Recent Decisions

Paul Wilmshurst successfully represented Cambridge County Council, against leading counsel, in this High Court challenge. St John's College, Cambridge v Cambridge County Council [2017] EWHC 1753 (Admin) (known as "Meadow Triangle”). The judgment of Sir Ross Cranston concerns issues inter alia of when an application can be adjudged to be duly made and establishes that a registration authority is entitled to give an applicant more than one opportunity to correct a defective application. View decision.


Edward Denehan represented the Respondent in Peires v Bickerton's Aerodromes Ltd [2017] EWCA Civ 273, in which the Court of Appeal considered for the first time the meaning and extent of the immunity conferred by sections 76(1) and 77(2) of the Civil Aviation Act 1982 in respect of noise nuisance from aircraft.


Raj Arumugam advised and represented the Adjudicator in one of the first ever appeals under the new debtor’s bankruptcy regime which came into force on 6 April 2016 under ss. 263H-O, Insolvency Act 1986. Chief Registrar Baister handed down a detailed judgment addressing how courts are likely to approach such appeals under the new bankruptcy regime in his judgment: Budniok v. The Adjudicator, Insolvency Service (22 February 2017).


Rory Brown led by John Wardell QC advised and represented the appellant pharmaceutical company in its appeal to the Court of Appeal against the decision of Andrew Hochhauser QC (sitting as a Deputy High Court Judge) that the Court did not have jurisdiction to entertain a claim that the Defendants had unlawfully interfered with (alternatively conspired to injure) the appellant's business selling a probiotic food product Actial Farmaceutica LDA v De Simone [2016] EWCA Civ 1311.


In the Chancery Division of the High Court of Justice, Rory Brown advised and represented the respondent beneficiary to an application by trustees for Re Beddoe relief (whether to defend and counterclaim) and prospective costs orders. Master Matthews gave a judgment setting out the principles governing the grant of such relief to trustees (Pettigrew v Edwards [2017] EWHC 8 (Ch)).


Raj Arumugam represented the Secretary of State for Business, Energy & Industry Strategy and the Official Receiver on a successful strike out application of a claim for negligence and breach of duties under ss.287(3), 289 and 315, Insolvency Act 1986 (Frosdick v. Secretary of State for BEIS & the Official Receiver [2016] EWHC 3008 (Ch)).


Edward Denehan successfully appealed to the Upper Tribunal (Lands Chamber) against a decision of the First Tier Tribunal refusing to allow a landlord to recover litigation costs against a tenant under an indemnity clause in a long lease in a case where the FTT had awarded the landlord part of its costs under rule 13(1)(b) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013: 87 St George's Square Management Ltd v Michael Henry Anthony Whiteside [2016] UKUT 438 (LC).


Faith Julian appeared for the successful defendants in a family dispute as to whether the deceased should be buried in the UK or Jamaica (Anstey v Mundle [2016] EWHC 1073 (Ch); [2016] WTLR 931; [2016] All ER (D) 285 (Feb)). The judgment deals with the interrelation of the power to make a limited grant for these purposes pursuant to section 116 of the Senior Courts Act 1981, and the inherent jurisdiction of the High Court to give directions as to the disposal of a dead body.


Rory Brown represented the applicant property developer - in his application in the Chancery Division of the High Court of Justice - to set aside a statutory demand presented in respect of an instalment payment of £2 million said to be due under a contract for the sale of shares in a corporate property development vehicle (Doherty v Fannigan [2016] EWHC 2098 (Ch)). The decision analyses when an unsatisfied payment obligation in a contract can constitute a liquidated debt for the purposes of the Insolvency Act 1986.


Rory Brown represented the Respondent to an application under s236 Insolvency Act 1986 in his application for costs of and incidental to representation at the private examination at which he was questioned in relation to an alleged cross-border fraud of US$9.2 billion (Re Saad Investments Company, Akers v Hayley, [2016] Lexis Citation 69; [2016] All ER (D) 103 (Jun)).


Edward Denehan successfully acted for the Defendant in a claim in the Chancery Division of the High Court for equitable and other relief arising out of an alleged oral agreement or understanding concerning the acquisition of four properties back in the 1990s. The Claimant sought to rely upon a Pallant v. Morgan equity to claim the entire beneficial and legal interests in the properties which had been acquired by the Defendant, his brother, using entirely his own funds. (see Ramanathan v. Rudra [2016] EWHC 1062 (Ch), [2016] All ER (D) 122 (May)).


