“11.3.7 [The 1st LLP] and [the trustees] will act in good faith with one another in relation to the application of this clause 11.3 and while this clause remains in force all transactions entered into between [the 1st LLP] and any third party shall be conducted in good faith and at arm’s length and [the 1st LLP] will reply promptly to requests for information concerning the use, development or disposal of [the Land] … 11.3.8 [The 1st LLP] will not structure the Development or disposal of [the Land] in any manner where the principal purpose is to avoid or reduce payment of Clawback.”
“By this provision the parties apply to the Land Registry for a restriction to be entered in the proprietorship register of the Registered Title, such restriction to follow form N as set out in schedule 4 to theLand Registration Rules 2003 and being worded as follows: …”
“[DLA] shall be solely responsible for the management and conduct of any proceedings initiated by it in respect of the Rights (if any and including as to terms on which such proceedings may be brought to an end). [DLA] shall in its absolute discretion be entitled to instruct lawyers and to manage and control all proceedings (including as to their progression and termination) in relation thereto.”
“The court may give summary judgment against a claimant … on the whole of a claim or on an issue if— (a) it considers that the party has no real prospect of succeeding on the claim, … or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.”
“(i) The burden of proof is on the applicant for summary judgment; (ii) The court must consider whether the claimant has a ‘realistic’ as opposed to a ‘fanciful’ prospect of success: Swain v Hillman[2001] 1 All ER 91 ; (iii) The criterion ‘real’ withinCPR r 24.2 (a) is not one of probability, it is the absence of reality: Lord Hobhouse of Woodborough in Three Rivers District Council v Bank of England (No 3)[2003] 2 AC 1 , para 158; (iv) At the same time, a ‘realistic’ claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] CP Rep 51, para 8; (v) The court must be astute to avoid the perils of a mini-trial but is not precluded from analysing the statements made by the party resisting the application for summary judgment and weighing them against contemporaneous documents (ibid); (vi) However disputed facts must generally be assumed in the claimant's favour: James-Bowen v Comr of Police of the Metropolis[2015] EWHC 1249 (QB) at [3]; (vii) An application for summary judgment is not appropriate to resolve a complex question of law and fact, the determination of which necessitates a trial of the issue having regard to all the evidence: Apovdedo NV v Collins[2008] EWHC 775 (Ch) ; (viii) If there is a short point of law or construction and, the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it: ICI Chemicals & Polymers Ltd v TTE Training Ltd[2007] EWCA Civ 725 ; (ix) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial. The court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] Lloyd's Rep PN 526; Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd[2007] FSR 3 ; (x) The same point applies to an extent to difficult questions of law, particularly those in developing areas, which tend to be better decided against actual rather than assumed facts: TFL Management Services Ltd v Lloyds TSB Bank plc[2014] 1 WLR 2006 , para 27.”
“The general rule is that it is not normally appropriate in a summary procedure (such as an application to strike out or for summary judgment) to decide a controversial question of law in a developing area, particularly because it is desirable that the facts should be found so that any further development of the law should be on the basis of actual and not hypothetical facts: e g Lonrho Plc v Fayed[1992] 1 AC 448 , 469 (approving Dyson v Attorney General[1911] 1 KB 410 , 414: summary procedure ought not to be applied to an action involving serious investigation of ancient law and questions of general importance . . .); X (Minors) v Bedfordshire County Council[1995] 2 AC 633 , 740—741 (Where the law is not settled but is in a state of development . . . it is normally inappropriate to decide novel questions on hypothetical facts); Barrett v Enfield London Borough Council[2001] 2 AC 550 , 557 (strikeout cases); Home and Overseas Insurance Co Ltd v Mentor Insurance Co (UK) Ltd[1990] 1 WLR 153 (summary judgment). In the context of interlocutory injunctions, in the famous case of American Cyanamid Co v Ethicon Ltd[1975] AC 396 , 407 it was held that the court must be satisfied that the claim is not frivolous or vexatious, in other words, that there is a serious question to be tried. It was no part of the court’s function to decide difficult questions of law which call for detailed argument and mature consideration.”
“Power to strike out a statement of case (2) The court may strike out a statement of case if it appears to the court– (a) that the statement of case discloses no reasonable grounds for bringing …the claim;” (a) that the statement of case discloses no reasonable grounds for bringing …the claim;”
“… there will be cases… where discovery of the relevant facts involves a process over a period of time as pieces of information become available. In such cases it may be difficult to identify the precise point of time at which a claimant exercising reasonable diligence could have discovered enough, either to plead a claim or (as the case may be) to begin embarking on the preliminaries to the issue of proceedings. In some cases identification of that point of time may be critical. In others, such as the present, it may be unnecessary to identify it with precision. Nevertheless the uncertainty to which this exercise may give rise is inherent in the section.”
