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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

03 Oct

Deleted Words from a Draft

Bou Simon v BGC Brokers LLP [2018] EWCA 1525 (Civ).

The question for the Court was whether the trial judge had been correct to imply a term into a loan agreement requiring the appellant broker to repay a loan made by his employer in circumstances where he left the firm before the completion of the ‘initial period’ defined in his employment contract. The trial judge had found that such a term should be implied, applying the test in Marks & Spencer v BNP Paribas Securities [2016] AC 742. The Court of Appeal disagreed. It held that the judge had succumbed to the temptation warned against by Bingham MR in Philips Electronique [1995] EMLR 472 of implying a term to give effect to the merits of the situation as they appeared to the judge, rather than to the obvious intentions of the parties at the time of contracting.

The decision of the Court of Appeal is interesting for its discussion about the circumstances in which deleted words in draft agreements are admissible in determining whether a term should be implied into a contract. This question arose because, in a draft of the loan agreement, the employer had specifically put forward an express term similar to that which the judge implied, but the employee indicated that he did not agree to the inclusion of the term, which was subsequently deleted from the draft. In the event, the Court of Appeal rejected the implied term without reference to deleted term, and so did not need to decide whether or not the deletions could be taken into account, but nevertheless expressed some obiter views on the question.

According to Asplin LJ, deleted words from a draft agreement should only be admitted for the purpose of implication if they were part of the admissible background for the purposes of construing the express terms (para 30). She held that even if the parties had deleted a term which was identical to that which was sought to be implied, this fact could not be relied upon in order to rebut the proposed implication unless it was part of the relevant surrounding circumstances and not merely part of the course of negotiations.

Singh LJ, however, suggested that a wider approach may be justified. He indicated that he saw force in the suggestion in Lewison, The Interpretation of Contracts, that “the consideration of deleted words may negative the implication of a term in the form of deleted words.” (para 33). He also pointed out that, in circumstances where (post Marks & Spencer) it was now clear that the process of implying a term was different from that of construing express terms, the fact that the deletions may not have been admissible for the purpose of construction may not be determinative (para 34).

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.

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