News

There can be few cases in which a party opposes a claim against them being discontinued, and yet that is what occupied the Court in Green Gem Ltd v Fischer.     The claim concerns a lease renewal notice.  However, the Defendant issued a counterclaim in respect of disrepair and personal injury.  The Defendant (represented by Marc Glover) wanted to discontinue her personal injury claim, and served notice.  The Claimant landlord (represented by Mark Warwick QC), did not accept the notice of discontinuance.

The court was required to determine whether a defendant required permission under CPR 38.2(2)(a)(ii) to discontinue that part of her counterclaim that related to a damages claim for personal injury. The Defendant and the Claimant had given undertakings to the court when neither a defence nor a counterclaim had been served, although the judge had seen them in draft. The counterclaim that was served had within it a claim for damages for personal injuries. None of the undertakings related to that claim.

The Court held that the Defendant did not need permission under CPR r.38.2(2)(a)(ii) to discontinue that part of her counterclaim, as it could not be said that any of the undertakings given to the court related to or were in the context of an existing counterclaim, as she had not yet counterclaimed when they were given. Even if that were wrong and the Defendant had counterclaimed, or if the draft counterclaim should be treated as an existing counterclaim, as a matter of interpretation the Defendant was correct in submitting that the undertakings each party gave in the order did not relate to that part of the counterclaim that the Defendant wished to discontinue. Rule 38.2(2)(a)(ii) imposed an obligation to seek permission only where there was an existing undertaking relating to that part of the claim for which an undertaking had been given; that was the reason for the Rule. The court needed to intervene when one party wanted to discontinue in the relation to a matter where the court had already made a decision or had extracted the equivalent of a decision. However, where a party wanted to disclaim in relation to a matter about which no one had done anything there was no reason for the court to be concerned.

This important procedural decision is reported onLawtel and Westlaw.

Tanfield Chambers is pleased to announce that Philip Rainey QC has taken over as Head of Chambers with effect from 1st April 2013...more>>>

Andrew Butler has successfully resisted an appeal in a case concerning remuneration payable to an energy brokerage.
The case, M&C Energy Ltd. –v- St Cuthbert’s Mill Ltd. [2013] EWHC 571, concerned an attempt by the Claimant brokerage to recover several hundred thousand pounds’ worth of fees following the successful placement of new energy contracts on behalf of the Defendant paper manufacturer. Andrew was successful in obtaining summary judgment at first instance and on 14 March 2013 Sir Raymond Jack upheld the decision of the Judge below. The case gave rise to argument about contractual acceptance and interpretation, misrepresentation and estoppel, all of which were decided, at first instance and on appeal, in favour of Andrew’s client.”

In Lilyford Ltd v La Porta [2013] EWHC 434 (Ch), amongst other claims, the claimant seeks damages for wrongful forfeiture of a restaurant. The defendant landlord relied on the defences of res judicata, issue estoppel and abuse of process because the tenant had already made an unsuccessful claim for relief from forfeiture in the County Court which had not been appealed. The High Court held the mere fact that the County Court may have entertained the earlier proceedings sufficiently to dismiss them did not indicate that it must have concluded that there was a lawful forfeiture...more>>>

Andrew Sheftel succeeds in the Upper Tribunal (Lands Chamber) in Corscombe Close Block 8 RTM Company Ltd v Rosleb Ltd [2013] UKUT081 (LC) [2013] 10 E.G. 147 (C.S.) concerning shared ownership leases in Right to Manage claims....more>>>

The Supreme Court has today (6 March 2013) delivered its eagerly awaited judgment in the case of Daejan Investments Ltd v Benson in which Chambers’ Philip Rainey QC and Jonathan Upton (representing the First to Fourth Respondents) and James Fieldsend (representing the Fifth Respondent) appeared.

The new edition of Residential Possession Proceedings has just been published by Sweet & Maxwell.  Now in its 9th Edition, this popular text authored by Gary Webber and Daniel Dovar is an indispensable guide to residential possession proceedings.  Available from all good legal bookshops. 

This week Mark Loveday, led by Jonathan Gaunt QC, succeeded in the Court of Appeal in Kutchukian v Trustees of John Lyon’s Charity. 

The Court of Appeal determined, in the matter of a collective enfranchisement of a house comprised of four flats, that the Upper Tribunal (Lands Chamber) was wrong to apply a discount for the risk of “legal problems” from the price payable for the freeholder’s interest in the property.  The court also dismissed the cross-appeal by Mr Kutchukian. The decision provides the first ever analysis of s.61 and Sch 14 of the Leasehold Reform Housing and Urban Development Act 1993, which gives landlords of extended leases the right to possession of a flat on redevelopment grounds.

