John McDonnell QC

Call 1968 Silk 1984

In 2004 John McDonnell founded Thirteen Old Square Chambers which merged with 3 Stone Buildings in 2016 to form Three Stone where he is now Head of Chambers.

He is one of the most senior Chancery Silks.

He has always enjoyed an unusually varied practice as can be seen from the list of his reported cases.

He has been admitted to the Bar for the purpose of local cases in Hong Kong, the Cayman Islands, the British Virgin Islands, the Irish Republic, Northern Ireland and the Isle of Man.

He has been appearing regularly in Hong Kong since 1978 and has won a succession of landmark property cases in the Court of Final Appeal.

The cases which have given him most satisfaction were

  • Lloyds Bank Pension Trust  Lloyds Bank plc [1996] PLR 263 where he appeared for a representative member of the Bank’s Pension Scheme and defeated an attempt by the Bank and the Trustees to level down the benefits of female pensioners, earning the editorial comment in the Pensions Law Reports: “There have been some bizarre decisions recently in the pensions field, but this one takes the biscuit!”
  • Re OT Computers Ltd [2004] Ch 317 where he established that the Third Parties (Rights against Insurers) Act 1930 applies to all insurable liabilities and is not limited to motor insurance.
  • Fok Lai-ying The Governor in Council [1997] HKLRD 810 where he persuaded the Privy Council to make a landmark decision about the Hong Kong Bill of Rights only weeks before Hong Kong was returned to China
  • Barclays Bank TOSG Trust Fund [1984] AC 626 which his Leader (now Lord Millett) still describes as the most difficult case he ever argued and which explains the Rule against Double Proof in the law of insolvency
  • Brackenbank Lodge Ltd v Peart [1996] NPC 124 (HL) in which Lord Browne-Wilkinson said “Mr McDonnell’s written case is an outstanding piece of research and scholarship” and
  • The two leading cases of Gillet v Holt [2001] Ch 210 and Thorner v Major [2009] 1 WLR 776 (HL) which have definitively laid down the modern law of proprietary estoppel.
  • Cases of interest

    Charities

    Re Spence [1979] Ch 48

    Megarry V-C analysed and explained Re Lucas, the previous leading case on misdescription in charitable gifts.

    Ip Cheung-kwok v. Sin Hua Bank Trustee Ltd [1990] 1 HKLR 497, [1990] 2 HKLR 499

    The Hong Kong Court of Appeal considered whether a trust for the welfare of a Chinese clan and the worship of their ancestors was charitable: the trust failed because although both purposes were charitable a clan in China was defined by descent in the male line from a common ancestor and was thus not a section of the public unlike Chinese surname associations in Singapore.

    Varsani v. Jesani [1999] Ch 219

    In the case of a doctrinal schism between factions within a religious sect, the Court of Appeal held that the Charities Act 1960 s.13(1)(e)(iii) enabled the Court to partition the assets proportionately between the factions without first determining which of them was still professing the original doctrine, distinguishing Free Church of Scotland v Overtoun.

    Secretary for Justice v. To Kan-chi (2000) 3 HKCFAR 481

    The Hong Kong Court of Final Appeal held that a famous Taoist Temple in the New Territories belonged to the local clan, rejecting a claim by the Secretary for Justice that a large fund payable for the resumption of some of the Temple’s land was held by the Government for charitable purposes.

    Allen v. Rochdale MBC [2000] Ch 221

    The Council held the playing fields of Queen Elizabeth’s Grammar School as bare trustees on behalf of the charity trustees of Queen Elizabeth’s Foundation and also held a 99-year lease of the playing fields as Local Education Authority. When the Council sold part of the playing fields for development free of its own leasehold interest it had to pay the entire proceeds to the charity trustees; but it retained its leasehold interest in the unsold part.

     

    Commercial Disputes and Litigation

    Harmony Shipping v. Davis [1979] 1 WLR 1380

    Held by the Court of Appeal that there is no property in an expert witness. So where a handwriting expert had given his opinion to one side at an early stage in the course of a lengthy trial in the Commercial Court concerning a document on which they were relying, but was not called by them to give evidence, and was then consulted by the other side at a later stage about the same document, his original clients were not entitled to prevent the other side from calling him.

    Imprint (Print and Design) v. Inkblot Studios “The Times” 23 Feb 1985

    Held by the Court of Appeal that Service could not validly be effected through the Document Exchange (which was then in its infancy) without a change in the Rules.

