High value recent successes for Ben Lafferty

In recent months, Ben Lafferty has had a number of significant high-value successes in both the High Court and County Court.

The first such success came through Ben’s involvement in a one-day forfeiture trial, heard at the County Court at Clerkenwell and Shoreditch – in which he was instructed by the Claimant landlord of a parade of commercial premises in central London.

Numerous defences were fielded by the Defendant, including, substantial disrepair allegations, breach of landlord covenant allegations and assertions of harassment.

Ben, instructed by international law firm DWF, obtained the total dismissal of the entirety of the Defendant’s defence and secured, aside from an order for possession of the relevant property, a substantial money judgment for his client for a sum in excess of £179,000.

The second success came by way of a winding up petition, heard in the High Court in Manchester, over the course of one day, in which Ben was instructed by the Petitioning Creditor – via Chris Jones, insolvency partner at Gunnercooke.

The petition debt was for the sum of £205,000, with the petition itself disputed not by the debtor company, but by eight opposing creditors, who claimed to be the majority debt holders of the debtor company and who sought to have the company remain in voluntary liquidation.

Ben successfully persuaded the court that it ought to exercise its discretion under section 116 of the Insolvency Act 1986 to wind up the debtor company by order of the court, notwithstanding that it had already been placed into a voluntary liquidation.

This result was obtained, as the court accepted Ben’s submissions that, regardless of the fact that there was no specific professional criticism to be levied towards the conduct of the voluntary liquidator, where there was inter-group transactions and debts of questionable probity for varying reasons, the appropriate course was for a compulsory liquidation to allow a full and objectively impartial investigation into the debtor company’s affairs, as the objectivity of the relevant office holder must not only be done – but be seen to be done, in the course of liquidation.

Notably, and importantly, in achieving this result, was the case of re Re Zirceram ltd [2000] 1 BCLC 751, which concerned a winding up petition made against a company already in voluntary liquidation. The petition in that case succeeded, as the court held that actual impartiality of the voluntary liquidator was not the sole issue, when dealing with a s116 petition, as a liquidation had to be seen to be impartial, as well as actually being impartial in a real-world sense. Consequently, in Re Zirceram, as the voluntary liquidation had been entered because of debts of questionable probity, the compulsory liquation was the preferred option, given it would be much harder for a voluntary liquidator to be seen to be independent, where the debts which obtained the majority to install them were themselves of poor standing.

Court of Appeal success for Andrew Williams in Brealey v Shepherd & Co

Andrew Williams has succeeded in the Court of Appeal in Brealey v Shepherd & Co [2024] EWCA Civ 303, a decision likely to become a leading case on the subject of the remuneration of trustees and executors.  Andrew led John Meehan from Kenworthy’s Chambers.

This case involved an estate mainly comprising a high value house.  Shepherd & Co Solicitors claimed £153,000 for the services provided by Mr Shepherd, a solicitor-executor.

Andrew Williams acted for one of the main beneficiaries, Mr Brealey, who issued an application for a Third Party Detailed Assessment of the costs (under s. 71(3) of the Solicitors Act 1974).  Mr Brealey denied that the estate was liable to pay the costs incurred by Mr Shepherd in his role as executor.  His reason was that the deceased’s will did not contain a clause entitling the executors to charge for their services.

The decision turned on two matters.

The first was whether Mr Shepherd’s firm could demonstrate that there was an agreement under section 29(2) of the Trustee Act 2000 entitling him to charge.  That in turn depended on whether that sub-section required that the  agreement be signed by Mr Shepherd’s fellow executor who did not take out a grant and who took no steps in the administration.

The second issue was whether the court should exercise its inherent jurisdiction (sometimes called the jurisdiction under Boardman v Phipps), to authorise Mr Shepherd to be remunerated. That involved identifying when the jurisdiction should be exercised, given the potential inconsistencies among the authorities.

The Court of Appeal found in favour of Andrew’s client, Mr Brealey, on all matters.  As for the first issue, it held that the written consent of the non-intermeddling executor was required under s. 29(2).  Regarding the second issue, the Court clarified when the jurisdiction should be exercised and it refused to exercise it so as to award remuneration.

The first instance decision in this case has already been extensively cited in textbooks.  The Court of Appeal decision now looks likely to become a leading case on the subject.

The hearing can be viewed here:
https://www.youtube.com/watch?v=ni16-TL7xEs&t=403s
https://www.youtube.com/watch?v=mYhlLd53plc

Andrew was instructed by Mr Will Jones of Jones & Co Solicitors.

Five pupils voted in as full members of Exchange Chambers

Exchange Chambers is delighted to announce that five pupils, Scott Cowley, Tom Farr, Jordan Millican, Imogen Nichol and Hateema Zia have become full members of Exchange Chambers after successfully completing pupillage.

The pupils voted in as full members of Exchange Chambers are based in Manchester and Leeds.

In Manchester, Tom Farr undertook a criminal pupillage under the supervision of Charlotte Rimmer, Imogen Nichol undertook a common law pupillage under the supervision of Helen Rutherford and Scott Cowley undertook a commercial pupillage under the supervision of Stephen Connolly and Richard Tetlow.

In Leeds, Hateema Zia undertook a commercial pupillage under the supervision of Steven Fennell while Jordan Millican undertook a criminal pupillage under the supervision of Alex Menary.

Welcoming Exchange’s latest new members, Chief Executive Jonathan I’Anson said:

“We are delighted to welcome Scott, Tom, Jordan, Imogen and Hateema as full members of Exchange and wish them every success at the Bar.”

Exchange Chambers prides itself on the career support it provides to pupils, junior barristers and all its members.

