Law Brief Update, June 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 Harrow LBC v Engie Regeneration (Apollo) (unreported) This case concerns whether the contractual terms under which the Claimant local authority had engaged a contractor for the design and construction of school expansions imposed an obligation on the local authority to take out latent defects insurance. The parties had contracted under a framework agreement together with specific partnering contracts and a commencement agreement for each school. The Claimant claimed against the contractor for the cost of rectifying defects which arose after the end of the works at the schools in the sum of over £8 million. The partnering contract terms provided at cl. 19.6 that "If so stated in the Commencement Agreement, Latent Defects insurance shall be taken out by the Partnering Team member stated in the Commencement Agreement". The Commencement Agreement provided in respect of cl. 19.6 "if applicable (Note: the Client to confirm if relevant)" "Latent Defects Insurance by: as above". The Claimant argued that there was no obligation on it to take out latent defects insurance or, alternatively, if there was any obligation it was too uncertain to be enforced. The Defendant argued that other provisions relating to insurance obligations had been deleted, whereas this provision had not and so applied. The Judge found for the Claimant. Cockerill J held that the deletions were not determinative and the contractual terms made clear that latent defects insurance was optional. Further, without the specification of the amount, risks and period of insurance, an obligation to take out such insurance would have been too uncertain to enforce. 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 Atlasjet Havacilik Anonim Sirketi v Ozlem Kupeli and others [2018] EWCA Civ 1264 It is trite that, as a general rule, an unsuccessful party in litigation pays the costs of the successful party. In this action, the appellant ('Atlasjet') was a defendant to proceedings concerning a failure to provide flights to a group of 838 customers. Atlasjet was only required to pay compensation to 14 of those customers, although a further 32 claims were to be considered on the individual facts and merits of each case. When turning to the question of costs, the first instance judge held that the passengers had been successful, and therefore that Atlasjet should pay 33% of the passengers' costs. Atlasjet appealed, arguing that it had been successful in light of how few passengers would receive compensation. The Court of Appeal held that financial payments were too simplistic a measure of success in group litigation, particularly given the extensive practice of parties seeking rulings on preliminary issues, or electing a lead claim. The Court of Appeal held that courts must instead look at the litigation as a whole. In this case, the Court noted that neither party could be said to have been successful as compared to the other, and it therefore held that a more appropriate course of action was not to make a costs order. Travelers Insurance Company v XYZ [2018] EWCA Civ 1099 The Court of Appeal upheld a non-party costs order against an insurance company in circumstances where it had not provided insurance in relation to those claims. A group of claimants brought proceedings against a medical company who had supplied allegedly defective breast implants. The appellant insurance company ('Travelers') settled 197 out of 426 claims on the basis that it its insurance policy covered those claims, but the remainder were deemed not to be covered. The claimants in the latter category obtained default judgment against the defendant, but did not recover their damages or costs as the defendant went into administration. They therefore sought their costs from Travelers, and were granted a non-party costs order at first instance. Travelers appealed this, arguing that it had not controlled the litigation in its own interest, and had not become, in effect, a real party to the litigation. The Court of Appeal rejected this as the test for making a non-party costs order, holding instead that all that was required was an 'exceptional' case, which was to be judged in the context of all of the litigation the courts see. In upholding the order, the Court noted that Travelers: were involved in decision making in the litigation; had funded aspects of the litigation; and were represented by the same solicitors as the defendant. CIVIL PROCEDURE Circle Anglia Limited v Mitchell (QBD, Cheema-Grubb J, 6 June 2018) The Claimant applied to commit the Defendant for contempt of court. The Defendant had brought a personal injury claim against the Claimant arising out of disrepair of premises of which the Claimant was the landlord. The Claimant alleged that the Defendant had made untruthful statements in Part 18 questions, schedule of loss and witness statement in order to increase his entitlement to damages. The Defendant made 22 statements alleged to be false in which he claimed that he had been made an offer of employment shortly before the accident which he was unable to take up due to the accident and therefore had lost earnings. The Defendant had made no such claim at the beginning of proceedings, and the medical evidence showed he was unfit for work prior to the accident. The Defendant did not attend any part of the contempt proceedings. The Defendant had played no part in the proceedings, even to deny his dishonesty. It was notable that the start of the proceedings contained no information in respect of the job offer. This undermined his contention that the accident rendered him unable to work. The medical evidence showed the Claimant had preexisting conditions that rendered him unfit to work notwithstanding the accident and had not worked for ten years prior to the accident. The Defendant had made a deliberate attempt to mislead the court for financial gain. All bar one of the allegations were proved and a warrant was issued for the Defendant's arrest. 