Law Brief Update, July 2018 Welcome to the latest issue of Law Brief Update, a free monthly newsletter, written by our team of specialist barristers. It provides a brief introduction to recent case law in all the major areas of law. You have received this email at newsletter@newslettercollector.com, because you are signed-up to our newsletters via lawbriefpublishjing.com, www.lawbriefupdate.com or www.pibriefupdate.com. Scroll to the end for contact, unsubscribe info etc. If you'd like to advertise or write articles for us then please email us at mail@lawbriefpublishing.com. Aidan Ellis, Anthony Johnson, Tim Kevan (editors) Contents Construction Paul Bury, Keating Chambers, 020 7544 2600 Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2018] EWHC 1577 (TCC) This case is part of a long-running dispute arising out of a contract for the installation of pipes at a paint manufacturing plant in the North of England. The Defendant, MMT, was the contractor and the Claimant, ICI, the employer. The original value of the works was £1.9m but MMT was eventually paid £20.9m following a Project Management Instruction to significantly increase the scope of the works. Fraser J had previously decided the issue of liability largely in MMT's favour in an earlier judgment, including that ICI had wrongfully terminated the contract. In this case Fraser J had to decide, firstly, whether ICI could make out a case that they had overpaid MMT by approximately £10.9m during the course of the project and, secondly, the value of MMT's counterclaim for wrongful repudiation. The judge accepted MMT's argument that the sums, rates, and measures agreed between the ICI team and the MMT team during the course of the project constituted unanswerable evidence of the true value of the works. He found that the little evidence there was to support ICI's assertions that MMT should have been paid less did not even begin to meet the weight of contemporaneous evidence in MMT's favour. Where those had been agreed at commercial meetings it was not open to ICI to revisit the sums. ICI's quantum expert, who had ignored or failed to take into account these agreements, had adopted the wrong approach. MMT was entitled to most of the sums claimed in respect of its counterclaim for wrongful termination. Costs & Civil Procedure Scarlett Milligan, Temple Garden Chambers, 020 7583 1315 Daniel Laking, Temple Garden Chambers, 020 7583 1315 Tim Kevan, www.timkevan.com COSTS Malone v Birmingham Community NHS Trust [2018] EWCA Civ The Claimant brought a clinical negligence claim against the Defendant in respect of a negligent failure to diagnose testicular cancer. The Claimant's solicitors were unsure about who was responsible for the Claimant's healthcare, as he was a prisoner and there was in reach medical care provided. As such, the claim was brought against the MOJ, the in-reach team and the Defendant. The CFA covered, "...all work conducted on your behalf following your instructions ... regarding your claim against Home Office for damages for personal injury...". The Trust accepted liability, the other Defendants were removed, and the prisoner's claim settled. At a detailed costs assessment the Judge held no costs were recovered as the CFA only covered a claim against the Home Office and did not cover the claim against the Trust. The decision was upheld by a Circuit Judge. The Court of Appeal allowed the Claimant's appeal. The wording of the CFA identified the claim to which the CFA related. The pro forma insertions demonstrated poor quality data input (it contained three mistakes in the above quotation). The CFA therefore required examination of the factual matrix and context rather than close textual analysis. The most natural reading was the at the CFA covered work following from the instructions provided in respect of the claim overall (and not specifically the work done against the Home Office). Had the drafter intended to limit the wording to the claim against the MOJ alone, it was likely that they would have taken considerably more care over the wording. More broadly, the CFA had been entered into pre-action, when the identity of the Defendant was unclear. It was unlikely therefore that the named Defendant was intended to limit the scope of the CFA. Furthermore, it was in the interests of both the solicitor and the client that the CFA should cover the relevant work; there was no commercial reason to limit the scope of the claim to a particular Defendant. Gempride Ltd v Bamrah & Anor [2018] EWCA Civ 1367 The Defendant in a PI claim which had been settled appealed against a master's order disallowing profit costs sought on behalf of the Claimant, a solicitor whose firm had acted for her. The Claimant signed a CFA with her firm which specified an hourly rate of £232 and thereafter £280. After the claim was settled, the Claimant's firm instructed costs draftsmen to prepare a bill of costs. The draftsmen claimed £280 throughout the entire claim, which the Claimant certified as accurate. The Defendant offered £241ph throughout. The Defendant asked for information about