Case Updates: Recent Episodes
Ten Old Square
CFAs and 1975 Act claims. Hirachand v Hirachand [2021] EWCA Civ 1498. Richard Dew talks about the Court of Appeal decision that permits recovery of CFA uplifts in 1975 Act claims including the implications for both Claimants and Defendants.
Times Travel (UK) Ltd. v Pakistan International Airlines Corpn [2021] 3 W.L.R.727 and when will a threat to do something lawful will amount to duress in contract law.In this case, an airline used its monopoly power to compel an agent to agree to give up strong claims which it had for commission payments that were due. The agent sought to have the agreement set aside on the grounds of duress. In ruling against the agent, the Supreme Court examined the circumstances where an agreement, which is entered into because of a threat to cause harm by forceful but lawful means, can be set aside and where it cannot be. Other cases referred to: The Universe Sentinel [1983] AC 366 Kaufman v Gerson [1904] 1 KB 591 Borrelli v Ting [2010] Bus LR 1718 The Cenk [2012] 2 All ER (Comm) 855 CTN Cash and Carry v Gallaher Ltd. [1994] 4 All ER 714
James Poole talks about Hughes v Pritchard [2021] EWHC 1580 (Ch), a case which concerned testamentary capacity, knowledge and approval and undue influence in the context of wills, as well as a claim in proprietary estoppel, and where the judge found that the testator lacked capacity to make a will, despite expert evidence that he did.
This podcast explores the recent decision of Boyle v Burke [2020] 1 BCLC 524 (in which Jeremy Callman appeared for the successful Defendants) which tackled questions of what dissolution of an 1890 Act partnership means and what brings about a dissolution. The Judge looked at the differences between ‘general dissolution’ and ‘technical dissolution’, how the word ‘dissolution’ is used in different ways and whether the transfer of a substantial part of a partnership business triggers a dissolution. He also explored the interaction between section 1 of the Partnership Act 1890 (defining partnership) on the one hand, and dissolution on the other hand. He helpfully unpacked the distinctions to be drawn between how easy it is to form a partnership, as compared to the hurdles that need to be jumped to persuade a court that the partners have agreed to bring their partnership to an end. A useful case in the area of dissolution, where there is little decided case law. This podcast explains the facts of the case and the Judge’s decision.
Adam Stewart-Wallace discusses the recent case of Hudman v Morris [2021] EWHC 1400 (Ch) in which an executor was removed for irrational and hostile conduct. One of the executors had been unreasonable in his conduct regarding relatively minor issues regarding the estate, including the reimbursement of approximately £2,000 to one of the beneficiaries. This had already led to significant conflicts, and all the other beneficiaries wanted his removal. There had in addition been a breakdown of relations between the parties. The only option was to appoint an independent administrator. The case offers useful guidance as to the circumstances in which the court will order removal under s. 50 of the Administration of Justice Act 1985, and its relation to an order for passing over under s. 116 of the Senior Courts Act 1981.
Sam Laughton discusses the latest authority on the interface between the equitable doctrine of proprietary estoppel and the statutory requirement that agreements for the sale of land must be in signed writing. In Howe v Gossop, Snowden J considered the question of whether a proprietary estoppel asserted in defence of a claim of possession of land allegedly transferred by oral contract can be defeated by the failure to comply with the requirements of the Law of Property (Miscellaneous Provisions) Act 1989 s.2 for a contract for the sale of land. He held that the defendants had not asserted the estoppel in order to enforce an agreement rendered unenforceable by s.2, but had argued that the estoppel should be satisfied by an irrevocable licence in their favour: and thus their defence was not barred by s.2. The judgment also contains a useful review and discussion of the leading authorities on this issue.
James MacDougald discusses the recent judgment in Womble Bond Dickinson (Trust Corporation) Ltd v. Glenn [2021] EWH4 624 (Ch), a decision about the statutory power of advancement and its application to Hancock v. Watson trusts.
James Egan discusses the recent high-profile 1975 Act decision in Miles v Shearer which demonstrates that the Court will not make an award for financial provision for adult children where it considers they are not in financial need, even where the estate is substantial.
Jeremy Callman of Ten Old Square discusses the 2020 appeal in Peter Wilson v The Commissioners for HMRC [2020] UKFTT 0230 (TC) in which the Court reviewed the law on whether a member of an LLP can simultaneously also be an employee of that same LLP. This important legal question has significant knock-on effects across the world of LLPs. The Judge helpfully reviewed the law in this area, building on the decision of Reinhard v Ondra LLP [2016] BCLC 571 (in which Jeremy Callman and Naomi Winston appeared). The Wilson decision also emphasises how there can be a divergence between the way a person is treated for employment law purposes and the way that same person is treated for tax law purposes. Jeremy Callman unpacks the confusing law arising from the conundrum created by section 4(4) of the Limited Liability Partnerships Act 2000, to explain why a person cannot, in law, be both an employee and a member of an LLP at the same time, despite an LLP being a separate legal (corporate) entity.
Richard Dew discusses the recent decision in Clitheroe v Bond, where the High Court considered, on appeal from a decisions of a Deputy Master, (i) whether the test for testamentary capacity is that set out in Banks v Goodfellow or in the Mental Capacity Act 2005 (ii) the nature of delusions sufficient to make a Will invalid and (iii) how to deal with expert evidence on capacity.
James MacDougald discusses the case of The Donkey Sanctuary v. Bacchus [2020] WTLR 1450, a recent High Court decision on post-death deeds of variation, the circumstances in which the executors of a dead person can vary that person’s entitlement on an earlier death, and when a decision of that kind will be ultra vires or voidable under the reformulated Hastings-Bass principle or the doctrine of equitable mistake.
The circumstances where a trustee in bankruptcy can recover a payment or a preference that is made by a bankrupt between the presentation of the bankruptcy petition and the making of the bankruptcy order differ surprisingly from those which pertain to a payment or preference that is made before the petition or which pertain to a payment or preference that is made by a company. David Schmitz explores these differences as revealed in the recent case of Edwards (Trustee in Bankruptcy of Jagdev Singh Wasu) v Aurora Leasing Ltd. and Howard deWalden Estates Ltd. [2021] EWHC 96 (Ch) ICC Judge Prentis
Georgia Bedworth talks about Re ACC, the recent Court of Protection case which gives definitive guidance on important issues such as the scope of deputies’ authority in relation to paying for legal advice, and dealing with conflicts of interest which arise when a professional deputy wants to instruct his own firm to give legal advice on behalf of P.
Leon Pickering discusses the new Practice Direction 1A on vulnerable witnesses and parties, in force from 6 April this year. He raises his concerns about including confidential medical information in public court orders and considers best practice under the new regime.
Adam Stewart-Wallace talks about the recent decision in Procter v Procter [2021] EWCA Civ 167, a case which considered whether trustees had been able to create an tenancy in favour of a partnership in which they were partners, in the absence of any written tenancy agreement.
Sam Laughton talks about the recent decision in Patel v Barlows [2021] 4 WLR 6, in which he successfully argued for the existence of a partnership and a beneficial interest in a Quistclose trust, in relation to a real estate joint venture. HHJ Mithani QC also gave detailed guidance as to the application of the Berkeley Applegate jurisdiction, where trustees in bankruptcy seek to claim their costs of recovering property held on trust for others.
Richard Dew talks about Rokkan v Rokkan [2021] EWHC 481 (Ch), a case concerning domicile, Norweigian probate law, and the principles of ademption.