    McKinnon v. Donaldson, Lufkin & Jenrette [1986] Ch 482

    Held by Hoffmann J that the Court should not use its powers under the Bankers Books Evidence Act over the London branch of a foreign Bank to produce documents held at its head office (or another branch) outside the jurisdiction.

    Macmillan v. Carr “The Independent” 23 Feb 87

    Held by the Court of Appeal (reversing Millett J) that whether an enforceable agreement had been concluded depended on whether whether any matters remained to be agreed between the parties which were vital, necessary or essential to the conclusion of an agreement between them as distinct from matters which it would have been helpful or prudent to include.

    Logicrose Ltd v. Southend United FC [1988] 1 WLR 1256

    A market operator sought to enforce a burdensome Lease of part of the Football Club’s ground; but in the course of an 11-week trial it emerged that the lease had been procured by bribing the Chairman of the Club. Millett J rescinded the Lease and held that the Club was not required to give credit for the bribe which it had recovered from the Chairman.

    The Cadle Company v. Hearley [2002] 1 Lloyds Rep 143

    The plaintiff sought to enforce two Arizona judgments which were prima facie statute-barred. Held that they could not rely on statements in correspondence “without prejudice” as acknowledgments extending the limitation periods.

     

    Company Law

    Re Bond Worth Ltd [1980] Ch 228

    Monsanto Ltd supplied Acrilan to Bond Worth Ltd, a carpet manufacturer, subject to retention of title under a “Romalpa Clause”. Slade J held that the Romalpa Clause imposed a floating charge on the manufactured carpets and their proceeds of sale which was void as against other creditors for non-registration.

    R v. Registrar of Companies, Ex p. Central Bank of India [1986] QB 1114

    Mervyn Davis J held that a decision by the Registrar of Companies to register a charge could be challenged by way of Judicial Review by other creditors and/or the company acting by its directors, even if it was in compulsory liquidation. The Court of Appeal disagreed on the narrow ground that the Registrar was empowered under the Companies Act 1948 to determine conclusively whether the requirements for registration were satisfied.

    Fargro Ltd v. Godfroy [1986] 1 WLR 1134

    Held by Walton J, applying a little-known decision of the Privy Council in Ferguson v Wallbridge [1935] 3 DLR 66, that a minority shareholder’s derivative action in the name of the company which had been commenced before it went into liquidation could be directed by the Court to be adopted and continued by the liquidator.

    Brinds Ltd v. Offshore Oil [1986] BCC 98, 916 (PC)

    Where a Winding-up Petition was opposed on the gound that there was a bona fide dispute over the petitioning creditor’s debt, the Supreme Court of Victoria had been entitled to try the dispute on the hearing of the Petition.

    Re Land & Property Trust plc [1991] 1 WLR 601

    Held by the Court of Appeal (reversing Harman J) that company directors could appeal without leave against an order for costs made against them personally in proceedings concerning the company to which they were not parties because although such an order could be made under Supreme Court Act 1981 s.51(1) it was not an order relating only to costs which are by law left to the discretion of the Court under s.18(1)(f) of that Act.

    Exeter Trust Ltd v. Screenways Ltd [1991] BCLC 888

    Held by the Court of Appeal that once the Registrar of Companies had registered a charge, the registration was conclusive so as to prevent the Companies Court from entertaining an appeal against an order by its own Registrar for late registration.

    Re Probe Data Systems Ltd (No.3) [1992] BCLC 405

    Consideration by the Court of Appeal of the principles determining whether Directors Disqualification Act proceedings should be permitted to be commenced by the Secretary of State out of time.

    Re Rex Williams Leisure plc [1994] Ch 1 and 350

    Directors Disqualification proceedings could be brought by the Secretary of State on the basis of unverified hearsay evidence (Nicholls V-C upheld by the Court of Appeal).

     

    Conflict of Laws

    Presentaciones Musicales SA v. Secunda [1994] Ch 271

    Under the law of Panama, a Liquidator’s powers continued for three years after the company’s dissolution. Held that he could ratify English proceedings commenced in the company’s name after it had been dissolved even though the relevant limitation period had expired before he did so. (The underlying dispute concerned the ownership of the recordings of the late Jimi Hendrix.)

    Al-Ibraheem v. Bank of Butterfield International (Cayman) Ltd [2000] 3 ITELR 1

    The Court had to resolve a conflict between the notarisation requirements of Texas and the Cayman Islands.

    Schindler v. Brie [2003] WTLR 1361

    A power of attorney granted in Germany to enable the plaintiff to administer an estate in the interests of his daughters was revocable at will because it was not “coupled with an interest” within the meaning of English law.