Elaine Palser appeared for the successful company in an application before Gabriel Moss QC (sitting as a deputy judge of the High Court) to strike out a winding up petition on the basis that there was evidence from the company sufficient to raise a bona fide and substantial dispute. The petitioner’s circumstantial evidence challenging credibility was insufficient to allow the petition to remain on foot. Re A Company [2016] EWHC 1046 (Ch), [2016] All ER (D) 103 (May).


Appeal from a bankruptcy order on the basis that an offer to compound had been unreasonably refused. Joseph Curl represented the successful petitioner both at first instance and on appeal. Cooke v Dunbar Assets plc [2016] EWHC 579 (Ch), [2016] BPIR 576, [2016] All ER (D) 49 (Apr)


Vivian Chapman QC successfully acted for Somerford Parish Council in the case of R (Somerford Parish Council) v Cheshire East Borough Council [2016] EWHC 619 (Admin). In this case, Somerford Parish Council challenged a decision by Cheshire East Borough Council to reject an application to register land as a new village green under Commons Act 2006 s. 15. The court quashed the decision for procedural irregularity and awarded Somerford Parish Council costs against Cheshire East Borough Council. The case raised a number of points of general interest, including:

  • Can a commons registration authority determine an application to register land as a new green if it is also an objector to the application?
  • If a commons registration authority instructs independent counsel to advise on the merits of such an application, can it claim privilege for instructions to and communications with counsel?
  • When is a commons registration authority obliged to hold a non-statutory public inquiry into such an application?


Edward Denehan acted for the successful claimant who has obtained an injunction to restrain noise nuisance caused by helicopter pilot training at Denham Aerodrome. The judgment of Mr. Justice Peter Smith contains (inter alia) some interesting observations on the limits of statutory defences under the Civil Aviation Act 1982. See Peires v. Bickerton's Aerodrome Limited [2016] EWHC 560 (Ch).


Joseph Curl appeared on an application establishing that a triable issue arose in respect of an allegation that a bank had rendered itself a fiduciary for its borrowers. Baker and another v LSREF III Wight Ltd [2016] BPIR 509, [2016] All ER (D) 254 (Feb)


Joseph Curl represented the liquidator of a Lehman entity in a claim against the Official Receiver. Snowden J ruled that liquidators may discount the views of creditors who are influenced by extraneous considerations. Re Longmeade Ltd (in liquidation) [2016] EWHC 356 (Ch), [2016] Bus LR 506, [2016] BPIR 666, [2016] All ER (D) 259 (Feb) View decision


A debtor was estopped from challenging a statutory demand using an argument that had failed in earlier proceedings on a different statutory demand for the same debt. Joseph Curl represented the successful lender. Harvey v Dunbar Assets plc (No.2) [2015] EWHC 3355 (Ch), [2015] Bus LR 1383, [2015] All ER (D) 02 (Dec) View decision


In the recent case of Classic Property Developments (South East) Ltd v Islam and others [2015] EWHC 2958 (Ch) Edward Denehan successful argued that the claimant should be granted (inter alia) an order for specific performance of an option to acquire the freehold of business premises in Park Royal. Defences to the claim based upon mutual and unilateral mistake, and various pleas of estoppel, were rejected by Mr. Justice Arnold. View Decision


A bankrupt applied for annulment, alleging that the petition was abusive because a third party had paid the petitioner to procure the bankruptcy. Joseph Curl represented the trustees in bankruptcy. Ridsdale v Bowles [2015] BPIR 1275


Joseph Curl represented the successful appellant lender. It was held that a triable issue of fact is insufficient to set aside a statutory demand: the issue must also disclose a defence. Dunbar Assets plc v Butler [2015] EWHC 2546 (Ch), [2015] BPIR 1358, [2015] All ER (D) 138 (Sep)


Examined when failure to adjourn a creditors’ meeting to consider an individual voluntary arrangement will be a material irregularity. Joseph Curl represented the successful dissentient creditors. Rowbury v Official Receiver [2015] EWHC 2276 (Ch), [2016] BPIR 477, [2016] BPIR 500, [2015] All ER (D) 129 (Sep)


Fernandes (As administrator of the estate of Antonio Francisco Fernandes deceased) v Fernandes [2015] EWH 814 (Ca) – Helene Pines Richman successfully represented the Administrator in a dispute over ownership of property, the application of rules on illegality in the establishment of trusts, and whether the claimant was guilty of laches in circumstances where the claim was brought more than 10 years after the deceased’s death.


