Articles


Date
Title
Contributors
Practice Area


04 Aug 2020
Charities sue jailed solicitor and her firm over lost estate monies

A jailed former Yorkshire solicitor is being sued by charities who were left money by one of her clients where she was co-executor.

It emerged from a court ruling published this week that two claims have been brought against Linda Box, a former partner with Wakefield firm Dixon Coles and Gill, who contend they have sustained loss from her criminal activities.

Box was jailed for seven years in 2017 after admitting 12 offences of fraud, theft and forgery and was ultimately struck off the roll of solicitors. She faces claims from the Guide Dogs for the Blind Association, Yorkshire Cancer Research, British Heart Foundation and the National Trust, who allege that Box appropriated monies payable to them from the estate of the deceased Ernest Scholefield.

Published In
The Law Society Gazette


29 Jun 2020
Who can the Court compel to act reasonably? Ethiopian Orthodox Tewahedo Church [2020] EWHC 1493 (Ch)
Since 2015 an Ethiopian Orthodox church in Battersea has been occupied by two rival factions of worshippers. After several years of Court intervention the charity which owns the building became a Charitable Incorporated Organisation (‘CIO’). There is a Clergy Council, elected by the members of the CIO, by whom other governors were to be nominated. Each member was obliged by the constitution to ‘exercise his or her powers … in the way he or she decides in good faith would be most likely to further the purposes of the Church” - words mirroring the Charities Act 2011, s.220.
 
A general meeting elected only those clergy preferred by the Claimants and none of those preferred by the Defendants. The Defendants sought to have the vote declared invalid because those voting did so as part of a campaign to seize control of the church, and not exercising their own independent judgment.
 
The Court refused to make the declaration sought. The 2011 Charities Act and the terms of the CIO constitution both depend upon the subjecting state of mind of the voting member; in order for a vote to be set aside there must be evidence that the voters do not believe that their votes will further the purpose of the CIO. In circumstances where the membership was bitterly divided along firmly-held issues of principle which were partly spiritual, partly liturgical and partly political, it was not possible to say any of those members had breached their duty by backing a candidate who shared their views.
 
Comment: The different vehicles available for charities - trust, unincorporated association, private company, CIO - come with different levels of oversight. In Lehtimaki v Children’s Investment  Fund [2018] EWCA Civ 1605 the Court of appeal held that members of charitable companies were subject to fiduciary duties akin to those applicable to members of CIOs, but the court had no jurisdiction to intervene in a member’s actions absent evidence of a breach of trust. The Supreme Court heard an appeal on 14 January this year but has yet to give judgment. It seems odd that such a high-profile decision was not cited in this case, but the two sit well together; the court will only intervene in the voting decisions of members where there is a breach of duty, and the test is a subjective one. Where votes are by secret ballot with no requirement for reasons to be given, it will be almost impossible to mount an effective challenge. In this case, the judge referred to the sermon given shortly before the vote was taken and considered it effectively as a ‘direction to the jury’.

 


25 Jun 2020
Court orders third-party disclosure against witnesses to will - Gardiner v Tabet [2020] EWHC 1471 (Ch)

In a rare decision the High court has ordered the lay draftsman and witnesses to a will to give full disclosure of their communications with the testator and the main beneficiary of the will.

The will, executed in May 2017, gave the testator’s entire estate to a friend of his, Dr Gardiner. It emerged that shortly before the will was apparently executed Dr Gardiner had provided an email, said to contain the deceased’s testamentary wishes, to one of his friends, who then showed it to the deceased and later wrote it up in the form of a formal will. The siblings of the deceased challenged the validity of the will, alleging that the signature was not authentic and that in any event he had lacked capacity and/or had not known and approved its contents. Before disclosure in the main action, the siblings sought full disclosure from the friend who drafted the will, and from the other witness, of their communications. The respondents refused, and an application was made for third-party disclosure. 

 

To read the full article, please click here.


24 Jun 2020
Non-Contentious Probate - Use of Statements of Truth Probate - Frequently Asked Questions

Two publications have been issued recently giving guidance about the probate process in England and Wales. The first was guidance on the use of statements of truth in place of affidavits in certain applications under the Non-Contentious Probate Rules. The second concerned the new online and paper application procedures. 

 

To read the full guide, please click here.


18 Jun 2020
Pleading dishonesty against Trustees: Sofer v Swissindependent Trustees SA [2020] EWCA Civ 699
Mr Sofer brought a claim for breach of trust against the trustees of a very substantial discretionary trust, on the basis that they had made gifts out of the trust to his father, when the trust instrument only permitted them to make loans. Upon his father’s death it emerged that $61m had been paid out to the father, $19m of which his estate was unable to repay. The claim faced two major hurdles: first, the trust instrument contained an exoneration clause excluding liability for anything other than acts "in personal conscious and fraudulent bad faith by the trustee”; second, the claimant himself had signed indemnities in respect of the ‘loans’, releasing the trustees from any liability.
 
HHJ Paul Matthews struck out the claim for failing properly to plead dishonesty by the trustee, and in the alternative granted summary judgment to the trustees based upon the indemnities.
 
The Court of Appeal unanimously allowed the appeal, both from the strike out and from summary judgment. As to the pleading of dishonesty, the Court of Appeal confirmed that the test of dishonesty was that set out in Fattal v Walbrook Trustees (Jersey) Ltd [2010] EWHC 2767 (Ch); as well as a deliberate breach, it was necessary to show either knowledge that the breach is contrary to the interests of the beneficiaries, recklessness as to the same, or a belief so unreasonable that no reasonable trustee could have believed the act was in the interests of the beneficiaries. It was not, said Arnold LJ, necessary to identify the particular individuals in the corporate trustee who met that test; it was enough to plead that the corporate entity had the relevant state of knowledge, and further particulars should be given ‘as soon as is feasible’.
 
Moreover, the claimant could rely upon inference from the other matters pleaded as supporting an allegation of Fattal knowledge, and although some of the particulars relied upon could, in isolation, be seen as consistent with honest incompetence, the effect of the pleading as a whole was not. Similarly, some of the pleaded particulars were inconsistent, because the claimant was advancing alternative cases on the different Fattal limbs; that was permissible. The Judge had failed “to step back and consider all of the particulars … as a whole to see if there was sufficient to tip the balance”. The pleading would not be struck out.
 
On summary judgment, the Court of Appeal held that the deeds of indemnity could be construed as only authorising payments that were in truth loans, and not gifts, and also as impliedly not authorising payments which were made dishonestly. Such an interpretation was not ‘uncommercial’. The Judge below had wrongly accepted the defendants’ contested evidence on a summary judgment application, and wrongly found that the alleged representation by the trustees that the gifts were loans equated to a  ‘shared assumption’, sufficient to give rise to an estoppel by convention. It was (at least arguably) necessary for the claimant to know the legal effect of what he was doing before a waiver would arise, i.e. that they were in truth gifts, and prohibited by the trust instrument.
 
Comment: Pleading dishonesty against professional trustees is a nerve-wracking task, coming with professional and reputational risk for the practitioner as well as huge costs risks for the client. Although all judgments on strike-out should be taken with a pinch of salt (they only set the threshold for surviving strike-out, rather than best practice), this is a helpful indication from the Court of Appeal as to what does, or does not, constitute a sufficient pleading of dishonesty against a trustee protected by an exoneration clause. Further, it is acceptable to plead knowledge and dishonesty in a general sense against a corporate trustee and to wait until after disclosure for full particulars, so long as the facts are capable of supporting an inference to that effect. 


17 Jun 2020
Residence, Tax and COVID-19

Overview

  1. An individual’s residence and/or domicile affects their UK Income Tax, CGT and IHT liability and the impact of COVID-19 is likely to pose problems for individuals who enjoyed foreign residence and/or domicile prior to the pandemic.