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 Pimlico Plumbers v Gary Smith The Supreme Court has found in Pimlico Plumbers v Gary Smith that the tribunal at first instance was entitled to conclude that Mr Smith was a 'worker' under s230(3)(b) of the Employment Rights Act. The Supreme Court held that the dominant feature of his contract was that he should perform the work himself. Although he had a qualified right (which was not set out in his written contract), to swap a shift with another Pimlico Plumber, and was able to reject work, he did not have an unfettered right to give away the work. The company controlled his uniform and administrative duties and the amount and timing of payment. It was a relationship of subordination, which was a key indicator that he was a worker. Scicluna v Zippy Stitch The Court of Appeal has held that generally, a tribunal cannot depart from an agreed list of issues. The parties agreed at the beginning of the hearing that the issues were whether or not there was an agreement for deferred payment of a salary, or no agreement at all. The Respondent argued in the Court of Appeal that the finding of an agreement to defer meant the tribunal should have found that there was a deferral until the Respondent was able to pay. The Court of Appeal, applying Landrover v Short, held an agreed list of issues is "the road map by which the judge is to navigate his or her way to a just determination". The court held that issues will generally be limited to those on the list of issues. Underhill LJ went further, suggesting departure should only occur in exceptional circumstances. Financial Services Law James Purchas, 4 Pump Court, 020 7842 5555 Dr Sandradee Joseph-Urquhart, Three Stone, 020 7242 4937 St Vincent European General Partner Ltd v Bruce Robinson & Ors 24/5/18 (Comm) A claim alleging wrongdoing by creditors who had taken ownership of shares mortgaged to them was struck out on the basis that although it was a mortgagee's duty to accept a proper tender to discharge the mortgage, no such tender had arguably been made and the claim was subject to the rule against reflective loss. In the matter of BGEO Group Plc 18/5/18 (Ch) The court sanctioned a scheme of arrangement to enable a banking group to demerge its investment business and its banking business. Woodeson & Anr. v Credit Suisse (UK) Ltd 17/5/18 (CA) The appellants had remortgaged their property with a foreign currency loan, part of which was used to invest in sterling deposits. Following a default in repayment of the facility, the Bank appointed receivers over the property. The appellants claimed damages and sought declarations in relation to their entitlement in equity to set off against the sums due to the bank the sums due on their cross-claims in negligence, breach of statutory duty and deceit. The bank applied for summary judgment on the basis the claims were statute barred and the appellants had contracted out of the right of set-off. The lower court granted summary judgment finding that the claims in negligence and breach of statutory duty were time barred and had not been deliberately concealed so as to postpone limitation for the purposes of s. 32 Limitation Act 1980 and that the anti-set off clauses could be relied on in response to the deceit claim unless they were unreasonable. The Court of Appeal rejected the appellants' contention that the claims for declarations were not time-barred. A claim for such a declaration should not be entertained if the debt or damages claim on which it was predicated was statute barred. Parmar & Anr. v Barclays Bank Plc 16/5/18 (Ch) A bank had acted fairly and professionally in non-advised transactions with two longstanding customers for ten-year interest rate swaps. The bank was not required to disclose the existence or amount of its internal credit equivalent exposure limit in order to comply with its obligations to customers under the COBS rules. Enzo Buccioni v Banca d'Italia & Banca Network Investimenti SpA 12/6/18 (EU) Following the bank's entry into a compulsory winding up procedure, a customer claimed damages in excess of €81,000 pecuniary loss against the national banking supervisor. In the public interest, the Advocate General considered that disclosure of confidential information from the banking supervisor in respect of administrative documents was available under the third subparagraph of Article 53(1) of Directive 2013/36/EU to assess the possibility of bringing a claim against the competent supervisory authority for damage allegedly suffered as a result of the bankruptcy or winding up of that credit institution. Insurance James Purchas, 4 Pump Court, 020 7842 5555 Dr Sandradee Joseph-Urquhart, Thirteen Stone, 020 7242 4937 AXA Insurance UK Plc v Financial Claims Solutions Ltd & Anr. 15/6/18 (CA) Exemplary damages were awarded to an insurance company against a company and those controlling it in circumstances where the company had issued two personal injury proceedings based on fictitious