Cases by Area of Law

M v W

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 [2008] 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.

Ely v Robson (2016)

[2016] 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 [2016] 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 [2008] UKHL 55, [2008] 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.

View decision:

Y v S (2016)

Barrister: Graeme Harrison
Area of Law: Children
Summary: Graeme has successfully represented mother, a Chinese national, in the High Court on an application to remove a child permanently from this jurisdiction to the People’s Republic of China. Although there have been a small number of cases involving such removals, none has yet been reported.

View news article: Graeme Harrison secures permission for a Chinese mother to move to the PRC with her daughter

Price v Egbert H Taylor & Company Limited (costs)

Appeal REF.BM5/007/A, Birmingham County Court, HHJ Lopez, 16/6/16

Barrister: Matthew White
Area of Law: Civil Procedure/ Personal Injury
Summary: In Price v Egbert H Taylor & Company Limited the Claimant had wrongly said that a pre-1/4/13 CFA was in existence (in fact there was none). Having lost the claim he said that because there was no pre-1/4/13 CFA in existence, QOCS applied. He was estopped from doing so and the defendant is entitled to enforce the costs order against him.

For further discussion of the case click here

Download full judgment: Price v Egbert H Taylor & Company Limited

A and B (Findings against social worker) (Rev 1) [2016] EWFC 68 (11 July 2016)

A and B (Findings against social worker) (Rev 1) [2016] EWFC 68 (11 July 2016) 

Barrister: Kathryn Skellorn
Area of Law: Children 

Download judgment: Re A and B (findings against a social worker) [2016] EWFC 68

Darby v James

Barrister: Adam Boyle 
Date: June 2016
Area of Law: Property and Real Estate
Summary: In June 2016, in the case of Darby v James, Adam successfully defended the position of the defendant, James. The parties had, years earlier, compromised a land dispute which involved various issues, including problems centring around rights of way. The initial dispute was resolved by agreement through mediation, and the effects of the agreement were detailed and solidified through a Tomlin Order. The claimant later, through an application into court, sought to escape the agreement by arguing that the Tomlin Order and agreement could not be complied with, and, in effect, had to be set aside. However the court did not agree and decided the matter in favour of the defendant. This case highlights the level of finality that one can expect from both compromise agreements generally, and Tomlin Orders in particular, and also touched on the jurisdictional issues which can arise if a court seeks to do anything other than make an order effecting the terms of a compromise in Tomlin Order form.

Beeny v Ghersie & MG Associates Limited

Barrister: Charlie Newington-Bridges
Area of Law: Commercial Dispute Resolution
Summary:  Charlie instructed by Richard Gore at Gregg Latchams Limited, has successfully defended Mr David Beeny, a former accountant, against a misrepresentation claim worth c. £1m in the case of Beeny v Ghersie & MG Associates Limited.

View news article: Charlie Newington-Bridges successful in the High Court defending a £1m misrepresentation claim
Download judgment: Beeny v Ghersie & MG Associates Limited

Dawid Masel v Esure


Barrister: Ben Handy
Areas of Law: Personal Injury
Summary: Ben was instructed by Horwich Farrelly solicitors in order to defend this claim on behalf of the defendant insurer, Esure.

The trial took place on the 21st April 2016, the claimant claimed that he had been injured for a total of four months following a minor car accident with Esure’s insured driver. Investigations by Esure and Horwich Farrelly uncovered a publicly-available video on YouTube in which the claimant took part in, and won, a ‘Total Full Contact’ kickboxing fight within a month of the accident. The Judge watched all six rounds of the contest, during which she commented that the claimant looked “a picture of health”.

The claim was dismissed, and the defendant successfully argued that the claim was fundamentally dishonest. The claimant lost his costs-protection and the Judge ordered him to pay the defendant’s costs, which were assessed on the indemnity basis.

Davies and Another v Davies

 [2016] EWCA Civ 463

Barrister: Adam Boyle 
Date: April 2016
Area of Law: Wills, Trusts and Tax
Summary: In April 2016 Adam acted in the widely publicised “Cowshed Cinderella” proprietary estoppel case Davies and Another v Davies [2016] EWCA Civ 463. Adam was junior to Leslie Blohm QC, also of St John’s, for the case’s second visit to the Court of Appeal (Adam’s article following the case’s first trip to the Court of Appeal is available here). The second appeal in Davies concerned the quantum awarded to Eirian Davies, who had worked long hours for minimal pay on the strength of various promises made to her by her parents. In the second appeal the award which Eirian received was reduced, with the court totting up her financial and non-financial detriment and then granting Eirian the total produced by adding the two together. While the case arguably represents the Court of Appeal exhibiting a robustness, and perhaps even a reductive quality, in the face of the complexities of the doctrine, the analysis of non-financial detriment, labelled “imponderable”, was not particularly structured or deep. The fact that this was so might mean that there is room for the higher courts to revisit the doctrine yet again in the future.