Some Examples of John's Cases
Land and Property Matters
*Successfully representing a Defendant farmer in an action brought by a neighbouring farmer who purchased farm land in Powys from the Defendant. The Claimant alleged breach of contract and fraud/misrepresentation/non-disclosure on the grounds that the Defendant had failed to disclose at the time of sale that the British Waterways Board were developing the Montgomery Canal which ran through the land, requiring compulsory purchase by the BWB of part of the land under the British Waterways Act. John successfully defended the action, by establishing that his client did not have actual knowledge of the proposed development, and by establishing that a Parliamentary Notice sent to the Defendant by the Clerk of the Parliaments in London concerning the proposed CPO powers that would exist under the British Waterways Act if it became law, did not amount to constructive notice and there was no duty in law to inform the purchaser of the contents of the Notice. John relied on the only reported Court of Appeal case in the law reports concerned with Parliamentary Notices – Provincial Cinematograph Theatres Ltd v Campbell (1949) 1 P & CR 36. The Defendant recovered his costs in full. The case was tried over 3 days in the Commercial Court of Wales.
*Successfully obtaining summary judgement and strike out of a claim against a Defendant client issued by a major PLC against multiple defendants. The claim was for damages in excess of £1/2 million arising from flooding in large commercial premises in Birmingham City Centre. Summary judgement and strike out were obtained on the grounds that the Claimant was unable to establish causation against the defendant and the joint expert reported that the company’s own premises were a major contributing factor to the flooding. The matter was tried in the Construction and Technology Court. The case is reported as Springwood Properties plc v Hozhadrafkan [2003] CLY 3034.
*Successfully representing the claimants on an appeal from a decision in Worcester County Court dismissing their claim for damages for negligence giving rise to the lost opportunity to successfully negotiate a new business lease. The defendant firm of solicitors had negligently advised about time limits under the Landlord and Tenant Act 1954. The Court of Appeal overturned the trial judge’s ruling and held that the defendant’s negligence was the cause of the loss of opportunity to obtain a new lease on favourable terms by an application to the court. Assessment of damages was remitted back to the county court and subsequently settled – the case is reported as Fairbrother v Gabb & Co [2002] EWCA Civ 803; [2002] 23 EGCS 119
*Successfully defending a tenant of the Birmingham Container Base in a 4 day action in the Chancery Division for forfeiture of the Defendant’s lease and damages in excess of £1/4 million. Relief from forfeiture was granted and the damages claim dismissed. The Defendant recovered his costs in full.
*Successfully representing the owners of a Grade II listed building in Worcestershire in seeking forfeiture of a business lease and damages as a result of substantial breaches of covenants for repairing obligations and planning consents.
*Successfully obtaining strike out and summary judgement of a claim for the implication of terms into a Tomlin Order that settled major litigation concerned with the disturbance of the flood plains of 2 brooks running through land belonging to John’s client. Summary judgement and strike out were obtained on the basis that the court had no jurisdiction to imply terms into the Tomlin Order. The claim was tried in the Birmingham Commercial Court.
*Representing Claimants in a substantial trespass action concerning a private accessway in Bewdley, Worcestershire, over which the Defendants claimed both private rights of way under prescription/lost grant and public rights of way. The action settled on the 2nd day of a 7 day listed trial on terms that remain confidential. There were in excess of 35 witness.
*Advising and representing the owners of a property who were renovating and rebuilding and who erected scaffolding that projected into the air space of their neighbour’s property. After a contested hearing, orders were obtained allowing the clients to continue the use of their scaffolding on grounds of “special circumstances” under the rule in Shelfer v City of London Electric Lighting (1895) and on payment of nominal damages for trespass.
*Acting for claimants in a professional negligence claim against a firm of solicitors for the loss of chance to litigate in respect of negligent building work carried out on their property and consequential loss of credit status as a result of the claimants being made subject to a money judgement and then bankrupted. The claim settled at the doors of the court at the commencement of a 3 day trial in Shrewsbury with the Claimants obtaining a substantial sum allowing them to carry out extensive repair works to their property. John acted under a CFA.
