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Cases Richard Fowler

Add2 Research & Development Ltd v dSpace Ltd and another

Judgment Date: 17 Jun 2021

A new judgment of the Patents Court in London contains an important discussion of the circumstances in which a transaction by a company will be treated as ultra vires and void as an unlawful distribution to a shareholder at common law.

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Members
Richard Fowler

Practice areas
Company, Partnerships & LLPs
Intellectual Property

Davey v Bailey

Judgment Date: 26 Feb 2021

A recent judgment of the High Court, Chancery Division in Cardiff helpfully summarises the current state of the law in relation to deathbed gifts.

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Members
Richard Fowler

Practice areas
Private Client

Sara & Hossein Asset Holdings Ltd v Blacks Outdoor Retail Ltd (2020)

Judgment Date: 13 Nov 2020

Richard Fowler acted for the successful appellant landlord, Sara, before the Court of Appeal and at first instance in a dispute over service charges claimed pursuant to a “conclusive certification” clause in leases of commercial premises. The reasoning of the Court of Appeal’s judgment is also applicable in the wider context of “conclusive certification” and “conclusive evidence” provisions in commercial contracts, including guarantees.

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Members
Richard Fowler

Practice areas
Commercial Disputes
Real Estate

Sara & Hossein Asset Holdings Ltd v Blacks Outdoor Retail Ltd (2019)

Judgment Date: 09 Dec 2019

In this case the court was asked to construe two provisions that are extremely common in commercial leases; a “conclusive certification” clause and a “no set-off” clause. The question for the court was: could the landlord obtain summary judgment for service charge arrears against its tenant in reliance on the two clauses? The court’s reasoning is of interest to both real property practitioners and commercial litigators generally.

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Members
Richard Fowler

Practice areas
Real Estate

(1) Mark Alan Holyoake (2) Hotblack Holdings Ltd v Nicholas Anthony Christopher Candy & 5 Ors (2017)

Judgment Date: 21 Dec 2017

In determining the lawfulness of a loan and supplemental rescheduling agreements, the court considered allegations of fraudulent misrepresentation, duress, undue influence, and extortion under colour of due process. It also considered whether one lender's disclosure to another lender of the existence of the loan was a breach of the Data Protection Act 1998, and whether extension fees of £2.5 million made the relationship between the lender and the borrower unfair for the purposes of the Consumer Credit Act 2006.

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Members
Richard Fowler

Candy v Holyoake (2017)

Judgment Date: 28 Feb 2017

When imposing a notification injunction on the defendants to an unlawful means conspiracy claim, a judge had applied an incorrect test in relation to the level of risk of dissipation of assets required to be shown. The injunction was set aside as there was not a real risk, supported by solid evidence, that a future judgment would not be met because of unjustifiable dissipation.

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Members
Richard Fowler

(1) Mark Alan Holyoake (2) Hotblack Holdings Ltd v Nicholas Anthony Christopher Candy & 5 Ors (2017)

Judgment Date: 28 Feb 2017

When imposing a notification injunction on the defendants to an unlawful means conspiracy claim, a judge had applied an incorrect test in relation to the level of risk of dissipation of assets required to be shown. The injunction was set aside as there was not a real risk, supported by solid evidence, that a future judgment would not be met because of unjustifiable dissipation.

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Members
Richard Fowler

(1) Mark Alan Holyoake (2) Hotblack Holdings Ltd v Nicholas Anthony Christopher Candy & 5 Ors (2017)

Judgment Date: 27 Feb 2017

Where a claimant had waived privilege in certain documents for the purpose of rebutting a suggestion that he had fabricated allegations, the defendant's application for further disclosure on the ground of collateral waiver was refused because the material in respect of which further disclosure was sought was not part of the actual communication in which privilege was waived. Determining the scope of collateral waiver was not a discretionary exercise. In order to achieve consistency of decisions, and therefore predictability, it was necessary to have regard to previous case law and not to the question of what might be regarded as fair.

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Members
Richard Fowler

Holyoake v Candy & 5 Ors (2016)

Judgment Date: 29 Nov 2016

The court considered the circumstances in which a defendant who had withdrawn a security for costs application might be entitled to make a second application without giving rise to abuse of process. It also indicated that where a security for costs application was withdrawn by consent, a defendant did not retain an unrestricted right to launch a fresh application by indicating, in correspondence relating to the consent order, that he reserved his rights to bring a security for costs application in the future.

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Members
Richard Fowler

Holyoake v Candy & 5 Ors (2016)

Judgment Date: 27 Jul 2016

A text message threat made during without prejudice negotiations ahead of a commercial trial for damages of over £132 million had not amounted to unambiguous impropriety and was therefore not admissible in evidence. The threat did not amount to an abuse of a privileged occasion; it was no more than the sort of negotiating tactic that the parties to the hard-fought commercial litigation would have expected.

