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Significant & Reported Cases
Asset finance, leasing agreements, marketing support, breach of contract, misrepresentation and fraud by supplier.
Ross represented the successful claimant charity in a complex case involving a series of leasing agreements for photocopying equipment supplied by the defendant to the claimant and funded by asset finance agreements with leasing houses. The defendant induced the claimant to enter into each ever more expensive agreement with the promise of net financial savings to be achieved by the payment to the claimant of “marketing support”. The defendant represented that the marketing support pool was provided by the photocopier manufacturer. In fact, the defendant had paid the marketing support from the proceeds of sale obtained from the leasing houses for the purchase of the equipment, with the result that the claimant ended up repaying the marketing support payments to the leasing houses as part of its rental obligation. In consequence, the claimant ended up with a 5-year liability of close to £1 million for the hire of 5 photocopiers. The claimant was awarded over £660,000.00 in its claims for misrepresentation and breach of contract. The judge described the business of the defendant, as conducted by its sales representative with respect to the claimant, as “fundamentally dishonest”.
Sale of goods, claim by buyer to return of price, acquisition costs and consequential loss following purchase of allegedly defective boat, breach of condition as to satisfactory quality, rejection and affirmation, relevance of Part 5A of Sale of Goods Act 1979 to delay and rejection, effect of manufacturers’ warranties on rights and obligations of seller and buyer.
Whether the form of wording "court: DK-6100 Haderslev, Denmark" contained in a binding contract constitutes an agreement under the EC Regulation 44/2001 conferring jurisdiction on the Danish courts to settle all disputes arising out of the contract.
Retention of title dispute; title had been reserved and accordingly the goods had been converted under the Torts (Interference with Goods) Act 1977 s.1(a). The Manufacturer was, accordingly, entitled to an order for delivery up of the plant, although as the items were ordinary items of commerce, the company was entitled, in the alternative, to pay the manufacturer damages equivalent to their market value. References: LTL 22/6/2009
Recovery of mistaken payment; ministerial receipt by bank; defence of change of position
The court of appeal considered a number of issues arising in two unfair prejudice petitions under section 994 of the Companies Act 2006, including the nature of a nominee director’s duties to the company and to his appointor and the inter-relation between winding up on just and equitable grounds and the jurisdiction under section 994.
Professional negligence claim arising out of PFI waste project; whether proceedings should be transferred to London and heard by High Court Judge.
Interpretation of a choice of jurisdiction clause in a contract between a Danish Cattle breeder and an English dairy farmer under Article 23 of Council Regulation No. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments.
Homefinder commission claim, whether commission dependent on services provided being effective cause of purchase, implied term.
Judgment following trial of a petition alleging unfair prejudice in the affairs of Neath RFC, unfair prejudice established in relation to unlawful participation in management under section 216 of the Insolvency Act 1986 and on other grounds, prejudice established did not justify share purchase order, order made regulating the affairs of Neath RFC and a linked company, the Ospreys.
Application for summary judgment and strike out, whether real prospect of success in allegation that fiduciary duties owed by mailshot distributor to supplier/creator of charity mailshots.
Concerning the nature and effect of the provisions restricting the use of company names in sections 216 and 217 of the Insolvency Act 1986 in the context of an unfair prejudice cross-petition under section 459 of the Companies Act 1985 (now section 994 Companies Act 2006) and the circumstances in which declaratory relief may be granted.
Concerning the nature and effect of the provisions restricting the use of company names in sections 216 and 217 of the Insolvency Act 1986 and the ability of a petitioner to found a petition under section 459 of the Companies Act 1985 based on breaches of section 216.
Stephen Davies QC
Richard Ascroft
Hugh Sims
Unfair prejudice petition, injunction to restrain the use of company funds to prevent company monies from being used to fund a cross-claim against a former managing director of that company.
Application for non-party costs order in respect of £5.6M costs under s. 51 Supreme Court Act 1981 against directors of company in administration.
Assignment of causes of action for misfeasance - bidding competition – interests of expense creditors – relevance of public interest in not to stifling misfeasance claims.
Stephen Davies QC
Jeremy Bamford
Scope of jurisdiction of the Financial Ombudsman Service in high value claims.
Scope of jurisdiction of the Financial Ombudsman Service over mortgage-endowment linked mis-selling claims.
Group action on behalf of about 400 claimants for mis-selling of annuities over a period of years, 2005-2007.
Application by local authority to sell PFI assets pending trial of a claim by the funder of a failed PFI project of a right to remove and sell them notwithstanding a PFI vesting clause on contractor default.
Insurers right to refuse indemnity under s.151(4) Road Traffic Act 1988:
Enforcement of guarantee, allegation of undue influence by bank.
Trustee of life and pension benefits under occupational pension scheme; whether negligent in failing to arrange life cover; liability to widow of deceased employee; whether trustee could rely on trustee exemption clause; impact of Unfair Contract Terms Act 1977.
Whether or not a bankrupt was entitled to an award of damages against his insolvency practitioner advisor for loss of chance of obtaining the annulment of his bankruptcy.
Case concerned with negligent estimation of refurbishment costs and contract letting.
