Legal News

A local authority v PB (by his litigation friend, the Official Solicitor) [2020] EWCOP 34 What are the practical implications of this case? This ruling underscores the need to avoid imposing an unduly stringent threshold when determining capacity in areas such as care and accommodation. Health and care practitioners (and the lawyers advising them) should guard against allowing the instinct to secure what is objectively in a person’s best interests to shape or elevate the standards by which capacity is judged. The mere fact that an individual might hold an unrealistic perception of their ability to control their......

N3 Living Ltd v Burgess Property Investments Ltd and anothe r [2020] EWHC 1711 ( Ch) What are the practical implications of this case? The appointment of a second trustee under section 36(6) of the Trustee Act 1925 within the TR1 transfer, to receive the sale proceeds, is a proper and standard means of satisfying a Form A restriction so as to confer good title on the purchaser, free from the interest protected by that restriction. This approach, set out in HM Land Registry’s Practice Guide 21, aligns with the general law of overreaching. Provided the wording of the restriction and the requirements of the LRA 2002 and the Land Registration Rules 2003, SI 2003/1417 are met, a purchaser will obtain good title and be registered as proprietor free of any such interest, and need not be troubled by the character of the interest or trust...

Should compliant, ordinary individuals enjoy confidentiality over what they own? And does pushing that confidentiality into full anonymity heighten the chance of misuse by organised criminals and terrorist groups? The question of asset privacy is hotly disputed. Its position is unambiguous and forceful. The EU’s Fifth Money Laundering Directive ( Directive ( EU) 2018/843, known as 5MLD) plants its flag by aiming to dismantle the anonymity embedded in ownership frameworks: notably within certain trusts and corporate bodies. Unsurprisingly, the Directive also focuses on the anonymity surrounding cryptoassets, though the EU favours the label ‘virtual currencies’. It proposes to achieve this through the novel application of rules to crypto exchanges and custodian wallet providers offering services relating to cryptoassets, as such providers operate today. Exchange providers— SI 2017/692, reg 14( A)(1) vs article 1(1)(c) of MLD5 Under the Money Laundering, Terrorist Financing and Transfer of Funds...

Lowe and another (as joint administrators of Benedict Cole Ltd (in administration)) v Lloyds Bank Commercial Finance Ltd and another company [2020] EWHC 946 ( Ch) What are the practical implications of this case? The court examined the principles governing constructive trusts within an insolvency setting, providing a helpful overview of earlier guidance, and confirmed from para [44] onwards that, for those aiming to establish constructive trusts, the following propositions hold: The first place to look is the parties’ contracts. Do they show the usual indicators of a trust arrangement—e.g. a separate account, express statements of trust or duty, and similar features? If a trust arises, it must exist at the point of insolvency; otherwise, it would jeopardise the pari passu principle which, in this context, is of overriding importance. A mistaken payment, by itself, is insufficient to create a constructive trust; there is, at minimum, the further...

Pillmoor (as trustee of the bankruptcy estate of Mohammed Erfan Miah) v Miah and another [2019] EWHC 3696 ( Ch), [2019] All ER ( D) 211 ( Oct) What are the practical implications of this case? This decision offers practical direction on claims where one spouse seeks a beneficial stake in a property not held in their legal name. The judgment clarified the threshold for proving a common intention constructive trust, identifying what will, and will not, suffice. The party asserting the interest must adduce evidence of either an explicit arrangement to share the beneficial ownership, or facts from which such an accord can properly be inferred. Accordingly, proof should address matters that bore on ownership and family finances, including: discussions between the spouses that touched on the question of ownership; the role each spouse played in the...

Man Ching Yuen v Landy Chet Kin Wong , First-tier Tribunal ( Property Chamber), 2020 (ref 2016/1089) What are the practical implications of this case? Every day, innumerable deeds are completed across the country. By virtue of section 1(3) of the Law of Property ( Miscellaneous Provisions) Act 1989 ( LP( MP) A 1989), a deed must be signed in the presence of a witness who attests the signing. Yet what amounts to presence? Could witnessing occur via Skype, Facetime, Whats App or similar platforms? In addressing that issue, the FTT indicated, without a definitive ruling, that, under present law, whether the phrase in LP( MP) A 1989, s 1(3) ‘in the presence of a witness’ can be met via video link admits more than one arguable view. The tribunal’s indication fell short of a determination, acknowledging that the statutory wording, as it stands, could...

ND v LD [2019] EWHC 3639 ( Fam) What are the practical implications of this case? It is apparent that the court may adjudicate disputes over funeral and burial arrangements, although such matters are infrequent in practice. For deceased adults, the issue typically emerges only on intestacy, as provisions are ordinarily included in a Will to settle any disagreement and to guide arrangements. Children, however, always die intestate because only adults can make a valid Will, so the limited authorities on this topic have mainly concerned deceased children. There is, nevertheless, conflicting High Court authority on the legal route by which these disputes should be determined. In Re JS ( Disposal of Body) [2016] EWHC 2859 ( Fam), Peter Jackson J decided that either SCA 1981, s 116 or the High Court’s inherent jurisdiction could generally be deployed, though that case was...

