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Triannual Review: Issue 1

21 September, 2020

Please find below a link to Issue 1 of the new Three Stone Triannual Review, where you will find articles on current issues, case reviews, and a practice update that we hope will be of interest and of use to you.

This is the first in what we expect will be a long run for this new newsletter, with, over time, a range of content covering all of chamber’s’ practice areas.  Over three issues a year, we plan to bring you news of major legislative changes, important decisions by courts all over the country, and in-depth analysis of issues and decisions.

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Mandatory procedural requirements are exactly that

10 September, 2020

Price & Oths -v- Flitcraft Limited & Oths [2020] EWCA Civ 850

This was an appeal from a decision of Recorder Douglas Campbell QC, sitting as a deputy High Court Judge, to grant summary judgment against the first, second and fourth defendants on issues of patent infringement and copyright infringement [2019] EWHC 1965 (Pat).  Issues relating to passing off and the liability of the third defendant as a joint tortfeasor were to go to trial.  The key issue between the parties was title to the relevant rights.  The defendants said they owned the title to patents and copyrights through a series of assignments or, at the very least, the claimants did not have title and therefore did not have standing.  In giving summary judgment, the Recorder found that the defendants had no real prospect of establishing their case on title.

The main issue on the appeal was whether the appellants had a real prospect of establishing ownership to the relevant rights or otherwise impugning the claimants’ title.  In a judgment given by Floyd LJ (with whom Patten and David Richards LJJ agreed), the Court of Appeal allowed the appeal, after new evidence was admitted and the defendants applied to amend their defence.

Given the fact-sensitive nature of the parties’ case on the chain of title and given test applied in summary judgment cases, the main body of the judgment does not establish any new principle.

However, at paragraphs [85-87], Floyd LJ felt moved to deal with a ground of appeal that he did not have to deal with, given the appeal was allowed on new evidence.  The ground was that there was a serious procedural impropriety in the court below.

The claimants’ application was for “An order in the form attached…for directions and summary judgment on the whole or part of the claim”.  In box 10 of the application notice, the claimants did not rely on a witness statement or even their statements of case.  A paragraph appeared in the box, which said of the summary judgment application, “The evidence in respect of the part of the application concerning summary judgment will be filed shortly”.  No further evidence was filed.

The failure to file evidence (despite saying that they would) was only one of the claimants’ failures to comply with the mandatory provisions of Part 24.  In addition, the claimants failed to identify any point of law or provision in any document upon which they relied and failed to state their grounds for summary judgment (or even that they believed the grounds for summary judgment were met).

The defendants, not knowing what case they had to meet, did not file any evidence themselves.  The specifics of the grounds for summary judgment were not known to the defendants until the claimants’ counsel’s skeleton was provided.

The defendants’ case below was that the summary judgment application should be dismissed for the wholesale failure to comply with the rules.  Alternatively, if the judge heard the application and he found in principle for the claimants, there should be an adjournment to allow the defendants to put in evidence on those points, given they had not been fairly notified of them.

Nevertheless, the Recorder granted summary judgment, largely on the basis of a lack of documentation in support of the defendants’ defence before the court.

The approach taken by the Recorder to the claimants’ failure to comply with the rules was criticised by the Court of Appeal.  The applicable principles in respect of the procedural requirement of Part 24 appear at paragraphs [39-43] and the application of them at [85-87].  The following principles can be drawn from the judgement:

  1. The procedural safeguards in Part 24 and the practice direction are not mere “formalities”, but points of critical importance to ensure a fair hearing of the application.
  2. The requirement to state that the applicant believes that on the evidence the respondent has no real prospect of successfully defending the claim is an important one which is to prevent a claimant making an application and claiming the case to be straightforward when, in truth, he knows otherwise.
  3. If an application for summary judgment is made without fairly notifying the respondent of the grounds, criticism of the respondent’s failure to deal with those grounds in evidence is unlikely to be justified.

This writer* thought those principles were obvious given the wording of Part 24 and the requirements of fairness and justice.  Floyd LJ’s reinforcement of the importance of the mandatory procedural requirements is to be welcomed.  A litigant should not gain an advantage from his own breach of the rules.  Mandatory procedural requirements are exactly that.

* Fair disclosure – the writer appeared below and drafted the original grounds of appeal upon which permission was granted, before the application to rely on further evidence was made.

Michael Smith
michaelsmith@threestone.law


The Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020

8 September, 2020

Please click here for the Statutory Instrument which has been laid in Parliament today allowing the video-witnessing of wills.

If you  require assistance on this Statutory Instrument or related matters please contact our clerks:

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


Tim Clarke named as new diocesan chancellor

3 September, 2020

The Revd Timothy John Clarke will become Chancellor of the Diocese of Derby from 4 December 2020. He is currently the deputy chancellor of the diocese and a non-stipendiary minister in the Diocese of Worcester.

As a barrister, he specialises in real property, wills, and estates. He also advises on matters of ecclesiastical law.