*Acting for a claimant in respect of a claim to land under a constructive trust/proprietary estoppel. The Claimant had been promised by the Defendants that if he obtained planning permission for the land for the erection of a dwelling house, he could purchase the land at a substantial discount from market value. He subsequently spent a great deal of his own money and time and effort successfully obtaining planning permission against the odds as the land was in restricted green belt. His efforts included hiring a microlite and taking aerial photos of the land with superimposed computer generated images of the proposed dwelling. After planning consents were obtained, the defendants refused to transfer the land for anything less than the market value of the land, which was considerably greater now that planning permission had been granted. The claim issued from Birmingham Chancery Court and eventually settled with the Claimant obtaining the land at the reduced price that he was originally promised, and his costs. A similar claim has since been successfully litigated in the High Court in Cobbe v Yeoman’s Row Management Ltd [2005] EWHC 266; [2005] NPC 29.
*Successfully representing a claimant in an action for negligence/breach of contract issued against a firm of surveyors in respect of a building survey carried out on a Tudor/Victorian Farmhouse in Herefordshire. The claimant had relied on the survey and recommendations of the surveyor in purchasing the property. It transpired that the main roof of the property suffered from extensive woodworm infestation and significant loss of timber section, and that many timbers were so old that they had reached the end of their natural life span and would require replacement. In addition, the main house suffered from extensive damp and the roof of the new double garage could not be tied into the building and was causing the walls of the garage to deflect outwards. The original owner had attempted to rectify this by constructing a large brick pillar at the front of the garage, which was also being deflected outwards by the time of the purchase. None of the defects had been notified to the claimant. The claimant was faced with massive reconstruction costs on the main roof and the garage required complete demolition and rebuild. John advised that the claim should be run on a costs of repair basis, not diminution in value basis as required in Perry v Sydney Phillips (the defendants argued that the diminution in value was no more than £10,000). While the case was live, the High Court decision in Kenyon Estates Ltd v Eversheds [2005] EWHC 972 was reported, in which Evans-Lombe J held that the diminution in value rule could be departed from where the facts of a case justified such departure. The claim settled with the claimant recovering a substantial sum to allow the necessary repairs to be carried out. John represented his client under a CFA.
*Representing the claimants in an action over parking rights in a suburb of Wolverhampton. The claimants claimed that they had acquired an easement to park vehicles over an area of land which formed part of an accessway leading from a residential street to an area of land which had originally been derelict, but which had subsequently been developed. The identity of the true legal owner of the accessway had been lost. The claimants applied to register their right to park at the Land Registry. A neighbouring land owner whose land abutted the area on which the claimants had parked and whose title deeds indicated that she owned a small part of the parking area, objected to the registration at the Land Registry. The matter proceeded to a trial before the Land Adjudicator at the Land Tribunal, held in Birmingham. There were several witnesses for each side. The legal issues raised by the neighbour included an argument that the parking rights, if granted, would prevent her from having any reasonable use of the part of the parking area that she owned. The Land Tribunal upheld the parking rights of the claimants, and decided that the neighbouring owner would still have some reasonable use for the land she legally owned although she herself would not be able to park on it. The neighbour appealed to the High Court which upheld the decision of the Land Tribunal. The case is reported as Virdi v Chana [2008] EWHC 2901 (Ch) & [2008] All ER (D) 40 and attracted a lot of attention among property lawyers.
*Representing an elderly man in his 90's whose son claimed that he had adversely possessed his father's land in Burton-on-Trent by storing on his father's land for many years old cars, busses and lorries, large storage containers, scrap metal, piles of wood, tyres, boats and other bizarre objects (such as a caravan filled with over 800 pairs of school childrens' shoes from Spain, and a collection of 150 plastic school chairs), as well as taking "control" of his father's large garage on the land by locking it with a padlock and keeping control of the key. The son claimed that all of the items stored by him on his father's land were for the purposes of his business, despite the fact that he claimed unemployment benefit in the United Kingdom. The trial took place at the High Court in Birmingham. The son's claims were dismissed. The judgment has some important points about adverse possessions claims by children against their parents (fortunately not the sort of claim that comes before the courts very often). The case is reported as Long v Long (2007) Lawtel.