 

  1. Whilst domicile is a permanent, common law determined concept, residence is determined by the Statutory Residence Test ("SRT") and has hard edges, focusing on the number of days “spent” in the UK and can change from one tax year to another. COVID-19 presents a host of problems requiring close analysis of each of these concepts. These problems are particularly acute for residence, the most obvious being where an individual cannot leave the UK due to COVID-19 travel restrictions, thereby finding themselves resident, domiciled or even deemed domiciled in the UK.

 

  1. The law on determining whether an individual's residence or domicile is in the UK is complex. Any COVID-19 exemptions and the application thereof of them are presently unclear. In the following article, “Residence, Tax and COVID-19” we flesh out both concepts, potential COVID-19 exemptions which may apply to the hard-edged residency test, HMRC’s present position to the same and, finally, practical tips and concerns.

 

To read on, please click here.


16 Jun 2020
Re Fowlds [2020] EWHC 1200 (Ch) (ICC Judge Jones)

The court considered whether a recipient may rely upon a change of position defence to retain what would otherwise be a recoverable preference payment. Whilst formally holding that a change of position defence was not available, the court did in substance apply a slightly narrower version of the defence when exercising its discretion to make no order for recovery. Courts and Trustees faced with similar circumstances in future may see the “limited change of position refusal” or “exceptional hardship refusal” being applied to deny recovery. 

 

To read more, please click here.


02 Jun 2020
Success fees in 1975 Act claims: SH v NH [2020] EWHC 1134

Success fees in 1975 Act claims: SH v NH [2020] EWHC 1134

The Family Division has determined that a claimant’s success fee should be awarded to her as part of her award under the Inheritance (Provision for Family and Dependants) Act 1975.

The facts are unexceptional. The claimant claimed against the estate of her late father, and against her elderly mother as the sole beneficiary of his estate. The mother did not defend the claim. The claimant had been estranged from her parents for many years, and suffered various health issues. She asked for a home, a capital sum to cover expenditure and various other sums that would have extinguished the net estate entirely. She also owed her solicitors £84,729 in fees, plus a success fee (if the claim succeeded) of a further £48,175 and asked for the latter sum to be added to her award. 

 

To read more, please click here.


02 Jun 2020
Wife who beat husband to death with a hammer permitted to inherit his estate: Challen v Challen [2020] EWHC 1330 (Ch)

On 15 August 2010 Sally Challen beat her husband to death with a hammer, wrapped him in a curtain before washing the dishes and driving home. She was convicted of murder on 23 June 2011 and sentenced to life imprisonment, but last year that conviction was quashed by the Court of Appeal. Before the retrial the Crown accepted a guilty plea to a lesser charge of Manslaughter by reason of diminished responsibility, and Mrs Challen was released, having already served her sentence. The Forfeiture rule prevented her inheriting her husband’s estate or taking their joint assets by succession, and in September 2019 she issued proceedings under the Forfeiture Act 1982 for relief. 

 

To read more, please click here.


26 May 2020
A dog’s breakfast; defective trust instruments rescued - Bowack v Saxton [2020] EWHC 1049 (Ch)

In 2013 the Claimants paid £750,000 to establish two discretionary trusts containing AXA offshore bonds in the Isle of Man. In a meeting with a financial planner from Hargreaves Lansdown, they both executed standard form declarations of trust intended to appoint themselves and their daughter as trustees, and their daughter as principal beneficiary. However, there were a string of defects in the documentation:

  • The effective date was left blank
  • The trust property (the bonds) were not identified
  • The signature of the daughter as trustee was not witnessed

Two bonds were issued, one in the name of each claimant, to a value of £750,000. However, AXA refused to recognise the trusts, because the signature of the daughter was not witnessed and no identity documents had been provided. The bonds themselves were subject to Manx law and only assignable with the company’s agreement. 

 

To read more, please click here.


12 May 2020
Causing the death of another and the Forfeiture Rule: Amos v Mancini [2020] EWHC 1063 (Ch)- today
Causing the death of another and the Forfeiture Rule: Amos v Mancini [2020] EWHC 1063 (Ch)
 
In January 2019 Mrs Amos, aged 74, was driving with her husband near their home in Llandeilo, when they collided with the car in front. Her husband later died from his injuries and Mrs Amos pleaded guilty to causing death by dangerous driving and was given a suspended prison sentence and disqualified from driving. The question arose whether she was prevented from benefitting under her husband’s will, or from receiving by survivorship his share of their home, which was owned as beneficial joint tenants.
 
To read more, click here.


29 Apr 2020
Ruscoe and Moore v Cryptopia Limited (In Liquidation)

In February 2020, judgment was given in the first opposed common law decision in which the proprietary nature of bitcoin was necessary to be decided. Justice Gendall decided the matter in the High Court of New Zealand.

 

To read more of the case report by Leigh Sagar, click here.


27 Apr 2020
Top Ten Easy Mistakes to Make in Bankruptcy Petitions

James Saunders has listed the Top Ten Easiest Mistakes to Make in Bankruptcy Petitions.

 

To read more, click here.


21 Apr 2020
Top Ten Easy Mistakes to Make When Winding Up Companies

The  unfortunate consequence  of  the  ongoing  coronavirus  pandemic  is  an  increase in  the  use  of  windingup mechanisms,  particularly  as  landlords  seek  alternative  routes  to  secure  rent  payments  from commercial  tenants. Below  are  some of  the  easiest  mistakes  to  make when  seeking  to  wind-up  companies and  how  to  avoid  them.

 

To read more, click here.


20 Apr 2020
COVID 19: Revisiting Frustration in the Context of Leases

Co-Authored by Jeff Hardman and James Saunders of New Square Chambers and Ranjeet Johal of Mills Chody LLP.

 

To read the full article, please click here.


07 Apr 2020
Top Ten Easy Mistakes When Executing Wills

Alexander Learmonth, editor of Theobald on Wills, has written a list of the top ten easiest mistakes to make when executing wills. To read more, click here


30 Mar 2020
Imposing Quistclose trusts—knowledge, not notice, as the golden rule (Goyal v Florence Care Ltd)

James Saunders provides dispute resolution analysis for Lexis PSL addressing the recent decision in Goyal v Florence Care Ltd and others [2020] EWHC 659 (Ch).

Goyal emphasises the importance of knowledge over notice in generating a Quistclose Trust. Quistclose trusts are likely to play a significant role between commercial parties and in and insolvency context in the wake of the current coronavirus crisis. Solicitors and commercial fund managers should be alert to the possible implications arising from the allocation and management of communications received, mindful that attributed knowledge may still suffice in the right circumstances. Goyal also provides an important reminder of the gateway function of an order for an account through which substantive remedies can be accessed.

Published In
LexisPSL

>>Read More

26 Mar 2020
The Predatory Marriage Trap
James McKean highlights the morality & dangers of predatory marriage & probate
 
  • Individuals without mental capacity can be ensnared in predatory marriages, in this jurisdiction and abroad.
  • Following an unfortunate change to the law in 1971, these marriages are voidable, not void, and cannot be challenged after death. They allow spouses to take the benefit of the intestacy rules. Beneficiaries under any previous wills are disinherited, and largely without recourse.
  • Practitioners should be alert to the testamentary effects of marriage and consider capacity to marry just as they consider capacity to make a will.

 

To read the full article, click here: https://bit.ly/2WTCvOh

 

Published In
New Law Journal


02 Mar 2020
Introduction to Cryptocurrencies

Leigh Sagar has written an article on "Introduction to Cryptocurrencies." Please click here to read more. 


27 Feb 2020
Counterfactual defences to unjust enrichment restricted in Woolwich restitution claims (Vodafone Ltd & Ors v The Office of Communications)

Dispute Resolution analysis: The Court of Appeal considered the application of counterfactual arguments to unjust enrichment claims based upon the principle in Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70. The decision affirms the primacy of the principle of lawful authority and limits the scope for public authorities to rely upon hypothetical decision making to curtail restitution.