accidents and documents. It did not matter that criminal proceedings might also be brought against those responsible. Avondale Exhibitions Ltd v Arthur J Gallagher Insurance Brokers Ltd 31/5/18 (Comm) An insurance broker did not have knowledge of a company owner's criminal record when it arranged the company's commercial insurance policy and was not in breach of its duty to bring the obligation to disclose criminal convictions to the company's attention. The broker was not liable for the insurer's avoidance of the policy. Navigators Insurance Co Ltd & Ors. v Atlasnavios-Navegacao LDA 22/5/18 (SC) Where smugglers secretly strapped drugs to the hull of a vessel and the ship had been detained, the owner could not claim for the vessel's loss under the Institute War and Strikes Clauses clause 1.5 as the loss had not been caused by any person acting maliciously. The smugglers had not had the necessary intention that the vessel should be detained. A claim for loss by detainment under clauses 1.2 and 3 was excluded by clause 4.1.5 because the detainment had arisen by infringement of customs regulations. Travelers Insurance Co Ltd v XYZ 17/5/18 (CA) In determining whether a non-party costs order could be made against liability insurers under s. 51 SCA, the discretion was not limited by thresholds, but rather had to be exercised justly. Such orders were exceptional, by which this meant outside the ordinary run of cases where parties pursued or defended claims for their own benefit and at their own expense and was not to be judged by what was or might be usual in the insurance industry. FIL Ltd v Fidelis Underwriting Ltd 11/5/18 (ChD) The defendants' use of the word FIDELIS for specialty insurance and reinsurance services had not infringed the claimant's trademarks. However, the marks were invalid insofar as they were registered for "fidelity" insurance, since it described a recognised type of insurance, and two of the trademarks were invalid for non-use in respect of services other than "pension-related insurance services", and these specifications were amended accordingly. 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 Patents Edwards Lifesciences LLC v Boston Scientific Scimed Inc, Ch Div (Arnold J), 24/5/18 Following a determination, upheld on appeal, that one of the defendant's European patents for a heart valve was valid and infringed by the claimant's "Sapien 3" valve, the court decided the terms of a final injunction. For a small cohort of patients, the Sapien 3 was the only suitable valve, and their lives would be put at risk if Sapien 3 was not available. Further, there was uncertainty as to how long it would take to re-train clinicians to use a different device. Accordingly the parties had agreed that there should be a stay of the injunction and a qualification. The balance of interests was struck by granting an initial stay of 12 months with permission to apply to extend the stay if a longer re-training period was required. Patients for whom Sapien 3 remained the only suitable valve would be excepted from the injunction without limit of time where there was an appropriate declaration from the responsible clinician. The claimant was ordered to pay on account 5% of net sales of the Sapien 3 valve kits. Regeneron Pharmaceuticals Inc v Kymab Ltd & Anr, CA (Arden, Kitchin, Floyd LJJ), 23/5/18 Following appeal proceedings in the matter of two European patents concerning the production of human antibodies using transgenic mice, in which the Court of Appeal reversed a decision that the patents were invalid for insufficiency, the Court determined the appropriate order. A final injunction was granted, together with an order for disclosure and delivery up; however, those orders were stayed, subject to further undertakings, pending the final determination of any appeal to the Supreme Court. The imposition of a final injunction would cause the defendant serious reputational and financial harm and would terminate or seriously disrupt projects of potentially great clinical importance. Trade Marks Fil Ltd & Anr v Fidelis Underwriting Ltd & Ors, Ch Div (Arnold J), 11/5/18 The claimants' UK and EU trade marks FIDELITY, registered for financial, insurance and investment services, had not been infringed by the defendants' use of FIDELIS for speciality commercial insurance and reinsurance. Given the nature of the average consumer of the services, there was no likelihood of confusion, nor damage to distinctive character or unfair advantage. The marks were invalid insofar as they were registered for "fidelity insurance", which was a generic term recognised to mean insurance against employee dishonesty or non-performance losses. The specifications would be amended accordingly. The extent of the claimants' use did not justify the full breadth of the registration for "insurance services" and the marks would be revoked for non-use in relation to insurance services other than "pension-related insurance services". Certain issues remained to be resolved following the outcome of the reference in Sky Plc v Skykick UK Ltd [2018] EWHC 155. Media & Entertainment John Stables, 5RB, 020 7242 2902 Reid v Newsquest (Midlands South) Ltd [2018] EWHC 1105 (QB), Nicol J, 11 May 2018 This was the trial of the preliminary issue of meaning in a libel action. C, a lawyer and former UKIP treasurer, purchased land in Oxfordshire and erected fences. D, the publisher of the Oxford Mail, published an article in print and online describing the tension that had emerged between some