Legal News

Re Hut Group Ltd; Zedra Trust Company ( Jersey) Ltd v The Hut Group Ltd [2021] EWCA Civ 904 What are the practical implications of this case? The Court of Appeal, in this decision, reaffirmed two central principles. First, when evaluating whether directors’ conduct, representing breaches of their fiduciary and statutory obligations to the company, amounts to conduct that is unfairly prejudicial to the petitioner, the critical enquiry is not to whom those duties are owed, but whether the complained‑of conduct unfairly prejudiced the petitioner in his capacity as a shareholder; if so, it is conduct capable of establishing unfair prejudice. Second, allegations of bad faith akin to fraud must be supported by the proper pleading of credible, cogent primary facts that sustain those allegations, either expressly or by reasonable inference drawn from them. Bare assertions or generalised averments of bad faith, advanced without pleaded...

What is land pooling and what is this type of structure used for? Put simply, land pooling is where a number of landowners collaborate to promote their land for development and to divide both the promotion costs and the sale proceeds. The objectives are two-fold: to encourage co-operation between owners to bring a site forward for development to secure an equitable split of costs and returns The principal tax consideration is capital gains. Imagine landowners A and B each own 50 acres and agree to share expenses and sale proceeds on a 50/50 basis. If A sells first, he pays capital gains tax (or corporation tax if a company). A then pays 50% of his net proceeds to B as an ‘equalisation payment’. That payment is not deductible in computing A’s capital gains tax ( CGT) position. To prevent...

The coronavirus pandemic sharpened awareness of personal freedom. For many adults, this was the first occasion they could not act as they wished or make independent choices. Yet a significant share of the population faces this reality every day, irrespective of the pandemic: people subject to a DOLS... A DOLS safeguards those who cannot consent to their care arrangements in a community or institutional setting when those arrangements deprive them of liberty. The most effective protection is achieved through regular assessments to confirm the measures are necessary and in the person’s best interests. Although, during the pandemic, curbs on freedom were considered to be in the general public’s best interests, the crucial distinction for people with DOLS is that they are under continuous supervision and control, are not free to leave their residence, and lack capacity to consent to these...

Lin v Gudmundsson concerned a husband adjudged bankrupt on a creditor’s petition. The wife sought to have the bankruptcy annulled, but the court declined. The decision matters for two principal reasons: it underlines that, for insolvency in this setting, the spotlight is on the bankrupt’s cashflow rather than on their assets it clarifies the distinct evidential burdens on creditor-initiated petitions and debtor-made applications Written by Steven Fennell, barrister at Exchange Chambers. Lin v Gudmundsson (a bankrupt) and others [2021] EWHC 820 ( Ch), [2021] All ER ( D) 29 ( Apr) What are the practical implications of this case? Advisers assisting a spouse contesting the other’s bankruptcy must concentrate squarely on the bankrupt’s liquidity on the date of the order. Demonstrating that assets exceeded debts by a wide margin will not suffice. The issue is whether those assets were readily realisable so that the...

Government backs Law Commission’s charity law reform proposals, LNB News 22/03/2021 98 What are the Law Commission's proposals, and which have the government accepted? The government has agreed to almost all of the Law Commission’s suggestions. Although many appear, at first glance, to be highly technical (and some certainly are), taken one by one and, more importantly, in combination, they are expected to be of real, practical value to charity trustees and their lawyers. Section 5 of the government’s reply deals with the Commission’s recommendations on buying and selling (including specified leases) and on securing mortgages over charity land. The existing framework sits mainly in Part 7 of the Charities Act 2011 ( CA 2011). As the Commission’s report explains, elements of the present regime have drawn criticism for complexity, impracticality, and for adding needless expense and delay. The most notable...

The court determined that either or both of the following applied: the signed TR1 functioned as an assignment of the respondent’s equitable interest in the property; and the court would cure the imperfect gift, it being unconscionable for the respondent to retreat from the intended gift. Written by John Aldis, barrister at St Philips Chambers, who appeared for the appellant. Khan v Mahmood [2021] EWHC 597 ( Ch). What are the practical implications of this case? To begin with, this judgment joins the small body of authorities in which the courts have validated an imperfect gift even though the donor had not taken every step within his power to bring the transfer about. The orthodox position in Milroy v Lord [1861–73] All ER Rep 783 is that the settlor must have done all that, given the character of the property in the settlement, needed to be done to pass the...

Howe and another v Gossop and another [2021] EWHC 637 ( Ch) What are the practical implications of this case? The ruling highlights the adaptable scope of equitable relief under proprietary estoppel and offers further direction on how that sits alongside contractual requirements. It also helps reconcile an apparent conflict in commentary and clarifies observations from the House of Lords and the Court of Appeal in other cases. Those advising on claims or defences founded on proprietary estoppel, or on disputes arising after unfinished negotiations concerning interests in land, now have an additional analytical approach to deploy. Attention must be paid to the precise nature of the right being asserted, the remedy sought, and the parties’ background and experience. In short, where parties have been working towards a property contract, that fact alone does not bar an equity from arising on grounds of...