To read more, click here

Published In
LexisPSL


29 Jan 2020
Disposals of cryptoassets, tax & the UKJT Legal Statement

Leigh Sagar looks at the mechanics and tax implications of cryptoasset disposals in the light of the UK Jurisdiction Taskforce Legal Statement on cryptoassets and smart contracts

 

To read the full article, click here: https://www.scl.org/articles/10801-disposals-of-cryptoassets-tax-the-ukjt-legal-statement

Published In
The Society for Computers and Law


11 Dec 2019
Bona vacantia and beyond—Court of Appeal considers vesting orders (Leon v Attorney-General and others)

Property Disputes analysis: Gerard van Tonder, examines a Court of Appeal decision that a leasehold interest in a property which had been assigned to the appellant's company and which, after the company was dissolved, was disclaimed by the Crown should not be ordered to vest in the appellant. The court found that although the appellant was a co-mortgagor of the leasehold interest, he was not entitled to it under section 1017(2)(a) of the
Companies Act 2006 (CA 2006). To read more, click here.

Published In
LexisPSL


25 Nov 2019
Contractual silence - a gateway for unjust enrichment (Barton v Gwyn-Jones)

Dispute Resolution Analysis:  James Saunders comments on how the The Court of Appeal addressed whether the so-called ‘Costello principle’ precluded a claim in unjust enrichment by an agent for an introduction fee where an oral contract governed the arrangement. 

Click here to read more.

Published In
LexisPSL


05 Nov 2019
Wood v Commercial First Business Ltd (In Liquidation) [2019] EWHC 2205 (Ch)

Can You Keep A Half Secret? (Wood v Commercial First)

 

James Saunders comments on the recent judgment in Wood v Commercial First addressing fully and half secret mortgage broker commissions, remedies and limitation.

>>Read More

28 Oct 2019
Challenging the decision to reject proofs of debt in a CVA for dividend purposes (Re JPF Clarke (Construction) Limited)

Restructuring & Insolvency analysis: Jessica Powers comments on the courts judgement in favour of four creditors who brought an application challenging the decision of the joint supervisors of a company voluntary arrangement (CVA) to reject their proofs of debt for the purpose of a dividend.

 

Click here to read more.

Published In
LexisPSL


24 Jul 2019
Providing required information on websites—icons and cursors (Viagogo AG v Competition and Markets Authority)

Commercial analysis: James Davies considers the case Viagogo AG v Competition and Markets Authority.

Click here to view.

Published In
Lexis PSL - July 2019


20 Jul 2019
Crowden v Aldridge—the correct approach to variations?

James Saunders, second six pupil at New Square Chambers, analyses deeds of variation.

Click here to view article online (requires Oxford Academic account)

Published In
Trusts & Trustees - July 2019


15 Mar 2019
Trusts in Europe and Brexit—a view from the Bar

Nicholas Le Poidevin, Q.C. explores the recognition of trusts in EU law and points out that even after Brexit there will be trust outposts in Europe.

Click here to view.

Published In
Lexis PSL - March 2019


12 Dec 2018
Interested or entitled? The courts’ approach to vesting orders (Leon v Her Majesty’s Attorney General)

Property Disputes analysis: On what grounds is an individual entitled to assets belonging to a company that has been dissolved and not restored to the register? Gerard van Tonder, who appeared for Westminster Council in the case, considers the decision in Leon v Her Majesty’s Attorney General.

Click here to view.

Published In
Lexis PSL - December 2018


06 Dec 2018
Farakh Rashid v Teyub Nasrullah: adverse possession of registered land

Rodney Stewart Smith considers the case Farakh Rashid v Teyub Nasrulla.

Click here to view

Published In
New Square Chambers


09 Oct 2018
CGT relief on residences bought off-plan

Aidan Briggs discusses the case which led The Upper Tribunal to clarify the law on the ‘period of ownership’ for which Capital Gains Tax relief is available on the disposal of a main residence.

Click here to view.

Published In
New Square Chambers


09 Oct 2018
Falling between stools; a salutary lesson for widows

Aidan Briggs discusses the recent decision of the High Court in Bhusate v Patel, which should be a warning to all those who remain in the marital home after the death of their spouse.

Click here to view.

Published In
New Square Chambers


29 Aug 2018
Letters of request and ongoing criminal proceedings (Aureus Currency Fund and Credit Suisse Group AG v Mitesh Parikh)

Dispute resolution analysis: Chris Snell considers the case Aureus Currency Fund and Credit Suisse Group Ag v Mitech Parikh.

Click here to view (Lexis PSL sign in required)

Published In
Lexis PSL - August 2018


08 Aug 2018
Jurisdiction via unconventional routes (Eurasia Sports Ltd v Aguad)

Dispute Resolution analysis: Chris Snell considers the case Eurasia Sports Ltd v Aguad.

Click here to view (Lexis PSL sign in required)

Published In
Lexis PSL - August 2018


01 Aug 2018
Stay of proceedings for arbitration and worldwide freezing orders (Sodzawiczny v Ruhan)

Dispute Resolution Analysis: Chris Snell considers the case Sodzawiczny v Ruhan.

Click here to view.

Published In
Lexis PSL - August 2018


23 Jul 2018
Court of Justice: Brussels I and International Transport of Goods (Zurich Insurance plc and another v Abnormal Load Services (International) Ltd)

Dispute Resolution analysis: Chris Snell considers the case Zurich Insurance plc and another v Abnormal Load Services (International) Ltd.

Click here to view.

Published In
Lexis PSL - July 2018


06 Jul 2018
Should I stay or should I go? Re K Trust and the retirement of a Guernsey protector

Mark Hubbard discusses the retirement of a Guernsey protector in Re K Trust. Mark acted for the protector.

Click here to view

Published In
Oxford Academic Trusts & Estates, July 2018


05 Jul 2018
ISDA standard form Master Agreements and competing jurisdiction clauses (BNP Paribas SA v Trattamento Rifiuti Metropolitani SPA)

Dispute Resolution analysis: CHris Snell considers the case BNP Paribas SA v Trattamento Rifiuti Metropolitani SPA.

Click here to view.

Published In
Lexis PSL - July 2018


29 Jun 2018
Virtual Reality: why we live in an interesting time for crypto-assets

Leigh Sagar discusses his "current vison of the future of crypto-assets".

Click here to view.

Published In
Trust Quarterly Review (Vol16 Iss2), pp.5-11


02 May 2018
Limited Liability Trusts? (Investec Trust v Glenalla)

Aidan Briggs takes an in-depth look at the Privy Council's surprising judgement on enforcement against offshore trusts in Investec Trust v Glenalla.

Click here to view.

Published In
New Square Chambers


24 Apr 2018
Privy Council dismisses raft of appeals in major Guernsey trust case (Investec Trust v Glenalla)

Mark Hubbard summarises the long-running Guernsey trust litigation involving trusts for the benefit of the Tchenguiz family (Investec Trust v Glenalla). The case spawned a raft of final appeals, almost all dismissed in a judgment of the Privy Council handed down yesterday (23rd April 2018). 

Click here to view.

Published In
New Square Chambers


18 Apr 2018
Case Analysis: Generator Developments Limited v Lidl UK GmbH [2018] EWCA Civ 396

Jeff Hardman considers this recent decision of the Court of Appeal regarding the application of the Pallant v Morgan equity in a commercial context where the parties had specified that their agreement was “subject to contract”.

Click here to view.

Published In
New Square Chambers


15 Mar 2018
Book Review: Inheritance Act Claims, a Practical Guide (2nd edition)

Alexander Learmonth reviews Inheritance Act Claims, a Practical Guide (2nd edition) for Trusts & Trustees.

Click here to view.

Published In
Trusts & Trustees - March 2018


15 Mar 2018
Case Analysis: Blenkinsop v Herbert [2017] WASCA 87

Aidan Briggs discusses this recent decision of the Supreme Court of Western Australia, which offers a detailed and rigorous analysis of the existing case law relating to the role of protectors and to what extent protector’s powers may be considered fiduciary.

Click here to view.