Tim said: “I am delighted to have been appointed to this position by the Bishop of Derby. I have learned much from John Bullimore, while serving as his deputy for the past five years. John has been an outstanding chancellor, as many in the diocese will know.

I look forward to working with the bishop, archdeacons, registrar and all in the Diocese of Derby to ensure that our church communities are better enabled to meet the needs of 21st-century worship, whilst also encouraging an appreciation of the rich heritage we share.”

Tim is married to the Revd Dr Georgina Byrne, a residentiary canon at Worcester Cathedral and a chaplain to HM the Queen.

In his spare time, he enjoys music, choral singing, beekeeping and skiing.

Tim Clarke will replace John Bullimore, who retires on 3rd December having served as Chancellor of the Diocese of Derby for almost 40 years.

Tim Clarke
timclarke@threestone.law


Chris Howitt joins Three Stone as a new tenant

22 July, 2020

Chris Howitt
We are delighted to announce that Christopher Howitt has joined Three Stone as a tenant on 22 July 2020. He was called to the Bar in 2011.

Chris has a broad commercial practice encompassing complex commercial disputes, international arbitration, company law, and cross-border insolvency.

Chris joined chambers from Kobre & Kim, where he gained extensive experience of complex and cross-border disputes before the Courts of the TCI (Turks and Caicos Islands) and other Caribbean jurisdictions. Chris’s international arbitration experience encompasses both commercial and investor state arbitration, with recent experience including representation of Elliott Associates in its ongoing investor state dispute against the Republic of Korea.

Previously, Chris practised in the arbitration team at Wilmer Hale in London, specialising in international commercial disputes in a wide range of commercial areas, including financial services, oil and gas and aviation disputes.  Chris also has experience of working as a secretary in international commercial arbitrations under the ICC and LCIA rules.

He is one of the editors of Gore-Browne on Companies and has been admitted in the BVI.

Andrew Stafford QC, partner at Kobre & Kim, said: “We congratulate Chris on his return to the bar after nearly six years of success at Kobre & Kim.  We are sure that he will be a great success, and we will watch his progress with pride and pleasure.

Tim Prudhoe, Barrister and Caribbean advocate, said: “Chris and I worked closely and often on cases usually involving time pressure, conflicts of law and complex legal issues. Senior juniors that are destined for great success always stand out as those ready to roll their sleeves up for the work, create minimum fuss about delivery of quality work product that they can present in court themselves seamlessly if the need arises. Chris is all of that and more. Cannot recommend him highly enough. Very easy to work with and quick to see the funny side in a tight situation.”

Justin Brown (senior clerk) said “I am very pleased that Chris has joined us. He brings a wealth of expertise and experience to chambers and I am sure he will continue to build a highly successful practice.”

Chris said “I am delighted to be joining Three Stone and look forward to developing my practice alongside such a talented group of barristers.

Chris Howitt
chowitt@threestone.law


Webinar: Negligence in will drafting

20 July, 2020

Presented by contentious probate specialists, Sebastian Kokelaar, barrister at Three Stone and Lucinda Brown at BDB Pitmans as they highlight key areas of the will-making process that pose many traps, and what decided cases tell us about how to overcome them.

Date: Thursday 23rd July from 12.30pm – 1.30pm.

(CPD – 1 hour – SRA A2)

 

Questions that frequently arise are:

  • Can I be sued for not getting enough information on why a client does not want to leave property to a spouse or child ?
  • Is it sufficient that I believe the client has testamentary capacity from my discussions with the client ?
  • How persuasive will a Letter of Wishes be with an eye to defending a claim for undue influence in the future ?
  • Does the Golden Rule have any relevance these days to the pursuit of a professional negligence claim against a will draftsman ?

Click here to make a booking.

 

Sebastian Kokelaar

skokelaar@threestone.law


Zoominar: Solving Insolvency – Seminar Notes

13 July, 2020

Three Stone Chambers held a zoominar last Thursday 9th July on Solving Insolvency – The new world of  The Corporate Insolvency and Governance ‘Act’ 2019-21.

TOPICS:

  • Preventing early termination
  • Re-invigorated restructuring plans
  • The New Moratorium Procedure
  • The restrictions on Winding up Petitions
  • Wrongful trading and Covid

The Speakers were:

Please click here to download the Seminar Notes.

 

If you have any questions please contact our clerks:

Tel: +44 (0)20 7242 4937

Email: clerks@threestone.law


Insolvency Practice Direction relating to the Corporate Insolvency and Governance Act 2020

4 July, 2020

On 3rd July 2020 a new Insolvency Practice Direction (IPD) and an amendment to the Insolvency Proceedings Practice Direction 2018 (2018 PD) were approved by the Chancellor of the High Court (the IPD and amendments were drafted by Mr Justice Zacaroli, chair of the Insolvency Rules Committee with the Chief Insolvency and Companies Court Judge, Judge Briggs, Mr Justice Snowden and Mr Justice Trower).

