Cusack v Holdsworth & Quantum Survey Management Ltd  EWHC 3084 (Ch)
Barrister: Charlie Newington-Bridges
Area of Law: Company/Commercial
Summary: Charlie Newington-Bridges represented the First Defendant in an unfair prejudice petition and claim for breach of a shareholder agreement in a 5 day trial in the High Court (Companies Court, Chancery Division).
The claim was said to be worth £3m by the Claimant. In the event the judge found that the First Defendant was only liable in respect of a small fraction of that sum. A further quantum trial will determine the price at which the Claimant is obliged to buy out the First Defendant’s shareholding in the Second Defendant company and whether the First Defendant will make a net payment to the Claimant or not.
The trial involved several days of cross-examination of the Claimant and the valuation expert. The Claimant’s expert report, in particular, was shown to have a series of flaws and the judge chose not to rely on the Claimant’s expert evidence in his judgment.
A number of legal issues arose during the trial and closing submissions. The most interesting issue, and it was an one that remain unresolved as the judge decided he did not need to make a finding on the point, was whether reflective losses or losses relating to the diminution of the value of a shareholding could be claimed in an unfair prejudice petition. The argument involved consideration of whether the rule in Johnson v Gore Wood  2 AC 1 against reflective losses applied and consideration of more recent authority such as Webster v Sandersons  EWCA Civ 830 and Wootliff v Rushton-Turner  EWHC 2802 (Ch).
In respect of the unfair prejudice claim itself and whether or not the conduct of the First Defendant was unfair and prejudicial the Judge in particular relied on the only recent unfair prejudice claim to have reached the House of Lords – O’Neill v Phillips  1 WLR 1092 and Re Guidezone Ltd  BCLC 321, in which Jonathan Parker J held that unfairness may be tested by using equitable principles and establishing the actions of the majority were such as to be contrary to good faith.
View full judgement here: Cusack v Holdsworth & Quantum Survey Management Ltd  EWHC 3084 (Ch)
Davy v Pickering
 EWCA Civ 30;  WLR(D) 38
Barrister: Guy Adams
Area of Law: Company and Insolvency
Summary: Guy Adams, instructed by Capital Law LLP, succeeded in the Court of Appeal in overturning the judgment at first instance in the Mercantile Court in Cardiff (reported at  2 BCLC 116).
The case concerned the extent of the power of the court under the new provisions in section 1032 Companies Act 2006 to make directions upon the restoration of a company to the register, both to disallow a period for the purpose of limitation and to back-date the presentation of a winding-up petition. The Court of Appeal held, following Hawkes v County Leasing  EWCA Civ 1251 (decided in the period between permission and hearing), that it was necessary to establish a causal link between the dissolution of the company and the inability to start proceedings or to present a winding-up petition before such a direction could be made.
View judgment: Davy v Pickering v Ors
View summary:  WLR(D) 38
An attempt by a borrower to avoid liability under a mortgage. The Court decided that only the principal sum was repayable without any interest.
 EW Misc B67 (CC), Lawtel AC0151933 27/9/16
Barrister: Oliver Wooding
Area of Law: Wills, Trusts and Probate
Summary: Oliver appeared at trial for an adult daughter in a claim under Inheritance (Provision for Family Dependants) Act 1975 for financial provision out of her father’s Estate, which was left entirely to his second wife. The case raised interesting questions about the nature of the court’s discretion under s. 9 to treat jointly owned property as part of the net Estate and was ultimately dismissed where the judge concluded that the claimant’s present unemployment was “a lifestyle choice”. The case caused considerable press attention and was featured in the Daily Telegraph, Daily Mail, and This Morning.
 EWHC 2535 (Fam) (14 October 2016)
Barrister: Lucy Reed
Area of Law: Children
Summary: A novel case concerning the power to submit a request to the court of another country to assume jurisdiction under Article 8, or for authorisation to exercise jurisdiction under Article 9, of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children. One sibling living in Norway with one parent, the other in the UK with the other. Proceedings in respect of one sibling issued in each jurisdiction.
The decision: The English court agreed to request that the Norwegian court should permit it to exercise jurisdiction in respect of the sibling living in Norway in order that proceedings for both siblings could be heard by the same court.
View judgment: Re M & L (Children)  EWHC 2535 (Fam)
 EWFC B72 (02 September 2016)
View judgment: A Local Authority v X, Y & Z  EWFC B72
 EWCA Civ 848
Barrister: Charlie Newington-Bridges
Area of Law: Commercial Dispute Resolution and Property
Summary: Charlie instructed by Stephen Wray at Porter Dodson Solicitors was successful in the Court of Appeal in resisting an application for a second appeal in the matter of H&S Developments v Chant  EWCA Civ 848, a case involving the construction of a land option.