Mark Loveday and Jonathan Gaunt QC acted for the successful appellants, the Trustees of John Lyon’s Charity.

Tanfield sponsor Inner Temple Inter-Varsity Moot 2013

The Inner Temple Inter-Varsity Moot 2013 was held on 3 February 2013.  Tanfield Chambers was proud to sponsor the competition in which thirty-two teams competed from across the United Kingdom and Ireland. 

Teams prepared submissions in response to a moot problem inspired by the recent Supreme Court decision in Hosebay Ltd v. Day [2012] 1 W.L.R. 2884.  The standard was very high – many congratulations to all those who took part! 

This annual event has become a successful and reputable competition.  It provides a wonderful opportunity to experience the Inn and gives students a chance to improve and showcase their advocacy and presentational skills.

New Contractual Terms

The Bar Council has issued new standard contractual terms on which barristers offere their services. Barristers at Tanfield Chambers will be adopting these new terms on all new instructions from the 31st January 2013. We forsee little change to the relationship with our clients by the introduction of the new terms. Full details can be found here.

Kerry Bretherton succeeds in the Court of Appeal in London & Quadrant Housing Trust v (1) Prestige Properties Ltd (2) Eugene Burke (3) Barry Burke in maintaining that a freezing order should not include any maximum limit in a case where the Second and Third Defendant had been found to be highly dishonest by the trial judge and ran the First Defendant in a highly irregular manner.

The Supreme Court (Lord Neuberger, Lord Hope, Lord Clarke, Lord Wilson and Lord Sumption) heard the appeal in Daejan Investments Limited v Benson on 4 December 2012. 

Philip Rainey QC and Jonathan Upton represented the First to Fourth Respondents and James Fieldsend represented the Fifth Respondent. 

The Supreme Court will decide the relevant principles to be applied on applications for dispensation of the consultation requirements in residential service charge cases. 

The decision is not expected until the New Year.  It will be available on Tanfield Chambers’ website as soon as judgment has been handed down. 

Cecily Crampin wins in the Upper Tribunal (Lands Chamber).

The Lands Chamber has given its decision in St John’s Wood Leases Limited v O’Neil [2012] UKUT 374 (LC). In this appeal against a s20C determination under the Landlord and Tenant Act 1985, HHJ Gerald and NJ Rose FRICS decided that the LVT’s decision that the landlord should not be able to recover any of its costs through the service charge, and should pay the tenant’s hearing fee, should be set aside. The Lands Chamber substituted its own decision; the landlord was entitled to recover 90% of its costs of the LVT, and all of its costs of the appeal.

The essential grounds of appeal were three: the LVT erred in law in approaching the issue of costs as one which follow the event rather than what is just and equitable; the LVT was wrong to find that the tenant had obtained a number of sufficient concessions or had “overall succeeded on the majority of issues”; the LVT, had failed to give any or any sufficient reasons. All three of these grounds succeeded.

In the recent case of Brandon Barnes v Eastenders Cash & Carry, the Court of Appeal determined that, as an exception to long established common law and statutory rules, it would be a breach of a company’s human rights if it had to bear the burden of a receiver’s costs and expenses, thereby upholding the decision of Underhill J in the Lower Court (see  link )

Geraint Jones QC and Marc Glover represented the Eastenders group of companies.  David Perry QC and Martin Evans represented the Receiver.  Michael Parroy QC and Rupert Jones represented the Crown Prosecution Service.
The applicant statutory receiver (R) applied for a consequential order for remuneration and expenses that had been incurred during his receivership over the first respondent parent company (E), which had lasted for c.2 months. .  E had a turnover of c. £140M/annum and the sum in issue amounted to c. £1M. 

 In earlier proceedings, without notice restraint orders and a receivership order had been made which encompassed all the assets held by E, in which two alleged offenders each held a 20 per cent shareholding. On appeal in those earlier proceedings (Geraint Jones QC and Marc Glover were instructed on behalf of E) the orders were quashed by the Court of Appeal  on the basis that no arguable case had been shown that E's assets were held by the alleged offenders (see: Windsor v CPS [2011] 1 W.L.R 1519, and the following link. However, it remained that R's remuneration and expenses were ordered to be paid out of receivership property by the terms of the order originally appointing him.  

The issues in the present decision were whether (i) E's European Convention on Human Rights 1950 First Protocol, Article1 rights would be breached if E were to be held liable for R's remuneration and expenses; (ii) the Crown Prosecution Service was the party who ought to, and could, bear R's costs directly. E submitted that as the Court of Appeal had earlier held that the restraint and receivership orders should never have been made, it could not be right that it, as an innocent third-party, should be liable for R's costs and expenses in any event. 

