave. In Patsystems Holdings Ltd v Neilly [2012] IRLR 979 he successfully resisted the claim for injunctive relief on behalf of the defendant and the new employer, Trading Technologies, on novel grounds (Underhill J. giving guidance on the general principles to be applied where contracts containing PTRs are renegotiated by the employer).

Deferred remuneration, bonus litigation and share options: an “acknowledged leader in commercial employment law” he regularly deals with complex remuneration provisions and share schemes (often governed by foreign law) from $100 million bonus claims through to share schemes and partnership remuneration disputes. Much of his work in this area confidential, but he has appeared in several of the leading cases: see e.g. Tullett Prebon v El-Hajalli [2008] IRLR 760 (enforcement of liquidated damages clause in a broker’s forward contract) and Imam-Sadeque v BlueBay [2013] IRLR 344 (whether claw back of share options penal). He has advised on liquidated damages issues in numerous jurisdictions including recently in Florida and Australia. He has considerable experience of dealing with the regulatory issues which arise under the Remuneration Code including malus adjustments and claw back.

Confidential information, breach of confidence, database rights, data protection: he is routinely instructed in claims involving breach of confidence where injunctions are required to protect or recover confidential information or databases. He has very extensive experience of obtaining and resisting injunctive relief. He is often instructed where data imaging orders are required in relation to computers, servers, mobile phones and PDAs as part of the broader injunctive relief. His recent data protection work includes the high profile ‘blacklisting’ conspiracy claim in the construction industry (Acheson & Ors v McAlpine & Ors (one of The Lawyer’s top 20 cases of 2016) and Gallagher v Ross & Ors (2015) where covert surveillance and privilege issues arose).

Conflict of laws/jurisdiction disputes: see Gruber & Ors v AIG & Ors (2014-2018) a Commercial Court claim for US$100 million (substantive law Delaware, Connecticut, New York and English law). Seaco v Buss Capital where injunctive relief was required (and obtained) in England and Singapore, and ContiCap v GFI which is thought to be the first time proceedings have been brought in England for a poaching raid implemented overseas. He has considerable experience of the impact in commercial litigation of the special jurisdictional rules governing actions against employees.

Wrongful dismissal and directors’ duties: he is often retained in substantial wrongful dismissal actions typically involving claims for breach of fiduciary duties (see for example Bahar v Lotus), diversion of business opportunities (Gallagher v Ross, Woods Bagot v Arney & Ors, and BMS v TigerRisk & Ors), or dishonest assistance in breach of fiduciary duty.

Whistleblowing, discrimination and statutory claims: having appeared in several of the leading cases when the whistleblowing provisions were first introduced and numerous heavy discrimination claims, he continues to act in high profile tribunal claims, the EAT and higher appellate courts in cases which raise significant reputational or regulatory risk. In 2017 he acted for a solicitor named as an individual respondent in a whistleblowing claim alleging fraud and successfully applied for the claim against the solicitor to be struck out with costs. In Pabani v ESS & Ors (EAT) he was instructed by the Respondents in a high profile whistleblowing claim relating to a CIS country involving allegations of fraud (2014-16). He successfully overturned both the ET’s decision to allow the whistleblowing claim to proceed (EAT UKEAT/0161/15/DA) and the separate decision to allow press access to certain documents (see Compass Group Plc v Guardian News and Media Ltd UKEAT/0441/14/DA). He acted for New Star in the much publicised Evershed v New Star ET litigation. He was brought in by Santander to deal with a series of appeals in the Court of Appeal, all of which were successfully disposed of – see Bascetta v Santander UK plc [2010] EWCA Civ 351 CA (Pill, Moore-Bick LJJ, Sir David Keene) and Radakovits v Abbey National plc [2009] EWCA Civ 1346, [2010] IRLR 307 (Mummery, Aikens, Elias LJJ).

Trade unions and industrial action: he acts in strike injunctions and advises on trade union collective bargaining issues, appearing for Cable & Wireless before the Central Arbitration Committee in its successful defence of an application for automatic recognition.

Career

2010 Appointed Queen’s Counsel
1992 Called to the Bar (Inner Temple)

Education

1991 Inns of Court School of Law
1990 LLB (Bristol)