locals and C: the print article was headed "He's put a barbed wire fence around Pooh Sticks meadow". C contended for a meaning that included attribution to him of callousness and selfishness in his actions and that he had sought to limit or extinguish rights of way. D denied that the articles imputed motive to C and that they alleged any attempt to limit rights of way. D argued the articles as dispassionate accounts of events. Nicol J accepted that C's state of mind was not alleged but rejected D's arguments that the articles were dispassionate. The judge held the meaning to be: "The Claimant had shocked and caused considerable upset to a substantial number of local residents by his actions, following his purchase of land in the area by (a) without warning, fencing off fields to which the public had been allowed access by the previous owner and where families had played and picnicked for generations; and (b) sending to Oxfordshire County Council an official declaration in order to limit and/or extinguish public use of parts of the land." Sube v (1) News Group Newspapers Ltd (2) Express Newspapers [2018] EWHC 1234 (QB), Warby J, 24 May 2018 This was a trial of preliminary issues of meaning and related issues in a libel and harassment action against newspaper publishers, and a hearing of cross applications. The Cs applied to amend their claim to include further articles and further causes in malicious falsehood, breaches of the Equality Act 2010 and of the Data Protection Act 1998. The Ds applied to have the amendments variously disallowed and/or struck out. The Cs were a married couple with 8 children. The Ds had reported on the Cs' attitude to the housing they had been offered by their local authority. Articles had appeared in the print and online versions of Sun, the Daily Express and the Daily Star. The articles mocked and criticised the Cs' demands. Beneath the online articles readers had posted comments, some of them vituperative and unpleasant. Warby J held in respect of defamation that the articles complained of, although containing derogatory comments or opinions, did not convey any defamatory factual imputations about the Cs. None of the derogatory comments or opinions was of itself able to meet the serious harm requirement laid down by s 1 of the Defamation Act 2013. The libel claims therefore failed although the Cs were left the option of arguing that one or more of the articles together were harmful enough to satisfy the serious harm requirement: Claims under the Equality Act 2010 and in malicious falsehood were struck out, although the Cs could apply to amend the malicious falsehood claim. Also struck out on pleading grounds was a claim for exemplary damages, with the possibility of application to amend. The data protection claim was stayed. Personal Injury Scarlett Milligan, Temple Garden Chambers, 020 7583 1315 Daniel Laking, Temple Garden Chambers, 020 7583 1315 Tim Kevan, www.timkevan.com Clay v TUI Ltd [2018] EWCA Civ 1177 The Claimant appealed against an order dismissing his claim for personal injury against TUI Ltd. The Claimant and his family were staying on the second floor of a hotel in Tenerife. They occupied two adjoining rooms. The Claimant and his family became trapped on the opposite balcony when the balcony door became stuck behind them. The family attempted unsuccessfully to attract attention for thirty minutes, after which the Claimant decided to step across from one balcony to the other. In doing so he placed his weight on an ornamental ledge which gave way. The Claimant fell to the ground and sustained skull fractures. The Judge at first instance found that the door lock was defective, which was a breach of local standards. However, he concluded that the Claimant's act of stepping across to the adjoining balcony was so unexpected or foolhardy so as to break the chain of causation. By a majority, the Court of Appeal upheld the Judge's findings at first instance. They found that the Judge had correctly directed himself as to the test for causation and remoteness. The requirement was for the Judge to determine whether the novus actus was the sole cause of the injury, rather than the tortious act. Whilst the defective door might be the factual cause, it had been eclipsed so was not an effective or contributory legal cause. The Judge had appropriately balanced the risk posed by the activity with the risk posed by remaining on the balcony (noting that the neither the Claimant nor his family were in danger). The Judge was entitled to regard the new act as unreasonable and that the conduct was not reasonably foreseeable. The Claimant chose to expose himself to a risk of serious personal injury or death. Moylan LJ dissenting: The defect in the lock was a causative factor, and the response to being trapped outside was not so unreasonable so as to make it an intervening event. CC (Widow and Dependent of JC (deceased), on behalf of herself and his dependents) v TD [2018] EWHC 1240 (QB) CC was the wife of JC, who was killed in a road traffic accident in June 2014 and brought a claim under the Fatal Accidents Act on behalf or herself and her three dependent children. At the time of JC's death, he and CC were involved in divorce proceedings. They began marriage counselling in 2012, and CC obtained legal advice in 2013 on divorce. She moved out in 2014 with the two youngest children (the elder had already moved out). CC filed for divorce in February 2014. CC contended that she would have reconciled with JC and stayed the