Our People

Our People

Our Legal Services

Our Legal Services

Our Courses

Our Courses

Expert Legal Advice

This is a set of chambers providing barrister’s services in contract law and litigation. It provides assistance to solicitors and their clients. It also provides direct access services to businesses, organisations, local authorities and individuals who require legal advice and assistance with their legal issues, whether commercial problem solving, contract drafting or dispute resolution.

The practice includes barristers with expertise in contract law, company, commercial and civil disputes, intellectual property, competition & procurement, sale of goods, consumer rights, financial mis-selling, insurance, professional negligence, commercial property and construction.

We also offer continuing in-house legal services to companies who do not retain a legal department in order to advise on company-commercial issues, data protection, compliance and protection of their intellectual property including registration and dispute resolution.

Many of our clients use our training and consultancy services to get to know us and develop knowledge, CPD and bring lawyers and professionals together in an inter-active learning experience.

Legal Updates

06 Aug

CONVEYANCING SOLICITORS FOR BOTH SELLER AND PURCHASER ARE IN BREACH OF TRUST WHERE THE SALE WAS NOT A “GENUINE COMPLETION”

P&P Property Ltd v Owen White Catlin and Dreamvar (UK) Ltd v Mishcon de Reya [2018] EWCA Civ 1082

The Court of Appeal’s Judgment, handed down on 15 May 2018, in these cases means that both the seller’s solicitor and the buyer’s solicitor will automatically be in breach of trust, if property sale funds are paid to a sham seller, even if neither firm has been negligent.

The decisions in both cases are fact sensitive. In P&P the purchaser sued the seller’s solicitors Owen White Catlin (OWC) for breach of warranty of authority, breach of undertaking, negligence and breach of trust. To understand the final decision it is important to note two things. Firstly, the solicitor acting at OWC, Joyce Lim, accepted the vendor “Mr Harper” as her client despite the anti-money laundering (AML) check being referred because it wasn’t possible to identify him at the property address or verify his date of birth; nor did she check the credentials of the firm in Dubai who purported to verify his address. Secondly, Ms Lim herself signed the contract “on behalf of the Seller”.

The court referred to a “genuine completion”. The authority of the seller’s solicitors to release the purchase monies, which are held on a bare trust for the purchaser, to their own client depends upon “completion” occurring, explained Patten LJ. However the solicitor does not have authority to make that payment unless the transaction is a genuine sale; the exchange of purchase money for forged documents will not amount to completion: “nothing can come of nothing”. The rationale is that the seller’s solicitor does not have authority to release it to their client because they are not acting for the owner and supposed seller of the property.
A more controversial decision (literally because there is a compelling dissenting judgment from Gloster LJ on this point) was the decision to refuse relief to P&P’s own solicitors Mishcon de Reya (MdR) under section 61 Trustee Act 1961. The decision to refuse relief was upheld on the basis of the inequality of the position between MdR and its client, principally because MdR was insured.

The claim in negligence brought by P&P against OWC did not succeed – the Court of Appeal explaining that the “assumption of responsibility” is the foundation of liability in negligence and this is not one of those rare categories of cases where solicitors acting for a seller assume a duty of care to the buyer.

03 Jul

Contract is not void for common mistake

Triple Seven MSN 27251 Ltd v Azman Air Services Ltd [2018] EWHC 1348 (Comm).

In a recent decision, the High Court found that two five-year aircraft lease agreements were not void on the grounds of common mistake, where it was understood that the aircraft would be used to undertake airlifts for the Hajj and Umrah pilgrimages and the required regulatory approval was not obtained.

At the time of the contract the parties had shared a mistaken common assumption about the possibility of obtaining approval, when in fact approval had already been refused.

However, the court found that the mistaken assumption was not sufficiently fundamental. It did not render the lease agreements “essentially and radically different” from what the parties had understood, nor impossible to perform, and therefore the agreements were not void due to the common mistake. In any event, the lease agreements allocated the risk of not obtaining approval, which meant the doctrine of common mistake could not apply.

The court considered the leading cases on the pre-requisites for a contract to be held void on the grounds of common mistake, and distilled the following six principles:

  1. At the time the contract was made, the parties must have substantially shared an assumption as to the existence of a certain state of affairs.
  2. That shared assumption must have been fundamental to the contract.
  3. That shared assumption must have been wrong at the time the contract was made.
  4. By reason of the assumption being wrong, the contract or its performance would be essentially and radically different from what the parties believed to be the case, or impossible to perform, having regard to the shared assumption. In other words, there must be a fundamental difference between the assumed and actual states of affairs.
  5. The parties, or at least the party relying on the common mistake, would not have entered into the contract had the parties been aware that the shared assumption was wrong.
  6. The contract must not have made provision in the event that the common assumption was mistaken.

Accordingly, Triple Seven were awarded damages for breach of contract in the sum of approximately US$ 22 million.

Sitemap

Pages
News
×