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Members
Richard Fowler

Holyoake v Candy & 5 ors (2016)

Judgment Date: 29 Apr 2016

The court had jurisdiction under the Senior Courts Act 1981 s.37 to grant a notification injunction restraining defendants in an unlawful means conspiracy claim from disposing or dealing with their assets without prior notification. The injunction was granted as the claimants had demonstrated a good arguable case that there was a risk that the defendants might dissipate their assets.

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Members
Richard Fowler

Mark Holyoake & Hotblack Holdings Ltd v Nicholas Candy (2016)

Judgment Date: 29 Apr 2016

The court had jurisdiction under the Senior Courts Act 1981 s.37 to grant a notification injunction restraining defendants in an unlawful means conspiracy claim from disposing or dealing with their assets without prior notification. The injunction was granted as the claimants had demonstrated a good arguable case that there was a risk that the defendants might dissipate their assets.

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Members
Richard Fowler

Practice areas
Civil Fraud & Asset Recovery

Frederic Achom & Ors v Thomir Lalic & Ors (2014)

Judgment Date: 10 Jun 2014

A potential co-venturer in a nightclub project had not established his entitlement to a share in the venture by means of an interest arising from his non-financial contribution where there was no evidence of any concluded agreement between himself and the purchasers of the lease, and consequently no evidence of a partnership. Nor had the purchasers given any assurance which was clear enough to found a claim based on proprietary estoppel, which in any case had to be approached with caution in a commercial context.

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Members
Richard Fowler

Practice areas
Company, Partnerships & LLPs

Webb Resolutions Ltd v JV Ltd (T/A Shepherd Chartered Surveyors) (2013)

Judgment Date: 15 Nov 2013

A property valuer's application for specific disclosure in a negligence action brought against it by a mortgagee was refused where the documents sought added nothing to its defence that the claim was champertous.

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Members
Andrew Walker KC
Richard Fowler

Webb Resolutions Ltd v JV Ltd (T/A Shepherd Chartered Surveyors) (2013)

Judgment Date: 14 Mar 2013

If a party was charged with drawing up a court order it was the duty of its solicitors and counsel to produce a draft that fairly reflected what they thought that the judge had decided or directed. A defendant was entitled to its costs unnecessarily incurred as a result of unreasonable conduct by the claimant's solicitors in refusing to agree to the terms of an order in the form that had been directed at a case management conference.

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Members
Andrew Walker KC
Richard Fowler

International Leisure Ltd & Citibid Securities Ltd v First National Trustee Co UK Ltd & Ors (2012)

Judgment Date: 16 Jul 2012

A secured debenture holder's claim against an administrative receiver it had appointed over a company ought not to have been struck out as its claim did not offend the rule against reflective loss. To strike out such a claim arbitrarily denied a secured creditor fair compensation for any primary loss suffered.

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Members
Richard Fowler

Practice areas
Company, Partnerships & LLPs

Tradegro (UK) Ltd & Wigmore Street Investments Ltd v Charles Price (2011)

Judgment Date: 16 Mar 2011

The court construed an undertaking whereby the solicitors of a company held money another party had paid under a judgment, after the company had become insolvent and another judgment against the company had been given in the other party's favour.

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Members

Matthew Collings KC
Richard Fowler

Progress Property Co Ltd v Moorgrath Group Ltd (2010)

Judgment Date: 08 Dec 2010

When considering whether a transaction constituted an unlawful distribution of capital by a company, the proper approach was to inquire into the true purpose and substance of the impugned transaction and to conduct a realistic assessment of all the relevant facts, not simply an isolated retrospective valuation exercise.

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Members

Matthew Collings KC
Richard Fowler

Practice areas
Company, Partnerships & LLPs

Tradegro (UK) Ltd v Wigmore Street Investments Ltd (2010)

Judgment Date: 07 Jul 2010

In interpleader proceedings it was determined that the obvious intention of the parties was that monies held pursuant to an undertaking in the client account of a firm of solicitors were held by the solicitors as trustee, to pay the monies out in accordance with the terms of the undertaking. Further, the undertaking constituted a solicitor's undertaking to hold the monies and apply them in accordance with that undertaking.

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Richard Fowler

Tradegro UK v Wigmore St Investments (2009)

Judgment Date: 11 Sep 2009

It was inappropriate for the English courts to assume jurisdiction of a claim and allow service outside of the jurisdiction where although it had been shown that there was a good arguable case that there was an agreement between the parties which was governed by English law the underlying claim had no merits and there was no serious issue to be tried between the parties.

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Richard Fowler

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