other funding methods. The Claimant stated BTE funding had not been available. That was correct, however this was because the BTE the Claimant did have access to did not permit her to instruct her own firm. The Master found the Claimant had certified a misleading bill of costs and had given untrue information in respect of funding. On appeal, the Judge held that the Claimant was not responsible for errors made by the draftsmen and that she had not acted dishonestly. On appeal, the Court held that solicitors remained responsible for the conduct of anyone to whom they subcontracted work, especially where the subcontractor was not a legal representative (CPR r44.11). Mistake, error of judgment or negligence were not unreasonable or improper conduct. To be unreasonable or improper, a legal representative's conduct had to breach the representative's duty to the court, but it did not have to breach any formal professional rule or be dishonest. Where a r44.11 application was made, the applicant had the burden of proof. The order had to be proportionate to the misconduct. The Judge had erred in considering that, if the Defendant did not prove that the Claimant had intended to mislead, it could not show that she intended to mislead when making representations. The conduct did not require dishonesty. Further, the Judge had failed to consider the legal relationship between the firm and the costs draftsmen. The firm were authorized litigators, the draftsmen were not. Accordingly, the Judge had erred in finding that the Claimant could not be liable for the draftsmen's conduct. The Claimant's conduct had been unreasonable and/or improper in certifying that the hourly rate in the bill of costs was accurate. When she received the offer of £241 throughout, she should have realized that the offer was more than she had been contractually obliged to pay the firm. Her acceptance of that offer was incapable of sensible explanation. Her conduct in allowing the bill to be submitted with a rate that exceeded the contractual rate had at least been reckless. The Judge had further erred in proceeding on the basis that, where a litigant had BTE funding but chose not to use it, it could properly be said that the BTE insurance was not available. Where alternative funding was available but not taken up, that raised the issue of whether it was reasonable to fund the litigation with an alternative means and incur additional liabilities. The Defendant had inevitably been misled. The Court of Appeal made an order under r44.11. An order disallowing all profit costs above the litigant in person rate would be disproportionate. Half those costs would be allowed. Tuson v Murphy [2018] EWCA Civ 1461 T developed OCD following a liability-admitted accident. She gave up her job as a teacher and issued proceedings. The claim was initially valued at £1.5m on the basis the Claimant would be unable to work again. She obtained a franchise in a playgroup organization and ran workshops for a year. She serves a witness statement, a schedule and obtained a psychiatric report, none of which mentioned her further employment. The Defendant's solicitors made a Part 36 offer in the sum of c. £350,000. The Claimant accepted the offer shortly after the relevant period expired. The Defendant was ordered to pay the Claimant's costs up to the point that she began to mislead the Defendant about her disability. Thereafter the Claimant was to pay the Defendant's costs. The Claimant accepted liability for the Defendant's costs but alleged this should have been from the date of expiry of the relevant period, and not from a retrospective date. That penalty was unjust and disproportionate. The Court of Appeal held that CPR 36.15(5) required the court to order that the Claimant be awarded costs up to the expiry of the relevant period. In considering whether that order would be unjust, the court had to take into account all the circumstances of the case. One of those was the information available to the parties at the time when the Part 36 offer was made. The Claimant's attempt to run a playgroup did not constitute evidence that her disability was invented. The case was not a 'gross exaggeration' one. However, the issue was patently material to the contention that the Claimant was incapable of work. She had clearly withheld that information. The Court considered the threshold for 'injustice' in the context of Part 36 consequences. Decisions were fact sensitive. However, costs were not always a matter of discretion. It was important to distinguish between cases where the facts known to the Defendant did not change significantly during the period before the delay acceptance, and those where the Defendant's assessment of the value of the case at the time the offer was made was undermined by subsequent events. In the first type of case it was highly unlikely to be unjust to apply the default costs rule. In the instant case, the Judge's exercise of discretion was flawed; the Defendant was ordered to pay the Claimant's costs up the expiry of the relevant period. The offer had been made with knowledge