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St Philips Commercial

Head of St Philips Business & Property Group, James Morgan QC, who was instructed by Osborne Clarke LLP, successfully acts for Northampton Borough Council in obtaining a £2.3m judgment against Anthony and David Cardoza arising out of their conduct as directors of Northampton Town Football Club.

Following a highly publicised 10-day trial in July 2018 in which the defendants denied all wrongdoing, HHJ Barker QC today handed down judgment in favour of the Council finding that the former directors had acted in breach of their fiduciary duties and were liable to compensate the Council as assignee of the Football Club. He also granted the Council relief under s.423, Insolvency Act 1986 in relation to the transfer by David Cardoza to his wife of his interest in their former domestic property.

A full copy of the judgment can be found here.

St Philips Chambers is delighted to announce that Iqbal Mohammed, a member of our Business & Property Group, has been appointed to serve a 3-year term as a governor of the Birmingham Metropolitan College corporation; Birmingham’s largest Further Education provider with 10 campuses across the city. Birmingham Metropolitan College includes the landmark Matthew Bolton College campus and Sutton Coldfield College.

Iqbal’s appointment is the latest example of St Philips Chambers’ enduring commitment to local education, access to the bar and the city of Birmingham. Every year since 2011, St Philips has hosted the Bar Council’s “How to get to the Bar” annual legal conference, in partnership with Aston University to promote the bar to A-Level students who have an interest in law. In addition, several members of chambers volunteer as governors for local schools.

On Thursday 15th November, Marc Brown was invited to speak at a conference hosted by Aston University, to reflect on the impact of the Enterprise Act 2002 reforms on UK insolvency proceedings and also consider the potential for further reform.

Marc presented a paper from a practitioners point of view entitled ‘An evolution of the Enterprise Act 2002?’ alongside other guest speakers including; Professor David Millman of Lancaster University, Professor Andrew Keay of University of Leeds and Associate Professor David Brown of Adelaide University.

Marc Brown

The conference was a huge success and we would like to thank Aston University for their kind invitation and hospitality.

Judgement was today handed down by the Supreme Court of the United Kingdom in the case of Regency Villas Title Ltd and others v Diamond Resorts (Europe) Ltd and others [2018] UKSC 57. John Randall QC and Marc Brown, instructed by Shakespeare Martineau to represent the committee of the many members of Regency Villas Owners’ Club and its trust company, learned that by a majority of 4-1 the Supreme Court had dismissed their opponents’ appeal, and allowed their own cross-appeal, in this hard fought case. 

John Randall QC commented “When you buy a time-share week or two in the Kent countryside with a view to playing golf, swimming and enjoying a variety of the other recreational facilities available on the neighbouring estate (Broome Park), you do not expect to find yourself a party to legal proceedings in the High Court, never mind the Court of Appeal and ultimately the Supreme Court, with all the risks and uncertainties that litigation inevitably involves.

As the majority judgment states, this is the first time the highest court in our land has considered the extent to which the right to the free use of sporting and recreational facilities provided in a country club environment may be conferred upon the owners and occupiers of an adjacent timeshare complex by the use of freehold easements. The Supreme Court has roundly endorsed this ‘new species of easement’, observing that whatever may have been the attitude in the past to ‘mere recreation and amusement’, recreational and sporting activity of the type exemplified by the facilities at Broome Park is so clearly a beneficial part of modern life that the common law should support structures which promote and encourage it.

The only matter for regret is that the passing of the trial judge, the late and much missed Judge Purle QC, earlier this year has deprived him of the pleasure of reading a Supreme Court judgment which prefers his view of the grant in issue to that of the Court of Appeal."

The full judgement and press summary can be found here

For further information, please contact Senior Clerk, Justin Luckman via This email address is being protected from spambots. You need JavaScript enabled to view it. or 0121 246 7050.

On Wednesday 24th October 2018 we attended the Birmingham Business and Property Court Users Group Meeting, chaired by Mrs Justice Carr and Mr Justice Birss. The meeting also had the honour of being attended by Sir Terence Etherton, the Master of the Rolls, along with Lord Justice Flaux, and was well attended by local solicitors and members of the Bar.  

