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Anthony Dearing specialises in financial regulation, banking and finance, commercial litigation, local government and public procurement law.
Experience and Expertise
Anthony, who is a dual capacity barrister, in both self-employed and employed practices, was called to the Bar of England and Wales in 1998. He is also registered with the Bar of Ireland.
He practiced first at the employed Bar in the Enforcement Division of the U.K. Financial Conduct Authority focusing on retail investment products and personal and occupational pensions. He then developed his practice at the Financial Services Group at Eversheds LLP (London) (during which time he was seconded to Legal & General Investment Management) before joining the International Capital Markets Group of one of New York’s oldest firms, Cadwalader Wickersham & Taft LLP.
Anthony has particular experience in non-contentious advisory and transactional work in the following sectors:
- Financial Regulation
- International Banking & Finance including:
- Structured Finance
- Asset/Project Finance
- Insurance and Reinsurance
- Private Equity and Joint Ventures
- Takeovers, Mergers and Share Sale Disputes
- The structuring of investment Partnerships, LPs and LLPs and any arising disputes
U.K. Financial Regulation
Anthony specialises in all aspects of U.K. retail and institutional financial regulation and has advised a number of U.K. and European Credit Institutions, brokers, dealers, investment and asset managers of on-shore regulated and offshore unregulated collective investment schemes on the impact of those regulations on the conduct of business carried out with or for retail clients, professional clients and eligible market counterparties.
In particular, he has advised:
- An asset manager, in relation to trading CDS OTC on the ITraxx indices under FCA’s MAR Sourcebook
- An international freight broker, in relation to the LCH Rules applicable to freight forwards traded OTC
- A U.S. asset manager, in relation to FCA authorisation in the U.K.
- An arranger, on the regulatory treatment of viatical settlements
- An arranger, on the regulatory capital requirements under the Basel Capital Accord and FCA’ BIPTRU and GENPRU rules for wholesale debt structures
- On the promotion of wholesale debt structures in compliance with FCA’s Listing, Prospectus, Disclosure, Transparency and Market Conduct rules
- On LSE Rules applicable to listed debt products
- On the Financial Collateral Directive and the enforceability of the close out and netting provisions of ISDA governed derivative instruments including CDS, TRS and IRS
- On the enforceability of a vanilla fixed-to-floating IRS entered into, to hedge a controlled amortising facility
- A Dublin based hedge fund, on MIFID II and its impact upon the LGPS, in relation to the categorisation of local authorities as retail clients and the potential for LGPS to opt-up to elective professional clients
- A Dublin based hedge fund, on the implications of Brexit on its passporting rights across the EU and whether and to what extent it should consider relocating to Dublin or to the Mainland
- A number of international capital market participants including arrangers, servicers, special servicers, managers, swap providers, swap counterparties, prime brokers and monoline insurers in relation to the U.K. aspects of wholesale debt issuances covering cash, synthetic and arbitrage structures including CDOs, CBOs, CMBS, RMBS and MTN Programmes offered to qualified investors and investment professionals across the E.U. Retail
- A retail division of a global credit institution in relation to its U.K retail direct sales force
- A payment services provider – a TSP – in relation to proposals to market non-investment insurance products to customers through a Dublin branch of a Belgian insurance undertaking
- A U.S. payment services provider to obtain authorisation in the U.K.
- A Singapore retail Bank on the Senior Managers Regime and it applicability to its overseas and London branch staff.
International Banking & Finance
Anthony has acted for a number of international capital markets participants including arrangers, servicers, special servicers, managers, swap providers, swap counterparties, prime brokers and mono-line insurers in both London and New York in relation to the U.K. and European regulatory aspects of wholesale debt and equity issuances covering cash, synthetic and arbitrage synthetic structures. This includes CDOs, CBOs, CFOs, CMBS RMBS and MTN programmes offered to qualified investors and investment professionals across the European Union.
In particular, he has advised on:
- The regulatory treatment of Viatical Settlements
- The regulatory capital treatment of wholesale debt structures under the Basel Capital Accord and FCA’s Prudential Standards (BIPRU and GENPRU Rules)
- The promotion of wholesale debt structures in compliance with FCA’s Listing, Prospectus, Disclosure, Transparency and Market Conduct Rules as well as with FCA’s Conduct of Business Rules
- LSE Rules applicable to listed debt products
- The Financial Collateral Directive and the enforceability of the close out and netting provisions of ISDA governed derivative instruments including Credit Default Swaps, Total Rate Return Swaps and Interest Rate Swaps
- The enforceability of a vanilla fixed-to-floating interest rate swap entered into in order to hedge a controlled amortising facility.
Anthony has also acted for a number of U.S. arrangers of SEC Regulation S and Rule 144A debt structures established offshore in Ireland, Cayman Islands and BVI, whose securities were offered pursuant to Article 3 of the Prospectus Directive in both the U.K. and other jurisdictions within the EEA.
Anthony has a broad insurance practice covering both contentious and non-contentious work. With a wide-ranging client base, he is often instructed in complex and cross-border matters. His instructions have included:
- Securitisation – viatical settlements: advising a London arranger/sponsor which intended to use a Texas SPV/Issuer to securitise US contracts of long term insurance – in relation to the English regulatory requirements
- Regulation: advising EU brokers and cross border insurers on applicable FSA Rules in relation to intermediation (consumers and commercial customers), effecting contracts of long term insurance and in relation to insurers’ capital resources requirements, technical provisions and solvency margins
- advising an off-shore general insurance company selling its simple term assurance product directly to retail investors in the UK.
Anthony is regularly instructed in high value and/or high profile commercial disputes. In relation to many of those instructions, he was instructed as sole counsel responsible for strategy as well as managing those involved in the litigation at both client and underlying client levels. He has also been led by silks.