*Representing a claimant who was the owner of an Edwardian villa-style house in Stourbridge, West Midlands. A recently established 2 director and shareholder development company demolished a similar house constructed immediately adjacent to the claimant's house, right down to cellar level, some 5 or 6 feet below pavement level. This left the claimant's house without its lateral support on one side. The claimant's house was left exposed on its lateral side with no lateral support for several months, during which time the house moved sideways causing substantial internal and external cracking and subsidence damage. Proceedings were issued in the Technology and Construction Court in Birmingham in 2007. The case eventually settled at mediation in 2009 after a long and somewhat acrimonious series of interim hearings, and after test pits had been dug open to allow various underground works carried out by the defendants to be examined. In the course of the case the directors of the development company carried out a series of transactions to transfer company assets and leave the company worthless prior to one of the directors seeking to leave the UK, requiring the claimant to apply for freezing injunctions against the assets of the company and the directors. Due to the settlement of the case the claimant recovered a very substantial cash settlement, and was able to purchase a new house for herself and to sell her former house at auction. John represented the claimant under a CFA arrangement.
Commercial Matters
*Advising the director of an importation company regarding its contract with a commercial agency concerned with the submission of VAT returns on importation of international goods. The claimants issued proceedings for unpaid invoices, and the company counterclaimed for negligence and breaches of contract due to incorrect submission of VAT returns leading to the improper levy of excessive import duties in excess of £10,000. The claim settled on favourable terms.
*Successfully opposing an application by a claimant for summary judgement/strike out of a Defence in a claim issued for unpaid invoices issued under a “revolving credit” arrangement. The defendant was able to establish that the claimant could not identify which invoices that were alleged to be outstanding arose under the revolving credit arrangement and which had actually been paid, so that there was a substantial issue of fact between the parties which required trial. The claim was not subsequently pursued.
*Successfully obtaining a substantial order for security for costs against a company registered in a Carribean tax haven in respect of a claim issued by the company against John’s client for damages for breach of contract. The defendant was a former employee of the company responsible for selling property development opportunities to clients of the company. The defendant ceased his employment with the company and then established his own business. The company claimed that he had breached restraint of trade covenants.
*Advising the chairman of a transportation company who purchased for cash a new Lotus Esprit from one of the UK’s leading sports car specialists in a moment of motoring enthusiasm. He later reviewed his decision after a short conversation with his wife after her return from holiday (!!!), but found that he was outside his “cooling off” period under his contract. John’s advice on the contract documentation enabled the client to return the vehicle with only nominal damages to pay, after enjoying 12 days of motoring heaven!!
*Advising a private member’s athletic club in a claim by a former member for damages for breach of contract and reinstatement. The former member was an officer of the club who claimed he had been dismissed improperly by a coup of conspiring members. John advised that the claim should be valued in accordance with the recent decision of the Court of Appeal in Collins v Worcester Norton Sports Club (1999) and that the Claimant be offered nominal damages. The offer was rejected. The claimant subsequently accepted the offer at the doors of the court. The club recovered its costs in full.
*Advising a commercial agent under the Commercial Agents Directive/Regulations in respect of her entitlements to damages, compensation and costs. The matter settled and the client recovered her costs. John acted under a CFA.