A number of current issues were discussed with some useful observations made which we thought may be of interest to our clients and so below is a summary of what was discussed. Many thanks to our new pupil, Natalie Kearney, for putting the minutes together. 

CE-Filing 

A member of staff from The Rolls Building attended and gave an update on the nationwide roll-out of the CE-Filing system. They confirmed that the roll-out is forecast to last a further 2 years, with QBD next in line as it has the oldest legacy systems. The regional Business and Property Courts (BPC) are to follow QBD. 

We were told that the technical build is scheduled to be complete by Christmas, with the internal release to staff and judges in January 2019. They are at this stage unable to provide a definite date for switching on the external element, however it was thought that the roll-out in QBD and the BPC should take around 2 months each and therefore it would probably be rolled out around March/April 2019. 

The Practice Directions for the Rolls Building and the QBD are done. It is expected that the PD for the BPC are to be substantially the same. 

CE-File will not be mandatory from its initial release; however, the aim is for it to be mandatory for professionals after a phasing-in period, but not for litigants in person. 

Updates on this will follow. 

Reform Programme 

Master of the Rolls, Sir Terence Etherton also confirmed that this is part of an ongoing reform programme, running until 2022. The aim is to improve the system beyond e-filing, hopefully with the aim of running paperless trials. This would not be possible on the CE-Filing system as designed so it will require the development of a new system. 

Specialist Lists – Intellectual Property 

Mr Justice Birss confirmed that early next year the aim is to introduce the IPEC list into regional BPC and there is a process underway currently to identify judges willing to have training. The first cases to be heard are likely to be small claims track trials. 2 DJs in Birmingham have already volunteered to undertake the necessary training. 

Specialist BPC DJs 

More DJs are to be added soon and recruitment is under way for DDJs. 

Birmingham has seen a significant increase in insolvency work, which may reflect the fact that the Insolvency PD changed in July 2018, with Birmingham a centre for specialised insolvency work. This means that there is a need for specialist DJs. 

Shorter and Flexible Trials Scheme 

This was piloted in the Rolls Building and is now permanent in all BPC. There appears to have been little uptake, although the shorter trials scheme has been more successful than the flexible trials scheme. The benefits are that a hearing date can be obtained more quickly, and appeals can also be expedited and Mrs Justice Carr was keen to see in increase in its uptake. 

Urgent Applications 

Concerns have been raised by Judges as to the limited information they receive when an urgent application is received at the counter. Quite often they simply have the signed application and that inappropriate applications are being made (e.g. applications without notice when notice should have been given). 

A new 2-page form is going to be introduced that will ask for additional information to be supplied about the urgent application, which will be handed to the Judge for them to decide if the application is urgent. This is intended to prevent inappropriate applications and was introduced successfully by HHJ McCahill QC in Bristol. 

Turnaround Times 

Issue is currently operating a 2-day turnaround. 

Correspondence and Orders are at 11 October 2018 at present. 

There have been some staffing changes which are impacting turnaround times, but new members of staff are joining the team and it is expected that the new CE-Filing system will reduce the turnaround time further. 

Disclosure Pilot 

James Morgan QC raised two concerns, both of which were discussed at the first or our Disclosure Breakfast Seminars that took place earlier that day :

1. The pilot is said to apply to new and existing claims from 1 January 2019, however what does this mean for CCMCs listed in the first weeks of January? The new rules require the completion of disclosure forms and there will not be time for these to be completed prior to the hearings from 1 January 2019.

a. Mrs Justice Carr and Mr Justice Birss confirmed that parties should begin completing the relevant disclosure review documents as soon as possible, ready to comply in January 2019, even though the pilot is not yet in force. There was some suggestion that words to that effect should be included on the notices being sent out by the courts, however the advice was to complete the forms regardless of whether any such wording was on the notices.