Rowland v Blades [2021] EWHC 426 ( Ch) What are the practical implications of this case? Common intention vs resulting trust The judge concluded the property was not a business venture, albeit there was an investment aspect. It was therefore handled in line with dwelling house/family home authorities. The starting presumption from Stack v Dowden [2007] UKHL 17, [2007] 2 All ER 929—affirmed in Jones v Kernott [2011] UKSC 53, [2012] 1 All ER 1265—that equity tracks the legal title so the parties are beneficial joint tenants in equal proportions, applied. The Privy Council decision in Marr v Collie [2017] UKPC 17 did not dislodge this, as the acquisition arose in a domestic rather than commercial setting. Evidence This ruling underscores the evidential weight of contemporaneous documents, particularly where witness accounts directly conflict. Compensation under the Trusts of Land and Appointment of Trustees Act 1996 ( TOLATA 1996) vs...

Re Anthony Leslie Hancock; Promontoria ( Pine) Designated Activity Co v Hancock [2021] EWHC 259 ( Ch), [2021] All ER ( D) 86 ( Feb) What are the practical implications of this case? The court’s observations on the use of redacted material offer clearer guidance to other lenders about how far documents may properly be obscured on security or confidentiality grounds. More broadly, the decision aids lenders when preparing deeds of assignment, underscoring that confidential material ought to be segregated from the operative mechanics so that no working provisions need be blanked out for confidentiality reasons. Together, these points give lenders practical direction on presenting evidence and structuring assignments while preserving confidentiality without undermining enforceable terms of deal overall. Notably, the court affirmed that extensive redaction must be comprehensively explained and justified, a requirement of particular importance in opposed statutory demand...

HM Courts and Tribunals Service ( HMCTS) has issued guidance outlining the steps to remove a Will or codicil held by the service. To action a withdrawal, individuals are required to complete form PA7A......

The objections centre on well-known long-standing concerns over data retention, access for law enforcement, and immigration policy; moreover, lawmakers went further, drawing attention to serious earlier issues with the UK’s use of the Schengen Information System ( SIS) database and to both potentially conflicting commitments under other international agreements. Under EU data protection rules, sending personal data to countries beyond the EEA is strictly lawful only where protection is judged ‘adequate’, where extra safeguards are adopted, or where one of a small set of derogations applies. At present, ongoing data flows between the EU and the UK run under an interim framework embedded in the broader EU– UK Trade and Cooperation Agreement of December 2020, which will lapse by June 2021 at the latest. The Commission must determine whether the UK, which officially departed the 27‑nation EU last year, affords...

Introduction On 31 December 2020, the Withdrawal Agreement’s transition phase (discussed here) concluded. From 1 January 2021, relations between the UK and EU are currently regulated partly by the remaining Withdrawal Agreement (as further discussed in this Twitter thread) and partly by the Trade and Cooperation Agreement ( TCA) formally agreed between the EU and the UK themselves. ( There are also two other agreed treaties, on security information and nuclear cooperation, as well). Basic legal issues The EU and UK have agreed to apply the TCA provisionally and temporarily (a common practice in international law). This arrangement runs until 28 February 2021, though the parties may change that date via the Partnership Council (composed of representatives of both contracting parties). This is intended to give the European Parliament sufficient time to examine the treaty in detail before deciding whether to give its consent. By...

For data protection specialists, the EU– UK TCA brings encouraging developments. Unrestricted data movement between the EEA and the UK will carry on beyond the close of 2020 ( Article FINPROV.10A(2) also confirms flows from Iceland, Lichtenstein and Norway to the UK). That outcome is warmly welcomed. Recent studies indicated that implementing substitute transfer tools might have set UK firms back £1.6bn. Such a sum reflects funds businesses could otherwise have directed to areas like new kit, staff or procedures, yet would instead be siphoned off to compliance spend or higher prices for goods and services due to interruptions to EU– UK data transfers. Data may likewise keep moving freely for law enforcement transfers. That is essential. Maintaining the sharing of data to prevent and detect crime is vital to protecting people on both sides of the Channel. Without this...

