Katherine Ratcliffe

Professional practice

Katherine has a broad practice spanning commercial, international and public law. Katherine is regularly instructed on high-profile and high-value commercial disputes, particularly those concerning civil fraud and asset recovery, banking and other financial litigation, and professional negligence.

Highlights of Katherine’s recent or current commercial work including acting for: (i) the successful claimant in E D & F Man Capital Markets Limited v Come Harvest Holdings Limited & Ors [2022] EWHC 229 (Comm) and [2022] EWCA Civ 1704, a deceit and conspiracy claim arising out of the provision of forged warehouse receipts in a repo transaction for the sale and repurchase of nickel; (ii) the defendant in NMC Health plc v EY, a $2.5bn claim by the holding company of a Gulf-based healthcare group arising out of a fraud allegedly perpetrated by its majority shareholders and senior management; (iii) the defendant in Navigator Equities Ltd v Deripaska, a committal application listed for a three day trial in 2023; (iv) the ninth third party in Republic of Mozambique v Credit Suisse & Ors, Commercial Court proceedings in respect of a purported sovereign guarantee allegedly procured by bribery; and (v) the claimant in ID v LU [2021] EWHC 1851 (Comm), a jurisdiction challenge concerning the necessary or proper party jurisdictional gateway.

Alongside her commercial practice, Katherine is also developing practices in public law and international law. Katherine is currently acting in an investor-state arbitration and also advising on international and national asset recovery mechanisms.

Arbitration & related court applications

Katherine has experience of acting in arbitrations under various institutional rules and in different jurisdictions including, most recently:

A claim brought by a multi-sector investor in a State of the Caucasus region, under a bilateral investment treaty. The claim particularly raises issues relating to excise duties, national competition law, enforcement of revenue law, and the application of most favoured nation provisions to a jurisdictional. Led by Sam Wordsworth KC and Lucas Bastin KC.
An arbitration on behalf of American insureds in relation to a coverage dispute with P&I insurers and excess insurers, involving allegations of material misrepresentation and non- disclosure. Led by Huw Davies KC and Jeremy Brier KC.
A commercial arbitration under the JAMS International Arbitration Rules for a claimant in a claim arising out of breaches of a securities loan agreement and involving allegations of force majeure, penalty clauses and relief from forfeiture. Led by Jeremy Brier KC.

Katherine has also recently acted in ancillary court proceedings concerning the enforcement of arbitral awards under s.66, as well as provided research assistance on s.67 and s.69 of the Arbitration Act, on the applicable law of the arbitral agreement, and on the choice of law principles for issues such as capacity, separability and non-arbitrability to two Members of Chambers for the new edition of Mustill and Boyd on Commercial Arbitration.

During pupillage, Katherine assisted with a range of arbitration cases. Examples include:

Assisted a Member of Chambers in an ICC arbitration concerning a dispute arising out of an agreement for the supply of specialist telecoms equipment to a state entity.
Assisted a Member of Chambers in an ICC arbitration concerning a dispute arising out of the purported termination of a shareholders’ agreement.
Assisted two Members of Chambers on an application for an interim injunction under s.44 of the Arbitration Act 1996 to prevent a lender from wrongfully taking collateral under a securities loan agreement.
Assisted a Member of Chambers in resisting a s.103 challenge to an order enforcing an investment treaty arbitral award which raised issues of estoppel and waiver.
Assisted two Members of Chambers in resisting a s.103 challenge relating to whether there was a written arbitration agreement between the parties. The case raised complex issues including issues as to the applicable law and public policy grounds for refusing to enforce an arbitral award.

Banking & financial services

Many of Katherine’s cases have a banking or financial context to them. For example:

E D & F Man Capital Markets Limited v Come Harvest Holdings Limited & ors [2022] EWHC 229 (Comm): Acted (led by Huw Davies KC) for the successful claimant in Commercial Court proceedings arising out of the provision of forged warehouse receipts in a “repo” transaction for the sale and repurchase of nickel. The case was heard over five weeks in 2021 and the trial involved expert evidence in the field of market practice in metal repurchasing transactions.
Advised a bank on the impact of sanctions on Russian entities in respect of loan agreements.
Advised as sole counsel on the circumstances in which an all monies guarantee can be varied.
Katherine recently assisted with editing the volume of Atkin’s Court Forms on guarantees and provided research assistance on consumer credit transactions, performance bonds, bank guarantees, letters of comfort, and the law surrounding contracts of suretyship for the 8th Edition of Andrews & Millett on Guarantees (forthcoming). Katherine has also recently written an article on the limitation period for interest rate swaps: ‘The classification of interest rate swaps as contingent liability cases’ (2022) 7 JIBFL 468.