    Cofacredit SA v. Morris [2007] 2 BCLC 99

    After hearing expert evidence as to French law, Warren J determined a series of complex choice of law questions between a major French factoring company and the liquidator of an English subsidiary of one of its French customers over English trade debts which were claimed by the factors under a French agreement which would have given them priority in a French insolvency.

     

    Construction

    Rush & Tompkins v. Deaner (1987) 13 Constr LR 106

    This case concerned the interpretation of the provisions of the JCT Standard Form as to the effect of a Final Certificate.

    Ward v. Ritz Hotel Ltd [1992] PIQR 31

    The Hotel re-paved the Terrace outside the Ritz Restaurant without raising the balustrade. That reduced its height to a level below the relevant British Standard and the plaintiff while leaning on the balustrade over-balanced and fell into the basement suffering serious injuries. Held by the Court of Appeal (reversing Macpherson J) that failure to observe a relevant British Standard was a breach of duty under the Occupiers Liability Act.

     

    Entertainment, Media & Sports

    Lydon v. Glitterbest (unreported)

    The singer known as “Johnny Rotten” defeated a claim by Malcolm McLaren that the Sex Pistols’ recordings and their film “The Great Rock n’ Roll Swindle” belonged to his company and not to the Group.

    GWR Records v. Kilmister (unreported)

    Motörhead defeated an attempt by their former managers to retain control over the Group leading to a credit for John McDonnell on the sleeve of their next album “1916”.

    Def American Inc v. Phonogram Ltd “The Times” 16 Aug and 7 Oct 1994

    The English Court would not interfere with the distribution of Johnny Cash recordings pending the outcome of proceedings for which California was the forum conveniens.

     

    Insolvency and Restructuring

    Re Medisco Equipment Ltd [1983] BCLC 305

    In a creditors’ voluntary liquidation, the largest creditor disagreed with the liquidator and other creditors, claimed a compulsory winding-up order as of right and objected to the voluntary liquidator being heard. Harman J held that the voluntary liquidator could properly be represented on the petition and the petitioner must show that there would be some legitimate advantage in a compulsory winding-up but had failed to do so.

    Barclays Bank v. TOSG Trust Fund [1984] AC 626

    This is the definitive case on the Rule against Double Proof. It was part of the Winding-up of Court Line and Clarksons Holidays in which four of the Clearing Banks successfully objected to claims which would have amounted to double proofs for the cost of repatriating stranded holiday-makers.

    Re Esal (Commodities) Ltd [1985] BCLC 450

    Harman J laid down the principles on which costs should be awarded when the Court considered a Scheme of Arrangement under the Companies Acts.

    Re Hans Place Ltd [1993] BCLC 768

    The disclaimer of a lease by a liquidator under the Insolvency Act 1986 (which had changed the previous law) could only be challenged by the landlord on the grounds of bad faith or perversity even if the disclaimer resulted in the directors’ personal guarantees being discharged.

    Re B.C.C.I. (No.8) [1998] AC 214

    This was part of the Winding-up of Bank of Credit & Commerce International. It concerned set-off between the claims of customers for their deposits with the Bank and the Bank’s claims for loans to the customers’ companies guaranteed by the customers.

    Re Ross (A Bankrupt) [1998] 1 BCLC 56

    The debtor would remain bound after his discharge by a compromise made by his trustee of a claim by the debtor against third parties but would have a claim against the trustee if the compromise should not have been made (Arden J upheld by the Court of Appeal).

    RBG Resources v. Rastogi [2005] 2 BCLC 592

    Liquidators sought leave to discontinue an action against the company’s former Finance Director because they had no funds to pursue it. Held by Lightman J that they could only discontinue on terms that they pay the defendant’s costs: he would only be allowed 60%, however, since he had refused to compromise without a public apology.

    Feetum v. Levy [2006] Ch 585

    A power to appoint administrative receivers under a floating charge is not within the meaning of “step-in rights” as defined in Schedule 2A, para 6 of the Insolvency Act 1986 (Lewison J upheld by the Court of Appeal).

    Re Melodious Corporation [2016] Bus. LR 101

    Where a Board Meeting purporting to appoint an Administrator was inquorate, the appointment was void (even where the absent director would have concurred in the appointment) and could not be cured as a mere irregularity under Insolvency Rule 7.55; and all the acts of the appointee, whether purporting to be the Administrator or subsequently the Liquidator of the company under Insolvency Rule 83(7), were void and the documents filed by him were ordered to be removed from the Register.