Barrister: Adam Boyle
Date: September 2016
Area of Law: Wills, Trusts and Tax
Summary: In September 2016 Adam was instructed at less than 24 hours’ notice in relation to an urgent Search Order application in the case of M v W. The purpose of the search was to look for information and accounts relating to the Estate of a Deceased testator, which the onetime Executor (who had been removed by the courts because of his grievous failures in respect of the role) simply would not deliver up. Despite a number of issues arising which needed to be dealt with before the judge, HHJ McCahill QC, the Search Order was granted. The search which followed the application was extremely fruitful. Adam was instructed again for the return date and at that hearing the Applicant was granted the entirety of its costs.
Mrs P ((Widow And Administratrix Of JP, Deceased) For JP And On Behalf Of His Dependants) V Dr P. (2016)
Barrister: Tom Leeper
Area of Law: Clinical negligence
Summary: Tom was instructed by Claire Stoneman and Nicola Rawlinson-Weller of Foot Anstey LLP in a claim arising out of the tragic death caused by arrhythmic sudden cardiac death attributable to atherosclerotic coronary disease. In the preceding weeks, the Deceased had been on standard treatment for acute coronary syndrome following a suspected heart attack; the treatment included the regular administration of Clopidrogel, Bisoprolol (a beta-blocker), Ramipril and Simvastatin. Following the development of a generalised fine macular rash, his General Practitioner discontinued these drugs, without seeking input from a cardiologist. A week later the deceased was dead. An action was brought against the Defendant alleging negligence in discontinuing the drugs and failing to seek advice from a cardiologist who would have advised the continuation of Bisoprolol. While it was not possible to show that the Deceased would have survived in the absence of the Defendant’s negligence, the claim was advanced on the basis that stopping the Bisoprolol materially contributed to his death.
The claim has concluded with a significant out of court settlement. The case is a good example of the flexibility of the causation doctrine of “material contribution”, illustrated in the reported case of Bailey v Ministry of Defence  EWCA Civ 883, which can, in appropriate circumstances, be used to advance claims which do not satisfy the “but for” rule of causation. The case is reported in Lawtel Document No. AM0202945.
 EWCA Civ 774
Barrister: Jody Atkinson
Area of Law: Wills, Trusts and Tax
Summary: Jody appeared for the successful party before the Court of Appeal in the case of Ely v Robson  EWCA Civ 774. This is an important decision in the field of proprietary estoppel and constructive trusts. Jody is a member of both our commercial & chancery and family practice groups, and has a particular expertise in cross over areas such as cohabitant disputes.
Jody appeared for Mr Ely. In summary, he was in a 20-year relationship with Ms Robson, and they had two children together. When they split up, Ms Robson attempted to claim a half interest in Mr Ely’s house. Proceedings were issued in 2007, and the matter was set for a trial. However, Mr Ely and Ms Robson reached an oral agreement on a park bench that Ms Robson would be permitted to live in the house until her aunt (who also lived there) died. They also agreed Mr Ely would leave 20% of the value of the house to Ms Robson after he died. However, in a misguided attempt to save money, neither parties’ solicitor converted the oral agreement into a signed written agreement or consent order. The Court was told that the matter was settled. The parties carried on living unhappily in the house together.
Six years later the aunt died and Mr Ely asked Ms Robson to leave. She refused to do so, stating there had never been an agreement. The matter returned to the Swindon County Court, where the Judge found that there had been a settlement agreement as Mr Ely had alleged. Ms Robson appealed to the Court of Appeal, arguing that the parties’ oral settlement agreement failed to comply with the requirements of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, which required contracts for the disposition of interests in land to be in writing signed by both parties, and that Mr Ely could not rely on the law of proprietary estoppel due to the decision in Cobbe v Yeoman’s Row Management Ltd  UKHL 55,  1 WLR 1752.
The Court of Appeal (Sir Brian Levenson, President of the Queens Bench Division, and Kitchin LJ) accepted Jody’s submissions that the terms of the agreement were sufficiently clear, the parties had intended it to be immediately binding, and, the parties having acted on the settlement agreement for six years, it was not possible for Ms Robson to now resile from it. This was an area where the relief granted could be described as either a constructive trust, or as a result of proprietary estoppel. The two doctrines were concurrent at this point. Ms Robson was to vacate the property and pay the full costs of the first hearing and also of the appeal.