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365 Business Finance Limited v Bellagio Hospitality WB Ltd; Court Enforcement Services Limited v Marston Legal Services Limited (formerly Burlington Credit Limited)

15 May, 2020

[2020] EWCA Civ 588
A number of questions were raised in this appeal about the operation of the current legislative framework governing execution against goods under writs of control (formerly writs of fieri facias) where two or more writs to recover different judgment debts in respect of the same debtor are directed to different enforcement officers (formerly sheriffs). Lord Leggatt described the main question as being what, if any, rule of priority applies in such circumstances:

“In particular, is the enforcement officer who receives the second (or subsequent) writ obliged to wait until the amount outstanding under each earlier writ of control has been paid before taking steps to enforce the later writ; and if the enforcement officer does not wait and enforces the later writ, what consequences follow? (para. 3)

In this case two writs of control were issued in respect of the goods of a Mr Handa. Marston’s writ was received before the writ issued to Court Enforcement Services (CES). Marston’s enforcement agent attended at Mr Handa’s premises to enforce Marston’s writ, and entered into a controlled goods agreement (formerly ‘walking possession’), agreeing that £10,000 would be paid within a month’s time, with payments of £1,000 to be paid thereafter. However, on the day before the £10,000 payment was due to be made, a different enforcement agent, acting under a writ issued to CES, attended at Mr Handa’s premises and, despite being made aware of the controlled goods agreement and of Marston’s earlier writ, demanded payment of the amount outstanding under CES’s writ. In order to prevent removal of his goods, Mr Handa paid £12,050 to CES.

Marston contended that these funds were the fruits of execution, which should be allocated first to Marston’s writ, since it had priority over CES’s writ. When CES refused, Marston obtained an order from Master Eastman compelling CES to pay over the funds to Marston. CES applied to set aside that order, and the application was heard by Mr Justice Turner, who dismissed the application and held that Schedule 12 of the Tribunals Courts and Enforcement Act 2007 (TCE Act) preserves the long established principle that a debtor’s goods become bound by the writ from a particular point in time, and that although the same goods can be bound by multiple writs, it is only once the first writ is satisfied out of proceeds that the surplus can be applied to the second writ, and so on, in accordance with writ priority.  Since Marston’s writ was first in time, the funds taken by CES should first be used to satisfy Marston’s writ.

The Court of Appeal upheld Mr Justice Turner’s decision, dismissing CES’s appeal. Lord Leggatt, with whom Lord Justices Lewison and Lindblom agreed, found that the concept, used in para. 4 of Schedule 12 of the TCE Act, of the debtor’s goods becoming ‘bound’ by the writ, could be traced back, through a number of enactments, to the Statute of Frauds 1677, and that courts had consistently held that the binding of the debtor’s goods by the writ created a rule of priority whereby writs must be satisfied in the order in which they are received by the officer. That rule continued to apply under the TCE Act.

The appeal raised a number of other questions about the interpretation of Schedule 12 of the TCE Act, including whether money paid, by cash and by credit card, constituted proceeds of enforcement (the court held that it did constitute proceeds, even if no goods had actually been taken into control). It also raised the question whether enforcement officers and enforcement agents are officers of the court and subject to the court’s jurisdiction over its officers, discussed in the recent case of Lehman Brothers Australia Ltd v MacNamara [2020] EWCA Civ 321. The court held that enforcement officers and agents were indeed officers of the court, but having found that there was a statutory obligation on CES to pay over the funds to Marston, the court found it unnecessary to decide whether the court’s jurisdiction over its officers could have been invoked to achieve a similar result. The court did, however, find that by acting as they did, CES’s officer and agent had engaged in conduct deliberately calculated to disrupt the orderly process of enforcement of writs of control, and had thus misconducted themselves.

Stephen Ryan of Three Stone appeared for Marston, in the High Court and subsequently in the Court of Appeal.

Stephen Ryan
sryan@threestone.law


Webinar: Tax Planning for Private Client Professionals – An Advanced Guide

14 May, 2020

Stephen Woodward will be presenting a 1 hour webinar entitled “Tax Planning for Private Client Professionals – An Advanced Guide”. (1.25 CPD) on Wednesday 2nd September 2020.
This webinar will address advanced tax planning issues for private client solicitors and accountants whose clients have both historic complex structures/problems.