Civil fraud & asset recovery

Katherine has considerable experience of the full range of issues which arise in civil fraud litigation, having been seconded to the civil fraud team at RPC for five months in 2021, as well as instructed more recently on a number of high-profile and high-value matters. Recent cases include:

E D & F Man Capital Markets Limited v Come Harvest Holdings Limited & ors [2022] EWHC 229 (Comm), [2022] EWCA Civ 1704: Acted as junior counsel (led by Huw Davies KC) for the successful claimant in Commercial Court and Court of Appeal proceedings arising out of a £300 million fraud involving the provision of forged warehouse receipts in a “repo” transaction for the sale and repurchase of nickel. The case was heard by the Commercial Court over five weeks in 2021 and the Court of Appeal in December 2022.
Navigator Equities Ltd v Deripaska [2022] EWHC 374 (Comm): Acting (led by Thomas Grant KC and Anna Dilnot KC) for the defendant in an application for committal for alleged contempt of court for breach of an undertaking.
Invest Bank PSC v El-Husseini & Ors [2022] EWHC 3008 (Comm): Instructed (led by Louise Hutton KC) on behalf of the second defendant in respect of claims under s.423 Insolvency Act 1986 and various interim applications including security for costs.
Republic of Mozambique v Credit Suisse & Ors: Instructed on behalf of the Ninth Third Party in Commercial Court proceedings in respect of a purported sovereign guarantee allegedly procured by bribery.
ID v LU [2021] EWHC 1851 (Comm): Acted (led by Huw Davies KC and Felix Wardle) for a Ukrainian oligarch in a high-value claim involving claims for procuring breach of contract and anticipatory breach of contract.
Acting in an arbitration on behalf of American Insureds in relation to a coverage dispute involving allegations of material misrepresentation and non-disclosure.
Acting for a claimant bringing claims of conspiracy and vicarious liability against an employer in respect of employees’ involvement in a conspiracy.
Advised (as sole counsel) on a potential civil fraud claim for £100,000 against an accountant and financial adviser which raises a number of complex issues of misrepresentation and unjust enrichment, as well as advising on potential interim relief including Norwich Pharmacal relief.
Advised (as sole counsel) on the prospects of commencing committal proceedings for knowingly making a false statement in a witness statement or affidavit, in circumstances where the potential defendant is resident outside the jurisdiction.
Advised (as sole counsel) on the merits of a potential claim for malicious prosecution.

Commercial chancery disputes

Katherine has a particular interest in commercial chancery disputes – having taught trusts law at the London School of Economics prior to joining Essex Court Chambers.

Many of her cases involve trusts law, including E D & F Man Capital Markets Limited v Come Harvest Holdings Limited & ors [2022] EWHC 229 (Comm) (led by Huw Davies KC for the successful claimant) in which Calver J granted the claimant declarations that traceable proceeds were held on constructive trust.

Katherine is also currently instructed for the second defendant in Investbank PSC v El- Husseini & Ors, defending a s.423 claim, and is also currently assisting a company with an application for delivery up of a client file.

She has also been instructed as sole counsel to advise on commercial chancery matters, including on the advantages and disadvantages of a dormant LLP being kept on the register at Companies House and the protection afforded to members by a business and asset purchase agreement where the business and assets of the LLP have been sold.

