Legal News

Malik (deceased, by her Estate’s court appointed representative, Malik) v Shiekh, [2018] EWHC 973 ( Ch) What are the practical implications of this case? This judgment, on appeal from HHJ Parfitt, required the court to apply the long-established principles in Royal Bank of Scotland v Etridge ( No 2) [2001] UKHL 44, [2001] 4 All ER 449 concerning presumed undue influence. For the presumption to arise, it must be shown that: a party ( A) aiming to set aside a disposition they entered into was influenced to enter that disposition by a party ( B), or by those acting on B’s behalf, and the disposition was not one that A would ordinarily have entered into given their circumstances and knowledge (ie the......

Rashid v Munir and others [2018] EWHC 1258 ( QB) What are the practical implications of this case? The decision was fact-specific and striking indeed because the court rejected virtually all testimony, expressing complete disbelief in any of the evidence, and remarking that the judge below had ‘bore witness to a festival of mendacity’, further indicating it would send a transcript of his judgment, together with the case papers, to the Director of Public Prosecutions. Even so, in a sparsely litigated area of law and practice, it helpfully confirms that, in this context, when allocating rental income from land owned by co-owners, the correct approach is to appropriately identify the parties’ common intention as the guiding basis as between themselves. What was the background? A family business empire owned several properties. Those properties were held by three brothers as joint owners in differing legal shares. One brother (the...

Thompson v Ragget and others [2018] EWHC 688 ( Ch), [2018] All ER ( D) 18 ( Apr) What are the practical implications of this case? If an unmarried couple have no wills and one dies, the survivor has no statutory entitlement to inherit under the intestacy rules. Nevertheless, as the claimant did, a surviving cohabitee may bring a court claim for financial provision if they lived together for two years, or if they were a dependant immediately before the deceased’s death. A central consideration in such claims, as here, is whether accommodation should be provided through a life interest rather than by transferring capital outright. In the widely reported case Ilott v The Blue Cross and others [2017] UKSC 17, [2017] All ER ( D) 96 ( Mar), Lord Hughes emphasised that the statutory power is to meet maintenance, not to grant capital; where...

Re Various Incapacitated Persons ( Appointment of Trust Corporations as Deputies) [2018] EWCOP 3 What are the practical implications of this case? This test case lays out guidance for any trust corporation seeking appointment by the Court of Protection as property and affairs deputy for people who lack capacity. Although the corporations before the court were all linked to solicitors’ legal practices, the ruling equally applies to other regulated trust corporations (for example charities, banks and other financial institutions) and to unregulated trust corporations. As a result, every future application by a trust corporation to the Court of Protection is affected. Given the broad and growing reliance on trust corporations in this function, the decision offers clear and useful direction to the wider profession and is essential reading for anyone practising in this sphere. What was the background? The Court of Protection listed 36 matters...

Original news Ivey v Genting Casinos ( UK) Ltd (trading as Crockfords) [2017] UKSC 67, [2017] All ER ( D) 134 ( Oct) The Supreme Court rejected a professional gambler’s appeal from the Court of Appeal’s ruling that he was not entitled to his winnings from the respondent casino, as he had cheated. The court held that dishonesty is not an additional legal component of cheating in gambling. It found that the first-instance judge’s conclusion, affirmed by the Court of Appeal, that the appellant’s conduct amounted to cheating, was unassailable, and that seeking to define cheating would be very unwise. Further, it ruled that the second limb of the test in R v Ghosh [1982] 2 All ER 689 did not correctly state the law and directions based upon it should no longer be given. What was the background to the case? The...

Original news Ivey v Genting Casinos ( UK) Ltd (t/a Crockfords) [2017] UKSC 67, [2017] All ER ( D) 134 ( Oct). Dishonesty is not a separate legal ingredient of cheating in gambling. The Supreme Court so decided, dismissing the professional gambler appellant’s appeal against the first‑instance ruling (upheld by the Court of Appeal) that he was not entitled to his ‘winnings’ from the respondent casino because he had cheated. The court considered the judge’s finding—that the appellant’s acts amounted to cheating—unassailable, and cautioned that seeking a definition of cheating would be unwise. It also ruled that the second limb of the R v Ghosh [1982] 2 All ER 689 test does not accurately state the law and directions founded on it should no longer be given. See: Supreme Court overrules Ghosh test in ‘most significant criminal law decision in a...

What is the background to this case? In R (on the application of CXF (acting by his mother, his litigation friend)) v Central Bedfordshire Council and another, [2017] EWHC 2311 ( Admin), Dinah Rose QC, acting as a Deputy High Court Judge, examined the operation of section 117 of Me HA 1983. This framework supports people discharged after compulsory detention under Me HA 1983. The entitlement derives from Me HA 1983, s 117, widely known as ‘section 117 aftercare’. Such aftercare is supplied without charge, regardless of financial means, unlike much social services support. Funding is shared between health services, through CCGs, and social services, via local authority adult social services departments ( LAs). Certain provisions do not fall within section 117 aftercare: these are services seen as meeting only basic needs, lacking a sufficient nexus with an individual’s mental health disorder. The notion of...