The Lower Court found that it was able to “put to one side the preconception based on a century of practice”, and find in favour of E on the novel human rights argument advanced. In a later hearing the Lower Court dealt with the cost consequences of its decision (see Brandon Barnes v Eastenders Cash & Carry, No2 (Underhill J), LTL 9/5/2012)
The Court of Appeal upheld the core decision that R should not be able to recover his remuneration and expenses from E assets, which he had retained.

The decision offers an excellent example of a case in which a rule or practice perceived as being set in stone, can be successfully argued against, or refined.  Geraint Jones QC and Marc Glover, both of whom have successful company law practices, have a reputation for identifying and succeeding in such cases, see for example the recent Court of Appeal decision in Eastenders v HMRC [2012] EWCA Civ 15 see link.

For the Times Law Report, please click here.

Chambers’ property practitioners lead the way with no fewer than ten members of the group achieving individual recognition in Real Estate Litigation. Alongside Philip Rainey QC, recognition is given to James Fieldsend, Michael Buckpitt, Christopher Heather, 
Nicholas Isaac, Mark Loveday, Timothy Polli, Andrew Butler, Carl Fain and Ellodie Gibbons.

These individuals would be the first to acknowledge that their recognition reflects the growing strength of the team as a whole. It also reflects our excellent clerking, and we are particularly pleased to see Joanne Meah singled out for her efforts in this regard. Her client-focussed approach has, the editors say, made “using the set very easy”.

Elsewhere, Kerry Bretherton receives recognition in no fewer than three areas, namely Court of Protection: Health and Welfare, Administrative and Public Law, and Social Housing. She is joined in the latter category by Rebecca Cattermole. Stephen Monkcom continues to be recognised as a leader in the field of Licensing, and Iain Mitchell QC receives plaudits for his work in Information Technology and Public Procurement.

The editors’ comments on the individuals concerned can be found on their profile pages by clicking the links above.

Tanfield Chambers associate member, Iain G. Mitchell QC FRSA, is to speak at a prestigious conference on the Internet, Economics and Society organised by the Royal Society of Arts Fellows’ Media, Creative Industries, Culture & Heritage Network in conjunction with the Scottish Society for Computers & Law and the Scottish Economic Society, to be held in the MacKenzie Building of the Faculty of Advocates in Edinburgh on Monday 13th June, 2011....>>

Tanfield Chambers associate member, Iain G. Mitchell QC, is to chair and lead discussion in a conference organised by the Science Research and Technology Project of the Church of Scotland on the theme "It wasn't me, it was my neurons - are we more than mere machines?" to be held in the MacKenzie Building of the Faculty of Advocates in Edinburgh on Saturday, 11th June, 2011....>>

Ellodie Gibbons Wins Barrister of the Year at the Enfranchisement Awards2011, And Tanfield Chambers receives a Highly Commended...>>

Verdicts into the 52 deaths caused by the London Bombing of 7/7 were handed down on the 6th May 2011...more>>

Iain G. Mitchell QC was invited to speak on 8th April at the Annual conference of the European Legal Network at the NH Hotel Barbizon in Amsterdam, on the subject of IT procurement in the European Union....>>

Iain G. Mitchell QC was invited to give the Keynote address before a large audience of both practising and academic lawyers at the prestigious Annual Conference of BILETA (the British and Irish Law, Education and Technology Association) held at the School of Law at Manchester Metropolitan University on 12th April.>>>>>more

Tanfield Chambers associate member, Iain G. Mitchell QC, United Kingdom representative on the IT Committee of the CCBE, has been co-opted to membership of the IT Committee of the Bar Council....>>

Hot on the heels of winning the CEDR exchange most challenging mediation aware for the past 20 years (jointly with Alder Hey)...more>>

Jonathan Upton has joined Tanfield Chambers from 33 Bedford Row.  Jonathan has developed a busy property law based practice covering all aspects of landlord and tenant and real property disputes.

Jonathan appears in all manner of tribunals including the county courts, High Court, LVT and proceedings before HM Adjudicator.  He also has experience of appearing in the Court of Appeal...more>>> 

Piers Harrison is a member of Tanfield Chambers where his property practice covers all areas of property law and clients include property development companies, local authorities, government agencies and private companies and individuals...more>>

Daniel Dovar has joined Tanfield Chambers from 33 Bedford Row.  He specialises in real property and leasehold law with an emphasis on landlord and tenant issues...more>>

In St Christopher’s Fellowship v Walters Ennis EWCA Civ 252 Peter Linstead represented the claimant responding to an appeal on the correct application of the burden of proof in race discrimination.