Commercial dispute resolution

Commercial dispute resolution lies at the heart of Katherine’s practice and the majority of Katherine’s cases, both led and unled, have a commercial context. Katherine has experience across a wide range of international and domestic commercial cases, including disputes regarding contractual construction, tortious duties, and heavy banking and civil fraud claims. Recent examples include:

E D & F Man Capital Markets Limited v Come Harvest Holdings Limited & ors [2022] EWHC 229 (Comm), [2022] EWCA Civ 1704: Acted as junior counsel (led by Huw Davies KC) for the successful claimant in Commercial Court and Court of Appeal proceedings arising out of a £300 million fraud involving the provision of forged warehouse receipts in a “repo” transaction for the sale and repurchase of nickel. The case was heard by the Commercial Court over five weeks in 2021 and the Court of Appeal in December 2022.
Advised on the terms of a major telecommunications contract and their implementation. Acted (as sole counsel) in a claim in the Commercial Court for damages for breach of a netting agreement between two oil traders.
Acted (as sole counsel) in a dispute between a finance company and borrower involving allegations that the finance company failed to mitigate losses by using an auction process rather than a private sale. A one day trial took place in the County Court.
Acted (as sole counsel) in a two day trial in the County Court concerning issues relating to implied terms in agency contracts and unjust enrichment.
Assisted two Members of Chambers with a dispute between an investor and an investment manager operating an algorithmic trading strategy concerning allegations of misrepresentations and breach of contract.

Katherine has also recently published an article on how the scope of the transferred loss principle has been clarified by English courts in the last four years, which is available here.

Competition Law

Katherine has a particular interest in competition law and in 2022 spent four months on secondment in Freshfields Bruckhaus Deringer’s antitrust litigation team during which time she advised on regulatory and competition law issues, as well as assisted with a judicial review of the CMA.

Conflict of laws & private international law

Katherine’s practice is international in nature and the majority of her cases involve issues of conflicts of law and/or the application of foreign law (including, most recently, the laws of Ukraine, South Africa, Malaysia and the United States).

Katherine regularly advises both potential claimants and defendants on jurisdictional issues. She is currently acting in several jurisdiction challenges and previously acted (led by Huw Davies KC) in ID v LU [2021] EWHC 1851 (Comm). While seconded to RPC, she also worked on a successful jurisdiction challenge in the context of a US$580m fraud claim.

Katherine also has experience of preparing letters of request to obtain evidence for civil proceedings, most recently in Libyan Navigator Co Ltd v Libya Insurance Company (The “BADR”).

Employment

Katherine has been instructed to advise and act in a number of employment disputes. For example:

Acting for the claimants in InHealth Pathology Limited v Dr Steven Fox which involves claims for breach of confidence and wrongful interference with confidential information.
Advising on possible claims of vicarious liability and agency against parent companies.
Advised as sole counsel on claims for constructive dismissal, discrimination and
Provided research assistance on unlawful dismissal
Provided research assistance on indemnities in employment

Energy & natural resources

Acted (as sole counsel) on a claim in the Commercial Court for damages for breach of a netting agreement between two oil traders.

Assisted a Member of Chambers in a dispute relating to the application of a costs option in an agreement to transport oil.

Insurance & reinsurance

Katherine has been instructed to advise and act in a number of insurance disputes:

Acting in an arbitration on behalf of American Insureds in relation to a coverage dispute involving allegations of material misrepresentation and non-disclosure. Led by Huw Davies KC and Jeremy Brier KC.
Acted (led by David Walsh) as junior counsel in Libyan Navigator Co Ltd v Libya Insurance Company (The “BADR”) for underwriters in a US$40m claim for the total loss of a vessel following a prolonged stay in Bulgaria. The case raised issues of material non-disclosure, and also involved an application for a letter of request for documents to be produced in Bulgaria.
Acting in proceedings involving a claim against insurance brokers for negligence when obtaining insurance.

During pupillage, Katherine worked on a number of insurance claims, including the FCA test case concerning whether business losses suffered as a result of COVID-19 fall within the scope of business interruption insurance.

Investment treaty disputes

Katherine has a particular interest in investor state arbitration and regularly advises on issues arising out of investment treaties. Recent examples include:

Instructed as junior counsel in a claim brought by a multi-sector investor in a State of the Caucasus region, under a bilateral investment treaty. The claim particularly raises issues relating to excise duties, national competition law, enforcement of revenue law, and the application of most favoured nation provisions to a jurisdictional Led by Sam Wordsworth KC and Lucas Bastin KC.
Advising on the scope of the police powers doctrine as an exception to the requirement of compensation for lawful expropriation.
Advising a government on potential investment treaty claims against it and on the specific wording of the BIT in question which provided that an arbitration would only take place if the parties subsequently gave their consent.