The IPD and amendment to the 2018 PD primarily deal with a range of measures for insolvency practice under the Corporate Insolvency and Governance Act 2020 (CIGA). The measures include provisions for the process by which a winding up petition will remain private unless and until a judge has decided that inability to pay the debt on which the statutory demand is based is not as a result of the current pandemic, including a pre-trial review and preliminary hearing.


Moorgate Industries UK Ltd v Pramod Mittal

3 July, 2020

[2020] EWHC 1550 (Ch)
This case concerned bankruptcy proceedings against Pramod Mittal, the brother of Lakshmi Mittal, brought by Moorgate Industries UK Ltd, in respect of petition debt of just under £140 million.

The debt arose following an LCIA arbitration award made in the petitioner’s favour in 2017 against a Bosnian company, the debts of which had been guaranteed by Mr Mittal and an Isle of Man registered company (presently in liquidation). Moorgate brought proceedings in the Commercial Court seeking to enforce the guarantee and obtained an award against Mr Mittal and the Isle of Man company (for some US $166 million). Following those awards, Mr Mittal entered into a settlement agreement with Moorgate, under which he made payments to Moorgate in part-satisfaction of a reduced sum agreed to under the settlement agreement. After he failed to make one of the payments by the agreed deadline, Moorgate initiated bankruptcy proceedings.

The case was long-running. The bankruptcy proceedings were brought under a petition dated 8 February 2019. Mr Mittal filed a Notice of Opposition on a number of grounds, including Mr Mittal’s contention that there had not been proper service on him of the petition. From May to October 2019, a number of hearings were held in relation to that petition, and various rounds of witness evidence were filed, including on the disputed issue of service. Very shortly before a further directions hearing in October 2019, the petitioner sought to withdraw the petition and, after negotiations, agreed to pay Mr Mittal’s costs of the first petition of some £66,000. Shortly thereafter, Moorgate initiated proceedings for a second bankruptcy petition, claiming to have set off the costs order in Mr Mittal’s favour against costs orders given in the Commercial Court against Mr Mittal and the Isle of Man company.

The second petition was due to be heard in March 2020, but owing to the Covid-19 pandemic, and in particular the effect of the lockdown restrictions on Mr Mittal’s ability to participate in the hearing, the hearing was adjourned until May 2020. At the hearing, ICC Judge Burton considered (i) whether Moorgate was entitled to the set off it claimed, and if not, whether that meant that the proceedings should be stayed pending payment of the costs order by Moorgate, (ii) whether, properly construed, the settlement agreement, which had not been terminated by Moorgate, obliged Moorgate to continue to seek payment from the principal debtor (the Bosnian company against whom the LCIA award had been made), (iii) whether errors in the petition meant that a bankruptcy order could not be made at that hearing, and (iv) whether, notwithstanding Mr Mittal’s other grounds of appeal, there was a reasonable prospect of the petition debt being paid in full within a reasonable time.

The ICC Judge reserved judgment, which was handed down on 19 June 2020, holding (i) that Moorgate was entitled to equitable set off (and was further not persuaded that if Moorgate was not entitled to a set off, it would be appropriate to grant a stay), (ii) that the settlement agreement did not preclude Moorgate from proceeding against Mr Mittal for the full debt under the Commercial Court’s order, (iii) that although there was a defect in the petition (in that interest accruing after the statutory demand had been claimed in the petition), it was capable of being remedied by the Court, and (iv) the Court was not satisfied on the evidence that there was a reasonable prospect of the petition debt being paid in full within a reasonable time. Having dismissed Mr Mittal’s grounds of opposition, the Court made a bankruptcy order. Mr Mittal is pursuing an appeal.

Stephen Ryan was instructed by Collyer Bristow for Mr Mittal in respect of the first and second petitions, and is instructed in relation to Mr Mittal’s intended appeal.

Stephen Ryan
syran@threestone.law


Three Stone is looking to recruit one Third Six pupil starting in October 2020

30 June, 2020

The successful applicant will have completed a Chancery or commercial pupillage and be able to demonstrate a real commitment to those areas of work, as well as strong analytical abilities, knowledge of the law, and drafting and advocacy skills.

Applications should take the form of a CV and covering letter and should succinctly address the matters set out above. Applicants are asked to provide the names and contact details of two previous pupil supervisors who would be willing to act as referees.

Applications should be sent by email to our Senior Clerk, Justin Brown (justin@threestone.law).
The closing date is 31 July 2020.

Three Stone is a thriving set of Chancery and commercial chambers. Our members have busy practices in their chosen areas of specialisation before courts and tribunals in England and Wales and around the world. We offer a friendly and supportive working environment and first-rate practice management by our clerking team. We only award a Third Six pupillage when we have a vacancy for tenancy and we believe that an applicant has the potential to become a successful member of chambers.

We are committed to the promotion of equality, diversity and inclusion at the Bar. All members involved in recruitment have received appropriate training and we aim to follow best practice on fairness in recruitment and selection.


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