     

    Insurance & Reinsurance

    Swain v. Law Society [1983] AC 598

    The Law Society has a statutory duty under the Solicitors Act 1974 to maintain the Professional Indemnity Fund. So it is not a trustee of the Fund and is not under a duty to account to its members for the commission which the Society receives from underwriters on their contributions.

    Re OT Computers Ltd [2004] Ch 317

    This case established that the Third Parties (Rights against Insurers) Act 1930 was of general application and was not limited effectively to motor insurance as had previously been supposed. So customers of an insolvent manufacturer of personal computers were held by the Court of Appeal (overruling a number of previous authorities) to be entitled to claim directly under the product liability insurance which had been maintained by the manufacturer to finance its obligations under warranties and service agreements.

     

    Intellectual Property and Confidential Information

    Re R.(M.J.) (A Minor) (Publication of Transcript) [1975] Fam 89

    The natural father of a child was a party to Wardship proceedings in which the mother and her husband were applying for an Adoption Order. The natural father sent a transcript of the husband’s evidence to the husband’s Trustee in Bankruptcy who then utilised it in the Bankruptcy proceedings. Held by Rees J that the natural father and the Trustee were both in contempt of Court but the Court could authorise the use of the transcript if the public interest in the Bankruptcy outweighed the interests of the child in preserving the confidentiality of the husband’s evidence; and he held that it did.

    Medway v. Doublelock Ltd [1978] 1 WLR 710

    The defendant was relying in support of an application for security for costs in a Queen’s Bench brought against it by one of the plaintiff’s companies on an Affidavit of Means which the plaintiff had been required to make in matrimonial proceedings in the Family Division. Held by Goulding J that the public interest in preserving the confidentiality of evidence which the parties were required to give in matrimonial proceedings outweighed any interest of the defendant which was ordered to deliver up the Affidavit of Means and restrained from utilising the information in it.

    Mothercare Ltd v. Robson Books Ltd [1979] FSR 466

    The question in this case was whether the Mothercare retail chain could object to the use of the expression “Mother Care” by the author and publishers of a serious book on that subject.

    Re Goodwin [1990] 1 AER 608

    A journalist and his employers were ordered by Hoffmann J to disclose to a company the source of information concerning its business plan which could only have been obtained from one of its employees in breach of confidence since it was necessary in the interests of justice for the company to be able to proceed against the wrongdoer.

    X Ltd v. Morgan Grampian Publishers Ltd [1991] AC 1

    The Court of Appeal and House of Lords both upheld the Order made by Hoffmann J in Re Goodwin above.

     

    Partnership

    Turner v. Fenton [1982] 1 WLR 52

    Proceedings by a solicitor against his former partners would not be stayed pending arbitration under the articles of partnership where the issues affected his professional reputation or where there were issues as to the construction of the articles.

    Walters v. Bingham “The Times” 29 Dec 1987

    A firm of Solicitors practising on the basis of a draft partnership deed was not a partnership at will; and even if it was, a notice of dissolution was invalid if it was given in order to avoid the consequences of fraud.

    Re Senator Hanseatische VgmbH [1996] 2 BCLC 562

    A business scheme operated as a German partnership was an illegal lottery. A petition by the Secretary of State for it to be wound up in the public interest under Insolvency Act 1986 s.124A was not a “civil and commercial matter” within Article 1 of the Brussels Convention on Civil and Commercial Jurisdiction and so could be tried in England. The Insolvent Partnerships Order did not apply because that only applies to English partnerships.

     

    Pensions

    Lloyds Bank Pension Trust v. Lloyds Bank plc [1996] PLR 263

    Representatives of the Bank’s female employees and pensioners successfully resisted an attempt by the Bank and its Pension Fund Trustees to raise their pensionable age from 55 to 60 so as to level their benefits down to match those of their male counterparts.

     

    Professional Liability

    Sellers v. Cooke (1990) 6 BMLR 88

    This was a claim against a Consultant and Health Authority for medical negligence by performing an unnecessary and unwanted abortion. The medical evidence was highly technical but John McDonnell’s argument was described by the Court of Appeal as “admirably clear and cogent”.

    Pearce v. European Reinsurance Consultants [2006] PNLR 8

    Review by Hart J of the heads of damage available to a shareholder whose shares had been negligently valued by the company’s auditors under a pre-emption clause.