The webinar will cover the following:

  • GAAR
    • Overview
    • ‘Safe Havens’
  • Home Loan Schemes
    • John Leonard McNeill Shelford as Trustee of the Herbert Life Interest Trust Settlement & Ors v HMRC
    • Unwinding
  • Residence Nil Rate Band
    • Downsizing
    • UK residence held by deceased non-domiciliary
    • Joint beneficial ownership of residences and gifts with reservation of benefit
  • UK Residential Property Interests and Inheritance Tax Planning for Non-Doms
    • Planning with shareholdings, partnership interests and ‘relevant loans’
  • Normal Expenditure out of Income (‘NEOOI’) and Relevant Property Trusts
    • Use now before NEOOI is abolished
  • Non-qualifying Insurance Policies
    • Disposing of listed investments at a loss and wrapping them into an insurance policy
  • Business Property Relief & Agricultural Property Relief
    • Diversification without tears
    • First death planning
  • EBTs and EFRBs
    • Remaining planning opportunities
  • Long Term Asset Holding Entities
    • Family Limited Partnerships (‘FLPs’)
    • Family Investment Companies (‘FICs’)
    • Combining FLPs and FICs with Relevant Property Trusts
  • Excluded Property Trust Planning post Finance Act

This pre-recorded webinar will be streamed at 12:30pm on Wednesday 2nd September 2020 and will remain available to view by delegates who have registered by then for 90 days.

Click here to make a booking.

Stephen Woodward
swoodward@threesone.law


Webinar: Tax Issues in Family Cases

23 April, 2020

Stephen Woodward gave a one hour webinar on “Tax issues in Family Cases” with Ben Parry-Smith from Payne Hicks Beach for Simon Gore’s company SG Legal Conferences & Online Learning to examine the main tax problems which crop up in family cases.

Agenda

Income tax
• Maintenance payments;
• Interest on late payment of court debts.

CGT

  • The year of separation and the importance of Form E;
  • PPR, the matrimonial home and disposals in connection with divorce;
  • CGT reporting obligations to HMRC from 6 April 2020;
  • Transfer of business assets.

Remittance basis users, or divorces with an offshore background

  • Relevant persons; spouses, ex-spouses and minor children;
  • Income tax and CGT issues for remittance basis users on divorce.

Inheritance tax

  • Transfers between spouses pre Decree Absolute v transfers between ex-spouses post Decree Absolute;
  • Beware the non-UK domiciled spouse;
  • S.10 IHTA and dispositions not intended to confer gratuitous benefit;
  • Schedule 1 Trusts for minors;
  • Mesher and Martin Orders.

SDLT

  • Transfers in connection with divorce

Misc. but important

  • Pension sharing orders;
  • The Proceeds of Crime Act 2002

Stephen Woodward
swoodward@threesone.law


Three Stone Commercial Seminar – 2020

7 April, 2020

Our Commercial Update Seminar held on 4 March 2020 was a great success and we have had excellent feedback.

In this new ‘remote communication age’ we attach our useful seminar handouts here for you to read at your leisure at your current workstation.

As you are aware Three Stone have taken effective measures to maintain our impressive chancery commercial services and our clerking team will provide their usual high standard of service whilst ensuring the safety of our clients, staff and members during this dynamic period. For details of how we have adapted our practices please click here.

For a list of our members please click here.

If you have any questions or would like to discuss other arrangements please contact:

Tel: +44 (0)20 7242 4937
Email: clerks@threestone.law


Insolvency work during the COVID-19 Pandemic

6 April, 2020

BRINGING THE GUIDANCE TOGETHER

TEMPORARY INSOLVENCY PRACTICE DIRECTION
A temporary insolvency practice direction came into force on 6 April 2020. It will remain in force until 1 October 2020 unless amended or revoked in the meantime.

It contains a useful summary which we reproduce below. Please click here for the link to the Dear IP Letter setting out the details.

Filing notice of intention to appoint an administrator and notice of appointment of an administrator
Paragraph 3 of the TIPD deals with filing notice of intention to appoint and notice of appointment of an administrator. A different practice will apply depending on whether the notice or appointment is made by a qualifying floating charge holder or a by company or its directors.