“[69] … The question of whether there was something to put the claimants on notice had to be determined on an objective basis, but as Lord Hoffmann explained in Peconic that “leaves open to argument the extent to which the personal characteristics of the plaintiff are to be taken into account in deciding what diligence he could reasonably have been expected to have shown”
“The question whether a claimant has sufficient information to know that they have a worthwhile… claim, is dependent upon a factual investigation which is quintessentially inapposite for summary judgment. So too is the issue of reasonable diligence, which requires a two-stage enquiry as to whether there was anything to put a claimant on notice of a need to investigate and, if so, what a reasonably diligent claimant would have discovered upon some investigation.”
“98. …the word conceal means to keep something secret, either by taking active steps to hide it, or by failing to disclose it. A person who hides something can properly be described as concealing it, whether there is an obligation to disclose it or not. For example, an elderly lady who was afraid of burglars might conceal her pearls before going to bed, without any implication that she was obliged to leave them lying in plain sight. Some people use cosmetics (concealer) to conceal blemishes in their skin, without any implication that they are under an obligation to reveal the imperfections. 99. The position seems to me to be the same, as a matter of ordinary English, where concealment takes the form of the withholding of information with the intention of keeping it secret. For example, Samuel Pepys concealed the contents of his diary by writing it in code; but that does not imply that he was under an obligation to reveal what he had written. Someone who decides not to tell anyone that he has been diagnosed with cancer can properly be described as concealing his illness, without any implication that he is under an obligation to share the information.”
“In many cases the requisite proof of intention might be difficult to provide. The standard of proof would be the usual balance of probabilities standard and inferences could of course be drawn from suitable primary facts but, nonetheless, proof of intention, particularly where an omission rather than a positive act is relied on, is often very difficult.”
“But assuming that point in his favour I find it hard to see how concealing the resolution to wind up or the intention to dissolve the company can be the concealment of a fact relevant to Mr Harrison’s right of action. Nor, given the publicity required by [the] Insolvency Act to be given to the resolution to wind up and the final meeting and accounts of the liquidator, is a case of deliberate concealment likely to be made out. In my view this point is more ingenious than sound.”
“Even if it could be said that there was a claim against Mrs Bhandari based on the registration of the transfer in 2009, which there cannot as there is no reason at all to think that she was involved in the transfer or the registration in a way that was improper, such a claim is time-barred by reason of sections 2 and 21(3) of theLimitation Act 1980 , which provide that a claim in tort or for breach of fiduciary duty must be brought within six years of the accrual of the cause of action. The conditions for the postponement of the running of the limitation period under section 32 of that Act cannot apply. No fraud is alleged on the part of Ms Bhandari (and I am satisfied there was none) and a plea of deliberate concealment cannot succeed given that the share ownership was a matter of public record and could be seen on the records maintained at Companies House.”
“Other than not positively informing Investors, no steps were taken in 2008 to hide the Annex Lease Scheme. As noted in paragraph 159, the Lease and the Underlease were registered at HM Land Registry.”
“[T]he defendant must have considered whether to inform the claimant of the relevant fact and decided not to. So construed, section 32(1)(b) strikes a balance between the interests of the claimant and the defendant, as Parliament intended. If the defendant has concealed a fact from the claimant, and has done so deliberately, that is to say knowingly, then he has the means to start the limitation period running by disclosing the fact. If he does not do so, but chooses to keep the claimant in ignorance of a fact which she requires to know in order to plead her claim, then it is just that the defendant should be deprived of a limitation defence.”
“the timetable would most likely see the plan adopted next summer (2017) and if an application followed on [the Land] this might be determined by the start of 2018. So a way to go yet but I would remain positive that there will be a good outcome in the next 24 months”
“It cannot be simply assumed, without further evidence, both that the reasonably diligent investor could then have been expected to make further inquiries, for example at the Land Registry or at Companies House, and that such inquiries would have unravelled the fraud. These questions too will be more reliably decided at trial.”
“genuine commercial interest”
“division of the spoils”
“In Sibthorpe v. Southwark LBC,[2011] EWCA Civ 25 , the Court of Appeal explained that, when considering an allegation of champerty in relation to an agreement to which the person conducting the litigation (or providing advocacy services) is not a party, the modern approach was for the court to decide whether the agreement would undermine the purity of justice or would corrupt public justice which is a question to be decided on a case-by-case basis ([35] to [36]). It formulated that approach given the views expressed by Steyn LJ in Giles v. Thompson (Court of Appeal decision), Lord Mustill in Giles v. Thompson in the House of Lords and Lord Phillips in Factortame. In Davey v. Money[2019] EWHC 997 (Ch) , Snowden J held that, in determining whether an agreement with a non-party as regards the conduct of litigation would tend to undermine or corrupt the process of justice, “the crucial issue appears to be whether the non-party can exercise excessive control or influence over the conduct of the proceedings in such a way as, for example, to suppress evidence, influence witnesses, or procure an improper settlement” (at [78]).”