In the High Court of Justice, Chancery Division, before Registrar Briggs, Shuvra Deb appeared in the case of Gate Gourmet Luxembourg Sarl (IV) and another v Morby [2015] EWHC 1203 (Ch); [2015] All ER (D) 117 (May) in which it was held that Rule 7.55 of the Insolvency Rules 1986 may be applied to cure a defect in the requirement to serve a bankruptcy petition personally on the debtor as required by the provisions of Rule 6.14 of the Insolvency Rules 1986. The judgment seeks to reconcile a number of authorities on the extent of the application of Rule 7.55 to insolvency proceedings. View Decision


Joseph Curl addressed the effect of section 283A of the Insolvency Act 1986 (the “use it or lose it provision”) where an application was not issued within the three year time limit. Sands v Singh and others [2015] EWHC 2219 (Ch), [2015] BPIR 1293, [2015] All ER (D) 304 (Jun) View decision


In the first judicial review case on the operation of the Community Infrastructure Levy Christopher Cant appeared for the successful local authority, Shropshire CC, in R (oao Hourhope Limited) v Shropshire CC [2015] EWHC 518 (Admin). The authority has refused a claim for a demolition deduction. The Planning Court held that to qualify as an “in-use building” the building had actually to be in use and gave guidance on what would constitute use for these purposes. A full copy of the Judgment can be downloaded at www.bailii.org/...


In the High Court of Justice, QBD, Admin. Court, Rory Brown represented the Applicant for a Declaration of Incompatibility of the Gender Recognition Act 2004 with the Human Rights Act 1998. The judgment, given by Thirlwall J, is authority for two new propositions of law. First, where Parliament legislates to bring UK law in line with the Convention, the legislation it enacts is justiciable (even if the Minister has made a formal statement the new law is HR-compliant). Second, being a (post-operative) transsexual person constitutes an ‘other status’ for the purposes of Art. 14. This means that (post-operative) transsexual persons are now a protected group, like persons of a particular race or religion. (Carpenter v Secretary of State for Justice [2015] EWHC 464 (Admin.)).


Rory Brown represented Executor-Beneficiaries in a six day trial before the Honourable Mr Justice Mann in the Chancery Division of the High Court. The Judge held that the challenges to the will based on undue influence, want of knowledge and approval, and testamentary capacity were not supported by the evidence. He also dismissed a late application to amend to plead forgery. The comprehensive judgment conveniently collects together the law governing challenges to the substantial validity of wills (Murray v Bernard [2015] EWHC 245 (Ch)).


In the Chancery Division of the High Court, Rory Brown appeared for the liquidator respondents to an application by solicitors for costs of compliance with orders obtained by the liquidators for production of documents relating to an alleged international fraud of an estimated £500,000,000. The judgment seeks to reconcile conflicting High Court authorities on whether there is jurisdiction to award such costs and if so in what circumstances they will be awarded (Re. Harvest Finance Ltd [2014] EWHC 4237 (Ch)).


Coventry and others (Respondents) v. Lawrence and another (Appellants) (No 2) [2014] UKSC 46. Edward Denehan and Giselle McGowan appeared for the successful respondent landlords in a Supreme Court decision on (inter alia) the circumstances in which landlords will be liable for nuisances caused by their tenants. The judgments, which were handed down on 23rd July 2014, can be found here www.bailii.org/...


In Relfo v Varsani [2014] EWCA Civ 360 Peter Shaw and Joseph Curl of 9 Stone Buildings, appeared for the successful party in this case which will now become the leading authority on tracing and will greatly assist in the recovery of laundered funds . It decided that where monies are improperly paid away they may be traced through various accounts to the end recipient even if each of the stages in the laundering cannot be identified. It is also likely to become a major authority on unjust enrichment deciding that an indirect recipient of funds will be liable to give restitution where there is a sufficient degree of connection between the payment away and the receipt. A full copy of the Judgment can be found herewww.bailii.org/...