Local Government & Public Procurement
Anthony is regularly instructed by Local Authorities in relation to their contracts with economic providers, in relation to:
- Interpretation: the proper construction of contracts – e.g. (1) whether, by a modified version of the Manual of Contract Documents for Highways Works and by the IEE Wiring Regulations, both forming part of an infrastructure contract adopting modified NEC2, the Contract Standard/Specification for certain Street Lighting works, required the provision of up to date – 17edn – inspection and testing certificates or whether certificates conforming to earlier editions were compliant, and (2) whether side letters, exchanged between a local authority and its economic operator, as part of a contractual escalation procedure under a £240M fixed term infrastructure contract, carried contractual force
- Price Adjustments – e.g. in relation to: (1) the applicability of Laing & Buisson real-term fee rates in the assessment of annual uplifts linked, contractually, to inflation; and (2) how to calculate variation of price, under an fixed term infrastructure contract, which had been varied, where the local authority contended for the use of average RPI over the preceding 12 month period. Whereas the economic operator contended for the application of the average increase in RPI over the same period
- Works: Defective works & failure to undertake works to the requisite contract standard (e.g. Street Lighting, Winter Services – recovery of monies paid through the contract and, in restitution, for monies had and received, where the Defect Correction Period had expired and where the works had not been performed to the contract standard (e.g. incorrect materials used or less material used than is required by the contract) but nevertheless charged for at the contract rate and price
- Final Accounts – including disputes concerning quantum and methodology of calculation of quantum under NEC infrastructure contracts and in particular the use of schedules of costs components, the use of Local Area Overhead, Changes in Law and Compensation Events
- Adjudication – preparation for and attendance at high value and complex construction adjudications concerning multiple issues including Street Lighting, Paving, Price and deceit
- High Court: When ADR has failed, Anthony appears for local authorities in the Queen’s Bench Division and the Technology and Construction Court for local authorities in their disputes with economic providers
- Mediation: preparation for and attendance at high value and complex construction adjudications concerning issues relating to variation of price, surface dressing and street lighting specifications under the Manual of Contract Documents for Highways Works and associated regulations
- Judicial Review: Anthony frequently has been instructed by local authorities to advise on and appear for them in judicial review proceedings launched against them in relation to contracts with economic providers.
In particular, Anthony was instructed to represent a LA in defence of an application for leave to judicially review a decision to terminate a services agreement following the service provider’s insolvency.
LGPS: Anthony, has advised local authorities and asset managers on the:
- LGPS (Management and Investment of Funds) Regulations 2009
- changes introduced to customer classification by MIFID II
- the scope of certain ethical investment policies.
Anthony regularly acts for local authorities in relation to issues concerning their public tender exercises and the applicability and implications of the U.K. Public Procurement Regulations to contracts they wish to award.
For example, he has been instructed in relation to:
- the implications under the Public Contracts Regulations of extending and varying a fixed term contract for above threshold services
- whether Derby City Council on their own or with the trades union, UNITE, could judicially review the Secretary of State’s decision to award Siemens rather than Bombardier preferred bidder status
- a decision by a local authority not to increase fees paid to third party providers of residential accommodation to those over the age 18 for whom the local authority is, as a matter of statute (National Assistance Act 1948), responsible, was lawful under a spot purchase contract.
Cases and Work of Note
- RAM Media Ltd (In administration) v The Ministry of Culture of the Hellenic Republic (Secretariat General of Sport)  EWHC 1835 (QB) & on Appeal No A2/2008/2177 – breach of contract for the rights to host the World FIFPRO awards; value EUR 2.5M; succeeded on appeal to the CA. Judgment enforced against sovereign debt by Order 72 proceedings.
- Friends First Managed Pension Fund Ltd v John McCann 2009 No. 1000849 (NI) – Ex turpi causa; secured loan/Life Assurance/prudential insurance regulation; value £8M.
- Carillion Plc v The City of Bradford Metropolitan District Council [HQ07X01765] (QB) (2007-2010) – Breach of implied contract, value: £40M; settled.
- The Registered Nursing Home Association v North Somerset Council in Arbitration [C.1-10,12-14:129090031] (2010-2011) – breach of contract (price evaluation provisions); value £13M; settled during arbitration.
- Manmohan Chander Varma v Lakshmi Niwas Mittal 2011 Folio 1203 (Comm Court)(2010-2012) – Quantum Meruit.
- Malmo Aviation v BAE Systems & Trident Jet (Dublin) Ltd (2012) – construction of an aircraft operating lease in relation to MTOW and MLW; value £3.5M.
- Amey LG Ltd v Herefordshire District Council in 4 adjudications (2014-2016) – breach of infrastructure contract and failure to implement an adjudicator’s award; value £40M.
- Amey LG Ltd v Cumbria County Council  EWHC 2856 (TCC) – breach of fixed term infrastructure contract; value £50M.
- Mark William Adams & Ors v Clydesdale Bank Plc t/a Yorkshire Bank. Claim No. LM-2016-080 (2016 to date) – breach of Trust; value £1.09M.
He has also advised in relation to the availability of and requirements concerning the use of captive service providers under the principles stated in: Teckal SrL v Commune di Viano & Azienda Gas – Acqua Consorziale (AGAC) di Reggio Emilia  ECR I-8121 & Brent LBC v Risk Management Partners Ltd And London Authorities Mutual Ltd & Harrow LBC  EWCA Civ 490, 9 June 2009.
- The University of West London
- The College of Law (Guildford)
- The Inns of Court School of Law, City University
- Chancery Bar Association
- Commercial Bar Association
- European Securities Forum
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