of the Claimant's material non-disclosure. CIVIL PROCEDURE Jean Edwards v Hugh James Ford Simey (A Firm) [2018] EWCA Civ 1299 The claimant (acting for her deceased father's estate) brought a claim against the defendant solicitors who had advised her father in respect of his vibration white finger claim. This claim had proceeded under the tariff-based compensation scheme for miners, which has been the subject of various professional negligence claims as of late. A finding of negligence on the part of the defendant was not challenged on appeal. Instead, the defendant challenged the Court's method of quantifying the loss sustained as a result of the settlement taking place when it did, and asked the Court to consider subsequent medical evidence. By contrast, the claimant argued that the loss should be valued as at the date of settlement, when that medical evidence would not have been available, and therefore invited the Court not to have regard to it. After a helpful walk through the authorities on the point, the Court of Appeal held that the normal course of litigation in such cases must be to have regard to the evidence that would have been available as at the time of the professional negligence, unless there is a "significant or serious scale to the consequences of the supervening event", which would permit the fresh evidence to be adduced and relied upon. Lord Justice Underhill drew a helpful analogy with evidence which would enable a party to overturn an award of damages on the basis of a post-trial event or information. Get Your Message Heard by 10,000 Readers | Do you offer a product or service to lawyers? Now you can place your ad in this newsletter and be seen by more than 10,000 Lawyers in the UK. Contact us now: mail@lawbriefpublishing.com or 0844 5 873 283. | Employment Law Ellen Robertson, Temple Garden Chambers, 020 7583 1315 Nicholson v Royal Mail Group [2018], CA, 21.06.2018 The Employment Appeal Tribunal had not made an error in its decision to uphold the refusal of an extension of time to appeal, where the prospective applicant had decided to ask the Equality and Human Rights Commission to pass on his documents to the EAT but had not taken sufficient steps to do so himself when the Commission made it clear it would not do so. The Court of Appeal noted that the principles of filing an appeal were well-established. Deadlines were applied strictly and extensions were seldom granted, whether a would-be appellant had filed some or none of the necessary documents. The judge had found the decision to rely on the EHRC to transfer the documents to be an unreasonable one; that finding was open to him on the facts before him. The underlying merits of the appeal and the absence of prejudice to the respondent were of little weight. Lancaster & Duke Ltd v V Wileman (2018) EA, 04.08.2018 The statutory notice period under s.97(2) of the Employment Rights Act 1996 could not extend the effective date of termination of an employee who was summarily dismissed due to gross misconduct. The EAT held that s.97(2) referred back to the "notice required by section 86", and so the whole of section 86 was brought into play. The effective date of termination was therefore the later date allowed by the statutory minimum period of notice under s.86(1), but that was subject to the employer's right to give no notice, which section 86(6) expressly acknowledged. The question of whether the employee was guilty of gross misconduct was therefore remitted to the tribunal. Financial Services Law James Purchas, 4 Pump Court, 020 7842 5555 Dr Sandradee Joseph-Urquhart, Three Stone, 020 7242 4937 First Tower Trustees Ltd & Anr v CDS (Superstores International) Ltd 19/6/18 (CA) The Court of Appeal considered the applicability of the reasonableness tests under s. 3 of the Misrepresentation Act 1967 to the basis clauses. That they might give rise to a contractual estoppel did not make them immune from scrutiny for reasonableness. National Bank of Kazakhstan & Anr v Bank of Ney York Mellon 19/6/18 (CA) A clause in a banking agreement excluding liability for any failure on the bank to perform obligations due to "any order" imposed by "any" judicial authority was not limited to English court orders or those recognisable under English law. Manx Capital Partners Ltd v ROBS Shareholders Action Group 11/7/18 (Ch) An application for relief from sanctions by a shareholders' action group following an 'unless' order agreed by consent was refused. The failure to meet a monetary obligation had been serious and significant and there were no good reasons for the default. Further the lateness of the application would risk the effectiveness of an expedited trial. Bou-Simon v BGC Brokers LP 5/7/18 (CA) The court reviewed the approach to the implication of a term in the context of a loan agreement where the same term had been deleted from an earlier draft of the agreement. Insurance James Purchas, 4 Pump Court, 020 7842 5555 Dr Sandradee Joseph-Urquhart, Thirteen Stone, 020 7242 4937 Bennett Gould & Partners Ltd v Charles O'Sullivan 5/7/18 (Merc) The court found