In Re Harvest Finance Limited [2013] BPIR 1020, Rory Brown appeared for the liquidators in the Chancery Division of the High Court in their application against solicitors and their firm for disclosure of privileged documents. The Court, after considering the authorities and ordering disclosure, set out the appropriate test to be adopted where liquidators seek disclosure of confidential d


In the Court of Appeal, Rory Brown represented the appellant in his appeal against a decision of a High Court Judge to determine an application to set aside a Civil Restraint Order without affording the applicant an oral hearing. The Court of Appeal held that it was not open to the Judge to determine the aforesaid application on paper and that his decision was void for unfairness (Deeds v Various Respondents [2013] EWCA Civ 1678, CPR News, 1/2014, pp2 & 7-8


Rory Brown appeared for the Defendant in the trial in the Chancery Division of the High Court of an application for a declaration a transaction was made with the intention of defrauding creditors. The application was dismissed as, whilst the transaction was at an undervalue, there was no such fraudulent intention. A pro bono costs award was made in favour of the Access to Justice Foundation in the sum of £7,500 (Bibby ACF Limited v Agate [2013] BPIR 685, ChD).


Edward Denehan succeeds in persuading the Court of Appeal that the construction and use of a school will not constitute a breach of a restrictive covenant. The Court of Appeal reversed the decision of the trial judge on a claim under section 84(2) of the Law of Property Act 1925. The decision is an illustration of a contextual interpretation of a covenant against causing nuisance/annoyance. Trustees of the Coventry School Foundation v. Whitehouse and others [2013] EWCA Civ 885.


Isaac Jacob and Conn MacEvilly appeared for the successful Appellant before the Privy Council in Prime Sight Limited v Edgar Lavarello (Trustee in Bankruptcy of Benjamin Marrache) [2013] UKPC 22, an important decision on estoppel by convention. Mr Jacob and Mr MacEvilly have now had two successful Privy Council appeals in the last month (see Crawford Adjusters v Sagicor below)


Crawford Adjusters v Sagicor General Insurance (Cayman) Limited [2013] UKPC 17: Isaac Jacob and Conn MacEvilly of 9 Stone Buildings represented the successful Appellant before the Privy Council in a ground-breaking decision which sweeps away centuries-old restrictions on the availability of the tort of civil malicious prosecuti


Rory Brown appeared for the Respondent (Khan v Khan & anr. [2013] EWCA 465), an appeal in which the Court of Appeal reaffirmed the test for presumed undue influence set out by Lord Nicholls in RBS v Etridge


Harvey v Dunbar Assets plc [2013] BPIR 66 - Joseph Curl of 9 Stone Buildings represented the successful lender on appeal to the Chancery Division in this case concerning whether a personal guarantee could be enforced where there was an allegation that a co-surety's signature was forged.


Dunbar Assets plc v Fowler [2013] BPIR 46 - Joseph Curl of 9 Stone Buildings represented the successul lender in what appears to be the only reported case on the significance of delay between the issue of a statutory demand and presentation of a bankruptcy petition.


Relfo Limited (in liquidation) v Varsani [2012] EWHC 2168 (Ch): Mr Justice Sales found in favour of the Claimant (represented by Peter Shaw and Joseph Curl of 9 Stone Buildings) in this knowing receipt and unjust enrichment claim. The decision addresses important points for those seeking to recover the proceeds of fraud via equitable tracing where the funds have been laundered. Sales J's decision also discusses the appropriate test of causation for a personal claim in unjust enrichment.


Orrick, Herrington & Sutcliffe LLP v Frohlich [2012] BPIR 169 (whether a defective statutory demand for unpaid solicitor's fees, being based on an unliquidated sum, could be cured by a later admission prior to the bankruptcy petition by the debtor that said sum was due and owing, b) whether a debtor having admitted the debt was estopped from arguing that the demand was defective as against the petitioner who had relied to its detriment on his admission). Barrister


Lawrence v. Coventry and others [2012] 10 EG 88 (CS). (Court of Appeal. Private nuisance, planning, change in the character of the neighbourhood)


Re Erskine Trust; Gregg v Pigott [2012] EWHC 732 (Ch), [2012] All ER (D) 03 (Apr): The court was asked to decide whether two adopted nephews were included in the expression 'statutory next of kin' in a 1948 trust and therefore entitled to the trust fund. Mark Herbert QC (sitting as a deputy judge) held that as a matter of English law they were not, but that the European Convention on Human Rights forced the court not to discriminate against them if possible and that in the circumstances they should take. Edward Hewitt represented the trustees and David Rowell represented the adopted nephews.