divorce proceedings, particularly once she had understood the financial implications of divorce. The Court had to determine whether the Claimant would have reconciled with her husband (and therefore would have been entitled to a larger dependency award under the FAA along with her children). The Court further had to determine whether failing to use a pedestrian crossing constituted contributory negligence. In respect of contributory negligence, the failure to use a crossing could not in itself constitute negligence. The accident occurred in the early hours of the morning when traffic would have been light. The Deceased ought not to have been expected to anticipate a car travelling at over twice the speed limit and could not have been criticized for thinking he had time to cross when the car was over 200m away. The accident was wholly the fault of the Defendant. In respect of the appropriate award taking into account the divorce proceedings, the marriage counselling in 2012 showed that the marriage was difficult for an extended period before the accident. It was clear when she took legal advice in 2013 that CC was intent on divorce. Neither party attempted reconciliation during the months that they were estranged. CC had discussed with her lawyer how the couple's assets might be distributed, so she was aware on some level of the financial implications of divorce. Even in the face of more comprehensive legal advice, the Court did not find that she would have changed her mind about divorce. Reconciliation was no more than a speculative possibility. Thus CC's claim was limited to what she might have received by way of maintenance payments and was assessed at £10,500 to 2020 (when the youngest child turned 18). £5,000 per child was also awarded. Molodi v Cambridge Vibration and Aviva Insurance [2018] EWHC 1288 (QB) See also Richards & McGrann v Morris [2018] EWHC 1289 (QB) The Defendant to a PI claim appealed judgment in favour of the Claimant. The Claimant sought damages for whiplash sustained in a low-velocity impact in February 2015 when his car collided with a van driven by the Defendant. The Claimant attended his GP the day after (albeit he did not seek any further treatment) and indicated in his Claim Notification Form ("CNF") that he had not taken any time off work. To the medical expert he represented that he had had to take time off work and had been involved in one previous accident. In fact, he had been involved in at least five accidents in rather than one. It was also proved at trial that it cost only £400 to repair the vehicle, rather than the £1,300 the Claimant was claiming in respect of damage. The Defendant argued the Judge ought to have found that the claim was fundamentally dishonest. HHJ Main QC dismissed this submission and gave judgment for the Claimant. The High Court held that it was unfortunate that the Defendant had not followed the procedure set out in Casey v Cartwright in respect of LVI claims. County court judges had to approach cases such as these with an element of caution, if not suspicion. A genuine Claimant would normally seek treatment for injury, would visit the GP or A&E, would have independently sought physio without being prompted by a solicitor, and would have given a relatively consistent account of their injuries. Where a Claimant was provably untruthful, or so inconsistent that the evidence could not be relied upon, the court should be reluctant to accept the claim as genuine. Medical evidence was crucial to whiplash claims of this nature and a genuine and accurate history was important so as to found a reliable conclusion to be drawn in respect of causation and attribution. In this case, the Judge had taken too kind an approach to the Claimant's evidence, which was demonstrably inconsistent, unreliable and untruthful. Given his proven dishonesty in relation to previous accidents, it was difficult to see how the Judge could have accepted the evidence. The Defendant had proved, on the balance of probabilities that the Claimant had been fundamentally dishonest. The Judge should have dismissed the claim pursuant to s57(2) Criminal Justice and Courts Act 2015 or because the Claimant had failed to prove his case. The High Court allowed the appeal, overturned the conclusion of the court below and substituted a finding of fundamental dishonesty. 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Professional Negligence James Purchas, 4 Pump Court, 020 7842 5555 Riordan & Ors. v Moon Beevor Solicitors 25/5/18 (QB) The court considered the court's jurisdiction to vary a consent order and held that it had such jurisdiction and such jurisdiction did not depend on there having been a material change of circumstances. The weight to be given to the fact it was a consent order would depend on the circumstances with more weight being given to a consent order recording the final resolution of a substantial dispute than a procedural accommodation. P&P Property Ltd v Owen White & Catlin LLP & Ors 15/5/18 (CA) The Court of Appeal considered the liability of solicitors and estate agents where a fraudster had posed as a property owner and instructed them to act in connection with a purported sale of the property. In both cases, completion took place in accordance with the Law Society Code for Completion by Post (2011) and the frauds were discovered before registration of title but after the purchase monies had been paid to the fraudster. In the first case the solicitors had signed the contract on the fraudster's