Media, art, entertainment

Katherine has a particular interest in cases relating to media, art and entertainment. She has previously acted as sole counsel for a highly-regarded art dealer, as well as for a well- established auctioneer in relation to a claim relating to their lease. Katherine also wrote a case note (available here) on the decision of Hickox v Dickinson [2020] EWHC 2520 (Ch), in which Ms Clare Ambrose sitting as a deputy High Court judge considered the art-world custom of not disclosing the names of private buyers of art works.

Katherine has also assisted with advising on media law issues, including potential claims arising from the publication of personal information in newspapers and the availability of injunctions for defamation and the publication of confidential information.

Professional negligence

Katherine has been instructed to advise and act in a number of high-profile professional negligence disputes. For example:

NMC Health Plc v EY: defending EY in relation to a claim for USD 2.5 billion by the holding company of a Gulf-based healthcare group, arising out of a fraud allegedly perpetrated by its majority shareholders and senior management.
Instructed in proceedings involving a claim against insurance brokers for negligence when obtaining insurance.
Acted (as sole counsel) proceedings involving a claim for professional negligence on the part of paralegals, as well as claims for breaches of the Consumer Rights Act and the Consumer Protection from Unfair Trading Regulations.
Assisted RPC’s regulatory team while on an eight month secondment in 2020/21 with a major FRC.

Public international law

Katherine has been instructed to advise and act in a number of cases involving issues of public international law. Recent examples include:

Instructed as junior counsel in a claim brought by a multi-sector investor in a State of the Caucasus region, under a bilateral investment treaty. The claim is for breaches of protections for fair and equitable treatment, full protection and security, an ‘umbrella clause’, and prohibitions on unlawful expropriation and discrimination. Led by Sam Wordsworth KC and Lucas Bastin KC.
Advising on the mechanisms for asset recovery under international instruments (including the UN Convention Against Corruption, the African Union Convention on Preventing and Combatting Corruption and the UN Convention Against Transnational Organised Crime), regional instruments (such as the Conventions of the Organisation of American States, the Council of Europe, and the 2014/42/EU Directive), as well as domestic asset recovery legislation in a diverse range of jurisdictions.
Advising on the scope of the police powers doctrine as an exception to the requirement of compensation for lawful expropriation.
Advising on issues of state immunity in the context of freezing injunctions and third party debt
Advising on sanctions-related issues, including the impact of Regulation 2022/328 and Regulation 2022/428 on loan agreements.

Shipping & admiralty

Katherine has been instructed to advise and act in a number of shipping disputes. For example:

Acted as junior counsel in Libyan Navigator Co Ltd v Libya Insurance Company (The “BADR”) for underwriters in a c.US$40m claim for the total loss of a vessel following a prolonged stay in Bulgaria. The proceedings involved a successful application for a letter of request for documents to be produced in Bulgaria.
Advised charterers on a claim arising out of the fouling of the chartered vessel which was unable to enter the port where it was due to deliver cargo.
Advised on a defence to a demurrage claim and a potential unjust enrichment claim relating to the failure to deliver vessels to the owner.

Unjust enrichment & restitution claims

Many of Katherine’s cases involve claims arising out of unjust enrichment, which is an area of English law in which Katherine has a particular interest having studied restitution on the BCL. Katherine is currently advising as sole counsel on a potential civil fraud claim which raises issues of failure of consideration and undue influence and also recently assisted with research for a claim relating to mistaken forbearance and set off. During pupillage, Katherine worked on a number of unjust enrichment cases including claims arising from a breach of privacy and in relation to a proprietary claim for the return of Bitcoin.

Career

2020: Tenant at Essex Court Chambers

2019-2020: Pupillage at Essex Court Chambers

2019: Called to the Bar (Gray’s Inn)

2018-2019: Guest Teacher in Law at the London School of Economics

Education

2020: BPTC, City University, Outstanding

2019: BCL, Merton College, Oxford (studied conflict of laws, restitution, commercial remedies and corporate insolvency)

2018: BA Law (Jurisprudence), Merton College, Oxford, First Class

Awards

2018: Bedingfield Scholarship, Gray’s Inn

Third in the OEC Times Law Awards 2018