First and subject to exceptions, the TIPD provides that where a company or director or a qualifying floating charge holder uses CE-file to give notice of an intention to appoint or notice of appointment of an administrator, the notice will be treated as delivered to the court on the date and at the time recorded in a filing submission email. This is intended to reduce any uncertainty as to timing.

Secondly, the TIPD reflects the policy in the Insolvency Rules 2016 as regards filing notices by a company or director by CE-file. If a filing submission email attaching a notice of appointment of an administrator is sent outside the time period 10:00 hours to 16:00 hours on any day that the courts are open for business, the notice shall be treated as delivered to the court at 10:00 hours on the day that the courts are next open for business. Similarly, if a filing submission email attaching a notice of intention to appoint an administrator is sent outside the time period 10:00 hours to 16:00 hours on any day that the courts are open for business, the notice shall be treated as delivered to the court at 10:00 hours on the day that the courts are next open for business. This is important for the purpose of knowing when the ten-day period in paragraph 28(2) begins. It will be the date on which the courts are next open for business.

Thirdly, all notices filed by CE-file shall continue to be reviewed by the Court, as and when practicable, in accordance with paragraph 5.3 of PD510. The validity and time at which the appointment of an administrator is effective shall, however, not be affected by reason only of any delay in acceptance of the notice.

Fourthly, users are reminded that the procedure in Rule 3.20-3.22 in respect of qualifying floating charge holders still applies, and Electronic Working may not be used to file a Notice of Appointment of an administrator under paragraph 14 of Schedule B1.

Remote hearings
The TIPD (paragraph 6) confirms what is already reality, that insolvency hearings will generally continue to be conducted remotely.

Pending petitions and applications
Pending applications and petitions (except for winding up and bankruptcy petitions) listed for hearing before 21 April 2020 will be adjourned and relisted in accordance with procedures set out in the TIPD. Special provision is made for matters that need to be dealt with on an urgent basis. Further relisting guidance is envisaged, details of which will be available on the internet.

Winding up and bankruptcy petitions
Winding up and bankruptcy petitions will continue to be heard but will be dealt with by remote hearing in batches.

Urgent hearings
Detailed guidance is given on how to obtain an urgent hearing before a Chancery or ICC judge (paragraph 5).

Non-London business
The TPID deals with business throughout the Business and Property Courts (save for the treatment of petitions), subject to any modifications provided for in separate guidance issued by the supervising judge for the relevant court centre.

Statutory declarations
Provision is made for statutory declarations to be made by video conference (paragraph 9).

 

OTHER PRACTICE DIRECTIONS & GUIDANCE

The HMCTS webpage with the Practice Directions and guidance can be accessed here.

 

Three Stone remains open for business. For details of how we have adapted our practices to ensure we continue to be able to provide our usual high standards of service, please click here.


E-bulletin Reminder: Changes to Statement of Truth

5 April, 2020

A reminder amidst the many changes to our lives…

With effect from 6 April 2020, the wording of the Statement of Truth required by CPR Part 22 will change.

The form of words verifying a document other than a witness statement should be:

[I believe] [The party believes] that the facts stated in this [document] are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief if its truth.

The form of words verifying a witness statement should be provided in the language of the witness and should be:

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.  

Statements of truth must be dated with the date on which they are signed.

Three Stone remains open for business during the Covid-19 Pandemic. For details of how we have adapted our practices to ensure we continue to be able to provide our usual high standards of service, please click here.   

Three Stone
The Chambers of John McDonnell QC
3 Stone Buildings
Lincoln’s Inn
London WC2A 3XL

+44(0)20 7405 4937
clerks@threestone.law

 

This e-bulletin should not be relied upon as legal advice


Coronavirus (COVID-19) – latest update

27 March, 2020

Three Stone have taken immediate measures to maintain our impressive chancery commercial services and our clerking team will provide their usual high standard of service whilst ensuring the safety of our clients, staff and members during this dynamic period.

Government guidance
We are following the Government’s guidance in response to the current Coronavirus-COVID-19 situation, and the relevant Protocols issued by the Lord Chief Justice which can be found here.