that the defendant had made knowingly false representations about the legitimacy of his broking practices and broking income when setting up a new broking business. He was liable for all the damage suffered by the claimant flowing directly from the deceit. Axa Insurance UK Plc v Financial Claims Solutions Ltd 18/6/18 (CA) Axa appealed against the dismissal of its claim for exemplary damages flowing from proceedings against the respondents for deceit and unlawful means conspiracy. The Court of Appeal held that the judge had erred on his analysis when deciding on exemplary damages and allowed the appeal. Insurance Medical Reporting Ltd v Your Lawyers Ltd 3/7/18 (Ch) The court decided not to grant summary judgment on the basis either of the information clause or an implied term in the contract. Feeling low? Relationship difficulties? Confused about life? Don't let talking therapy be the preserve of the rich and famous. It can help you change no matter how big or small your problems are. Dr Tempest, a medical doctor, specialises in therapy for lawyers. Therapy usually lasts eight to sixteen sessions (50 minutes each). Dr Tempest is also happy to be instructed by solicitors for any medico legal case involving psychiatry or psychology. www.yourspacetotalk.com email: mail@yourspacetotalk.com tel: 07530 761373 Practice based in Harley Street and Fleet Street. | Intellectual Property Law Christy Rogers, Ingenuity IP Chambers, 020 7936 4474 Trade Marks Holland & Barrett International Ltd & Anr v General Nutrition Investment Co, CA (Arden, Kitchin LJJ, Birss J),4/7/18 Where the parties had entered into a UK trade mark licence agreement as part of the licensee's purchase of a nutritional supplements business, and the licensee had used two of the marks (GNC and GNC LIVE WELL) but had not used five auxiliary marks for a period of five years, the licensor purported to exercise its right to terminate the licence in respect of the five unused marks in order to avoid the risk of revocation for non-use. It was held that although the licensor could validly terminate the licence in respect of the five auxiliary marks, the exclusivity of the licence for the GNC word mark, which remained in place, prevented the licensor from using any sign confusingly similar, and this included the auxiliary marks such as GNC HERBAL PLUS. It was accepted that the decision put the five unused marks at risk of revocation; however, the licensor's interests were protected because the GNC word mark, which continued in use by the licensee, would prevent a third party from using similar marks including the auxiliary marks. Walton International Ltd & Anr v Verweij Fashion BV, Ch Div (Arnold J), 28/6/18 In a claim for infringement of UK and EU marks comprising the word GIORDANO, and counterclaims for invalidity, where the parties were in dispute in several European jurisdictions including the EUIPO, the court set aside the claimants' notice of discontinuance of the claim in so far as it related to the EU marks. The notice was an abuse of process which aimed to shield the EU marks from a determination of invalidity while allowing the claimants to invoke them in proceedings elsewhere. Military Mutual Ltd v Police Mutual Assurance Society & Ors, IPEC (Judge Hacon), 22/6/18 A claim in "extended passing off" brought by a mutual insurance company against a friendly society and its subsidiaries trading under the name "Forces Mutual" failed because the evidence did not support the proposition that the relevant public believed that an organisation which used the term "mutual" was invariably owned wholly or partly by its customers. Many of the relevant public had only a hazy understanding of the term. There was no reason in principle why the law of passing off should not protect goodwill associated with the name of a type of service or organisation, but in the instant case the evidence did not show that the relevant public recognised a distinct class defined by the relevant term. Cartier International AG & Ors v British Telecommunications Plc & Ors, SC (Lords Mance, Kerr, Sumption, Reed, Hodge), 13/6/18 The Supreme Court allowed an appeal by a group of internet service providers against an order requiring them to pay the costs of complying with website-blocking injunctions in trade mark infringement cases. None of the applicable EU Directives dealt with costs as between a rights-holder and an innocent intermediary, and the incidence of costs was a matter for English law. Where the ISPs serving as mere conduits incurred no liability for trade mark infringement, the position was no different in principle from that in respect of Norwich Pharmacal orders, freezing orders and other injunctions requiring an innocent party to assist a claimant in asserting its rights against a wrongdoer. Website-blocking injunctions were sought by rights-holders in their own commercial interests and the rights-holders were obliged to indemnify innocent intermediaries against the reasonable costs of compliance. Patents Glaxo Group Ltd & Ors v Vectura Ltd, CA (Floyd LJ, Birss J), 28/6/18 An appeal was