Legal News

Maypole Dock Ltd v Catalyst Housing Ltd [2021] EWHC 1742 ( TCC) What are the practical implications of this case? This was a relatively unusual application, namely to curtail the continuation of an expert determination. While there are several reported decisions where injunctions were pursued to halt adjudications, and both parties relied on those authorities, the court had no difficulty distinguishing them, finding that different considerations arose here. In this instance, one party sought to uphold what it asserted was a contractual entitlement to an expert’s determination, whereas the other wished to engage the court’s jurisdiction. The suitability of an injunction in such circumstances is highly fact specific, yet ultimately falls to be decided in line with the established American Cyanamid principles... What was the background? The dispute originates from Catalyst Housing Ltd’s 2014 purchase of land and buildings in Southall from Maypole Dock Ltd. On...

Linfoot- Smith v Ansari [2021] Lexis Citation 93 What are the practical implications of this case? This decision stands out as an uncommon residential easement dispute concerning drainage rights. Though the claimant did not succeed on the alleged express easement, it is noteworthy that the court was content to read the phrase ‘in through or under’ as extending to a pipe fixed to the front of the property, mirroring the approach to a like clause in Trailfinders Ltd v Razuki [1988] 2 EGLR 46. The state of affairs on the ground as at the date of the 1934 conveyance bore heavily on the court’s conclusion to dismiss the express easement claim. On prescription, the ruling usefully sets out the categories of evidence the court is apt to treat as helpful, and those it is unlikely to consider of value. The judgment also offers...

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...

Lizzium Ltd (a company incorporated in Jersey) and another company v Crown Estate Commissioners [2021] EWHC 941 ( Ch) What are the practical implications of this case? This concise decision confirms that, when pursuing a vesting order under s 181 of the LPA 1925, the applicant must be able to demonstrate that, as at the date of the company’s dissolution, they already held a legal right or entitlement to the land. Such entitlement may arise from a binding, enforceable contract. By contrast, showing only a settled intention to transfer the property to the applicant is inadequate, as intention alone does not establish a legal right. The ruling underscores the need to examine closely the precise nature of the applicant’s relationship with the property at the point of dissolution, and to verify that any claimed entitlement had crystallised into a legal right by that...

Commerz Real Investmentgesellschaft mbh v TFS Stores Ltd [2021] EWHC 863 ( Ch) What are the practical implications of this case? Advisers have long anticipated a defended claim for arrears of commercial rent predicated on the now routine coronavirus arguments that have echoed since the first lockdown in March 2020. Yet, despite the undeniable hardship endured by retail and other business occupiers during the pandemic, the court’s scope to recast the parties’ bargain is minimal. Put shortly, the court is tasked with enforcing, not reshaping, the bargain the parties struck. Sympathy cannot rewrite the parties’ contracts. Two aspects of the ruling stand out. First, implying a term into a meticulously negotiated commercial lease to suspend rent when government measures compel the premises to shut is exceptionally difficult. Those brokering pandemic provisions on renewals under the Landlord and Tenant Act 1954 will recognise the breadth and...

Wood v Commercial First Business Ltd and other companies; Business Mortgage Finance 4 plc v Pengelly [2021] EWCA Civ 471 What are the practical implications of this case? The Court of Appeal has reset the approach to secret commissions and bribes by returning to first principles. This judgment reminds practitioners that rescission of the transaction, recovery of the amount paid as a bribe or secret commission, and/or an award of damages are remedies available at common law as well as in equity. As a result, it is no longer necessary to engage in a fine-grained assessment of the precise nature and scope of the relationship between the parties to determine whether, and to what extent, it was fiduciary. The core enquiry is simply whether the recipient of the bribe or secret commission owed a duty to provide neutral and unbiased advice or...

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...

H Stain Ltd v Richmond [2021] UKUT 66 ( LC) What are the practical implications of this case? Courts have frequently grappled with whether notices are valid. On a quick reading, the rulings may appear inconsistent and perplexing. This judgment underlines that the lease’s language usually determines if small mistakes doom a notice. Crucially, were the express pre‑conditions for a valid notice satisfied? If they were not, the Mannai ( Mannai Investment Co Ltd v Eagle Star Assurance Co Ltd [1997] AC 749) ‘reasonable recipient’ approach cannot rescue slight defects (in Mannai, a break notice served a day early survived as a reasonable recipient would grasp the intention to end the following day). The outcome matters to landlords, tenants, and those drafting demands or notices. Crisp, unequivocal lease drafting that removes doubt about what must be met before a demand gives rise to...

The UT further examined the significance and effect of fencing and grazing in adverse possession claims ( Chambers v Havering [2011] EWCA Civ 1576; Batt v Adams (2001) 82 P & CR 32; Inglewood Investments Company Ltd [2002] EWCA Civ 1733). On the facts here, those acts were held to be enough to constitute adverse possession in this case. Prepared by James Fryer- Spedding, a barrister at 9 St. John Street Chambers, who represented the respondent. Haandrikman v Heslam [2021] UKUT 56 ( LC) What are the practical implications of this case? This decision concerns the law of adverse possession. The ruling offers a helpful synopsis of the legal principles governing the informal passing of title between successive squatters over time in practice. It also addresses when, and in what situations, acts of fencing and/or the grazing of animals may amount to adverse possession...