The Legal Cheek Junior Barrister Survey 2023/2024 says: “Exchange offers a level of on-the-job advocacy training that is only possible outside of London”.  The survey goes on to say that “Exchange Chambers get their hands on some of the biggest legal matters” while training is “in a class of its own”.

Steven Swift secures not guilty verdict for junior doctor

Steven Swift from Exchange Chambers has secured an acquittal for a junior doctor charged with sexual assault.

The defendant was charged with sexual assault on a patient while undertaking a rotation at a GP surgery as part of his foundation year training.

After a 4-day trial at Preston Crown Court, he was found not guilty after a short period of deliberation by the jury.

Steven Swift was instructed by Correna Platt, Partner at Stephensons Solicitors.

With over 30 years’ experience at the criminal Bar, Steven Swift is highly regarded and has a successful, heavyweight criminal practice.  He is regularly instructed in the most serious, complex and high profile criminal cases.

The Michaela Hall Inquest concludes

The inquest into the death of Michaela Hall has concluded.

David Sandiford acted for the National Probation Service.

Michaela Hall was in an abusive relationship with Lee Kendall who subjected by her to significant physical violence, coercion and control. Kendall murdered Michaela in 2021.

The Senior Coroner for Cornwall and the Isles of Scilly, Mr Andrew Cox articulated the dilemma from the outset: “As a society we have a choice: do we allow an adult with capacity to continue an unwise relationship she wants with a violent partner or do we take the stance that where coercive and controlling behaviour exists the State must step in to safeguard a woman who cannot or will not accept that she needs protection from her partner?”

The Senior Coroner recognised that Michaela chose to enter into a relationship with Kendall. She did not listen to the advice of her family or her friends who told her to have nothing to do with him. To the contrary, she committed to the relationship at the cost of her children living with her, family relationships and, ultimately, her life.

Over the course of 2 weeks and over 40 witnesses the inquest examined, amongst other matters:

  • The circumstances of the fatal attack;
  • Whether the police response to the report of the attack was adequate, including the arrangements for Crimestoppers to report immediate safety concerns to the police;
  • Whether a different or faster response would have made any difference to the outcome;
  • The multi-agency response to the risks posed by Kendall
  • Whether the response of the relevant agencies (Probation Services; MARAC; Child and Adult Social Care; Police; First Light) to the risks presented by Kendall to Michaela was adequate including the assessment of the risk, response to the risk and communication with the other agencies. Agencies had great difficulty in finding further options that could be pursued to limit the risk to Michaela
  • Whether there ought to have been a referral to the High Risk Behaviour Panel;
  • Whether the police shared risk information with the other agencies in relation to earlier domestic abuse;
  • Whether all reasonable options were pursued given Michaela’s seeming reluctance to help herself;
  • Whether the risk of Michaela forming inappropriately close relationships with offenders was adequately addressed by PACT and Julian House;

The Senior Coroner concluded that Michaela was unlawfully killed and that there were failings on the part of institutional and State IPs.

The Senior Coroner is likely to issue PFD reports.

Other interested persons in the inquest included Devon and Cornwall Police, the Kent and Sussex CRC, Cornwall Council and Julian House.

The inquest has been widely reported in the national media:
BBC News
The Guardian

Business and Property Newsletter 2024

Please find below some recent articles written by our barristers, collected in the March 2024 edition of the Business and Property newsletter:

Exchange’s property team building on strong foundations

By Lawrence McDonald and Brynmor Adams

Exchange Chambers’ specialist property team is building on strong foundations after a highly successful 2023. Following recent expansion…

Digital Evidence and Imaging Orders: Practical Considerations

By Steven Fennell

Commercial practitioners will be familiar with search orders, formerly known as Anton Pillar Orders, which permit the search of paper records…

Brown v Ridley and Another [2024] UKUT 14(LC); [2024] PLSCS 19

By Tanita Cross

In 1979, cinemagoers watched with surprise as James Bond was unexpectedly pushed from a plane without a parachute in the film Moonraker…

Hateema Zia Secures Scholarship in Dubai

By Hateema Zia

We are delighted to announce that Hateema Zia has been awarded the Pegasus Scholarship by The Honourable Society of the Inner Temple…

Personal Injury Newsletter – March 2024

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Please find below the articles written by our barristers, and distributed in the March 2024 edition of Exchange chambers’ personal injury newsletter:

Hadley v Przybylo – Court of Appeal judgment handed down

By Chris Barnes KC

The much-awaited judgment in Hadley v Przybylo has been handed down. This is a significant win for claimants and their rehabilitation…

 

The Kirkup report 2015 – where are we now?

By Sara Sutherland

The Kirkup report gave us a level from where we could compare CQC investigations and reports that were carried out in the years following to see how change had been implemented and whether anything had changed…

 

Opinion evidence from lay witnesses

By Chris Gutteridge 

I have recently been involved in 3 cases in which a defendant has taken exception to lay witness statements served on behalf of a claimant, because they were said to contain ‘opinion evidence’…

 

At a glance: Supreme Court hears appeal on assessing PSLA in “mixed injury” whiplash claims

By David Illingworth, current Common Law pupil

On 24 February 2024, the Supreme Court heard the appeal in Hassam v Rabot, a pair of test cases which centre on how general damages are to be assessed in cases which involve both whiplash injuries (to which the fixed tariff under the Whiplash Regulations 2021 applies) and non-whiplash injuries (awarded under general common law principles).

High Court success for Chris Barnes KC

Chris Barnes KC represented the successful claimant in Owens v Lewis [2024] WLUK 280. The judgment is of interest in its discussion as to the approach to take when considering multiple allegations of contributory negligence.

It is the second court success in as many weeks for Chris Barnes KC who also acted in Hadley v Przybylo [2024] EWCA Civ 250, the lead case on the recovery of costs for solicitors attending rehabilitation meetings.