allowed against the strike out of a claim for an Arrow declaration. The claim was sufficiently realistic to be allowed to proceed to trial. The respondent had shown a propensity over many years to reformulate what was essentially a single inventive concept in numerous patent applications. It was arguable that the claim for a declaration that the appellants' product was obvious as at a certain date would serve a useful purpose. Jushi Group Co Ltd v OCV Intellectual Capital LLC, CA (Kitchin, Floyd, Henderson LJJ), 19/6/18 The court upheld the validity of a European patent concerning glass fibres for reinforcement. The invention claimed was a glass strand comprising 12 constituents present in prescribed percentages by weight. A piece of prior which was referred to in the patent and used for comparison did not deprive the patent of novelty or inventive step because the invitation to compare the invention with the prior art would lead the addressee to conclude that the patentee's numerical ranges were exact and not meant to be broadened by whole number rounding. It could not be said that the prior art disclosed every possible specific combination of values. The claimed invention was concealed within the disclosure of the prior art. Personal Injury Scarlett Milligan, Temple Garden Chambers, 020 7583 1315 Daniel Laking, Temple Garden Chambers, 020 7583 1315 Tim Kevan, www.timkevan.com Axa Insurance UK PLC v (1) Financial Claims Solutions Ltd (2) Mohammed Aurangzaib (3) Hakim Mohammed Abdul [2018] EWCA Civ 1330 The defendants in this claim had initially obtained default judgment against Axa in respect of road traffic accidents, including substantial sums for alleged credit hire charges. It came to Axa's attention that these claims were fraudulent, at which point Axa sought an injunction to prevent the default judgments from being enforced, and brought Part 20 proceedings for the tort of deceit and unlawful means conspiracy. Axa was successful in those proceedings, and sought exemplary damages against the Part 20 respondents. Whilst Axa was awarded compensatory damages, its claim for exemplary damages was rejected on the basis that the claim did not fall within one of the established categories for which such damages can be awarded, as laid down in the well-known authority of Rookes v Barnard [1964] AC 1129. On appeal, the Court of Appeal reversed this finding and accepted that this was a 'paradigm' case for an award of exemplary damages, being an example of conduct calculated to make a profit which would exceed compensation payable to the claimant. "The respondents' object was to extract large sums from the insurers through fraudulent insurance claims in circumstances where if the fraud was discovered before it succeeded, any compensatory damages would be limited to the costs of investigating the fraud, which would in all probability be a much lesser sum, as proved to be the case". Roy Sumner v Michael Colborne; Denbighshire County Council; Welsh Ministers [2018] EWCA Civ 1006 The claimant in this case was a cyclist, who brought negligence proceedings against the first defendant following a collision with the latter's car on the A494. The first defendant not only denied negligence, but also brought Part 20 proceedings and the Denbighshire County Council and the Welsh Ministers, arguing that visibility at the relevant junction was severely limited due to vegetation on the land at the junction. The vegetation had previously been identified as requiring maintenance so as to ensure visibility for road users. At first instance, the Part 20 defendants were successful in distinguishing previous case law relating to highway authorities' liability for visibility-obscuring vegetation: they argued that these cases related to vegetation on or over the highway, rather than adjacent to it (as was the case here). This was upheld on appeal, and the Court of Appeal noted that if the duty of care contended for by the first defendant was recognised, it would apply to all owners or occupiers of land adjacent to a junction: the claim did not depend on the relevant highway authority having any form of special status. This could give rise to all sorts of claims against landowners for actions taken on their land, for example erecting a building. The wide-ranging nature of such claim would be both impractical and onerous. Half Price for Barristers, Experts, Academics, etc If you are a barrister (in independent practise), a single user expert, an academic, an independent consultant, or other self-employed single user then did you know that you can get an annual subscription to PIBULJ.COM for half of the standard rate? That means for you the cost is just £149+vat per year for full membership of the UK's leading online personal injury journal, giving you access to the latest news and important case opinions from leading personal injury barristers and solicitors, monthly CPD tests, video masterclasses, online book chapters, and a huge archive of content stretching back over 9 years. So what are you waiting for? Click below for more information or to sign-up