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...

Morley (trading as Morley Estates) v Royal Bank of Scotland plc [2021] EWCA Civ 338 What are the practical implications of this case? This decision clarifies the boundaries of a bank’s obligations to its client and demonstrates how those responsibilities shift over the course of their dealings. Where a borrower has taken out a secured lending facility, the bank’s duty to deliver banking services with reasonable skill and care ceases when the contractual loan period ends. After that point, the bank is only bound by the express provisions of the mortgage and the equitable duties inherent in that security relationship (for example, the recognised obligation to exercise reasonable care to realise a proper price for the collateral). It is not correct to read into the mortgage an implied contractual duty of reasonable skill and care. In addition, the Court of Appeal endorsed RBS’s...

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...

Westfields Homes Ltd and another v Keay Homes ( Windrush) Ltd [2020] EWHC 3368 ( Ch) What are the practical implications of this case? The ruling applies settled doctrines within a well‑known commercial setting. Two points merit attention. First, duties to act in good faith and in the spirit of the bargain derive their content from the other express provisions of the contract. As Lady Justice Arden explained in Re Coroin Ltd ( No 2) [2013] EWCA Civ 781, [2013] 2 BCLC 583 (at [50]–[53]), such duties cannot widen a party’s commitments because, absent explicit direction in the agreement, the court lacks any standard by which to police the obligation. The practical effect of a clause of this kind is to demand performance aligned with the parties’ common objectives when they entered the deal; it is ‘no more than a reflection of the...

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...

Clin v Walter Lilly & Co Ltd [2021] EWCA Civ 136 What are the practical implications of this case? The judgment addresses the correct method for assessing if building operations within a conservation area designated under P( LBCA) A 1990, s 69 amount to ‘demolition’, thereby triggering the need for conservation area consent under P( LBCA) A 1990, s 74. The court confirmed that s 74 poses two distinct issues. First, is a building in a conservation area to be ‘demolished’ such that conservation area consent is necessary? Secondly, if the works do constitute demolition, should conservation area consent be granted? As to the first issue, the ruling makes plain that it is a quantitative assessment, answered by the scale of demolition, and excludes any qualitative appraisal of the effect on the character and appearance of the conservation area. The outcome will aid owners (and their...

Merritt v Thurrock Council and Midos Management Co Ltd [2021] EW Misc 2 ( CC) What are the practical implications of this case for the foreseeable future in light of the pandemic? The judgment reinforces the effect of the Supreme Court’s ruling in R( N) v Lewisham London Borough Council [2015] AC 1259, confirming that where a local authority grants accommodation under temporary homelessness duties or powers, it may, when the tenancy or licence ends, recover possession without issuing possession proceedings. The same assurance matters to private accommodation providers, who often shoulder the practical step of retaking premises at the conclusion of the let and must be confident that doing so complies with the law. What was the background? In October 2018, the claimant sought homelessness assistance from Thurrock Council. The council accepted the main housing duty owed to them under section 193 of the Housing Act 1996 ( HA...

Adams v Jones [2021] UKUT 9 ( LC) What are the practical implications of this case? This ruling carries significant weight for agricultural law specialists, notably those advising on Welsh holdings. Under the AHA 1986, any bid to succeed to an AHA-protected tenancy must be lodged within three months of the former tenant’s death, and that window is not capable of extension. Those who may apply are the deceased’s surviving close relatives whose principal means of livelihood during the seven years preceding death derived from agricultural work carried out on the holding. Where an applicant files in time but identifies the wrong respondent landlord, the defect can now be remedied by substituting the correct landlord even after the three‑month limit has passed, notwithstanding the lack of any tribunal provision comparable to CPR 19.5 concerning adding parties outside a limitation period. The judgment further...

When can a developer drain onto neighbouring land without permission? ( Bernel v Canal & River Trust) Bernel Ltd v Canal and River Trust [2021] EWHC 16 ( Ch) What are the practical implications of this decision? The riparian claim and the prescriptive claim presented quite different factual and legal issues. Both aspects of the dispute will be of real interest to property practitioners. To determine the riparian issue, the judge had to set out and apply, carefully and in some detail, the law on when an intermittent or occasional flow is sufficient to amount to a natural watercourse, and when it is not. Because extensive rights accompany the presence of a natural watercourse on or adjoining land (the riparian rights), this boundary is legally significant, and not always straightforward to draw in practice on the ground. Although the...

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...

Mathewson v Crump and another [2020] EWHC 3167 ( QB) What are the practical implications of this case? The decision underscores the significance of timing and, crucially, the extent of control when deciding if a defendant is an occupier for the purposes of the OLA 1957. It cautions against conflating ownership with occupation. Control remains the key indicator of occupation and must be assessed within the factual context, which includes, among other things, who grants permission to go onto the property. Procedurally, the matter was notable because the court directed a split trial—liability and then quantum—on the first day (at paras [8]–[9]), apparently, at least in part, to give the claimant acting in person an opportunity to put his affairs in order. The judge observed that the claimant ‘would very much benefit from legal advice and representation when it came to arguing the quantum part of the...