*Representing the directors of a company based in Stourbridge which manufactured sportswear, who were sued under personal guarantees they had given. The Stourbridge company established a manufacturing and importation joint venture partnership with a multi-million pound shipping company based in Leeds and London to manufacture sportswear in Madagascar and import the sportswear into the UK. The company directors agreed that their company would enter into various financial arrangements with the shipping company to establish the venture, and the directors each gave personal guarantees over these arrangements. Unfortunately, a political revolution in Madagascar brought the manufacturing venture in that country to an end. Following the collapse of the Madagascan venture, the shipping company claimed that it was owed substantial sums by the Stourbridge company, and caused the Stourbridge company to go into liquidation. The shipping company then issued proceedings against the directors on their personal guarantees for recovery of the debts allegedly owed by the Stourbridge company to the shipping company. This threatened to result in the bankruptcy of the directors if successful. John represented the directors in a case that was both factually and legally complex. The trial lasted a total of 14 days spread over a 6 month period, taking place in Newcastle and Chester. There were more than 20 witnesses, including the finance director of Chelsea Football Club and the sales and marketing director of Aston Villa FC, who gave evidence on behalf of the Stourbridge company directors. Many "secret" documents involving the shipping company and its financial arrangements ended up being disclosed in the case, including various private trust arrangements set up in the Channel Islands for the benefit of the shipping company owner, who was by then an "ex-pat" living in Prague and who was forced to attend trial in Chester to give evidence. The Stourbridge directors won their case at trial, it being held that their guarantees were unenforceable by the shipping company because the guarantees had actually been given to a different company set up and controlled by the shipping company with a similar name but which had subsequently been dissolved, a fact that had been kept secret and which only emerged on production of the secret documentation and in the evidence of the shipping company owner at trial. The company directors recovered all of their costs and were able to re-establish their business under a new trading name. The case was a fine example of "teamwork" between clients, solicitors and barrister. Click here for a link to the write up about the case as it appeared on the website of the solicitors who instructed John, and click here for a report of the case in the Stourbridge Journal.
Other Matters
*Successfully defending the £1/4 million inheritance of 2 minor children against the claims of their deceased father’s former cohabitee under the Inheritance (Provision for Family and Dependants) Act 1975. The claims were dismissed after a 2 day trial on the grounds that there was no dependency.
*Successfully representing a bankrupt husband in complex matrimonial and chancery proceedings that produced various bizarre applications by his former wife and some questionable court orders. The litigation resulted in 2 important decisions of the Court of Appeal – Ram v Ram (No 1) [2004] EWCA Civ 1452; [2004] 3 FCR 425 concerning the inability of a wife to rank on equal terms with creditors in bankruptcy; and Ram v Ram (No 2) [2004] EWCA Civ 1684; [2004] 3 FCR 673 concerning consent orders and the interpretation of section 24A(1) Matrimonial Causes Act 1973 in a bankruptcy situation. John represented the bankrupt husband throughout the proceedings and was junior counsel in Ram v Ram (No 2).
*John has had enormous experience in the prosecution of many statutory nuisance cases under the Environmental Protection Act 1990 and the Defective Premises Act 1972, advising and acting in housing disrepair, breach of tenancy agreements, and defective building works, and Building Act notices and prosecutions. He was junior Counsel in Oakley v Birmingham City Council in the Divisional Court (see (1999) EHLR 209) and in the House of Lords (see [2001] AC 617; [2000] 3 WLR 1936; [2001] 1 All ER 385). See also Kaur v Gill (1995) The Times, 15 June on quantum of damages under section 27 Housing Act 1988.
* Acting for a residuary beneficiary of a substantial estate who faced a challenge to the Will under which she stood to inherit the entire residuary estate. The Deceased had originally made a Will in which she left her estate divided more or less equally between a number of named beneficiaries of which John's client and the claimant were included. However, John's client came to be a close friend of the Deceased and cared for her when she grew older and more frail. After the Deceased was rehoused in a nursing home she made a new Will through independent Will makers, reducing the entitlement of the various named beneficiaries to small money legacies and giving the bulk of her estate to John's client as the residuary beneficiary. John's client had assisted the Deceased in writing some late instructions to the Will makers. After the Deceased's death, one of the legatees under the new Will challenged the validity of the new Will on the grounds that it was executed in suspicious circumstances, that the Deceased lacked knowledge and approval of the new Will, and that John's client had taken part in the process of drawing up the Will. John advised that the residuary beneficiary should apply to strike out the claim or seek summary judgement, on the grounds that the pleaded claim was defective and the evidence in the case could not support the challenge to the Will. If the challenge to the Will succeeded, the new Will would be set aside and the old Will would be probated so that the claimant would obtain a much larger share of the estate. At first instance a district judge dismissed the application to strike out and for summary judgement and granted the claimant leave to amend the pleaded claim. John advised his client to appeal. On appeal, the High Court overturned the decision of the District Judge and struck out the claim, on the grounds that there was not sufficiently strong evidence to allow a challenge to be made to the validity of the second will. The case is reported as Re Gwendoline Morgan; Griffin v Wood [2008] WTLR 73; (2008) Lawtel, and makes some important points about the use of summary judgement/strike out applications in contested probate cases.