2. The pilot will only work if DJs are given proper time to read the disclosure review documents prior to any CCMC, therefore were there provisions being made for the DJs to have extra reading time?

a. DJ Ingram raised concerns that increased reading time would impact the number of effective CCMCs it would be possible for the courts to hear. 

b. It was agreed that DJs would probably need more time to review the DRDs.

DJ Ingram asked that details of any seminars on the new disclosure pilot be provided to her to pass on to any other DJs as some judges had not been able to attend earlier training, She duly attended our seminar in chambers on the 1st November. 

Sir Terence Etherton confirmed that the aim for the pilot is that the disclosure scheme will eventually roll-out beyond the BPC to apply to all civil litigation. 

Appeals Query

Marc Brown had become aware that the current procedural rules mean that an appeal can only be heard by a full-time High Court Judge, not deputies or those sitting as s9 Judges. This presents a difficulty on circuit due to the number of available full-time High Court Judges. He questioned whether this was a matter to be referred to the Rules Committee. 

This is apparently an issue that has been considered in depth and is a question for the heads of the division. It is believed that the position is as Marc described and that there is to be a review to take place of the procedure in the next 4 months. 

We hope you find this of use. 

James Morgan QC and Justin Luckman

The Honourable Mr Justice Pepperall was officially sworn in by The Lord Chief Justice, The Right Honourable The Lord Burnett of Maldon, in a ceremony at the Royal Courts of Justice yesterday.

Ed, as he is known to most of you, took the Oath of Allegiance and the Judicial Oath before the Lord Chief who was joined on the bench by The President of the Queen’s Bench Division, Sir Brian Leveson and Ed’s former stablemate at No.2 Fountain Court (latterly St Philips Chambers) Sir Andrew McFarlane, The President of the Family Division. On what was a very proud day for Ed and for St Philips, Court 4 of the RCJ was full of Ed’s family, friends and colleagues to witness his appointment to the Queen’s Bench Division and to wish him well in his new role.

Tuesday, 09 October 2018 00:00

Kirsty White joins St Philips

St Philips is delighted to welcome Kirsty White as a new tenant in chambers.

Kirsty joins our Business & Property Group after 5 years working in-house in the litigation team of a national firm of solicitors. During this time a lot of her work has focused on contract and torts including claims of high value or with an international element.

I am incredibly excited to be joining St Philips and beginning the next stage of my career” said Kirsty. “Having instructed members of St Philips myself, I am only too aware of the first rate practitioners I will be working alongside and honoured to now be a member of their exceptional Business & Property Group.

Head of Group James Morgan QC said “I am delighted that Kirsty has accepted an invitation to join chambers. I know from our experience of working together that Kirsty is an exceptional barrister whose addition to our Business & Property Group enhances the strength and depth offered by our members across the full spectrum of commercial litigation.

St Philips Chambers is delighted to announce that Ed Pepperall QC has been appointed a High Court Judge, assigned to the Queen’s Bench Division.

Ed will take the customary Oath of Allegiance and the Judicial Oath at a swearing in ceremony before the Lord Chief Justice and will start sitting as The Honourable Mr Justice Pepperall on Monday 1st October 2018 at the Royal Courts of Justice.

Ed has enjoyed a distinguished career at the Birmingham Bar and was a founding member of St Philips Chambers.

The married father-of-three has strong connections with Birmingham in addition to his legal work. His grandfather, Sir Harold Gurden, was the Conservative MP for Selly Oak for 19 years (1955-1974). Ed studied law at the University of Birmingham – the first member of his family to attend university – and graduated in 1988.

Ed, who was called to the Bar in 1989, remained in the city for his pupillage and early career at Birmingham’s 2 Fountain Court. The set merged with 7 Fountain Court to become St Philips in 1998.

Ed took Silk in 2013, was appointed as a Recorder in 2009; and was made a Deputy High Court Judge in 2016, sitting in the Chancery and Queen’s Bench Divisions, including the Technology and Construction Court. He is a Justice of the Court of Appeal of the Falkland Islands, South Georgia and the South Sandwich Islands, and was a member of the Civil Procedure Rule Committee between 2010 and 2016. He is also a contributing editor of the White Book.