Bioconstruct Gmb H v Winspear and another [2020] EWHC 7 ( QB) What are the practical implications of this case? The ruling rekindles discussion about optimal methods for completing a closing with pre-executed pages, particularly where multiple parties and signatories are involved and where amendments or corrections are made to previously circulated written contracts. The court’s analysis, relating to a deed that was both signed and acted upon by the party seeking to rely on it, yet held invalid and unenforceable, underscores the need for caution when attaching pre-signed signature pages to deeds. In this respect, the judgment draws attention to a circumstance not expressly covered by the Law Society of England & Wales’ Practice Note, ‘ Execution of documents by virtual means’ (16 February 2010). That guidance identifies Koenigsblatt v Sweet as the leading authority on ratification for written...

What are the practical implications of this case? Here, the applicant, Ms Vorotyntseva, applied for, and the High Court made, freezing orders over cryptocurrency ( Bitcoin and Ethereum) against a trading platform, Money-4 Limited (trading as Nebeus.com) ( Nebeus), with its directors. Practitioners will note the judge’s rigorous scrutiny of the technical material. Birss J held that, of two screenshots adduced, one did not show the platform still retained Ms Vorotyntseva’s Bitcoin, while the other (examined in hard copy and on an i Pad) seemed to have been manipulated so it looked as though Ms Vorotyntseva’s name appeared on a screenshot when it did not. Accordingly, Birss J had no hesitation in finding a real risk of dissipation. Crucially, the matter proceeded on the footing that cryptocurrency constitutes property. In particular, there was no disagreement that the...

High Court provides guidance on the court’s approach to interim applications under section 5 of the Inheritance ( Provision for Family and Dependants) Act 1975 ( Weisz v Weisz & Ors) Weisz v Weisz & Ors [2019] EWHC 3101 ( Fam)) What are the practical implications of this case? With few reported decisions under I( PFD) A) 1975, s 5, this judgment delivers practical direction on the manner in which the discretion should be exercised. Francis J confirmed that the wording in I( PFD) A) 1975, s 5—‘immediate need of financial assistance’—ought not to be viewed as broadly akin to the discretion applied under section 22 of the Matrimonial Causes Act 1973, where, in some instances, Maintenance Pending Suit orders may cover items extending beyond what would properly be regarded as immediate necessities. The test under I( PFD) A) 1975 is narrower, and the...

What are the practical implications of this case? As with the rulings at first instance and on appeal, there are likely to be consequences in both the political and legal arenas. Politically, the judgment heaps considerable pressure on the PM and the government. This is an extraordinary ruling by the Supreme Court. The court concluded that the PM acted unlawfully and without adequate justification, preventing Parliament from fulfilling its constitutional roles both as a legislature and as the body tasked with holding the executive to account. It is difficult to characterise this outcome as anything other than an embarrassment for the PM. It amounts to a serious censure and, in the circumstances, it is unsurprising that there are already calls for the PM to ‘consider his position’. Parliament has been......

What are the practical implications of the judgment? The ruling addresses three separate issues—two concerning ECROs, and a third relating to the effect of presenting a bankruptcy petition founded on an unpaid statutory demand where, without the petitioning creditor’s knowledge, an application to set that demand aside has already been lodged. On the ECRO front, the court underlines the force of CPR PD 3C, and applies it in clear terms. Where a litigant subject to an ECRO issues any claim falling within its scope, the claim is struck out automatically; no further step is needed unless permission has first been obtained from the court. Moreover, if permission is later granted under the ECRO, it does not retrospectively validate steps previously taken by the litigant—especially in relation to limitation, timetables, or other procedural deadlines that may already have expired. Instead, the permission simply allows the...

Hallman v Harkins [2019] UKUT 245 ( LC) What are the practical implications of this case? When the application for permission to appeal was made, no one had put in issue whether the FTT possessed authority to fix the scope of the relevant beneficial share. The UT, having granted permission, observed that it would have to settle a long-standing doubt about whether the FTT enjoyed any such jurisdiction at all. By deciding that the FTT lacked jurisdiction to determine the extent of a beneficial interest, the UT also emphasised that courts and tribunals should not deliver advisory or non-binding views, and that parties seeking an informed steer ought instead to consider the recognised forms of alternative dispute resolution available to them. Beyond the jurisdictional point, the decision is valuable for its recital of the considerations that inform whether a beneficial interest arises and, if so, how far...