    Andrew v. Kounnis Freeman [1999] 2 BCLC 641

    Held by the Court of Appeal that a claim in negligence would lie against the auditors of an insolvent airline where the Civil Aviation Authority had been obliged to repatriate stranded holiday-makers after issuing an Air Tour Operator’s Licence in reliance on their certificate supporting the airline’s accounts.

    Property

    Norman v. Hardy [1974] 1 WLR 1048

    There is no power under the Land Charges Act 1925 to vacate the registration of a lis pendens protecting an action for specific performance of an alleged contract even where the Court has vacated a Class C(iv) land charge protecting the alleged contract itself: the estate owner’s only remedy is to defeat the action or have it struck out.

    Schindler v. Pigault (1975) 30 P & CR 328

    Held by Megarry V-C that the Law of Property Act 1925 s.49(2) had conferred a new discretionary power on the Court to order the return of a deposit even where the purchaser was in default.

    Walwin v. West Sussex CC [1975] 3 AER 604

    The plaintiffs maintained a barrier against vehicles across a bridleway leading from their residential estate to the beach which had been erected by Bognor Regis UDC under the Coast Protection Act 1949. Held by Plowman V-C that since the barrier was not recorded on the Definitive Map under the Countryside Act 1949 the County Council as highways authority were entitled to remove it.

    Radford v. De Froberville [1977] 1 WLR 1262

    Held by Oliver J that the measure of damages for failure to build a boundary wall was the cost to the neighbour of building it on his own land and not merely the nominal diminution in the value of the neighbour’s land due to the absence of the wall. This has come to be regarded as a leading case on the law of damages.

    Kling v. Keston Properties Ltd (1983) 49 P & CR 212

    An unregistered option to purchase held by the occupier of property was an overriding interest binding the proprietors when they registered their title.

    Collin v. Duke of Westminster [1985] QB 581

    Held by the Court of Appeal that the plaintiff, who had served notice of desire to acquire the freehold of his house on the Grosvenor Estate but taken no action to enforce it for over 6 years, was not statute-barred because an action to enforce a statutory right is an action on a “specialty” within the meaning of the Limitation Act 1980 so that the limitation period is 12 years.

    BP Properties v. Buckler (1987) 55 P & CR 67

    Where an Order for Possession was made in favour of the landlord while a tenant was in adverse possession and was not sought to be enforced until after the original 12 years had expired, the landlord’s title was not extinguished until 12 years after the Order for Possession.

    Reg. v. Plymouth City Council ex p. Freeman (1988) 19 HLR 328

    The applicant claimed under the Housing Act 1980 a “right to buy” the Lodge in Mount Edgcumbe Country Park of which he had been granted a tenancy by the Earl of Mount Edgcumbe before the Park was acquired by the City Council. Held by the Court of Appeal that the City Council had failed to defeat the right to buy by granting a reversionary lease to itself jointly with Corwall County Council since in the casse of joint landlords the prejudice relied on to defeat the “right to buy” must be experienced by both of them and there would be no prejudice to the County Council.

    Huckvale v. Aegean Hotels Ltd (1989) 58 P & CR 163

    Held by the Court of Appeal that a right of way expressly granted in general terms and not limited to a specific purpose is not extinguished by the purpose for which it was originally used becoming if possible.

    Markfaith Investment Ltd v. Chiap Hua Flashlight Co.Ltd [1991] 2 AC 43 (PC)

    Under a proviso in the Land Registration Ordinance a lease for three years or less is not registrable in Hong Kong. But that does not save an option to renew contained in such a lease from the consequences of non-registration even when the reversion has been expressly purchased subject to the lease.

    Estates Governors of Alleyn’s College v. Williams (1994) 70 P & CR 67

    Where the Governors of the Dulwich College Estate were refusing their consent to the building of a garage for which permission had been granted by the planning authority to the owners of a house on the Estate to which they had acquired freehold title by leasehold enfranchisement, held by Nicholls V-C that the only question to be decided when the freeholders exercised their right to arbitration under a Scheme which had been approved by the Court under the Leasehold Reform Act was whether the Governors could reasonably refuse their consent.

    Hunter v. Babbage [1994] FLR 806

    Held by John McDonnell QC (sitting as a Deputy Judge of the Chancery Division) that the reasoning of the Court of Appeal in Burgess v Rawnsley shows that a joint tenancy can be severed by mutual agreement even if the agreement to sever is expressed in the course of negotiations for a wider agreement which have not been concluded.

    Bracken Bank Lodge Ltd v. Peart [1996] NPC 124

    Held by the House of Lords that “stints” are merely grazing rights and not shares in the ownership of common land, contrary to long-standing claims by tenants of the Bishop of Durham based on statements in the standard text-books. The House of Lords described John McDonnell’s written case as “an outstanding piece of research and scholarship”.