We can provide detailed advice on the nature and effect of these latest and all other provisions including the Coronavirus Act 2020

Wellbeing
Our priorities remain to ensure the continued wellbeing of our staff, members and clients; and that our service to clients is affected as little as possible while the current situation continues.

Services – representation at courts and advice
We are continuing to provide our usual services to our clients within the guidance of the government and the chief medical officer.

Consequently we have decided to close our premises, but all staff and members continue seamlessly to work from home. We are all monitoring telephones and responding to emails as usual.

We will continue to liaise effectively with the Courts, parties and clients to ensure that all hearings take place safely and justly.

Our facilities for communications and video conferencing (internally and externally) are operating very effectively for hearings and conferences. Please contact our clerks for assistance and information.

Documents/instructions/bundles
Post and DX deliveries will be collected securely. Solicitors and others wishing to instruct members of chambers should please enquire in the usual way initially by telephone or email to our clerks, and send papers in electronic form either as an email attachment or by cloud based transfer. If this is not possible safe means of collection and delivery exist and can be provided on request.

Payment
We ask that all fee notes be paid by bank transfer where possible but we are able to receive payment by cheque.

Contacts
If you have any questions or would like to discuss other arrangements please contact

Tel: +44 (0)20 7242 4937
Email: clerks@threestone.law


Coronavirus (COVID-19)

18 March, 2020

Like all businesses, we are closely following the Government’s guidance in response to the current COVID-19 / Coronavirus situation. We have reviewed our standing Business Continuity Plan and added specific provisions to enable us to minimise disruption to our business and our service to clients in the event of further escalation.

For the time being we are adopting a business as usual approach in line with current guidance and ensuring that all our staff are aware of the advice on steps which should be taken to minimise the risk of infection reaching or spreading within our offices.

Our plans in the event of further escalation have been communicated to all our staff and are being kept updated as Government guidance develops. Most of our barristers are able to work from home should the need arise and we have contingency plans which would enable us to increase the number able to do so if necessary. We are also able to use video conferencing (internally and externally) and other technology to avoid the need for travel and face to face meetings.

Our priorities are to ensure the wellbeing of our staff and visitors to our office and to ensure that our service to clients is affected as little as possible while the current situation continues.

The latest official government advice can be viewed here.

If you have any questions or would like to discuss alternative arrangements for contacting us instead of meeting face to face, please speak to those handling your matter or call us on:

Tel: +44 (0)20 7242 4937
Email: clerks@threestone.law


Oxford University establishes two prizes in the name of Professor Subedi QC

17 March, 2020

The University of Oxford has established two academic prizes in the name of Professor Surya P. Subedi QC, OBE, DCL to honour outstanding performance by its law students.  The first is the Dr Surya Subedi Prize in Human Rights Law to be awarded to the student attaining the highest mark in the paper in Human Rights Law each year.

The second is a new prize, the Dr Surya Subedi Prize for the DPhil in Law to be awarded to the best doctoral thesis in the Oxford Faculty of Law each year. The DPhil prize will be awarded to the thesis that makes the most exciting original contribution to the relevant field of scholarship and is best crafted in terms of organisation, style and presentation. All doctoral students in the Faculty of Law, including in Criminology and Socio-Legal Studies, will be eligible for the award of the prize.

Professor Subedi is an alumnus of Oxford. He obtained a doctoral degree (DPhil) in Law with a prize in 1993. Oxford awarded him a higher doctorate – the degree of Doctor of Civil Law (DCL) – in 2019 in recognition of his outstanding contribution to the development of human rights and international law. Such higher doctorates are awarded rarely and only in exceptional cases at the University of Oxford.

He was called to the Bar of England at Middle Temple in 2007 and made a QC (Hon) in 2017.

Professor Surya P. Subedi QC

ssubedi@threestone.law


Recent Developments in Commercial Law

9 March, 2020

Three Stone Chambers held a seminar last Wednesday 4 March at the Ashworth Centre, Lincoln’s Inn, London. The speakers included:

It was chaired by Katherine Hallett.
The full programme is available to download here.

Speaker: David Mohyuddin QC
Speaker: James Woolrich

                            

For any questions please contact our clerks.


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