now. Professional Negligence James Purchas, 4 Pump Court, 020 7842 5555 Atha & Co Solicitors v Zoe Liddle 9/7/18 (QB) In a professional negligence claim against solicitors, the misstatement of the value of the claim by the claimant's own solicitors on the claim form amounted to an abuse of process. However this did not justify the striking out of the claim. Aroca Seiquer & Asociados & Anr v Roger Adams & Ors. 5/7/18 (CA) A Spanish law firm was negligent in not having warned UK purchasers of Spanish holiday homes not to pay the full purchase price without proof that the vendor could pass unencumbered title to them. The purchasers had depended entirely on the vendor's UK agents and the firm to guide them through the purchasing process and it was open to the lower court judge to find on the facts that the firm had been retained by the conduct of the agents in time to give the necessary warning. Gempride Ltd v Bamrah 21/6/18 (CA) A solicitor signed a bill of costs that gave rise to suspicion of impropriety and misrepresentation. The claimant solicitors had not intended to mislead, but the defendant had, inevitably, been misled. The Court of Appeal reduced their costs by disallowing half of the profit costs shown on the bill. It was also held that solicitors remained responsible for the conduct of anyone to whom they subcontracted work, especially where the subcontractor was not a legal representative. Property Victoria Seifert, Lamb Chambers, 020 7797 8300 Elizabeth Dwomoh, Lamb Chambers, 020 7797 8300 David Sawtell, Lamb Chambers, 020 7797 8300 Network Rail Infrastructure Limited v Williams and Waistell [2018] EWCA Civ 1514 In this case the Court of Appeal dealt with the issue of liability for Japanese knotweed to neighbouring property owners and, at the same time, clarified the law of nuisance in an important regard when it comes to proof of damage. Japanese knotweed is a hard bamboo-like perennial plant which grows quickly and strongly through its underground roots and rhizomes. It can cause significant property damage and eradication is difficult and expensive. Infestation can diminish the value of a property. In the instant case, Mr Williams and Mr Waistell owned bungalows adjacent to Network Rail's land, on which grew a large stand of Japanese knotweed. The claimants brought claims in private nuisance on the basis that it had caused damage to their properties, both by encroachment upon their own land, but also by reason of its close proximity causing a loss of amenity or an interference with their quiet enjoyment of their land. The Recorder at first instance found that there had been no physical damage, defeating the first part of their claim, but that they succeeded on the basis of loss of enjoyment. Sir Terence Etherton MR (with whom Sharp and Leggatt LJ agreed) reviewed the law of nuisance at [40] - [45]: (1) Private nuisance is a violation of real property rights, including the amenity of the land (that is the right to use and enjoy it) [40]; (2) While it can be broken down into categories, there are merely examples of a violation of property rights [41]; (3) The proposition that damage is always an essential requirement of the cause of action must be treated with considerable caution. A review of the authorities showed 'both the artificiality and elasticity of any requirement of damage for the purpose of establishing nuisance' [42]; (4) In the case of nuisance through interference with the amenity of the claimant's land, physical damage is not necessary to complete the cause of action. What is relevant is the objective effect on the amenity value of the land itself: it is that effect which satisfies any requirement there may be to show damage [43]; (5) Nuisance may be caused by inaction or omission as well as by positive activity [44]; (6) The 'broad unifying principle in this area of the law is reasonableness between neighbours (real or figurative)' [45]. The Recorder's conclusion that mere proximity of Japanese knotweed was an actionable nuisance was wrong in principle. The purpose of the tort is not to protect the value of property as an investment or financial asset, but to protect the owner of land or a person entitled to exclusive possession in their use and enjoyment of the land. The decision of the Recorder, wrongfully, extended the tort to a claim for pure economic loss. On the other hand, the Japanese knotweed rhizomes had encroached on the claimants' land and under their bungalows. There may not have been physical damage, but its presence imposed an immediate burden on the owners of the land: 'They are a classic example of an interference with the amenity value of the land.' [55] If damage was required to complete the tort of nuisance, it was 'constituted by the diminished ability of the claimants to use and enjoy the amenity of their properties'. [56] Further, the claimants were entitled to obtain a final mandatory injunction, 'where the amenity value of the land is diminished by the presence of roots even though there has not yet been any physical damage.' [72] The Recorder's decision was therefore upheld, but for different reasons to those which he gave. Landlord-Law Online information and resources on residential landlord and tenant law. For more information visit www.landlordlaw.co.uk. |