Piper Land Development (Solihull) Ltd v Rhondda Cynon Taf County Borough Council & Jones [2011] EWHC 3591 (Ch): Vivian Chapman QC acted for the claimant in successfully defeating an application by one of the defendants for summary judgment. The legal issue was whether the court would impose a time limit on making a claim under Commons Registration Act 1965 s. 14(b) although none appears in the section. The court held that it could not do so.


R (Barkas) v North Yorkshire County Council [2011] EWHC 3653 (Admin): the Administrative Court upheld the report and recommendation of Vivian Chapman QC sitting as an inspector at a village green inquiry on a tricky point of prescription law, i.e. when will a landowner be able to defeat an application to register a new green on the ground that the public had a legal right of access to the land, with the result that public use was not "as of right" but "by right"?


Clark v World Wildlife Fund and others [2011] WTLR 961 (Ch D - Master Moncaster) Forum non conveniens - John Smart appeared in an application for stay of probate claim on grounds that Alabama Court was most appropriate forum.


Llewellyn v Lorey [2011] EWCA Civ 37 (prescriptive easements; damages for trespass). Vivian Chapman QC and Edward Hewitt represented the successful appellants in this appeal against the finding of two prescriptive rights of way over their land and the calculation of damages for trespass. The decision confirms that an interruption in user for a period of 5 years will ordinarily be fatal to a claim for a prescriptive easement and that time will not run for prescription purposes when the servient tenement is tenanted unless there is some evidence that the freeholder knew of the user and acquiesced to it.


Coke-Wallis v Institute of Chartered Accountants in England and Wales - [2011] UKSC 1 - The outcome of the Supreme Court's first judgment of 2011 is that the appellant (represented by Joseph Curl of 9 Stone Buildings) has succeeded in reversing the decisions of the Court of Appeal and the High Court. This decision confirms that the principles of res judicata apply to professional disciplinary proceedings.


Close v Wilson [2011] EWCA Civ 5 (gambling, wagering, restitution, void contract, agency) - Rory Brown acted pro bono for the successful appellant. The Court of Appeal held that, although an agreement pursuant to which R bet as A’s agent using A’s money was void under the Gambling Laws, if R misappropriated A’s money for his own purposes, A was entitled to recover it under the ordinary principles of restitution.


Revenue and Customs Commissioners v Banerjee (No 1) [2010] STC 2318 (Deductions for employee income tax)


Kotonou v Secretary of State (Norris J.) [2010] EWHC 19 (Ch) - An appeal against a directors disqualification order.


William Old International -v- Arya [2009] 2 P&CR 20 - Derogation from grant; Easements; Electricity supply; Servient tenement; Wayleaves


Heronsea (Mill Hill) Limited v. Kwik-Fit Properties Limited [2009] All ER (D) 75 (Mar). (2009) Env LR. [2009] PLSCS 65 (Queen's Bench Division. Construction of landlord's right to enter demised premises for the purposes of carrying out a survey. Whether landlord entitled to enter to carry out an environmental survey


Bhatt v Bhatt [2009] STC 1540 (rescission of deed of variation and declaration of trust for mistake)


Parkinson Engineering Limited v Yeldon & Swan [2009] EWCA 1366 Civ 13 January 2010 Court of Appeal (amendment of substitute liquidator as claimant in place of company after expiry of limitation period)


Relfo Limited v Varsani Jules Sher QC [2009] EWHC 2297 (Ch) (service on Defendant at last usual address; where resident; res judicata)


Oxford Pharmaceuticals Limited; Wilson v Masters [2009] 2 BCLC 485. Mark Cawson QC. (Preference and misfeasance claims brought by liquidator)


Gresham International Limited v Moonie [2009] 2 BCLC 256 Peter Smith J (retrospective sanction to liquidator to continue proceedings)


Harbour Estates Ltd v. Charania [2009] EWCA Civ 1123 - (Court of Appeal decision on the recovery of commission by estate agents in light of the decision in Foxtons Ltd v. Pelkey Bicknell)