Published In
Trusts & Trustees - March 2018


23 Feb 2018
Overlap between court’s jurisdiction to strike out a claim and grant summary judgment (Saeed and another v Ibrahim and others)

Discussing the judgment in Saeed v Ibrahim, Aidan Briggs says it is important that an application notice makes perfectly clear what order is sought and pursuant to which provision.

Click here to view

Published In
Lexis PSL - February 2018


30 Oct 2017
How do the intentions stack up?

Mark Hubbard and Aidan Briggs discuss the recent decision of the Privy Council in Marr v Collie, extending Stack v Dowden principles to investments.

Click here to view.

Published In
STEP Journal: Volume 25/Issue 8


19 Oct 2017
In brief: Service out in libel and malicious falsehood cases (Huda v Wells and others)

Dispute Resolution analysis: Kristina Lukacova considers the case Huda v Wells and others, which applies the rules on service out of the jurisdiction where permission of the court is required to claim for libel and malicious falsehood.

Click here to view

Published In
Lexis PSL - October 2017


25 Sep 2017
In brief: Costs and late amendments in a split trial; indemnity costs (Imperial Chemical Industries v Merit Merrell Technology)

Dispute Resolution analysis: Francesca Perselli considers the case Imperial Chemical Industries v Merit Merrell Technology. 

Click here to view

Published In
Lexis PSL - September 2017


20 Sep 2017
Assets of community value: compensation

Simon Adamyk explains some of the key issues which can arise when considering claims for compensation in respect of Assets of Community Value.

Click here to view

Published In
Westlaw UK Insight - September 2017


14 Sep 2017
Law Commission consultation on reform to the law of wills

Aidan Briggs summarises the Law Commission’s preliminary conclusions on the law of wills and the likely direction of reform for the future.

Click here to view

Published In
Trusts & Trustees - September 2017


11 Sep 2017
In brief: Assignment of cause of action not void for breaching the rules against champerty and maintenance (Casehub Ltd v Wolf Cola Ltd)

Dispute Resolution analysis: Jeff Hardman considers the High Court decision in Casehub Ltd v Wolf Cola Ltd, being a useful illustration of the distinction made between assigning a
cause of action and assigning the fruits of a cause of action.

Click here to view

Published In
Lexis PSL - September 2017


10 Jul 2017
What are your intentions? The interim administration moratorium and JCAM Commercial Real Estate Property XV Ltd v Davis Haulage Ltd

Court of Appeal sends a clear message on the implications for filing successive notices of intention to appoint administrators. Jonathan Lopian reports on JCAM Commercial Real Estate Property XV Ltd v Davis Haulage Ltd

Published In
Corporate Rescue and Insolvency - June 2017

>>Read More

15 Mar 2017
E-Flash - Landmark Supreme Court decision on Inheritance Act claims

The Supreme Court today allowed the charities’ appeal in the case of Ilott v Mitson [2017] UKSC 17.

Click here to view

Published In
New Square Chambers


26 Jan 2017
Future statutory changes to the law of trusts in Jersey

Click here to view article

Published In
New Square Chambers


04 Jan 2017
In brief: Forbearance is good consideration for a promissory note (Banque Cantonale De Genève v Sanomi)

Commercial analysis: Chris Snell considers the case Banque Cantonale De Genève v Sanomi.

Click here to view.

Published In
Lexis PSL - January 2017


04 Nov 2016
Control & Ownership: and what's yours is mine too

Power, control and ownership: offshore structures under attack in recent commercial cases

Click here to view

Published In
Trust Quarterly Review - April 2016


06 Oct 2016
White v Jones liability for negligent advice

Trusts & Trustees Vol 22 Issue 8

In this article, Charles Holbech examines the scope of the liability of a professional will draftsman to an intended beneficiary under a will in respect of a negligent failure to advise the testator as to how best to confer a benefit on the intended beneficiary.

Click here to view

Published In
Oxford Journals - October 2016


22 Jul 2016
Deja vu

The sanctions regime established in Mitchell has been misapplied once again. Jonathan Lopian reports on McTear v Englehard

Click here to view

Published In
The New Law Journal - July 2016


18 Jul 2016
A hard case to make: Bromley v Breslin [2015]

A hard case to make:

Bromley v Breslin [2015] exposes the possible cost consequences of an application under CPR 57.7(5) to challenge the validity of a will. Charles Holbech explains...

Click here to view article

Published In
Trusts & Estates Law Journal - July/Aug 2016


01 Jun 2016
E-Flash - John Cleese

Click here to view

Published In
New Square Chambers


24 May 2016
E-Flash - Latest 'Mitchell' case

Click here to view

Published In
New Square Chambers


11 Apr 2016
Commercial Landlord & Tenant Law

Gary writes about the implication of contract terms & return of advance rent upon operation of a break clause.

Click here to view

Published In
New Square Chambers


11 Apr 2016
Proprietary Estoppel: Expectation or Detriment

Charles explores proprietary estoppel claims giving rise to a particular issue

Click here to view

Published In
New Square Chambers


11 Apr 2016
Just and Equitable Winding-Up & Bankruptcy Trustees

Jonathan Lopian represented the Respondents in Hamilton v Brown

Click here to view

Published In
New Square chambers


16 Feb 2016
‘No Woman No Cry’ copyright conflict

Madeleine Heal was instructed for BSI and Cayman on appeal from a 2014 decision of Richard Meade QC sitting as a deputy High Court judge in a music copyright action regarding 13 songs written by Bob Marley between 1973 and 1976 including ‘No Woman No Cry’.

Click here to view

Published In
New Square Chambers


10 Feb 2016
Mistaken bank payments: unjustenrichment and the applicable law under Rome II (2016) 1 JIBFL 20

Nigel Hood considers the meaning and effect of the provisions of the Rome II Regulation on the law governing non-contractual obligations as they relate to unjust enrichment and the tort of deceit – specifically in the context of fraudulently obtained bank payments.

Click here to view

Published In
Butterworths Journal of International Banking and Financial Law


26 Jan 2016
Short-Term Patent System in Hong Kong

Madeleine Heal was instructed in a patent appeal in the Hong Kong Court of Appeal in July 2015. Acknowledged as Hong Kong’s patentcase of the year by Managing IP, it involved a patent disputebetween two construction companies working on the controversial Hong Kong high-speed rail connection to mainland China.

Click here to view

Published In
New Square Chambers


01 Dec 2015
When is property added to a settlement "excluded property"?

Rodney Stewart Smith explores the decision of Mann J. in Barclays Wealth Trustees (Jersey) Limited regarding what is excluded property for purposes of the Inheritance Act 1984 s48(3)

Click here to view

Published In
New Square Chambers


01 Dec 2015
Penalty Clauses

Malcolm Chapple writes on a judgment handed down by the Supreme Court, in relation to penalty clauses in a contract

Click here to view

Published In
New Square Chambers


01 Dec 2015
A return to orthodoxy in matters of contractual interpretation

David Warner considers the Supreme Court's decision in Arnold v Britton [2015]2 WLR 1593 in restoring the supremacy of the traditional approach to the construction of commercial contracts

Click here to view

Published In
New Square Chambers


12 Oct 2015
New Focus on Landowners’ Rights in Relation to Planning Enforcement Notices

Appeals; Defences; Enforcement notices; Judicial review; Planning authorities' powers & duties; Time limits

Click here to view

Published In
Thomson Reuters - Journal of Planning & Environment Law issue 10/2015


30 Sep 2015
No no fault for shareholders

David Fisher considers a BVI shareholder dispute. The double negative is notr an error. Shareholder disputes are frequently similar to an old fashioned divorce

Click here to view

Published In
New Square Chambers


30 Sep 2015
Knowledge of breach of confidence

Malcolm Chapple writes an article on what is the knowledge required in order for a defendant to be liable for breach of confidence

Click here to view

Published In
New Square Chambers


30 Sep 2015
Art and ongenuity

Gerard van Tonder reports on the ownership of a Banksy mural painted onto an external flank wall of an amusement arcade

