Legal News

Dowman Imports Limited v 2 Toobz Limited [2020] EWHC 291 ( Comm) What are the practical implications of this case? Unjust enrichment This ruling affirms and refines the approach to restitutionary claims when services are supplied in anticipation of a contract being finalised: Four core questions must be addressed: has the defendant obtained a benefit? was that benefit gained at the claimant’s expense? was the enrichment unjust? are any defences available? If those questions are answered in the claimant’s favour, the court will determine the value of the unjust enrichment by objectively assessing the market value or price of the services, akin to a quantum meruit. The defendant might try to show that they personally valued the services below market rate (subjective devaluation) to cut down or defeat the claim. That attempt fails if the claimant proves either that: the benefit was...

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...

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...

Outcome 11.3 Outcome 11.3 of the former 2011 code (old code) in the 2011 SRA Handbook on contract races is not carried across into the two new codes under the new SRA Standards and Regulations. Is any other provision in the new codes relevant to contract races? Yes. Principles 2 (maintaining public trust and confidence), 4 (acting honestly) and 5 (acting with integrity) in the Standards and Regulations almost certainly encompass contract races, and paragraphs 1.2 (not taking unfair advantage) and 1.4 (not misleading) in the ' Maintaining trust and acting fairly' section of the new codes would bear upon contract races in property transactions. Contract races can be ethically complex, arising where a property seller instructs their solicitor to proceed with more than one prospective buyer. In such circumstances it is common for attempts by the selling client or a bidder to secure a...

Re London Bridge Entertainment Partners illustrates how choices that appear trivial in solvency can become pivotal on insolvency. In this instance, opting to ‘pay first, query later’ from the rent deposit meant the landlord effectively relinquished the priority it might otherwise have enjoyed for those rent sums. The judgment also confirms that the scope of provable debts is interpreted broadly, whereas the category of administration expenses is construed narrowly. Written by Samuel Parsons, barrister at Guildhall Chambers. Re London Bridge Entertainment Partners LLP (in administration) [2019] EWHC 2932 ( Ch), [2019] All ER ( D) 96 ( Nov) What are the practical implications of this case? This decision underscores the caution required when a commercial counterparty cannot pay. It was common ground that, had the rent for the period of the administrators’ beneficial retention remained outstanding, it would have constituted an expense of the...

Aldford House Freehold Ltd v Grosvenor ( Mayfair) Estate and another [2019] EWCA Civ 1848, [2019] All ER ( D) 17 ( Nov) What are the practical implications of this case? This decision addressed collective enfranchisement of a building’s freehold by qualifying tenants of flats under the Leasehold Reform, Housing and Urban Development Act 1993 ( LRHUDA 1993). An initial notice under section 13 to acquire the freehold must be served by qualifying tenants representing at least half of the flats in the building. The notice must also set out the names of all qualifying tenants of flats within the premises described ( LRHUDA 1993, s 13(3)(d)); if not, the notice is ineffective—see Natt v Osman [2015] 1 WLR 1536, [2014] EWCA Civ 1520. It is therefore essential to determine what does, and does not, amount to a ‘flat’ for these purposes. This can be...

For much of the UK’s membership of the EU, the interaction between European law and the domestic system has sparked debate. To many observers, it operates as a limitation—practically, if not as a strict matter of doctrine—on the constitutional tenet that Parliament, acting with the Crown, is sovereign. In that context, the European Union ( Withdrawal Agreement) Bill ( WAB) sets out a number of measures with significant consequences for how sovereignty is to be understood in the United Kingdom. Current status of EU law At present, section 2(1) of the European Communities Act 1972 ( ECA 1972) stipulates that all rights, powers, liabilities, obligations and restrictions created by or under the Treaties, together with all remedies and procedures they provide, are to take legal effect in the United Kingdom without further legislation. Those rights must be recognised, available and enforced in UK law, and...

Kensington Mortgage Company Ltd v Mallon and others [2019] EWHC 2512 ( Ch) What are the practical implications of this decision? In a recent claim for possession, the High Court dismissed an appeal against a county court’s refusal both to entertain a fresh contention first advanced by the defendant at trial and to permit a late amendment to pleadings to add that contention. The outcome is encouraging, confirming the judiciary’s resolve that litigants should know the case they must meet at trial. It equally underscores the original Civil Procedure Rules ethos of putting all cards on the table. Statements of case must be thorough, correct and precise. Simply setting out background narrative is not enough to found a legal case or allegation—the specific contention or allegation must be identified. Where a party wishes to raise a new issue or argument, it should apply to the court as...

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......

Discovery ( Northampton) Ltd and others v Debenhams Retail Ltd and others [2019] EWHC 2441 ( Ch), [2019] All ER ( D) 67 ( Sep) What are the practical implications of this case? Debenhams’ restructuring proceeds, with the CVA surviving strong landlord objections. The judgment offers useful clarification on CVAs: future rent liabilities can be compromised within a CVA reducing future rent under a CVA does not automatically make it unfair; the court evaluates the proposal in the round a CVA cannot alter a landlord’s right of re-entry What was the background? Six landlords brought a challenge to Debenhams’ CVA under section 6(1) of the Insolvency Act 1986 ( IA 1986). Their leases were for 30 years, with automatic rent increases for the first ten years, followed by five-yearly upwards-only reviews. Debenhams’ directors advanced the CVA to tackle...

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...

