The Property Law Blog

In Practice & Law this week we have Ian Cox, Mark Geday and Nish Dissanayake of Herbert Smith LLP explaining how the draft Alternative Investment Fund Managers Directive aims to regulate the financial systems and highlight its inadequacies.

That is followed by Stephen Hedley and Simon Schipper of Cripps Harries Hall LLP explaining how to ensure a smooth transition when a landlord accepts surrender by an insolvent tenant; Steve Nicholson of Maxwell Winward LLP warning that landlords must adhere to the consultation procedure on the cost of proposed works or facing having to foot the bill; and finally Mathew Ditchburn and Paul Tonkin of Lovells LLP flagging up the fact that claims for professional negligence can be time-barred and lenders should not leave it too late to bring them.

If you really want to see a High Court judge getting stuck in you couldn't do any better than going to see Peter Smith J when he deals with the Candy brothers battle with Qatari Diar over the Chelsea Barracks scheme this Spring.

At the core of the dispute is the Candys' claim that the Qataris, by withdrawing Lord Rogers' plans for the Chelsea Barracks site at the behest of Prince Charles, had breached a share purchase agreement, under which Christian Candy's CPC Group had sold its interest in the site to the Qataris.

Tactical manoeuvering definitely seems to be the order of the day in the case and Peter Smith J is having none of it.

Counsel for the Qataris Joe Smouha QC complained that there may not be enough time to prepare for a trial of the dispute by then and there may be some kind of "disaster" that would send the case spinning off the track and into an horrendous car crash.

Much better, he said, to wait until October [by which time a second planning application fior the scheme will have been submitted to Westminster Council].

Peter Smith J was not impressed and said that he couldnt see why the matter could not be heard before the planning application was submitted "I will make it happen" he warned.

And, to borrow the Nike catchphrase [and apparently that of fellow High Court judge Briggs J], "Just do it!" the judge added.

Photo by thats_nate via Flickr.

With the news that US rap star Jay-Z is suing investment firm Highland Capital Management in a wrangle over loan guarantees secured against a New York hotel scheme I am left yet again wishing I lived in the US - litigation seems so much bigger and more showbiz over there.

The best I can hope for is Noel Edmonds!

Photo by What What via Flickr.

This appeared in the 3 February 1934 edition of Estates Gazette:

At Worcester County Assizes on January 23, Mr William Henry Mayo (57), an estate agent, of Malvern, was sentenced to twenty months' imprisonment in the second division for fraudulently converting to his own use money to the extent of £2,460. He pleaded guilty.

Mr RC Hutton (for the defence) said that Mr Mayo speculated in buying and selling properties, and the losses he thus suffered more than offset the profits of his genuine land agent's business. He was tempted to put the money of one client to set off the loss on another transaction, hoping that a successful deal would enable him to replace the money.

Mr Justice Finlay said Mr Mayo had misapplied what must seem to his clients very large sums of money. The gravity of the offence would more than justify sending Mr Mayo to penal servitude, but he would not do that, since he "was able to take into account Mr Mayo's age, his previous good character and the fact that he was not quite in the position of a professional man as a solicitor or accountant". [My emphasis]

Photo by Okinawa Soba via Flickr.

The state of some rented accommodation can leave much to be desired, but at least we have come some way since this court case reported in the Estates Gazette of 29 January 1910 in which magistrates insisted that a landlord should provide a tap for his tenants.

The family had to come down twenty-five steps to fetch up their water, and it then had to be stored in the room in which persons lived and slept.

The supply of water is from two taps, one in the yard and one in the washhouse in the yard.

Owing to the difficulty of carrying up the water, it was found that the family used only three bucketfuls of water a day for all purposes, when they should have used at least 18. The supply of water was so restricted as to be insufficient for the maintenance of health of the family.

And no the family were not early eco-warriors who prided themselves on their preservation of water.

Photo by Paul Sapiano via Flickr.

With the news that next Thursday will see the handing down by the Court of Appeal of judgment in a test-case dispute [Port of London Authority v Ashmore] between the owner of a barge and the Port of London Authority (PLA) over who owns the section of the Thames riverbed on which the barge is moored I was put in mind of this news story in the 27 January 1934 edition of Estates Gazette.

The Port of London Authority has decided that it can no longer extend hospitality to vessels used for purely residential purposes.

Increasing numbers of people, wishing to escape the attention of local authorities and house agents, have taken up residence in house-boats, yachts and even barges in the docks.

"There is a danger of their interfering with commercial shipping," said a PLA official.

"This 'eviction order' does not extend to other parts of the river - that is, up river to Teddington and below the docks to the sea."

Before the Court of Appeal in the current case Charles Harpum said that there is no binding authority on the point and the case has "potentially wide implications" because the PLA is in the process of registering its title to the freehold of 95 miles of the tidal bed of the River Thames and many similar instances of alleged adverse possession could arise in the course of registration.