Click here to view

Published In
New Square Chambers


08 Sep 2015
Is Everything Under Control? Problems with the Commercial Court’s decision in Skurikhin

This article questions whether the court applied the correct test

Click here to view

Published In
New Square Chambers


01 Sep 2015
Assistance & Explanation in cases of mental capacity

An examination of the explanations and assistance that may be given to testators who potentially lack testamentary capacity, in light of the Mental Capacity Act 2005

Click here to view

Published In
Trusts Quarterly Review Volume 13 Issue 3


29 Jun 2015
Assessment of interim rent

As everyone knows, the court, in the case of a business lease with security of tenure, and subject to certain grounds for refusal, can order the grant of a new business for a term of up to 15 years

Click here to view

Published In
New Square Chambers


29 Jun 2015
Ring Fencing

There is an important question of the circumstances in which a civil trial can take place during the period when a defendant is being prosecutedf for related matters in the Crown Court

Click here to view

Published In
New Square Chambers


29 Jun 2015
The Relevance of Probate in the Digital Age

Imagine an estate where there is no dispute amongst the beneficaries, whether about the validity of the deceased's will or its terms. Imagine that there is no inheritance tax to pay by reason of the death of the deceased. The bulk of the estate is held in a bank account that is accessible online

Click here to view

Published In
New Square Chambers


29 Jun 2015
The Seventh Veil

Mark Hubbard considers new legislation requiring greater transparency in the ownershop and management of companies. On 26 March 2015 the Small Business Enterprise and Employment Act 2015 became law

Click here to view

Published In
New Square Chambers


26 May 2015
Neighbours from hell: Damages for residual diminution in value

Gerard van Tonder examines the recent decision of the Court of Appeal in Raymond v Young  concerning property owners awarded damages for repeated harassment, trespass and nuisance conducted by their neighbours

Click here to view

Published In
New Square Chambers


26 May 2015
Duties and liabilities of trustees: Lessons from recent cases

Charles Holbech covers some recent cases on the duties and liabilities of trustees and seeks to extract some useful points for trustees in avoiding breach of trust claims

Click here to view

Published In
New Square Chambers


08 May 2015
Money, money, money...

Alexander Hill-Smith reviews the new regime for high-cost short-term lending in as article

Click here to view  

Published In
New Law Journal issue 7651 on 8th May 2015


06 May 2015
'Establishment' in EU insolvency - a win for territorialists

Sebastian Prentis in an interview with LexisPSL discusses the Supreme Court judgment in Re Olympic Airlines SA [2015] UKSC 27, ots background and ramifications. Sebastian was junior counsel in this matter

Click here to view

Published In
Lexis®PSL Restructuring & Insolvency on 6 May 2015


05 May 2015
A trap for the unwary

Alexander Learmonth writes for the Solicitors Journal warning of the dangers of split trials and part 36 offers

Click here to view

Published In
Solicitor’s Journal Vol 159 no 17 5th May 2015


30 Apr 2015
The dangers of not looking under the hood

Leigh Sagar reminds personal representatives (and their advisers) about the administration of digital assets.

Click here to view

Published In
New Square Chambers


30 Apr 2015
What’s illegality? The decision of the Supreme Court

Adrian Pay explored the decision by the Supreme Court in Jetivia SA and anr v Bilta (UK) Ltd [2015]

Click here to view

Published In
New Square Chambers


30 Apr 2015
The standard of proof in civil fraud claims

Michael Booth QC examines the balance of probabilities in civil fraud claims

Click here to view

Published In
New Square Chambers


30 Apr 2015
Justice in Judicial Review

Claire Staddon considers how the permission stage in judicial review proceedings can benefit litigants.

Click here to view

Published In
New Square Chambers


03 Mar 2015
Fight for your (mechanically propelled vehicular) rights

Thomas Fletcher comments on the recent Supreme Court decision released this month in R (Trail Riders Fellowship) v Dorset CC in which four members of New Square Chambers were involved.

Click here to view

Published In
New Square Chambers


03 Mar 2015
Second-guessing in secondary proceedings

In this article Stephen Schaw Miller explores when and whether secondary insolvency proceedings should be opened under the Insolvency Regulation No 1346/2000.

Click here to view

Published In
New Square Chambers


03 Mar 2015
Administration of rights associated with digital information as part of the deceased's estate

In this article Leigh Sagar explores the administration of rights associated with digital information as part of the deceased's estate.

Click here to view

Published In
New Square Chambers


03 Mar 2015
Alexander Learmonth discusses what remains for Conditional Fee Agreements for CDR Magazine

Despite the Jackson reforms, pre-2013 conditional fee agreements (CFAs) are still under attack. Alexander Learmonth examines a number of recent cases in the Court of Appeal and the UK Supreme Court which show a continued lack of sympathy for CFAs and ATE insurance, and provides a few tips for staying out of trouble while awaiting the result in Coventry v Lawrence.

Click here to view

Published In
CDR Magazine


26 Feb 2015
Beaches and village greens: the Supreme Court view

The Supreme Court in February 2015 handed down its ruling in the Newhaven Beach village green case. George Laurence QC analyses the judgment.

Click here to view

Published In
Local Government Lawyer


20 Feb 2015
Mind the gaps

This article was first published in Property Law Journal issue 328 February 2015

Click here to view

Published In
Property Law Journal


20 Feb 2015
Trust jurisdiction clauses: Crociani v Crociani

Nicholas Le Poidevin, QC appeared in Crociani for the settlor’s older daughter, obtaining permission for her to intervene in the Privy Council hearing. In this article he examines trust jurisdiction clauses in light of this case.

Click here to view

Published In
New Square Chambers


15 Feb 2015
“New for Old”: New terms in renewed leases under the Landlord and Tenant Act 1954 require good reasons

David Warner explains in his article that the terms of any new lease to be granted under the provisions of Part II of the Landlord and Tenant Act 1954 are to be determined by the court in accordance with sections 32 to 35 of that 1954.

Click here to view

Published In
New Square Chambers


15 Feb 2015
Assignments and anti-avoidance: the Landlord and Tenant (Covenants) Act 1995

Gary Pryce explores recent decisions concerning the application of the anti-avoidance provision and of other provisions in relation to the Landlord and Tenant (Covenants) Act 1995.

Click here to view

Published In
New Square Chambers


10 Feb 2015
Just like that!

Gerard van Tonder examines the recent decision in Sebry v Companies House and the Registrar of Companies where Companies House and the Registrar of Companies are held liable for losses suffered by a company as a result of the register incorrectly showing that a company

Click here to view

Published In
New Square Chambers


15 Jan 2015
Case Note

The Case Note discusses two recent further decisions at first instance which deal with the meaning of the hallowed words “as of right” which form the basis of the acquisition of prescriptive rights, both public and private.

Richard Naylor v Essex CC, Silverbrook Estates Ltd, Diana Humphreys and Tendring District Council

Ainsley David Powell and Jane Shergar Irani v Secretary of State for Environment, Food and Rural Affairs and Doncaster Borough Council.

Published In
Waymark


01 Dec 2014
A Significant Advance: The impact of the Inheritance and Trustees Powers Act 2014 on the Trustee Act 1925

An analysis of significant but overlooked amendments to trustees’ powers of maintenance and advancement under the Inheritance and Trustees’ Powers Act 2014 in TRQ Vol 12, Issue 4.

Click here to view 

Published In
Trust Review Quarterly


28 Nov 2014
Effect of rectification of the register under the Land Registration Act 2002

Gold Harp Properties Ltd v Macleod & Others [2014] EWCA Civ 1084 is a very important Court of Appeal decision explaining the effect of rectification of the register following a mistake

Click here to view

Published In
New Square Chambers


28 Nov 2014
The pitfalls of sale and rent back

The Supreme Court has confirmed the risks of sale and rent back arrangements in Southern Pacific Mortgages Ltd v Scott [2014] UKSC 52. Mrs Scott was the vendor in a sale and rent back

Click here to view

Published In
New Square Chambers


02 Oct 2014
Charities - To litigate or not to litigate

The purpose of this article is to highlight the sort of issues facing charities in deciding whether or not to litigate over a legacy, or residuary gift, contained in a Will. In particular Charles looks at a number of cases where charities have faced such difficult decisions, some of which they have got wrong

Click here to view

Published In
New Square Chambers


01 Oct 2014
Save the date!

‘Save the Date!’ The Inheritance and Trustees’ Powers Act 2014 comes into force on 1 October 2014. Alexander Learmonth summarises the important changes being brought in by the new Act.