    Chi Kit Co.Ltd. v. Lucky Health International Enterprise Ltd (2000) 3 HKCFAR 268

    A large pending occupiers’ liability claim for which the tenants in common of a building under the Multi-Storeys Buildings Ordinance were collectively liable should have been disclosed as an incumbrance by the vendor of a single unit.

    Ipswich Borough Council v. Moore “The Times” 4 July 2000 and 25 Oct 2001

    Held by Lloyd J and the Court of Appeal that the Borough of Ipswich was not entitled to charge as owner under its Royal Charter of the bed of the Orwell Estuary for moorings which had been authorised by the Port Authority.

    Rahman v. Sterling Credit [2001] 1 WLR 496

    The chargee under a loan agreement obtained a Possession Order but did not enforce it. Eight years later the borrower applied for leave to counterclaim for the loan agreement to be set aside as extortionate under the Consumer Credit Act 1974. Held by the Court of Appeal that (1) the claim under the Consumer Credit Act was an “action on a specialty” for whicvh the limitation period was 12 years (following Collin v Duke of Westminster above) and (2) since the plaintiff’s Possession Order had never been enforced it was not too late for the defendant to counterclaim for the plaintiff’s charge to be set aside.

    Cobham v. Frett [2001] 1 WLR 1775

    Appeal to the Privy Council from the British Virgin Islands. Although judgment had not been delivered until 12 months after the trial, the Judge’s notes were comprehensive and supported his finding that the defendant’s activities on the plaintiff’s beach, including cutting down trees, preparing charcoal, grazing cows, picking and selling sea grapes, fishing and occasionally taking sand for building purposes, did not amount to adverse possession. The Court of Appeal had not been entitled to find that he had forgotten the evidence and to substitute their own conclusions on the evidence for his.

    Flywin Co.Ltd. v. Strong & Associates Ltd (2002) 5 HKCFAR 356

    This has become the leading case in Hong Kong on the circumstances in which new points can be taken in the Court of Final Appeal, but it includes an interesting discussion on whether a purchaser can object to an encumbrance which is not mentioned in the contract but which must have been obvious to the parties.

    Allied Dunbar Assurance v. Homebase Ltd [2003] 1 P & CR 75

    Held by the Court of Appeal that where the power to underlet imposed restrictions on the rent and other provisions to be included in a permitted underlease, an underlease which complied with those restrictions but which was accompanied by a collateral agreement relaxing them was not a valid exercise of the power to underlet and the question whether the head landlord’s consent had been withheld unreasonably did not arise.

    Tower Hamlets LBC v. Barrett [2006] 1 P & CR 75

    This case concerned the “Palm Tree” in Mile End Park (which figures in the film “The Long Good Friday”) and the doctrine that a tenant acquires adverse possession of adjacent third party land on behalf of his landlord. John McDonnell acted for the owners of the public house who had purchased it from Trumans’ Brewery after having been in adverse possession of an adjacent part of the Park as against the LBC for less than 12 years and had then remained in adverse possession during the remainder of the 12 year period. The Court of Appeal held that they could rely on the aggregate 12 years.

    Kung Ming Tak Tong Co Ltd v. Park Solid Enterprises Ltd (2008) 11 HKCFAR 403

    The Court of Final Appeal in Hong Kong analysed the rights in the nature of easements which arise under the Hong Kong law governing multi-storey buildings accepting what they described as the “thorough and scholarly argument” of John McDonnell.

    Sun Honest Development v. Building Authority (2009) 12 HKCFAR 342

    The Court of Final Appeal held that the presumption of “lost modern grant” can be relied on in Hong Kong even though all land in Hong Kong is held by way of lease from a common landlord (the Government in succession to the Crown) and in England the presumption cannot be relied on in those circumstances.

    Secretary for Justice v. Chau Ka-chik Tso [2011] 14 HKCFAR 889

    John McDonnell relied on his own reasoning in Tower Hamlets LBC v Barrett (above) in order to defeat the Hong Kong Government’s policy of refusing to recognize periods of adverse possession as continuing over the extension of Government Leases after 1997.