Original news Nahajec v Fowle (acting as executor of the estate of Nahajec deceased and as beneficiary of the estate) [2017] Lexis Citation 270, [2017] All ER ( D) 42 ( Aug) The claimant’s father’s will left the entirety of his estate to the defendant, providing no reasonable financial provision for the claimant. Having weighed every matter in section 3 of the Inheritance ( Provision for Family and Dependants) Act 1975 ( I( PFD) A 1975), the County Court concluded that the reasonable sum, duly capitalised for maintenance, to be received, was £30,000. What was the background to this case? The deceased left his estate to his friend, Stephen Fowle, whom he also appointed as executor of the estate. A note accompanying the will highlighted the absence of contact with his three children and his view that they were...

R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51 The Supreme Court upheld a trade union’s appeal, deciding that the Lord Chancellor’s scheme requiring fees from claimants in employment tribunals and appellants to the Employment Appeal Tribunal must be quashed because it obstructed access to justice. What was the background to the case? Employment tribunals were set up as an informal, low-cost and accessible forum for resolving workplace disputes. Their jurisdiction covers a broad array of matters, including enforcement of key rights that attract little or no financial compensation, such as the right to a statement of terms and conditions and the right to rest breaks. Many tribunal claims have their origins in EU law, although a substantial number are solely domestic. Claimants are often in a vulnerable situation—typically the weaker party in the contractual...

Original news Parkes v Wilkes [2017] EWHC 1556 ( Ch) The claimant and the defendant were each leaseholders of separate flats in the same building. By collective enfranchisement under the Leasehold Reform, Housing and Urban Development Act 1993, they acquired the freehold from Regis Group Ltd. At the same time, they executed a trust deed over the freehold, naming themselves as the two trustees and the sole beneficiaries. The deed was straightforward, stating that they held the property on trust for one another as tenants in common in equal shares. Seven years later, the claimant asked the defendant to agree a 999-year extension of her lease at a peppercorn rent. No agreement followed. The claimant then sought, but failed to obtain, an order under the Trusts of Land and Appointment of Trustees Act 1996 to grant a 999-year lease of her flat for no...

Original news Taylor v Taylor [2017] EWHC 1080 ( Ch) In June 2012, a father, Mark, and his son, Boyd, acquired a transfer of a modest hotel with a campsite, together by way of conveyance. It was undisputed between both sides that this made them joint tenants at law at the time. The conveyance concerned part only of a wider tract of land within a larger holding. In May 2013, Mark served a notice to sever the joint tenancy which, on its very face, converted the beneficial joint tenancy (assuming that was its nature) into a tenancy in common in equal proportions. Nonetheless, Mark asserted a four-fifths share of the beneficial interest, citing his larger contribution to the purchase price. By contrast, Boyd maintained he was due one-half of the beneficial interest, on the basis of a promise to that effect and his...

Original news Newman v Clarke [2016] EWHC 2959 ( Ch) In December 1996 Mr Clarke established an accumulation and maintenance settlement. Mrs Newman and Mrs Clarke were two of the three initial trustees. In April 1997, Mrs Newman and her husband granted a lease of a residential property to Mr Clarke. That lease qualified for enfranchisement under the Leasehold Reform Act 1967 ( LRA 1967). On 19 June 1997, Mr and Mrs Newman sold their freehold reversion in the property to the original trustees of the settlement. On 25 June 1997, Mr Clarke took the place of the third of the original trustees as a trustee of the settlement. On 12 September 1997, the original trustees conveyed the freehold reversion in the property to Mrs Newman, Mrs Marks and Mr Clarke to hold upon the terms of the settlement. On 7 January 1998, they were...

Original news Distinctive Care Limited v HMRC [2016] UKFTT 764 ( TC) John Hargreaves v HMRC [2016] UKFTT 772 ( TC) What are the practical implications of these cases? The lesson from Distinctive Care is that, when handling groups of disputes, advisers must be meticulous and open about the way costs have been incurred. With HMRC’s more recent follower notice and accelerated payment notice powers, this point matters now more than ever. The key takeaway from John Hargreaves was that there is no hard-and-fast sequence for proceedings; the FTT will exercise its case management powers to ensure matters are dealt with fairly and justly, including setting the order of proceedings. The ongoing narrative from Mr Hargreaves’ litigation suggests taxpayers are likely to find it difficult to keep back material from HMRC where that evidence supports an aspect of the taxpayer’s position but also...