Davies v Revelan Estates ( Wigston) Ltd [2019] EWHC 1766 ( Ch) What are the practical implications of this case? The decision, handed down in January, offers a careful analysis of the make‑up of a guarantor’s covenant and how its terms shape the routes available to a creditor landlord when proceeding against a guarantor. Where, on a proper reading of the covenant, the sum due cannot be categorised as a liquidated amount, a statutory demand is not an appropriate mechanism for recovery. A promise by a guarantor to discharge sums the tenant has failed to pay is a liquidated liability; by contrast, a promise to compensate the landlord for any loss or damage arising from the tenant’s breach of its obligations creates an unliquidated liability. What was the background? The appeal challenged a refusal to set aside a statutory demand served on a guarantor under a lease. The...

Moda International Brands Ltd v Gateley LLP (later known as Gateley Heritage LLP) and another [2019] EWHC 1326 ( QB) What are the practical implications of the case? The practical effect of Moda International Brands Ltd v Gateley LLP (later known as Gateley Heritage LLP) and another is that summoning a third party to testify in a loss of chance claim does not, by itself, settle what would have occurred unless the court sees all pertinent material and the testimony is wholly reliable. In circumstances such as these—where the witness lacked credibility and there had not been full disclosure—the court dismissed the defendant’s submission that it should decide the likely result of the Moda– Mortar negotiations by applying the balance of probabilities. Consistently with Perry v Raleys Solicitors [2019] UKSC 5, [2019] All ER ( D) 59 ( Feb), the proper method was to...

Thorpe v Frank [2019] EWCA Civ 150 What are the practical implications of this case? The judgment confirms that paving alone may amount to sufficient factual possession, but the outcome is fact-sensitive. The character of the land—here, an open forecourt—is particularly significant. Property lawyers should keep this firmly in mind when advising their clients. What was the background? The dispute arose from Mrs Thorpe’s contention that she had acquired, by adverse possession, part of the land comprised in the title to the adjoining property owned by the Franks. The two properties had contiguous open forecourts. Mrs Thorpe said that, when she was a tenant and up to her purchase in 1984, a stone-edged kerb defined an area outside the property, which was covered with different tiles or flagstones, and contained a flower bed at its centre. She decided to re-lay the surface and remove the 2½ inch...

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...

UKI ( Kingsway) Limited ( Respondent) v Westminster City Council ( Appellant) [2018] UKSC 67 What is the law in this area? Liability for non-domestic rates turns on a property being recorded as a hereditament in the rating list. A newly constructed building is added to that list once a completion notice has been validly served. The notice fixes the date on which the building is deemed to be complete. What was the background? The dispute concerned the purported service of a completion notice intended to bring a new, unoccupied building into the rating list. The Court of Appeal upheld the appellant’s appeal against the decision of the Upper Tribunal ( Lands Chamber) ( UT), which had found that a completion notice had been served on it, despite the fact that transmission was effected through a person not authorised to accept service......

Santander UK Plc v Fletcher & Anor [2018] EWHC 2778 ( Ch) Ashley Fletcher was found guilty of fraud, the target being his mother, Mrs Paula Fletcher. Because of his deception, Mrs Fletcher’s property was charged to Santander for a loan far greater than he had led her to expect. He told her the borrowing would be in the region of £32,000, whereas the facility actually approached £120,000. Nothing had been repaid; by May 2017 the outstanding balance was around £160,000 and still climbing. Santander therefore issued possession proceedings under the mortgage. At trial, the judge upheld Mrs Fletcher’s contention that the mortgage should be rescinded for undue influence, of which Santander had sufficient notice to put it on enquiry (see Royal Bank of Scotland v Etridge ( No 2) [2001] All ER ( D) 156 ( Oct)). He decided that, provided she...

Prezzo Ltd v High Point Estates Ltd [2018] EWHC 1851 ( TCC) What are the practical implications of the judgment? In Mark Rowlands Ltd v Berni Inns Ltd [1985] 3 All ER 473, the Court of Appeal articulated a general rule: where a landlord is required to insure the building and the tenant contributes to the premium as insurance rent, that cover operates for the tenant's benefit as well. Accordingly, losses caused by an insured risk arising from the tenant's negligence must be met from the insurance proceeds, leaving the landlord with no additional negligence claim against the tenant. In the later decision of Frasca- Judd v Golovina [2016] EWHC 497 ( QB), [2016] All ER ( D) 282 ( Feb), the High Court revisited Berni Inns and held that, even though a short-term residential lease imposed no duty on the tenant to pay...

Broadway Homes ( Cambridge) Ltd v Bruce Marshall [2018] UKUT 264 ( LC) A developer acquired a detached home with an extensive garden on a residential estate, fully aware that a covenant restricted use of the land to a single private dwelling-house. Having obtained planning consent to demolish the existing house and build two new dwellings, the company—assumed by the Upper Tribunal ( Lands Chamber) ( UT) to stand to make a substantial financial gain from the project—sought a modification of the restrictive covenant to realise the site’s potential. Several long-standing residents, each of whom had lived on the estate for years and had ‘faithfully abided by’ identical covenants affecting their own properties, objected. The UT was required to determine whether to permit the company’s application. What are the practical implications of this case? Although determined on its particular facts, the decision serves as a helpful...

Upper Tribunal considers experts acting under success-related fees ( Gardiner & Theobald LLP v Jackson ( VO)) Gardiner & Theobald LLP v Jackson ( VO) [2018] UKUT 253 ( LC) What was the background? The UTLC President characterised the ruling as addressing significant questions of principle about the proper conduct of experts. In essence, it examined the effect of success‑linked remuneration and the circumstances in which such arrangements might be regarded as acceptable. The tribunal adopted a notably broad stance on experts’ obligations where success‑related fees arise, prompting unease among expert witnesses and their employers. Although the dispute was a rating matter, the tribunal made it clear that its observations were equally applicable in compensation cases. The panel presented its guidance as having wider application across comparable proceedings in both forums. Fee arrangements in the case The surveying practice had undertaken all rating work for Gardiner &...