     De Monsa Investments Ltd v. Whole Win Management Fund Ltd (2013) 16 HKCFAR 419

    The Court of Final Appeal in Hong Kong reversed the Court of Appeal and overruled a number of previous cases which were thought to have established that a vendor’s inability to produce the originals of historic title deeds or explain what had happened to them entitled a purchaser to rescind. That was creating serious difficulties in local conveyancing; but the principle is now established that the absence of the title deeds only needs to be explained where there is a realistic possibility that the missing deeds have been deposited so as to create an encumbrance.

    McCann v. McCann [2014] NI 201

    Held by Horner J that the title of one tenant in common of land could be extinguished by adverse possession of the other tenant in common for the statutory period.

     

    Regulatory and Public Law

    Reg. v. HM Treasury ex p. Smedley [1985] QB 657

    Mr Smedley sought to challenge the Government’s intended payment of £121.5 million to the European Community as a contribution to cover an EC Budget Deficit. Held by the Court of Appeal that since the intended payment was to be authorised by subordinate legislation in the form of an Order in Council to be made under the European Communities Act 1972, the question whether it would be within the powers conferred on the Government by the Act was justiciable and that Mr Smedley had locus standi, but that the intended Order would be “ancillary” to the European Treaties within the meaning of the Act and therefore intra vires.

    Reg. v. City of Westminster ex p. Castelli (1996) 28 HLR 616

    Held by the Court of Appeal that the City of Westminster was under a duty to house homeless EC nationals who had entered the UK lawfully, had not acquired the right to remain as “qualified persons” because they had failed to obtain employment or become self-employed but had not been required to leave.

    Fok Lai-ying v. Governor-in Council [1997] HKLRD 810 (PC)

    The Privy Council held a few weeks before Hong Kong was returned to China that the applicant could in principle challenge a decision by the Government under the Crown Lands Resumption Ordinance to resume part of her land for road-widening without consulting her as amounting to “arbitrary or unlawful interference with her home” contrary to Article 14 of the Hong Kong Bill of Rights of 1991.

    Reg v. Housing Benefit Review Board ex p.Mehanne [2001] 1 WLR 539 (HL)

    The House of Lords held that an authority considering whether the level of rent for which an applicant claims benefits under the Housing Benefit Regulations is unreasonably high by comparison with the rent for suitable alternative accommodation elsewhere should take into account the applicant’s own personal circumstances.

    To Kin-wah v. Tuen Mun District Officer [2006] 1 HKC 407

    The Hong Kong Court of Appeal held that a District Land Officer exercising his powers under the New Territories Ordinance to approve the proposed Registered Managers of land held in the name of a clan, family or t’ong must take into account the custom of the clan, family or t’ong in question under the first rule in Associated Provincial Picture Houses v Wednesbury Corporation.

    John McDonnell QC has also represented clients in three cases before the Disciplinary Committee of the Law Society and one case before the Disciplinary Committee of the Institute of Chartered Accountants.

     

    Sports Law

    John McDonnell QC has appeared before Dispute Commissions of the Football Association representing Norwich City against Everton and Southend United against Birmingham City.

     

    Taxation

    Richardson v. Worrall (1985) 58 TC 642

    Expenditure on petrol by an employee using a credit card supplied by his employer constituted taxable emoluments. Analysis by Scott J of the legal incidents of credit card payments.

     

    Trusts (including trusts of land)

    Cheung Chui Sou-ying v. Personal Representatives of Cheung Yuk-luen [1981] HKLR 585

    The plaintiff claimed that the male descendants of her father-in-law father-in-law were the joint owners of the family’s property empire in Hong Kong under a common intention constructive trust giving effect to the customary incidents of a Chinese Joint Family: compare Singh v Singh (below).

    Ip Cheung-kwok v. Ip Siu-bun [1988] 2 HKLR 247

    Held by Godfrey J that a gift by the Chief of Police of Shanghai in 1875 of a prime site in Hong Kong to two Tongs in his native village in China was void for perpetuity since the Tongs had no legal existence and their purposes were not charitable; so the land belonged to his estate, which the plaintiff had been appointed to represent for the purposes of the proceedings.

    Sin Hua Bank Trustee Ltd v. Ip Cheung-kwok [1991] 1 HKLR 639, [1992] 1 HKLR 211

    Held by the Court of Appeal of Hong Kong, upholding Godfrey J on different grounds, (1) that a trust for the welfare of the inhabitants of a village was not charitable since “welfare” would include non-charitable purposes and Williams’ Trustee v IRC had established that (despite Goodman v Saltash) a trust for a locality was invalid unless it was limited to charitable purposes (2) a trust for ancestor-worship in China could be regarded as charitable but not if it was limited to the ancestors of a particular family or clan (Re Compton), distinguishing authorities concerning Sehs in Singapore which are surname associations which can properly be regarded as “sections of the public”, and (3) that having conducted very lengthy proceedings without the protection of a Re Beddoe Order and failed, including asserting that the trust was charitable against the opposition of the Attorney-General and its own co-trustee, the Bank must pay all the costs.