Ed said: “I am extremely honoured to be appointed a High Court judge following a rewarding career at the Bar. Although I have practised regularly in London, Birmingham has always been my legal home. The city is a centre of excellence and boasts many advocates of the very highest standard.

“I am delighted to have been a member of St Philips since its inception in 1998. St Philips’ obvious commercial strength helped me to achieve my ambitions and I wish the set the very best for the future.”

With a forensic eye for detail, Ed was regularly instructed in multi-million pound commercial and professional negligence litigation with particular expertise in business sale disputes, restraint of trade, confidentiality and commercial fraud work. Among other blue chip clients, he represented the royal household, the UK’s five largest brewers, a Formula 1 racing team and a sitting judge.

His final case as a QC was a five-week trial in London relating to a share warranty claim valued at $75 million.

Head of Chambers Andrew Smith QC said: “We are absolutely delighted for Ed and wish him every success as he embarks on his judicial career. His appointment is richly deserved and a great honour for both him and chambers.” Ed’s elevation to the High Court bench is the seventh judicial appointment from St Philips this year, following on the heels of three Circuit Judges, two District Judges and a First-tier Tribunal Judge. “Once again we have demonstrated that St Philips is the set to be in for barristers wishing to work in a collegiate atmosphere that encourages individuals’ ability to work, and reach, the highest possible level.” said Smith.

In addition to the usual Queen’s Bench diet of civil, appellate and serious criminal work, Ed is likely to sit in the Technology and Construction Court in London.

St Philips is extremely proud of his appointment and wishes Ed every success in his judicial career.

The official announcement can be viewed here.

Published by LexisNexis, Atkins Court Forms provides commentary and precedents in respect of civil proceedings before the courts and judicial tribunals of England and Wales.

Volumes 7(1) and 7(2) on bankruptcy and personal insolvency have recently been published in an updated form, stating the law as at 25 April 2018, having been updated to take into account recent developments and most notably the introduction of the Insolvency Rules 2016.

Marc Brown was one of the two contributors in respect of these newly published volumes.

If you require any further information about Marc’s practice or Chambers Business & Property Group, please do not hesitate to contact Justin Luckman or Arron Snipe.

John Randall QC and Marc Brown appeared in the Supreme Court over the last two days in the case of Regency Villas Title Ltd and others (Respondents/Cross-Appellants) v Diamond Resorts (Europe) Ltd and others (Appellants/Cross-Respondents).  The appeal was heard by The President of the Supreme Court Lady Hale and Supreme Court Justices Lord Kerr, Lord Sumption, Lord Carnwath and Lord Briggs, and has sought to clarify the appropriate test for easements, and specifically the extent to which easements can properly be granted in respect of recreational uses of land, such as to use a golf course or a swimming pool.

John and Marc appeared on behalf of Regency Villas Title Ltd and others, instructed by Shakespeare Martineau (as they did both at first instance and in the Court of Appeal).

The judgment is reserved.

The UK Supreme Court Case Summary

Issues

In the context of easements, what is the correct approach to the requirement that to qualify as an easement a right must accommodate the dominant tenement in the sense that it provides "utility and benefit" in the use of the dominant land? In particular, what is the correct approach when the right is a right to recreation which is enjoyed in a self-contained way on the servient land? The correctness of the decision in Re Ellenborough Park is also in issue.

Facts

The issue in the appeal is whether a transfer made in 1981 granted to the respondents easements (being property rights) to use the gardens, and sporting and recreational facilities on the appellants’ land, or whether the transfer simply granted personal rights incapable of being transferred to a third party. The judge found that the 1981 transfer did create easements to use (free of charge) the gardens and sporting and recreational facilities on the appellants’ land, even where these had not been built or contemplated at the time of the transfer in 1981. The Court of Appeal upheld the majority of the easements identified by the trial judge, but found that on the proper interpretation of the grant, facilities which were built after the time of the 1981 transfer were not included. The appellants now appeal that decision.

Judgment appealed