(1) Alfred Christopher John Chaston (2) Judith Ann Arnold v Robert Anthony Chaston [2018] EWHC 1672 (Ch), HHJ Paul Matthews sitting as a High Court Judge The parties, who were siblings, inherited their family home from their parents. At first instance, the respondent beneficiary successfully obtained an order made under the Trusts of Land and Appointment of Trustees Act 1996, s.14 ("TOLATA 1996") that the family home should be sold to him at a price to be determined by a court appointed expert. On appeal, the First Appellant argued that facts of the present case did not permit the court to exercise its power under s.14 of TOLATA 1996 so as to direct a sale of the property to only one of the beneficiaries. Although he conceded that in appropriate cases, the decision in Bagum v Hafiz [2016] Ch 241 permitted the court to make such a direction, on its facts this was not such a case as there was no underlying purpose of the trust still to be performed that justified the exercise of that power. The property was empty and the trust concerned had not been created by these beneficiaries. Accordingly, it had not been open to the court below to give the direction it gave. Further, both appellants argued that the property should be sold on the open market. In dismissing the appeal, the court held first, that the fact that the property was empty did not mean that the court had no power to direct the sale of the property to only one of the beneficiaries. The parties' parents had bought the property as a family home so that if any of their children wished, it could be kept within the family. Further, it did not matter that the trust concerned had not been created by the beneficiaries. The direction given by the court in Bagum was one that could be given whenever it was appropriate. The facts did not have to be identical to that case for the jurisdiction to arise. Second, there was no absolute duty on a trustee to obtain the best possible price for an asset on sale. The duty was to obtain the best price reasonably obtainable in the circumstances, which may not be the same. Elements of a duty of care may also play a part. In the present case the decision to sell was being taken by the court. Under TOLATA 1996 the court in giving its direction was entitled to take into account a wider range of matters than the trustees themselves. Accordingly, the trustees could not be in breach of duty in selling at the direction of the court. Finally, the court had not erred in determining that the respondent should be able to buy the property at a price fixed by a court appointed valuer if it reflected its true market value.s Expert Witness Corner We have special advertising rates for expert witnesses. To advertise in this section, please email mail@lawbriefpublishing.com for more details, or telephone 08445 UPDATE (08445 873 283). Clinical Psychology Prof Hugh Koch Adults & children, all PI, employment & sport, nationwide www.cv.hughkoch.com & www.hughkochassociates.co.uk. Psychiatry Dr Gaius Davies Emeritus Consultant Psychiatrist, King's College, Bethlem Royal and Maudsley Hospitals. Reports for PTSD and other stress related disorders and general psychiatric problems. Email: gaius.davies@btopenworld.com. Tel: 020 8650 8764. | You are receiving this message at newsletter@newslettercollector.com because are signed up to newsletters from Law Brief Publishing. If you'd prefer not to receive future editions of this particular newsletter then just click here to unsubscribe. To unsubscribe from all newsletters or to edit your preferences please click here. This bulletin is free of charge and is funded in part by third-party advertisements. The publisher and editorial team make no representations about the products or services offered by any advertisers. Please note that your email address is held and processed in accordance with the General Data Protection Regulation (GDPR). If you have received this email in error or do not wish to receive any future emails then please click the link above to unsubscribe, and do contact us if you have any questions at all. This email and any attachments have been scanned for viruses, but it is the responsibility of the recipient to conduct their own security measures and no responsibility is accepted by the sender for loss or damage arising from the receipt or use of this email. Note also that this email does not constitute advice for the purposes of any individual case, and it cannot be a substitute for specific advice based on the circumstances of any such case. Whilst every care has been taken in the preparation of this document, the authors cannot accept any liability for any loss or damage, whether caused by negligence or otherwise, to any person using this document. This email is published by Law Brief Publishing Limited, 30 The Parks, Minehead, Somerset, TA24 8BT.
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