Click here to view

Published In
New Square Chambers


01 Sep 2014
Inheritance Tax Planning and Trusts

Note: This article was correct at time of publishing (September 2014). It does not include recent legal updates and therefore does not represent the current law on this topic.

Click here to view

Published In
New Square Chambers


28 Aug 2014
Nautech Services Limited v CSS Limited Landmark Judgment (Jersey)

In a landmark decision of the Royal Court of Jersey, Commissioner Clyde-Smith has held that an employer’s client contact information on Microsoft Outlook and LinkedIn qualified for copyright protection as databases and against misuse as confidential information

Click here to view

Published In
New Square Chambers


14 Aug 2014
Bribes and Secret Commissions: Cedar in the Supreme Court

After two centuries of debate in and out of the courts, the Supreme Court in FHR European Ventures LLP v Cedar Capital Partners [2014] UKSC 45 determined that the bribe or commission is held on trust such that the principal does enjoy a proprietary claim.

Click here to view

Published In
New Square Chambers


12 Aug 2014
Getting back what is (not) yours

Thomas Fletcher considers a recent Supreme Court case on agency, bribes and the law of equity.

Click here to view

Published In
New Square Chambers


01 Aug 2014
Case Notes on Waymark 2014

Case Note on Church Commissioners for England v Hampshire County Council & Anr and Barbara Guthrie [2014]

Click here to view

Published In
Waymark


01 Aug 2014
Case Notes on Waymark 2014

Case Note on R (Andrews) v Secretary of State for Environment, Food and Rural Affairs [2014]

Click here to view

Published In
Waymark


07 Jul 2014
Sham about the sub-trust – some random thoughts about the decision in Sheffield v Sheffield

Leigh Sagar contributes to Trusts and Trustees journal by examining the decision in Sheffield v Sheffield [2013] EWHC 3927 (HH Judge Pelling QC),

Click here to view

Published In
Trusts and Trustees : OUP


03 Jul 2014
Enfranchising and bankruptcy

A cautionary tale for secured creditors: beware when trying to enfranchise a lease owned by a bankrupt.

Click here to view

Published In
New Square Chambers


03 Jul 2014
Putting it beyond dispute

Can a wind up company simply say in answer to a winding-up petition, "The debt is disputed and covered by an arbitration agreement"?

Click here to view

Published In
New Square Chambers


02 Jul 2014
Robin Hollington Counsel Magazine Interview

See below for access to the full interview

Click here to view

Published In
Counsel Magazine


11 Jun 2014
More about Schmidt : The latest developments in disclosure to beneficiaries

The latest developments in disclosure to beneficiaries June 2014

Click here to view

Published In
Trust Review Quarterly


01 May 2014
Swap Shop - The long-running Marley v Rawlings case

The first probate case to reach the Supreme Court, Marley v Rawlings [2014] UKSC 2, concerned an error by a solicitor supervising the execution of mirror wills

Click here to view

Published In
PS, the magazine of the Law Society's Private Client Section


01 Mar 2014
Rectification of trustee errors

Following Futter v Futter and Pitt v Holt, trustees will have greater resort to the doctrine of mistake.

Click here to view

Published In
STEP


13 Feb 2014
Elder Law Journal Article

Estopped from making the will you want… Bradbury and others v Taylor and another [2012] EWCA Civ 1208

Click here to view

Published In
Elder Law Journal


13 Feb 2014
Submissions to TELTJ Article

The decision of the Court of Appeal in Green v Gaul (sub nom. Re Loftus (deceased) [2006] EWCA Civ 1124 is remarkable in that it upholds the decision of the court below, but for reasons that were both contrary to those of Lawrence Collins J and not advanced by either party to the appeal.

Click here to view

Published In
TELTJ


13 Feb 2014
Late registration of charges over the property of insolvent companies

Abstract: It is the settled practice of the court not to exercise its discretion under section 404 of the Companies Act 1985 once the company has entered into liquidation or administration.

Click here to view

Published In
New Square Chambers


13 Feb 2014
Can you rely on what a mediator says?

What is the status of a representation made by a mediator on behalf of an offeror? 

Click here to view

Published In
New Square Chambers


13 Feb 2014
‘A regrettable blunder’ Marley v Rawlings [2011] EWHC 161 (Ch)

This case raised an interesting (and, to an extent, novel) point of principle: could the power to rectify a will under Section 20 of the Administration of Justice Act 1982 be used to cure a defect of execution of a will?

Click here to view

Published In
New Square Chambers


13 Feb 2014
Annulments - interest and ad valorem fees

Now that April 2007 has been and gone, former bankrupts across the country are either rejoicing at their trustee’s forgetfulness, or bewailing his or her diligence, as their homes either re-vest in them, released from the trustee’s grasp, or become the subject of (usually indefensible) legal proceedings.

Click here to view

Published In
New Square Chambers


07 Feb 2014
When is it just to rectify the register of town or village greens under section 14 of the Commons Registration Act 1965?

When is it just to rectify the register of town or village greens under section 14 of the Commons Registration Act 1965? 

Click here to view

Published In
New Square Chambers


20 Dec 2013
Choose your weapon: interlocutory relief in shareholder disputes

One attraction of the English courts for international litigation is the availability of sophisticated interim relief for asset protection.

Click here to view

Published In
New Square Chambers


18 Dec 2013
Piercing the corporate veil -where are we now?

For years lawyers have understood that it is sometimes possible to ‘pierce the corporate veil’ and disregard the separate legal personality of a company.

Click here to view

Published In
New Square Chambers


31 Oct 2013
Power of sale - can the mortgagee be forced to wait?

In Temple Mortgage Fund Ltd v Att-Gen for the Turks and Caicos Islands (unreported, Supreme Court of the Turks and Caicos Islands, 26 July2013), until just before the trial the only issue appeared to be the timing of the mortgagee’s exercise of its power of sale.

Click here to view

Published In
New Square Chambers


31 Oct 2013
Rent recovery after exercising a break clause

A tenant’s option to determine a commercial lease (a “break clause”) is a common feature of the modern landlord and tenant relationship.

Click here to view

Published In
New Square Chambers


31 Oct 2013
A negative Role

As everyone knows, a mortgagee may go into possession before the paper has cooled down after coming out of the printer, or something like that. But under modern conditions, and particularly with residential mortgages, the strictness of this rule is reduced or removed by agreement or the impact of statute.

Click here to view

Published In
New Square Chambers


16 Oct 2013
When fraud does not unravel all: the limits of the doctrine of dishonest assistance in a breach of trust and the decision in Mosley v Popley

When ‘fraud’ does not unravel all: the limits of the doctrine of dishonest assistance in a breach of trust and the decision in Mosley v Popley

Click here to view

Published In
Oxford Journals


08 Oct 2013
Jurisdictional Conundrums
Click here to view

Published In
Trusts & Trustees


05 Sep 2013
Russia accused over Berezovsky

Click here to view

Published In
The Times Newspaper


18 Jul 2013
Berezovsky may have been insolvent when he died

Click here to view

Published In
Financial Times Newspaper


15 Jun 2013
Hawes v Burgess, an end to the Golden Rule?'

The principles of testamentary capacity are well settled: a testator must understand the nature of the act of making a will, the extent of the property of which he is disposing, and the persons who may have a claim upon that property:

Click here to view

Published In
New Square Chambers


14 Apr 2013
Judicial management of costs post Jackson

The far reaching provisions for the judicial management of costs introduced from 1st April 2013 will almost certainly have a dramatic and perhaps chilling impact on litigation.