O’ Neil v Holland [2020] EWCA Civ 1583 What are the practical implications of this case? Lord Justice Henderson confirmed that proof of detrimental reliance is a core precondition for a common intention constructive trust. That requirement had earlier been articulated in Grant v Edwards [1986] Ch 638 and was treated as assumed on appeal in Curran v Collins [2015] EWCA Civ 404, [2016] 1 FLR 505. O’ Neill v Holland provides the most explicit recent statement that a party must establish detrimental reliance to demonstrate the existence of such a trust. It also stands as authority that appealing to unconscionability alone will not suffice, and that the question of detrimental reliance is judged objectively. Advisers considering whether a common intention constructive trust arises must therefore pinpoint the exact basis on which the claimant acted, to their disadvantage, in reliance on the shared...

Robert Tantular v AG [2020] JCA234 What are the practical implications of this case? A saisie operates as a freezing mechanism that the Attorney General may seek in a variety of circumstances, including when acting for the government of a country or territory outside Jersey while an external confiscation order is awaiting registration. The authority to grant a saisie stems from Articles 15 and 16 of the Proceeds of Crime ( Jersey) Law 1999, as adapted by the Proceeds of Crime ( Enforcement of Confiscation Orders) ( Jersey) Regulations 2008 (the “ Modified Law”). Under Article 16(4)(b) of the Modified Law, the court may restrain any specified person from dealing with any realisable property that they hold, whether or not the assets are described in the order. The issue on appeal mirrored the question at first...

B v Erinvale PTC Ltd and others [2020] JRC213 (registration required) What are the practical implications of this case? The court restated the firm principle that it would be an excessive use of its powers to compel a trustee to act (in this instance, to make the wife a beneficiary in her own right) or to exercise any power to add the wife itself. As the trustee had not yielded its discretion to the court, that was not the court’s function, whether under Article 51 of the Trusts ( Jersey) Law 1984 as amended, or otherwise. Instead, the court indicated it had “no doubt” that, on reflection, the trustee would now move to add the wife. The ruling also serves as a prompt to trust practitioners, when drafting, to consider carefully how a person’s position as a beneficiary might shift over time with changes in their...

Bath Rugby Ltd v Greenwood and others [2020] EWHC 2662 ( Ch); Bath Rugby Ltd v Greenwood and others [2020] EWHC 2856 ( Ch) What are the practical implications of this case? The ruling offers a helpful survey and reaffirmation of what is needed for the annexation of the benefit of restrictive covenants made before the Law of Property Act 1925 took effect. While covenants of such vintage now seldom surface in property disputes—the one here dating back almost a hundred years—the judgment is of broader relevance for its treatment of annexation and its discussion of Crest Nicholson Residential ( South) Ltd v Mc Allister [2004] EWCA Civ 410, a post‑1925 covenant case. In particular, it considers Chadwick LJ’s remark that, for annexation to bite, the land intended to take the benefit must be ‘easily ascertainable’. Bath Rugby further exemplifies how the court...

Fantini (as executor of the estate of Iris Mary Fantini (deceased)) v Scrutton and others [2020] EWHC 1552 ( Ch) What are the practical implications of this case? This decision narrows the ability of co-owners holding as joint tenants (and of the personal representatives or will beneficiaries of such persons) to treat efforts to serve a compliant notice of severance, and to lodge a matching restriction, as having themselves brought about a severance. It underscores, for advisers, the critical need to ensure proper service of any notice of severance—especially where clients are nearing the end of life or following the breakdown of a relationship—since it is now evident that mere attempts to do so, or to take related steps, may not in themselves achieve severance. The judgment also illuminates the boundaries of the principle that the court will favour a tenancy in...

Waterside Escapes Ltd v HMRC [2020] What are the practical implications of this case? The judgment considers two strands of the SDLT code: the 15% charge in FA 2003, Sch 4A and the partnership rules in FA 2003, Sch 15, alongside a detailed review of the connected persons provisions in the CTA 2010. It confirms that, for FA 2003, Sch 4A, para 5(2), what matters is the company’s subjective intention about whether a non-qualifying individual may occupy a dwelling, and that intention can be shown by a clause in a shareholders’ agreement. The case reminds tax practitioners that the wording of shareholders’ agreements and other governing documents can be pivotal in determining whether relief applies (here, relief from the 15% SDLT rate was unavailable because of a permissive clause in the shareholders’ agreement). It further confirms that the concept of occupation for the 15% relief is...

A local authority v A [2020] EWCOP 38 What are the practical implications of this case? Hayden J confirmed that when a deputy wishes to cease acting, they must make an application to the court. Importantly, the court will not rubber-stamp such applications: the deputy, whether an individual or a body, must convince the court that stepping down accords with the person’s best interests. What was the background? As at May 2020, local authority deputies for property and affairs in England and Wales were acting for 22,775 people, making up around 39% of all deputyships. Over the previous two years, both the headcount of local authority deputies and the number of deputyships managed by local authorities had been steadily rising. The applicant council formulated criteria that led it to pinpoint seven matters in which it no longer wished to continue as deputy. It therefore supported a court...