behalf and the purchaser sued the solicitors and agents on the basis that they had held themselves out as having the authority of a true owner to conclude the sale and had negligently failed to establish their client's identity and that the solicitors had paid the purchase monies to its client without proper authority. In the second appeal the purchaser brought proceedings against its own solicitors and the fraudster's solicitors. The Court of Appeal held that the fraudster's solicitors had warranted that they were authorised to act on behalf of the actual owner of the property, but in the first appeal as it had been open to the judge to find on the evidence that the purchaser had not relied on the warranty, contracts having been exchanged on the basis of the purchaser's solicitors' belief that such due diligence had been carried out, the claim for breach of warranty of authority failed. It would not be appropriate to impose a duty of care on solicitors and agents in respect of identity checks to third parties. However the paying away of the purchaser's money by the vendor's solicitors to a person other than the actual owner of the property did amount to a breach of trust. The solicitors had also committed a breach of undertaking in not obtaining the true seller's authority to receive the purchase money on completion. Relief under s. 61 of the Trustees Act was not granted. Edwards v Hugh James Form Simey 6/6/18 (CA) In assessing a claimant's loss arising from negligent advice, a court should not take account of expert evidence which had not and could not have been available at the time of the negligence. The court had to establish what had been lost by the claimant as at the date of the original trial or settlement. Unondem v Wallace LLP 16/6/18 (QB) A company director who had been sued for legal fees incurred by his company and had been found personally liable to pay those fees should have raised his complaints about the firm in his defence and counterclaim during those proceedings and the court would not allow successive claim where issues should have been raised and determined in earlier proceedings. Property Victoria Seifert, Lamb Chambers, 020 7797 8300 Elizabeth Dwomoh, Lamb Chambers, 020 7797 8300 David Sawtell, Lamb Chambers, 020 7797 8300 (1) Paul Baker (2) Jodi Baker v Martin Craggs [2018] EWCA Civ 1126 Patten LJ, Henderson LJ and Flaux LJ The vendors of adjoining properties sold property "A" to the appellant, who went into occupation, and the other property "B" to the respondents. At the time of the sale of A, the vendors failed to reserve a right of way over part of A in favour of B. On completion of the sale of B to the respondents, the vendors purported to grant them an easement over part of A that they had failed to reserve during the sale of A. Due to problems with registration of the appellant's title he lost the benefit of the priority period applicable to his application for registration. The respondents subsequently registered their title with the benefit of the easement of part of A. Following resolution of the appellant's registration of his title he was registered as the proprietor of A, but subject to the easement in favour of B. Landlord-Law Online information and resources on residential landlord and tenant law. For more information visit www.landlordlaw.co.uk. |
At first instance the court held that the grant of the easement to the respondents amounted to a conveyance to a purchaser of a legal estate which overreached the appellant's equitable interest in the servient tenement, A, and transferred it into a corresponding interest in the proceeds of sale of B by the vendors to the respondents. In allowing the appellant's appeal, the Court of Appeal unanimously held that the purported grant of the easement over A by the vendors to the respondents could not prevail over the appellant's right to be registered as proprietor of A free from the easement. The appellant's equitable interest in A under the bare trust arising on completion of his purchase was protected by his actual occupation of A, and was therefore an overriding interest under land Registration Act 2002, s. 29 and paragraph 2 of schedule 3. Pursuant to the Law of Property Act 1925, s.1(1) ("the 1925 Act") the only legal estates in land that were capable of subsisting or being conveyed or created were (a) an estate in fee simple absolute in possession and (b) a term of years absolute. Accordingly, the doctrine of overreaching could only apply where such an estate in land was conveyed to a purchaser. The grant of an easement was not a conveyance of a legal estate in land within the meaning of s.1(1) of the 1925 Act, rather it was the grant of an interest over land. Although the expression "a legal estate in land" is used in s.2(1) of the 1925 Act and could, at first sight, be read as including the grant of an easement, a proper reading of s.2(1) of the 1925 Act, in context, precluded this interpretation. Finally, overreaching occurs where the proceeds of sale or capital money are paid to at least two individual trustees or a trust corporation in accordance with s.27 of the 1925 Act. The appellant in the present case had no prior equitable interest in the grant of the easement to the respondents. Further, the appellant was not a party to the sale to the respondents, nor was there any apportionment of the proceeds of sale by the respondents to the vendors. 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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