Triannual Review: Issue 2

29 January, 2021

Please find below a link to Issue 2 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.

The topics covered in this edition include:

  • On Fiduciary Membership of Charitable Companies: Mark Baldock looks at the Supreme Court’s decision in Lehtimäki v Cooper, and what it means for charities.
  • Wills, Probate, and Technology: Tim Clarke takes us through some of the technological innovations in wills and probate practice brought about by the pandemic.
  • Case Reviews
  • Practice Update
  • Chambers News

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Giles Maynard-Connor appointed Queen’s Counsel

17 December, 2020

Threestone are delighted to announce that Giles Maynard-Connor is to be appointed Queen’s Counsel.
The award of Queen’s Counsel is for excellence in advocacy in the higher courts. It is made to advocates who have rights of audience in the higher courts of England and Wales and have demonstrated the competencies in the Competency Framework to a standard of excellence.

The awards ceremony would usually take place in March 2021, but given the current global pandemic the ceremony will take place at a later date.

The announcement is here.

Giles Maynard-Connor

Specialist Civil Circuit Judge Appointment: Mark Cawson QC

30 November, 2020

The Queen has appointed Peter Mark Cawson QC to be a Specialist Civil Circuit Judge on the advice of the Lord Chancellor, the Right Honourable Robert Buckland QC MP and the Lord Chief Justice of England and Wales, the Right Honourable The Lord Burnett of Maldon.

The Lord Chief Justice of England and Wales, the Right Honourable The Lord Burnett of Maldon, has appointed Peter Mark Cawson QC to be a Specialist Civil Circuit Judge at Manchester County Court with effect from 30 November 2020.

The announcement is here.

Mark Cawson QC

Medsted Associates Ltd v Canaccord Genuity Wealth (International) Ltd

17 November, 2020

[2020] EWHC 2952 (Comm)
The Commercial Court (Nicholas Vineall QC) handed down a decision on quantum of damages in relation to a dispute between a Channel-Islands based wealth manager and a BVI-incorporated introducing broker.  There have been two previous decisions in the proceedings, reported at [2018] 1 WLR 314 (Teare J) and [2019] 1 WLR 4481 (Court of Appeal).  The Defendant had been found to be in breach of its contract with the Claimant, but questions remained concerning the correct approach to the assessment of damages, and the quantum of damages, due to the Claimant.

Of note in the latest judgment is the deputy judge’s consideration of the “fair wind” principle (as discussed in Marathon Asset Management LLP v Seddon [2017] EWHC 300 (Comm)) leading to a conclusion that the Claimant should be granted a fair wind, but not a free ride, when damages were assessed.  The deputy judge therefore declined the Claimant’s request to make wholesale variations to the figures for the Claimant’s damages prepared by the Defendant ([85]-[110]).  The decision is also of interest for how the Court found itself not to be bound by judicial comment earlier in the same case, made at the liability stage of the proceedings.  In the Commercial Court’s liability judgment Teare J noted that the assessment of the Claimant’s loss would have to take into account sums payable by the Claimant to its own sub-brokers, to avoid over-compensating the Claimant.  The Claimant nevertheless sought damages in a sum which did not take into account payments to sub-brokers.  Mr Vineall QC held that the decision of Teare J did not give rise to an issue estoppel, the Claimant’s arguments were not an abuse of process, and that Teare J’s finding on the point was obiter ([45]-[55]).

Rupert Coe

Specialist Civil Circuit Judge Appointment: Neil Cadwallader

28 October, 2020

The Queen has appointed Neil Anthony Cadwallader to be a Specialist Civil Circuit Judge on the advice of the Lord Chancellor, the Right Honourable Robert Buckland QC MP and the Lord Chief Justice of England and Wales, the Right Honourable The Lord Burnett of Maldon.

The Lord Chief Justice has deployed him to the Northern Circuit, based at Liverpool County Court with effect from 2 November 2020.

The announcement is here.

Neil Cadwallader

Decision on s33 Wills Act 1837

1 October, 2020

In the recent decision of Deputy Master Lloyd in Ashton v Brackstone, it fell to the Court to consider whether a testamentary gift to “such of my children as shall survive me in equal shares” was in itself sufficient to exclude s33 Wills Act 1837.  The Court found that the Will did not exclude s33.  No extrinsic evidence was admitted under s21 Administration of Justice Act 1982, since no part of the will was meaningless, or ambiguous or ambiguous in light of surrounding circumstances.

Accordingly, the testatrix’s granddaughter, Holly Ashton, succeeded in her claim for a declaration that she was entitled to half of her grandmother’s estate.  Ms Ashton’s claim was opposed by her uncle, David Brackstone (brother of Ms Ashton’s late mother) who argued unsuccessfully that he was his mother’s sole heir.

The decision as to the true construction of the Will is consistent with Ling v Ling [2002] WTLR 553 and Hives v Machin [2017] EWHC 1414, which authorities the Court preferred to Rainbird v Smith [2012] EWHC 4276 (Ch).

Rupert Coe

Mark Watson-Gandy appointed Commander of the Order of St John

25 September, 2020

The QUEEN has appointed Prof. Mark Watson-Gandy of Myrton to the Most Venerable Order of the Hospital of St John of Jerusalem with effect from 24 August 2020.

Click here for the full list of Promotions and Appointments.

Measures from the Corporate Insolvency and Governance Act extended to relieve pressure on businesses dealing with coronavirus

24 September, 2020

Measures put in place to protect businesses from insolvency will be extended to continue giving them much-needed breathing space during the coronavirus (COVID-19) pandemic, the government announced today.

A raft of changes to protect businesses from insolvency were introduced in the Corporate Insolvency and Governance Act and were due to expire on 30 September 2020.

The temporary measures include:

  • companies and other qualifying bodies with obligations to hold AGMs will continue to have the flexibility to hold these meetings virtually until 30 December 2020. This means that shareholders can continue to examine company papers and vote on important issues remotely
  • statutory demands and winding-up petitions will continue to be restricted until 31 December 2020 to protect companies from aggressive creditor enforcement action as a result of coronavirus related debts
  • termination clauses are still prohibited, stopping suppliers from ceasing their supply or asking for additional payments while a company is going through a rescue process. However, small suppliers will remain exempted from the obligation to supply until 30 March 2021 so that they can to protect their business if necessary
  • the modifications to the new moratorium procedure, which relax the entry requirements to it, will also be extended until 30 March 2021. A company may enter into a moratorium if they have been subject to an insolvency procedure in the previous 12 months. Measures will also ease access for companies subject to a winding up petition. The temporary moratorium rules will also be extended to 30 March 2021

Click here for additional information.

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