How do you expect the provision of legal education at university level, namely the LLB, to change and adapt in order to attract the best students and promote the legal profession while also meeting market demands? We’re likely to see sharper distinctions between law schools, each appealing to particular kinds of students and forging links with different corners of the profession. With reforms proposed by the Solicitors Regulation Authority ( SRA) and the Bar Standards Board ( BSB), some programmes may resemble a fusion of academic study and the Legal Practice Course ( LPC), whilst others will, I hope, develop richer, more imaginative and multidisciplinary curricula. Have there been any recent proposals to change the structure or content of this course—for example, many argue the study of contract law in the first leaves students unprepared for when they next come across it, possibly four or more years...

Original News Anderson v HMRC [2016] UKFTT 0565 ( TC) What was the case about? In his tax return, Mr Anderson sought £3m of relief under sections 64 and 72 ITA 2007, claiming losses from trading activities labelled ‘football development’. He had put funds into the Bafana soccer academy in South Africa, created to cultivate emerging football talent and generate income through the profitable transfer of successful players. HMRC issued a discovery assessment, asserting the losses did not stem from a trade conducted on a commercial basis with a view to profit, and that the predominant purpose of the activity was to secure a tax advantage. Why did the appellant dispute the validity of the discovery assessment? The appellant’s central challenge was that there had been no ‘discovery’. At the point the assessment was raised, HMRC, he said, lacked reasonable grounds to believe Mr Anderson had been...

Original news Grant and another v Baker and another [2016] EWHC 1782 ( Ch), [2016] All ER ( D) 108 ( Jul) The Chancery Division upheld an appeal by the trustees in bankruptcy, setting aside an order that would have delayed the sale of the bankrupt’s property for as long as his adult daughter, who suffered from global developmental delay, dyspraxia and obsessive compulsive disorder ( OCD), continued to live there. The court agreed that the district judge had been right to find exceptional circumstances within section 335A of the Insolvency Act 1986 ( IA 1986), recognising that such circumstances can include a situation where a bankrupt’s child has medical or mental health conditions and would be adversely affected by moving due to a sale. Nevertheless, it concluded that the judge had materially erred in discretion by imposing an open-ended...

Sword Services Ltd and others v Revenue and Customs Commissioners What was this case about? The taxpayers brought a judicial review to contest payment notices ( PPNs) issued by HMRC to members (ie partners) of several film production partnerships, seeking to have those notices quashed. PPNs are a form of accelerated payment notice ( APN) given to partnership members. As with an APN, a PPN requires tax to be paid upfront while HMRC’s enquiries into the relevant arrangements are concluded. For more on the accelerated payments regime, see Practice Note: Accelerated payment notices. The taxpayers argued that the PPNs were unlawful on two bases: They were issued to members of a limited liability partnership ( LLP), but schedule 32 to the FA 2014 (the PPN legislation) does not, in the taxpayers’ view, authorise HMRC to issue PPNs to LLP members; it applies only to other forms of...

Original news R Trust [2015] JRC267A What were the background facts of the case? The matter arose from directions issued by the English Family Court against Jersey-based trustees of a Jersey discretionary trust, even though the trustees had not accepted the authority of that court. Following divorce proceedings in England between Mr B and his former spouse, Mrs B, the court ordered a distribution of the matrimonial estate. Included within that division was a trust established by Mr B, whose only beneficiaries were the parties’ children, both of whom were minors. The trust deed nevertheless allowed, among other powers, the addition of further beneficiaries. The English court determined that Mr B’s transfer of assets into the trust should be unwound, and instructed the trustee to recognise that position and return the trust fund to Mr B so that he could make payment on to Mrs B. The...

Original news Banwaitt v Dewji and another [2015] EWHC 3441 ( Ch) What issues did this case raise? This decision will interest practitioners advising judgment creditors with a charging order against a debtor’s share in jointly owned property, and anyone dealing with security over beneficial interests in land more generally. The central issue was whether a married couple, as co-owners, could have a charging order removed from the title by the wife buying the husband’s stake. The claimant had secured a substantial judgment which the debtor failed to satisfy. A charging order was then obtained over the debtor’s beneficial interest in the family home. Thereafter, the debtor and his wife transferred the property into her sole name for a modest sum. She argued the order no longer bound the title—maintaining it had been ‘overreached’ under sections 2 and 27 of the Law of...

Government sets out plans to reform public financial guidance for consumers In March 2016, the government published a consultation paper outlining a proposal to replace MAS, TPAS and Pension Wise with a fresh delivery model. It is inviting views on how the services should be established and assessed, and on creating effective links between the two new guidance bodies and the broader sector, so that consumers can move seamlessly between guidance and advice providers. Views are requested on service design, assessment, and building links with the wider sector. The consultation closes on 8 June 2016. What is the background to this? The government states that it wants consumers to have access to high-quality, impartial, levy-funded, free-to-client financial guidance (public financial guidance). In October 2015 it launched two reviews—the Financial Advice Market Review ( FAMR—a joint review with the Financial Conduct Authority) and the Public...