Click here to view

Published In
New Square Chambers


13 Apr 2013
The Jackson Reforms: a round-up of other major changes

This article will focus on the following further changes introduced by the Jackson reforms:

  • Changes to the rules on CFAs
  • The introduction of damage base agreements (“DBAs”)
  • Changes to the rules on disclosure, witness statements and expert evidence

 Click here to view

Published In
New Square Chambers


05 Nov 2012
Suing International fraudsters in England

A ‘boiler room’ has the colloquial meaning of ‘an operation in which unscrupulous sales people telephone consumers to sell speculative or fraudulent investments’.

Click here to view

Published In
New Square Chambers


05 Nov 2012
Colour & shape trade marks, & trade secrets

The American confectioner and philanthropist, Milton Hershey, is reported to have said in 1907, “Caramels are only a fad, chocolate is a permanent thing.” The permanence of Cadbury’s purple wrapper for milk chocolate was confirmed last month by the High Court

Click here to view article

Published In
New Square Chambers


05 Sep 2012
Pie in the sky? Officeholders' costs after MK Airlines

MK Airlines Ltd (‘MKA’) was at one point the UK’s largest cargo airline, flying 747s around the world. It fell victim to high fuel charges and maintenance problems. On 10 June 2008 administrators were appointed

Click here to view

Published In
New Square Chambers


01 Sep 2012
The bankrupt pensioner

The recent decision in Raithatha v Williamson [2012] EWHC 909 (Ch) is important for the pension rights of a bankrupt.

Click here to view

Published In
New Square Chambers


12 Apr 2012
A Tale of Two Farms

Leigh Sagar clarifies the occupation of agricultural property for agricultural purposes.

Click here to view

Published In
Trusts and Estates Law & Tax Journal


12 Apr 2012
‘Puppet masters’ beware

In the recent case of North Shore Ventures Ltd v Anstead Holdings Inc [2012], the Court of Appeal held that the court was entitled to infer that there was ‘some understanding or arrangement’ between settlors and trustees, by which the latter were to act on the instructions of the former.

Click here to view

Published In
Trusts and Estates Law & Tax Journal


12 Apr 2012
Has the golden rule lost its lustre?

In Re Simpson [1977] Templeman J said that: In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed,

Click here to view

Published In
Trusts and Estates Law & Tax Journal


05 Apr 2012
Ways and means

Thompson v Bee highlights the disputes over rights of way that can arise from inconsistent will drafting, as James Thom QC relates

Click here to view

Published In
Trusts and Estates Law & Tax Journal


05 Apr 2012
A choice selection

Nicholas Le Poidevin QC introduces an issue devoted to articles by New Square Chambers

Click here to view

Published In
Trusts and Estates Law & Tax Journal


05 Apr 2012
Signing your life away

The Court of Appeal’s decision in Marley v Rawlings was the correct one, as Alexander Learmonth reports

Click here to view

Published In
Trusts and Estates Law & Tax Journal


10 Jan 2012
No smoke without fire

It is well known that on exchange of contracts for the purchase of land, title to the property vests in the buyer in equity, so that the buyer is immediately at risk if there is damage to the property. 

Click here to view

Published In
New Square Chambers


10 Jan 2012
Signed, executed and all that!

The decision of the Court of Appeal in Hilmi & Associates Ltd v 20 Pembridge Villas Freehold Ltd [2010] 1 WLR 2750 (CA) highlighted the strict requirements of s 36A of the Companies Act 1985 (and hence the similarly-worded ss 43-47 of the Companies Act 2006 now in force) about companies signing and executing documents.

Click here to view

Published In
New Square Chambers


10 Oct 2011
Don't mention the tax

A personal injury claim brought by Mr Derek Pitt following a serious road accident was compromised on terms that included the payment of a lump sum and monthly payments.

Click here to view

Published In
New Square Chambers


10 Oct 2011
Trusts and divorce

Trusts (and companies) are often relevant in the context of a claim for ancillary relief on divorce. This article highlights some common situations.

Click here to view

Published In
New Square Chambers


10 Oct 2011
Are we "all in this together"?

Where fiduciary duties are owed by an insolvent party and its directors, when will the beneficiary of those duties enjoy proprietary rights and so come ahead of other creditors?

Click here to view

Published In
New Square Chambers


05 Jun 2011
Non-disclosure - managing the fall-out

Every litigator knows that an applicant on a without notice application, typically a freezing injunction or a search and seizure order, must make full and frank disclosure of all relevant information at the time of the application.

Click here to view

Published In
New Square Chambers


05 Jun 2011
E-mails and pre-action third party disclosure

For purposes of disclosure, r 31.4 of the CPR defines a document (in very broad terms) as “anything in which information of any description is recorded”.

Click here to view

Published In
New Square Chambers


04 Mar 2011
Derivative Claims: how far can you go?

There have been many reported cases about derivative claims in the company law context since 1 October 2007, when the new provisions for derivative claims in the Companies Act 2006 (ss 260-264 in Part 11, Chapter 1) came into force,

Click here to view

Published In
New Square Chambers


04 Mar 2011
Interpreting articles of association

Since 1856 Parliament has prescribed default articles of association for companies limited by shares. By s 18 of the Companies Act 2006 a company cannot be formed without articles, and by s 17 the articles are one element of a company’s ‘constitution’.

Click here to view

Published In
New Square Chambers


04 Mar 2011
Derivative Claims: who pays?

The issue of costs is probably the last issue taught at law schools, yet as every practitioner knows it is usually the most important issue in the practice of the law.
Click here to view

Published In
New Square Chambers


15 Jan 2011
Constructive will construction in and out of court

Section C of the new edition of Theobald of course retains the vast amount of learning expounded by previous editors as to the construction of dispositions, the interest given, the property in question, and the intended beneficiary.

Click here to view

Published In
New Square Chambers


15 Jan 2011
Testamentary capacity - recent developments

We all know that a testator must be mentally capable of making a will, and must know of and approve the contents of his will. From that apparently simple statement of principle, however, have sprung a great number of cases, some of the most recent of which are discussed below.

Click here to view

Published In
New Square Chambers


15 Jan 2011
Wills and the Mental Capacity Act 2005

Most probate lawyers can probably almost recite by heart the now classic test of testamentary capacity enunciated by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549.

Click here to view

Published In
New Square Chambers


15 Jan 2011
Adult children and the Inheritance Act

Since the decisions of the Court of Appeal in Re Hancock [1998] 2 FLR 345 and Espinosa v Bourke [1999] 1 FLR 747, it is no longer arguable that an adult child in employment always needs to prove “special circumstances” or a “moral claim” in order to succeed in a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for provision from the estate of the deceased parent.

Click here to view

Published In
New Square Chambers


15 Jan 2011
Betterment Properties (Weymouth) Limited v Dorset County Council No.2 (case note)

 

Published In
Rights of Way Law Review


30 Oct 2010
Overage agreements and unforeseen contingencies

Overage agreements, whereby a purchaser of land agrees to pay additional consideration to a vendor if certain defined events occur, are a frequent source of disputes, stemming in part from the long duration of many such agreements

Click here to view

Published In
New Square Chambers


28 Aug 2010
Serving two masters

This article explores some of the problems of conflicts of interestwhich arise when a person, typically a corporate trustee, holdsshares in a trading company as a trustee of more than one trust.It examines the relevant legal principles and then considersin relation to two typical situations which are hypotheticalbut based on actual facts how conflicts may arise and how theyshould be addressed and resolved. 

Click here to view

Published In
Oxford Press


31 Jul 2010
Recent changes to the Insolvency Rules

Practitioners involved in the winding up of companies will need to master the extensive amendments to the Insolvency Rules 1986 made by the Insolvency (Amendment) Rules 2010 (SI 2010/686), which came into effect from 6 April 2010

Click here to view

Published In
New Square Chambers


31 May 2010
Greens: landowners bogey in the Supreme Court

The unanimous decision of the Supreme Court in R (Lewis) v Redcar and Cleveland Borough Council [2010] UKSC 11 (“Redcar”), reversing the decision of Court of Appeal, was the fourth one from the highest appellate court in the last ten years concerning the registration of town and village greens.