Seems that matters move pretty slowly down at the PLA.

Photo by Mark Reynolds via Flickr.

Following on from a Practice & Law article by Keith Conway and Nigel Hampton on the implications of Inclusive Technology v Williamson we are delighted to print on page 56 of the magazine this week a letter from Mark Shelton and Paul Moorcroft of Eversheds LLP.

They say that they are not convinced by the authors' suggestion that the principle established in the case, that a landlord who had informed a tenant of his intention to redevelop and had served a hostile section 25 notice was therefore under an ongoing duty to inform the tenant of any change in circumstances, can be applied to other situations, including notices under the Leasehold Reform, Housing and Urban development Act 1993.

I will try and print the letter here in full once the magazine has been published.  

Other articles in this week's Practice & Law include a consideration by Nick Mott and Louise Crawford of Denton Wilde Sapte of "Meanwhile Use Leases" as a way of making temporary non-commercial use of shops that have become vacant during the recession.

Another great legal story that has implications not just for the property world.

The High Court has asked the Supreme Court to look again at the issue of immunity of expert witnesses from legal claims.

The case involves consultant clinical psychologist Sue Kaney who was instructed by solicitors for Paul Jones to give advice on a psychiatric injury arising out of a road traffic accident for which he was seeking damages.

Things did not go well and the road traffic matter was settled for considerably less than it could have been. Jones then sued Kaney for damages for negligence.

Kaney pleaded witness immunity and Blake J in the High Court last week ordered that on the basis of previous Court of Appeal authority in Stanton v Callaghan the claim must be struck out.

But he granted Jones a certificate enabling him to ask the Supreme Court to revisit the legal basis for expert witness immunity.

The judge said "There is a substantial likelihood that on re-examination by a superior court, with the power to do so, it will emerge that the public policy justification for the rule cannot support it.

"A policy of blanket immunity for all witnesses, indiscriminately protecting witnesses as to fact and witnesses on the opposing side from expert witnesses retained by a party to advise them before and during the proceedings as to a pertinent issue in those proceedings, may well prove to be too broad to be sustainable and therefore disproportionate.

"The public benefit of truthful, accurate, reliable and frank evidence to the court is unlikely to need such a broad immunity.

"It can be enforced by the court of its own motion, or by professional bodies supervising the professional activities of the expert in question, including the activity of giving evidence to the court," he said.

Pretty powerful stuff, and another great case to look out for.

Photo by d-notice via Flickr.

Thanks go to PainSmith Landlord and Tenant blog for pointing out to me the interesting case of Draycott v Hannells Lettings Ltd that was heard earlier this week in the High Court and now reserved.

According to PainSmith, who should know because they are acting in the matter, the case should provide the first binding decision on tenancy deposit protection under the Housing Act 2004 and could have far-reaching effects.

Quick facts:
28 February 2008, Draycotts enter into tenancy agreement for a Derby property on which Hannells Lettings Ltd is acting as agent for the landlord. Deposit of £2,700 is paid on 4 March, but not registered until 19 May. Draycotts sue Hannells under section 214 of the Act alleging that Hannells liable to pay penalties under section 214 as the deposit was not registered when it should have been. County Court Judge allows claim. Hannells appeals to High Court saying claim could only be brought against landlord and that because deposit registered before claim issued no penalty could be imposed anyway.

Should be a good-un.

Photo by Cennydd Bowles via Flickr.

A landmark appeal is due to be brought by the Tchenguiz brothers later this year in the Court of Appeal that should be very interesting, particularly for divorce lawyers.

Basically, last year Eady J ordered the brothers to return reams and reams of confidential data they had taken from the computer of their brother-in-law and former business partner Vivian Imerman.

They had taken the data in order to pass it to their sister Lisa in preparation for her impending divorce - they were worried that Imerman would hide his true financial position from her.

Lisa was subsequently allowed by the Family courts to use some of the data in order to justify what had happened and her proposed use of the information in the divorce - a decision which Imerman now plans to appeal against.

So, Lisa was allowed to use the information passed to her in the Family Division whereas in the Queens Bench Division her brothers were being sued for obtaining the information.

That seemed a bit weird and this afternoon judge Sir David Keene granted the brothers permission to appeal saying that there was a clear tension between the courts over this issue.

He said that in the light of the recent decision of the Court of Appeal to allow Marco Pierre White to sue his former wife's lawyers Withers over "dirty tricks" in their divorce the Court of Appeal should look at the whole of this issue and clarify the situation.

A spokesperson for Imerman said: "We are delighted this area of law will be clarified at the appeal and are confident that Mr Imerman's privacy will be protected because throughout the legal process so far, judges have expressed their dismay at the extreme behaviour of the Tchenguiz brothers."

Photo by Lisa B via Flickr.