*Representing the claimant in a claim to ownership of a property by way of resulting/constructive trust and proprietary estoppel. The claim involved some complex facts and issues of law. The property was purchased under the Right to Buy legislation arising from the long tenancy of the claimant’s father. The purchase price was provided wholly by the claimant, with a discount under the legislation. The claimant’s father told the claimant that if she purchased the property and allowed him to live there, she would own the entire property and could have the entire property as her own home after his death or after he no longer needed to live there. Claimant relied on those promises in providing the total purchase price from her own money. Claimant and father were advised by a well known local firm of solicitors who advised that the agreement between father and claimant could only be dealt with by a Deed of Trust executed by the father declaring that the father held the property on trust for the claimant as to 40% and the father as to 60% (calculated by reference to purchase price and statutory discount respectively), and the father was advised to then make a will leaving his 60% to the claimant. The father executed such a will leaving his 60% and all of his other belongings to the claimant. Thereafter he referred to the property as his daughter’s property on several occasions to different people. Several months later, the father became seriously ill and was admitted to hospital. He asked to see a solicitor to make a new will. He informed his solicitor that he did not have a lot to give away and that the house was not his but belonged entirely to his daughter. The solicitor made a careful note of the instructions given. He was not told of the previous will. He then drew up a simple will which the father executed and which was witnessed, revoking all previous wills and bequeathing his “entire estate” to his son, L, whom he appointed as his Executor. The father died the following day. L subsequently claimed that under the terms of the new will, the father’s 60% share under the Trust Declaration belonged to L, and sought to claim that the Claimant was bound by the Trust Declaration. L also argued that the discount applied for the benefit of the father and that the share of the value of the property represented by the discount should be treated as belonging to the father. Claimant argued that (1) she was not bound by the Declaration of Trust as she did not execute it (relying on Greer v Kettle (1938) or alternatively (2) because it was a sham and did not truly represent the father’s intentions (relying on Snook v London West Riding Investments (1967); (3) that the entire property belonged to her under a resulting/constructive trust or proprietary estoppel from the moment the property was bought and no change in the will could alter that fact (relying on Gillett v Holt (2000); (4) that the discount under the Right to Buy legislation should be ignored as per Evans v Hayward (1995) and Ashe v Mumford (2001) because the evidence established that the father did not intend the discount to inure to his benefit; (5) and that the second will should be interpreted by reference to the instructions given to the solicitor at the father’s bedside in hospital (applying the “armchair principle” under Allgood v Blake (1873) alternatively section 21 Administration of Estates Act 1982) so that the will did not seek to bequeath any interest in the property to the son. The case resulted in a 7 day trial in the action (2 days on legal submissions) in the High Court in Birmingham. Judgment was given for the Claimant on all issues.
*Representing the Executor and child beneficiaries of a substantial estate in a claim commenced by the former cohabitee of the deceased. The claim was resisted on the grounds that the cohabitee was not a dependent, and had her own substantial asset base including property, and had already obtained all the benefits payable under the deceased’s valuable pension policy including a lump sum in excess of £100,000 and an annual income for life of £6000. In addition, the cohabitee sought to rely on an alleged “will” which she claimed was signed by the deceased and which purported to leave his entire estate to the cohabitee to the exclusion of his 2 children. The cohabitee filed witness statements from her friends who claimed that they saw the deceased sign the “Will”. The “Will” was not validly witnessed but was replied upon by the cohabitee as evidence of the deceased’s intentions towards the cohabitee. A joint handwriting expert reported that the signature on the “Will” was not that of the deceased. The Estate is also counterclaimed against the cohabitee on the grounds that the cohabitee continued to reside at the deceased’s premises and to run a business from those premises for profit, allowing her to also rent out her own property for profit. The Estate claimed that she had profited from the wrongful use of estate assets and sought recovery of 50% of all profits/rents obtained thereby. The matter was listed for trial in Oxford County Court, but the cohabitee eventually withdrew all of her claims and consented to her claims being dismissed.