Sale of goods; breach of conditions as to quality and fitness for purpose in multi-million pound commercial contracts; construction of contract terms and incorporation of terms; unfair contract terms; meaning of “international supply contract”; damages, including wasted managerial time.
Procedure, whether the trial judge can, after conclusion of a hearing in which a decision sought to be appealed is made, extend time for application to himself for permission to appeal to Court of Appeal
Indemnity costs, liability of party for indemnity costs where fault alleged is that of expert witness.
Case concerning efficacy of trustee exoneration clauses protecting occupation pension scheme trustees.
Whether credit agreement a multiple agreement within s 18 Consumer Credit Act 1974 and unenforceable as not properly documented.
Whether or not a bankrupt was entitled to an award of damages against his insolvency practitioner advisor for loss of chance of obtaining the annulment of his bankruptcy.
Offshore unregulated fund; claim by investors against financial adviser and provider of offshore insurance "wrapper bond"; negligence; breach of statutory duty.
Dispute between storage company and car dealers over right to possession of over 100 Rover MG cars; delivery up and wrongful interference with goods; bailment and attornment.
Whether liability within scope of guarantee; whether estoppel by convention prevented guarantor asserting guarantee covered only a specified loan.
Whether CCA regulated credit agreement enforceable; whether sums to clear existing mortgage arrears credit or charges; whether insurance premiums credit or charges.
The appellant had failed to show that financial assistance, in the form of the company’s liability to pay rent under a lease, was given by the company “before or at the same time as” the relevant acquisition of shares – further, the obligation undertaken by the company was not “for the purpose” of the acquisition of shares within s.151(2) CA 1985.
Sale of goods; seller company a vehicle for VAT ‘carousel ‘ or ‘missing trader’ fraud; whether contract illegal or unenforceable.
Forged signature on a mortgage deed - whether legal mortgage or equitable mortgage.
Application appealing liquidator's decision on proof of debt r. 4.83 IR 1986 or to expunge debt under 4.85 IR 1986 - allegation lease by company granted in breach of s. 151 CA 1985 as financial assistance for purchase of shares.
Trial of guarantor’s claims against lender and receivers for misrepresentation, conspiracy, shadow directorship and breach of duty in connection with sale of failed property development.
Mortgages - proceeds of sale insufficient to meet outstanding debt - relevant limitation period to recover the shortfall.
Landlord & tenant - possession - tenant suffering from disability - breach of tenancy - nuisance & annoyance - whether claim for possession unlawful under Disability Discrimination Act 1995 - whether reasonable to grant possession under Housing Act 1988.
Surveyor's negligence - defective building - limitation - knowledge required to start time running - whether deliberate concealment by defendant)
Whether sale of mortgaged property tainted by fraud and to be set aside.
Construction of Employer’s Requirements relating to incomplete works taken on by Contractor under JCT 81 Design & Build contract
Appeal concerned with scope of barrister's immunity.
Directors' disqualification and section 236 IA 86.
Availability of defence of estoppel/change of position to restitutionary claims for return of money paid under a mistake of fact.
Whether non-status credit agreement extortionate.
Affirmation of charge as defence to undue influence claim.
Claim to set aside mortgage for undue influence, misrepresentation or other wrongdoing by a principal debtor.
Credit for windfall gains in computing damages for negligent surveys.
Impact of the Limitation Act on claims for mis-selling personal pension plans.
Duty of care owed by financial adviser to client's dependants when advising on retirement options.
Bank recovery of loans and overdraft - whether regulated by Consumer Credit Act 1974
International sale of Goods dispute; loss right to reject for delay; acceptance of goods; mitigation of loss.
Undue influence defence to mortgagee's claim to possession.
Whether liquidator's solicitor owed duty of care to funding creditor.
Conflict of laws - Consumer Credit Act 1974, s 75 - connected lender liability.
Acted for Defendant; no personal liability of employee in respect of negligent advice given in connection with sale of Home Income Plan product.
Use of extrinsic evidence in defining parcel clauses.
Scope of solicitor's duty of care to third party in connection with provision of protection scheme for investment plan.
Use of expert evidence in conveyancing negligence claims.
Whether applicant was an employee
S459 minority oppression — quasi-partnership — interim relief — appointment of receiver.
Whether harassment outside workplace could be in course of employment
Whether tenancy binding on mortgagee.
Whether judge has to embark upon an investigation into solicitor's conduct on a wasted costs application when the facts speak for themselves
Duties of a solicitor when advising a surety who may be subject to the undue influence of another.
Employee’s eligibility for permanent health insurance benefit under employer’s scheme.
Assessment of lost chance in negligently handled conveyancing transaction where sale lost through delayed dispatch of contract documents.
No right to stay of proceedings over pension mis-selling despite availability of PIA Review.
Rylands v Fletcher liability and date of knowledge under the Limitation Act 1980.
Surveyor's negligence; scope of duty to comment on risk of structural movement of property.
Enforceability of positive covenants between successor land owners.
No duty of care owed by vendor's solicitor to purchaser in answers given to pre-contract enquiries.
Acted for Claimant; Case B Agricultural Holdings Act 1986; no need for express grant of planning permission if landlord intends to continue residential use of principal farm house; this decision lead directly to and was reversed by the Agricultural Holdings (Amendment) Act 1990.