    Lemos v. Coutts (Cayman) Ltd [1992-3] CILR 5

    The question in this case was whether the sons of a Greek shipowner could claim benefits under a Settlement which he had created for his family in the Cayman Islands at the same time as challenging the validity of the Settlement under the Greek law of succession.

    Rawcliffe v Steele [1993-95] Manx LR 426

    Under a Manx Settlement the trust property was to be held on such trusts as might be declared by a Protector to be appointed by the Settlor; but the Settlor had never appointed a Protector and now sought to recover the trust property from the Trustees. Held by the Staff of Government Division that since the Protector would be a fiduciary the Court would appoint a Protector if the Settlor refused or failed to do so.

    Murphy v. Murphy [1999] 1 WLR 282

    A discretionary object of a Settlement established by his father in Bermuda was entitled to require his father to disclose to him the identities of the Trustees.

    Barclays Bank Trust Co v McDougall [2001] WTLR 23

    Various questions as to the construction of the provisions of a Settlement decided by Rimer J in the light of Re Deeley and Browne v Moody

    Gillett v. Holt [2001] Ch 210

    The plaintiff worked for the defendant as his farm manager for many years in reliance on promises that he would inherit the farm. Those promises were repudiated after they fell out; but it was held by the Court of Appeal that the plaintiff had an equity based on proprietary estoppel which the Court should satisfy by an order requiring the defendant to transfer assets to the plaintiff inter vivos with a suitable discount to reflect the acceleration of the plaintiff’s benefit.

    Ottey v Grundy [2003] WTLR 1253

    The plaintiff had been the mistress of a man who promised to leave his property to her. They separated shortly before his death, contrary to his wishes, and he then altered his will; but Judge Langan QC held that she had acquired an equity based on proprietary estoppel which the Court should satisfy by directing certain assets to be transferred to her. It was submitted in the Court of Appeal that in such a case the promise by one partner to the other was implicitly subject to their relationship continuing until death, or at least not being terminated by the promisee; the Court of Appeal were attracted by the submission but held that it was too late for the point to be raised in that case since it had not been considered by the Judge.

    Thorner v Major [2009] 1 WLR 776 (HL)

    The plaintiff helped his uncle to manage his farm for many years without pay but on the understanding that the farm would be left to him on his uncle’s death. His uncle made a will to that effect; but destroyed it after changing his mind about one of the other gifts in the will and never made a new one. The Judge found that the plaintiff had relied on an understanding which gave rise to a claim by way of proprietary estoppel against his uncle’s estate; but that was reversed by the Court of Appeal on the basis that proprietary estoppel depends on an express assurance. Held by the House of Lords, however, that the Court of Appeal had applied too stringent a test: Gillett v Holt (above) was approved and statements in the recent House of Lords case of Cobbe v Yeoman’s Row which had appeared to support the Court of Appeal’s mistaken approach were explained.

    Singh v Singh [2014] EWHC 1060

    A Sikh father claimed that a well-known hotel group founded by him but now controlled by one of his sons was held in trust as joint family property under Hindu customary law. Although the claim failed on the facts, Sir William Blackburne held that such a trust would be possible under English law on the basis of common intention constructive trust if all the relevant family members shared or appeared to share the common intention.

     

  • Directory testimonials
  • Qualifications & appointments
    • M.A. (Balliol College, Oxford) 1962
    • President of the Oxford Union 1962
    • Commonwealth Fund Fellow 1964
    • LL.M. (Harvard Law School) 1965
    • Speechwriter to Senator George McGovern 1966
    • Conservative Research Department 1966-9
    • First Secretary HM Diplomatic Service and Assistant Private Secretary to Secretary of State 1969-71
    • Queen’s Counsel since 1984
    • Deputy High Court Judge since 1992
    • Bencher of Lincoln’s Inn since 1993
    • Governor of The Inns of Court School of Law 1995-9
    • Deputy Lieutenant of County Palatine of Durham since 2012
  • Memberships
    • South-Eastern Circuit
    • Chancery Bar Association
  • Personal interests
    • Trustee of the Trireme Trust since 1990
    • Trustee of The Bowes Museum 2000-2010
    • Trustee of the Auckland Castle Trust since 2013
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