What, in summary, are the recent developments relating to the EU settlement scheme? Following earlier pilot phases, the scheme went live in full on 30 March 2019, making it accessible to every EU citizen and their family members. The caseworker guidance is extensive and divided into two texts: EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members — a 104-page guide outlining eligibility, when an application is valid, what evidence to submit, the steps in the process, and particular rules for family members. EU Settlement Scheme: suitability requirements — a 22-page guide devoted to character and conduct considerations, and the ways these could affect an application under the EU settlement scheme. These materials assist applicants seeking a thorough grasp of the process and the paperwork they may require. Yet the breadth and depth of what is provided can feel daunting for...

Currie v Thornley and another [2019] EWHC 172 ( Ch), [2019] All ER ( D) 19 ( Feb) What are the practical implications of this decision? Liquidators will typically insist on tightly drafted indemnity deeds when they are effecting distributions of a company’s assets to shareholders in an MVL, particularly where there remains any possibility of creditors bringing later claims in the liquidation. In Currie v Thornley and another, the company’s assets—real estate used in running a care home—were transferred to a limited liability partnership set up by the company’s former shareholders, at a point when contingent claims existed against the company. If those contingencies crystallised, the liquidator might face proceedings for failing to discharge his duties to the company by permitting assets to be transferred out before first settling sums owed to creditors. Although indemnity deeds are very common, especially in...

Sleight (as trustee of the estate of Jillian Paula Mascall deceased) v Crown Estate Commissioners [2018] EWHC 3489 ( Ch), [2018] All ER ( D) 111 ( Dec) What are the practical implications of this case? The holder of the funds (the chargee) had no beneficial stake in them, the party who had or might acquire an interest (the Crown) did not wish to take them, and the party who desired the funds (the trustee) had no means of getting them. A trustee can, by a sidewind, recover what has been disclaimed in like situations—in Lee v Lee [1999] Lexis Citation 3298, [1999] BPIR 926, on a chargee’s application for an order under section 320 of the Insolvency Act 1986 ( IA 1986), the court granted the order and, exercising its broad discretion, directed that any surplus after the charge was met should be paid to the...

Bakhshiyeva (acting as the foreign representative of OJSC International Bank of Azerbaijan) v Sberbank of Russia [2018] EWCA Civ 2802 What are the practical implications of this case? The Court of Appeal reaffirmed the Gibbs rule, a point of real importance for financial institutions, creditors and any commercial party with agreements governed by English law. In consequence, creditors with English law debts can be confident that a foreign insolvency procedure cannot alter or compromise obligations governed by English law. As with many other international counterparties, Sberbank chooses English law for cross-border deals due to its neutrality, the certainty it affords, and the predictability of the English courts. This judgment underlines the reputation, dependability and commercial focus of English law and the English judicial system. The ruling will help ensure that English law (and jurisdiction) continues to be one of the leading choices of law for...

What changes to entrepreneurs’ relief were announced at the Budget 2018 and what was the motivation behind them? What is their likely impact? There will be three amendments to entrepreneurs’ relief in the Finance Act 2019. Diluted holdings The first reform permits a shareholder whose interest falls below the 5% qualifying threshold to elect to be treated as having disposed of, and immediately reacquired, their shares just before the dilution, effectively banking entrepreneurs’ relief for the qualifying holding period. The driver for this was a perceived obstacle to third-party investment in entrepreneurial businesses, where fundraising could push existing owners under the 5% line. In practice, the arrangement demands two distinct elections: one to crystallise the deemed sale and repurchase, and a separate one—on different deadlines—to defer the liability until an actual disposal, unless the person prefers to pay the capital gains tax upfront as a ‘dirty’ tax charge....

Ubbi and Anori (minors) v Ubbi [2018] EWHC 1396 ( Ch), [2018] All ER ( D) 38 ( Aug) What are the practical implications of this case? In proceedings by two children seeking maintenance from their late father’s estate under the Inheritance ( Provision for Family and Dependants) Act 1975, the parties settled on a calculation approach that the court endorsed and applied. The agreed multiplier–multiplicand methodology drew on the Ogden Tables for each head of maintenance. An investment rate of -0.75% was adopted, on the footing that any lump sum would be invested in gilts to mirror the lowest investment risk. From the overall figure, there was a deduction to reflect the reasonable contribution the children’s mother could be expected to make across the relevant period. As a result, her financial position and anticipated earnings and income were pertinent, and evidence...

Keays (by her litigation friend, Keays) v Executors of the late Parkinson [2018] EWHC 1006 ( Ch) What are the practical implications of this case? Executors ought to refrain from personal, ad hominem critiques of a litigation friend’s fitness to act. The ruling also underlines that executors should not seek to foist their preferred nominee to supplant the existing litigation friend, even where there was a prior in‑principle consensus to appoint a professional. Further, in the absence of a Beddoe order, applications of this nature are liable to leave executors and/or beneficiaries personally responsible for both parties’ costs if the application fails, rather than enjoying indemnity from the estate. What was the background? In February 2017, Sara Keays, acting as litigation friend for her adult daughter, Flora, issued proceedings in the Chancery Division under the Inheritance ( Provision for Family and...