The case is reported at [2010] EqLR 82 and on Lawtel...more>>

On the 7th January, the CEPMLP Mediation Team was awarded the "Best use of Mediator" prize at the prestigious 6th Annual ICC Mediation Competition. The event comprised some 28 nationalities from 58 universities across the globe from Harvard Law School to the University of New South Wales...more>>

Steven lectures on the LLM in international arbitration at the University of Edinburgh and he has been individually nominated for a EUSA Teaching Excellence Award 2011. These awards recognise excellence in teaching. The results will be announced at an awards ceremony dinner on 23rd March, 2011...more>>

James Fieldsend successfully represented the Respondent in an important decision of the High Court on appeal concerning how terms of acquisition are agreed in leasehold enfranchisement...more>>

Tanfield Chambers Associate, Iain G. Mitchell QC has been appointed to the new Equality and Human Rights Commission's panel of preferred Counsel in Scotland...more>>

Philip Rainey QC and James Fieldsend successfully represented the Respondents in a landmark Court of Appeal case concerning residential service charges...more>>>

We are pleased to announce that Rebecca Cattermole joins Tanfield Chambers...more>>>

Martina Murphy succeeded in an appeal on remedies arising out of an unfair dismissal finding...more>>

Kerstin Boyd acting for London Fire Bridgade at 7/7 Inquests...more>>

Tanfield Chambers Associate Members, Iain G. Mitchell QC has been appointed as the next United Kingdom representative on the IT Committee of the Bars and Law Societies of Europe (CCBE) for a period of three years...more>>

Surya Subedi has been appointed a member of the Human Rights Advisory Group by the Foreign Secretary, William Hague...more>>

Karen Jones joins Tanfield Chambers from the 1st November 2010...more>>

Paul Stevenson spoke at the Institute of Art and Law...more>>

Professor Subedi UN rights expert voices concerns over freedom of speech...more>>

Tanfield Chambers has been recommended once again in this year’s Legal 500, with members of Chambers being recommended as leaders in their field across 6 separate specialist areas...more>>

Following a story about a mother and her young son being forced to live in a tent because squatters had taken over their home, Philip Rainey QC appeared on GMTV to give his professional views on landlord and tenant issues...more>>

Thomson Reuters commission Steven Walker to write leading book on international arbitration. The title will be announced in the New Year and the book is due to be published in the Spring.

Chris Maynard joins Tanfield Chambers on 1 July 2010. Chris is a senior barrister (1988 call) who was formerly head of a mixed common law set...more>>

Tanfield Chambers is delighted to announce that it has formed a partnership with Small Steps, a charity which provides assistance to children with special needs between the ages of 6 months and 5 years...more>>

Ellodie Gibbons (together with W A Ellis's James Wilson) has authored a new book for property professionals.

Leasehold Enfranchisement Explained takes a refreshing approach to the area of residential leasehold enfranchisement.  It features full and clear analysis of each process, valuation calculations and a glossary of terms.  It is an invaluable companion for all professionals involved in this area...more>>

A purchaser claimed to have bought, along with his wife, a house in Scotland in 1983, relying on a certificate produced by an architect that the house had been built according to the plans and relevant building standards...more>>

A man convicted of robbing an Australian Bank fled the jurisdiction whilst on Bail and facing further charges. After 2 years in England, his whereabouts became known to the Australian authorities when he was convicted of a bank robbery in Manchester (a conviction later quashed by the Court of Appeal as a miscarriage of justice)...more>>

Tanfield Chambers continued its successful pro bono strategy on 4th May 2010 when Amanda Gourlay obtained a pro bono costs order for nearly £1,250 in the Chichester County Court...more>>

In Hughes v Borodex Limited the Court of Appeal has upheld the decision of Mr. Justice Collins, in turn upholding the decision of a Rent Assessment Committee, to the effect that the value of improvements carried out and paid for by a tenant during a long residential tenancy is to be taken into account in assessing the rent payable by the tenant on a reference to a Rent Assessment Committee under s.14 of the Housing Act 1988...more>>

Tanfield Chambers is proud to announce that it has become the 9th set to join the Friends in Law Scheme...more>>

Chris Heather successfully represented the appellant freeholder in a collective enfranchisement matter in the Court of Appeal...more>>

We are delighted to announce that Philip Rainey has been appointed Queen’s Counsel in the official list, published today.

The second edition to Services Charges and Management: Law and Practice (Sweet & Maxwell) has now been published...more>>

Tanfield team up with Lovells and Edinburgh Law School for International Arbitration Internships...more>>

Philip Rainey won the Chambers and Partners Award for Real Estate Junior of the Year at a gala dinner held at Grosvenor House Hotel on 1st October 2009...more>>

Tanfield Chambers have been short-listed for the Chambers of the Year category at this year's British Legal Awards, hosted by Legal Week...more>>