Legal News

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...

R (on the application of Wingfield) v Canterbury City Council [2019] EWHC 1975 ( Admin) What are the practical implications of this case? The decision does not establish any new legal principle, but usefully reiterates settled law concerning what is commonly termed ‘salami slicing’. This describes breaking up a single development into smaller elements that fall beneath EIA thresholds, thereby sidestepping the need for an environmental assessment. Salami slicing has been found to be unlawful and should be avoided. The judgment confirms that defining the relevant ‘project’ for EIA purposes is a matter for the competent authority’s judgment, though it remains susceptible to challenge on grounds of Wednesbury rationality or other public law error. Lang J indicated that the following considerations are pertinent when deciding whether two schemes amount to a single project for the EIA regime: common...

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...

Gladman Development Ltd v Secretary of State of Housing, Communities and Local Government and another [2019] EWHC 127 ( Admin) What are the practical implications of this case? The ruling introduces no novel principles, but it usefully reinforces the obligation on decision-makers to ensure consistency with prior determinations and to set out clear, adequate reasons for their conclusions. Plainly, whether a local policy is considered out of date, and the weight it attracts, will differ from case to case; however, the essential point is that where a previous appeal decision is directly pertinent or turns on the same policy interpretation, the decision-maker should explain any inconsistency with that earlier outcome and justify any departure from conclusions that diverge from their own. Although coherence between appeal decisions on the same subject matter or policy is clearly important, this does not require identical outcomes in all similar cases;...

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......

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....

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...

Original news Final report and draft Bill published for reforming Land Registration Act 2002, LNB News 24/07/2018 61 The Law Commission has issued its concluding report and a draft Bill to update the Land Registration Act 2002 ( LRA 2002) after a consultation. It proposes targeted technical changes to smooth out anomalies in the law, deter fraud, and make conveyancing quicker, simpler and more affordable for all. What recommendations does this report include? The paper sets out 53 proposals to enhance the current LRA 2002. They are based on the extensive feedback the Law Commission received to its 2016 consultation paper on this topic. How will the proposals in relation to electronic conveyancing help conveyancers? Chapter 20 presents the plans for electronic conveyancing. The Law Commission makes four recommendations, including: conferring a power in the LRA 2002 to mandate electronic conveyancing without also obliging...

Ineos Upstream Limited and another v The Lord Advocate [2018] CSOH 66 Why is this decision significant? This ruling matters because it tackles a highly charged issue: the development of unconventional oil and gas ( UOG), including hydraulic fracturing (fracking), and the competence of a devolved government, namely the Scottish government, to control that activity. It interests planning practitioners as it clarifies the reach of planning law and policy, and it is relevant to constitutional lawyers as it confirms that courts determine the legal consequences of governmental steps, regardless of how ministers characterise them. It also records an acknowledgement by the Scottish ministers that public statements heralding a fracking ban did not accurately represent the legal reality. What did the court decide? Lord Pentland, sitting in the Outer House of the Court of Session, refused Ineos Upstream Limited’s petition for judicial review. Ineos contended that the...

James Plummer v Royal Herbert Freehold Limited [2018] Lexis Citation 48 What are the practical implications of this case? Businesses that previously regarded themselves as landlords may, in reality, be treated as service providers and therefore have an anticipatory duty to make reasonable adjustments. As a result, the needs of disabled people must be accommodated, and importantly this applies even where there are currently no disabled users of the service. A further consequence is that, as a service provider, the company must consider altering physical features—a duty not imposed on landlords under the Equality Act 2010 ( EA 2010). Another practical point concerns the potential scale of injury to feelings awards—in this matter, £9,000 was awarded, the highest known award in a civil disability discrimination claim. PSLProperty comment: The County Court is not a court of record, therefore the judgment carries no...

DLA Delivery Ltd v Baroness Cumberlege of Newick and another [2018] EWCA Civ 1305 What are the practical implications of this case? The judgment confirms that the Secretary of State must consider relevant rulings issued after an inquiry has closed, even where those rulings are neither relied upon in further submissions to him nor specifically flagged by the parties. Accordingly, appellants and respondents alike should monitor any analogous determinations handed down while their appeal is pending so they can calibrate expectations. The ruling further underlines that the Secretary of State cannot depend on the litigants to identify pertinent authorities; the responsibility rests with him to apprise himself of them. The Court of Appeal also reaffirmed that, if the Secretary of State proposes to adopt a different stance and reach a different outcome on like issues to earlier decisions at the appeal stage, he must give...

Ralph Kline Limited v Metropolitan and County Holdings Limited [2018] EWHC 64 ( Ch), [2018] All ER ( D) 160 ( Jan) What are the practical implications of the judgment? The principal consequences of this decision fall on the drafting of leases. Contemporary construction methods enable increasingly imaginative exploitation of the airspace above building roofs. In tightly populated urban districts, both the right to construct within that airspace and the right to enter it can therefore carry significant worth. When acting for a landlord who intends to reserve the building’s airspace, the lease should make this exclusion explicit within the definition of the demised premises. The effect of the judgment is that those preparing leases for landlords must expressly address airspace. Comparable care is required in managing the ramifications of omitting airspace from the demise—for example, how this bears upon any repairing and...

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...

Clin v Walter Lilly & Co Ltd [2018] EWCA Civ 490, 177 Con LR 1 What are the practical implications of this case? The ruling shows that a construction contract may carry an implied term requiring the employer to pursue planning approvals. Yet it is unlikely to amount to an unqualified duty to secure those approvals, given the inherent unpredictability surrounding approvals. In real terms, a curtailed duty on the employer to ‘use all due diligence’ to obtain approvals may leave the contractor absorbing the fallout—typically extra expense and exposure to delay damages—if a local authority behaves unreasonably. The safer course is to stipulate in the contract, in express terms, who bears responsibility for planning approvals, the scope of that responsibility, and the ramifications if approvals are not forthcoming. What was the background? Walter Lilly was engaged by Mr Clin to undertake demolition,...