*Representing a claimant partner in a partnership dispute between 2 brothers who were in a business partnership with each other for many years, and who were also the beneficiaries of trust property. The dispute revolved around the interpretation of the partnership deed and the valuation of the partnership assets, which included land with planning potential and multi-million pound development potential. The defendant partner/brother made an application to try and sell the trust property under the Trusts of Land and Appointment of Trustees Act 1996, which was successfully resisted on the grounds that because the joint valuer reported that the trust property and partnership property could be sold together and could thereby realise a substantially greater price because of the planning potential than if sold separately, it was wrong to allow the trust property to be sold separately and thereby deny one of the brothers the chance to realise his share of the increased value in joint trust and partnership assets. John’s client recovered his costs on that application, and the matter proceeded to trial on the main action, listed for 3 days in Birmingham Chancery Court. Towards the end of the 1st day of trial the defendant brother “threw in the towel” and offered to settle the case on terms acceptable to John’s client.
*Representing a defendant partner in a partnership dispute arising from a business running a residential care home. The main area of dispute now revolved around the interpretation and application of an agreement between the partners prior to dissolution whereby the claimant limited his claims from the dissolution of the partnership to a specific sum. The defendant paid sums of money to the claimant under the terms of the agreement. The claimant subsequently sought to claim a greater sum from the assets of the dissolved partnership. The defendant relied on the agreement by way of part-performance and estoppel. The case eventually settled in mediation with John’s client obtaining what he was entitled to under the dissolution agreement.
*Representing an elderly widow acting by her son-in-law as Next Friend due to incapacity, who sought to recover from her son a sum in excess of £90,000 obtained by him over a period of time from her substantial funds held in bank accounts and investments which the son controlled under a Power of Attorney. The son used these monies to fund his own lifestyle. The claimant sought to set the transactions aside and recover the money under section 3 Enduring Powers of Attorney Act 1985, alternatively by way of the presumption of undue influence/breach of fiduciary duty, and to be repaid what was taken. The case settled at mediation with the son offering to give his mother a charge over his house to secure repayment of what he had wrongly taken.
*Successfully representing a tenant of Worcester City Council in an action for trespass, breach of covenants, breach of Human Rights, unlawful interference with goods, disappointment, and distress. The claimant tenant had stored a large and valuable record collection in his storage facility while new furniture was being delivered to his flat which he rented from Worcester City Council. The record collection consisted of more than 450 singles and LPs, including some very rare and valuable individual items, and had been built up over many years. City Council operatives attended the flats to clear out another flat that had been vacated. They broke into the storage unit believing it to be part of the vacated flat and removed the record collection and other items. The other items were later recovered but the record collection was never recovered. The action settled, with the claimant receiving a substantial sum to compensate for the lost record collection and the disappointment and distress. John represented his client under a CFA.
*Representing a defendant in an action for unpaid hire purchase charges under a hire purchase agreement concerned with a large consignment of juicing machines. The defendant entered into an agreement to hire a large number of juicing machines for his business. The juicing machines proved defective and resulted in substantial loss of profits. The juicing machine company sued for unpaid rental payments. The defendant counterclaimed on the basis that there were breaches of implied terms as to fitness for purpose and merchantability, and by reason of non-compliance with regulatory formalities under the Consumer Credit Act 1974. The case settled with the claim being withdrawn against the defendant after a 1 day hearing, and an agreement reached over the defendant’s losses.