Click here to view

Published In
New Square Chambers


31 May 2010
A fresh insight into the battle of the forms

The problem: Most first-year law students are required to grapple with the “battle of the forms” cases. The problem raised by these cases is easy enough to state: a purchaser (P) wants to buy goods from a seller (S), and sends a purchase order to S which refers to or sets out its (P’s) standard terms and conditions.

Click here to view

Published In
New Square Chambers


04 Mar 2010
Secret filming and the case law that subsequently arises

Madeleine Heal considers the growing populatiry of secret filming and the case law that arises

Please click here to read the article

Published In
Law Society Gazette


28 Feb 2010
Thriving in the shadow

The decision of the Lands Chamber of the Upper Tribunal last July in Pattle v Secretary of State for Transport [2009] UKUT 141 (LC) is likely to have far-reaching consequences for those landowners whose development plans have been thwarted by the prospective compulsory purchase of their land.

Click here to view

Published In
New Square Chambers


28 Feb 2010
A grave year for undertakers

The conveyancing system relies heavily on solicitors’ undertakings. In most transactions, the purchaser pays purchase moneys relying on an undertaking from the vendor’s solicitor to discharge any charges affecting the property.

Click here to view

Published In
New Square Chambers


31 Oct 2009
Alhamrani

Last July, the Royal Court of Jersey stayed proceedings in Alhamrani v Alhamrani after the parties entered into a confidential settlement. The Alhamrani case, with proceedings first begun in 2003, was the longest-running in Jersey legal history.

Click here to view

Published In
New Square Chambers


31 Oct 2009
Appropriation – a “novel remedy"

Secured creditors have long had a clutch of remedies to get paid: they can sue for repayment, they can usually appoint a receiver, they can sell the security or collateral (the English term faces competition from the American) and – theoretically at least – they can foreclose. 

Click here to view

Published In
New Square Chambers


31 Jul 2009
A wide-ranging contentious probate claim

Practitioners faced with a client who is aggrieved by the provision that has been made for him by a will or by the intestacy rules should remember that there is more than one way of skinning a cat.

Click here to view

Published In
New Square Chambers


31 May 2009
Extracting costs: non-party orders against directors

When the House of Lords extended the costs jurisdiction to non-parties, they included an anti-floodgates caveat that ‘in the vast majority of cases, it would no doubt be unjust to make an award of costs against a person who is not a party to the relevant proceedings’

Click here to view

Published In
New Square Chambers


31 May 2009
Extracting your money: CPR Part 71

Part 71 of the CPR provides a mechanism for a judgment creditor to force a judgment debtor to attend court to answer questions and provide information for the purpose of establishing what his assets are and their whereabouts. Its aim is to enable judgment creditors to determine the best method of enforcing a judgment.

Click here to view

Published In
New Square Chambers


31 Mar 2009
Dealing with the estate's beneficial interest in a bankrupt's home: use it or lose it

In the present economic downturn one does not need to be the BBC Economics Editor to foresee that the volume of bankruptcy proceedings in England & Wales will increase in 2009 and 2010.

Click here to view

Published In
New Square Chambers


31 Mar 2009
Appointing administrators: 'pre-packs' and procedural errors

One alternative to winding up a company commonly considered – both by insolvent companies and by their creditors – is the appointment of an administrator, under the procedure provided in the Insolvency Act 1986.

Click here to view

Published In
New Square Chambers


31 Mar 2009
Financial adventure and forensic archaeology: transactions at undervalue and limitation periods

Financial adventurers sometimes prefer not to subject their own assets to the same risks that they are willing to impose on their creditors. Incorporating a company to carry on a risky business will usually provide legitimate protection for the members’ assets, but personal liabilities can still attach to the unlucky or malfeasant.

Click here to view

Published In
New Square Chambers


31 Jan 2009
Serving abroad in trust disputes

Trust disputes often involve foreign defendants and before any litigation in England can get off the ground the claimant will have to think about how the proceedings are going to be served.

Click here to view

Published In
New Square Chambers


31 Jan 2009
Trustees spilling the beans

In Breakspear v Ackland [2008] 3 WLR 698, decided recently by Briggs J, the effective settlor of a lifetime discretionary trust gave a letter of wishes to his trustees and supplemented it orally.

Click here to view

Published In
New Square Chambers


31 Oct 2008
Managing expectations, disappointing hopes

The House of Lords’ recent decision in Cobbe v Yeoman’s Row Management Limited [2008] 1 WLR 1752 represents another big step in the recent trend of tightening the standard for proprietary estoppel claims, particularly in commercial cases.

Click here to view

Published In
New Square Chambers


31 Oct 2008
The end of some bank charges?

Most holders of private bank accounts receive banking services for which no fee is charged so long as their account remains in credit. Many customers also use authorised overdraft facilities, for which an agreed fee will usually be payable.

Click here to view

Published In
New Square Chambers


31 Jul 2008
Closure for crime prevention

 

Published In
Rights of Way Law Review


31 Jul 2008
Land Law: getting your deposit back

In vendor-purchaser disputes about the sale of an interest in land, the court has a jurisdiction to order that a purchaser who is in breach of the terms of the contract of sale should nevertheless have his deposit repaid by the vendor.

Click here to view

Published In
New Square Chambers


31 Jul 2008
Ashe v National Westminster Bank plc: let the lenders beware!

The recent decision of the Court of Appeal in Ashe v National Westminster Bank plc [2008] 1 WLR 710 produced a windfall for the defaulting mortgagors and has caused alarm among financial institutions.

Click here to view

Published In
New Square Chambers


31 May 2008
The Winchester case: CA

 

Published In
Rights of Way Law Review


30 Apr 2008
The Companies Act 2006: Provisions coming into force on 6 April 2008

Click here to view

Published In
New Square Chambers


22 Apr 2008
Directors' Duites under the Companies Act 2006

Click here to view

Published In
New Square Chambers


31 Mar 2008
Betterment Properties (Weymouth) Limited v Dorset County Council in the Court of Appeal (case note)

 

Published In
Rights of Way Law Review


31 Jan 2008
A claimant changing the name of a defendant company by direct action

Click here to view

Published In
New Square Chambers


31 Jan 2008
The Money Laundering Regulations 2007

Click here to view

Published In
New Square Chambers


31 Jan 2008
Pye revisited: Human Rights and Adverse Possession

Click here to view

Published In
New Square Chambers


31 Oct 2007
Landowners lament rights way of ruling

Click here to view

Published In
New Square Chambers


20 Jul 2007
Merger talks

Click here to view

Published In
New Law Journal


30 Jun 2007
Where does the public interest lie?

Click here to view

Published In
New Square Chambers


30 Jun 2007
How big is an equity?

Click here to view

Published In
New Square Chambers


30 Jun 2007
A sharp carving knife rather than a salami slicer

Click here to view

Published In
New Square Chambers


30 Jun 2007
The lawfulness of metatags as trade marks

Click here to view

Published In
New Square Chambers


28 Feb 2007
An Introduction to the Companies Act 2006

Click here to view

Published In
New Square Chambers


30 Nov 2006
White v Jones - whatever next?

Click here to view

Published In
New Square Chambers


30 Nov 2006
Trade marks - was FCUK lawful

Click here to view

Published In
New Square Chambers


30 Sep 2006
Misconduct and unfair prejudice - and divorces (Grace v Biagioli and Richardson v Blackmore)

Click here to view

Published In
New Square Chambers


30 Sep 2006
Trustee directors and trust companies (Re Poyiadjis)

Click here to view

Published In
New Square Chambers


30 Jun 2006
Human rights and adverse possession

Click here to view

Published In
New Square Chambers


30 Jun 2006
Getting at the court record - access by all and sundry?

Click