“In the most recent decades of the present century, maintenance and champerty have become almost invisible in both their criminal and their tortious manifestations. In practice, they have maintained a living presence in only two respects. First, as the source of the rule, now in the course of attenuation, which forbids a solicitor from accepting payment for professional services on behalf of a plaintiff calculated as a proportion of the sum recovered from the defendant. Secondly, as the ground for denying recognition to the assignment of a ‘bare right of action.’”
“Contentious business agreements. (1) Subject to subsection (2), a solicitor may make an agreement in writing with his client as to his remuneration in respect of any contentious business done, or to be done, by him (in this Act referred to as a “contentious business agreement”) providing that he shall be remunerated by a gross sum or by reference to an hourly rate, or by a salary, or otherwise, and whether at a higher or lower rate than that at which he would otherwise have been entitled to be remunerated. (2) Nothing in this section or in sections 60 to 63 shall give validity to— (a) any purchase by a solicitor of the interest, or any part of the interest, of his client in any action, suit or other contentious proceeding;” (a) any purchase by a solicitor of the interest, or any part of the interest, of his client in any action, suit or other contentious proceeding;”
“(1) A conditional fee agreement which satisfies all of the conditions applicable to it by virtue of this section shall not be unenforceable by reason only of its being a conditional fee agreement; but (subject to subsection (5)) any other conditional fee agreement shall be unenforceable. (2) For the purposes of this section and section 58A— (a) a conditional fee agreement is an agreement with a person providing advocacy or litigation services which provides for his fees and expenses, or any part of them, to be payable only in specified circumstances;” (a) a conditional fee agreement is an agreement with a person providing advocacy or litigation services which provides for his fees and expenses, or any part of them, to be payable only in specified circumstances;”
“Section 59(2) merely provides that nothing in the Act shall give validity to arrangements of the kind there specified. It does not legitimise such arrangements if they are otherwise unlawful, but neither does it make them unlawful if they are otherwise lawful” or, as it was put in Candey Ltd v Tonstate Group[2022] EWCA Civ 936 ,[2022] 1 WLR 4653 , the 1990 Act created “islands of legality in a sea of illegality”
“The abolition of criminal and civil liability under the law of England and Wales for maintenance and champerty shall not affect any rule of that law as to the cases in which a contract is to be treated as contrary to public policy or otherwise illegal.”
“As Lord Neuberger has made clear, there is now a very hard distinction between potentially champertous transactions between non-lawyers and potentially champertous transactions involving a lawyer. The former cases are considered according to the broad and flexible standard articulated in paragraph 34(1) above. The latter cases are assessed according to an altogether different standard: they are either sanctioned by statute or they are not; and if they are not, the common law does not ride to the rescue. In this case, the Assignment is not sanctioned by the 1990 Act and – assuming it to stand alone – clearly fails as a champertous transaction.”
“So an agreement between a lawyer and a client to act in return for a share in the proceeds of an action or for a fee the amount of which depends on the outcome of the action has generally been void. The prohibition applied even if the lawyer was only to receive his ordinary fee if the action succeeded.”
“The Solicitors’ Practice Rules are made undersection 31 of the Solicitors Act 1974 by the Council of the Law Society with the concurrence of the Master of the Rolls. They are secondary legislation having the force of statute, as was decided in Swain v The Law Society[1983] 1 AC 598 . The Rules regulate professional practice, but breach of the Rules is unlawful in addition to being a breach of professional practice. This court in the Thai Trading case unfortunately did not consider the Swain case. A necessary part of the decision in the Thai Trading case was the proposition[1998] QB 781 , 78 5H that “the fact that a professional rule prohibits a particular practice does not of itself make the practice contrary to law”
“A contingency fee, that is, an arrangement under which the legal advisers of a litigant shall be remunerated only in the event of the litigant succeeding in recovering money or other property in the action, has hitherto always been regarded as illegal under English law on the ground that it involves maintenance of the action by the legal adviser. Moreover, where, as is usual in such a case, the remuneration which the adviser is to receive is to be, or to be measured by, a proportion of the fund or of the value of the property recovered, the arrangement may fall within that particular class of maintenance called champerty.”
“Although the decision itself [in Thai Trading] was per incuriam, the judgment represents the considered view of Millett LJ and two other members of this court. Millett LJ said at p 788: ‘It is understandable that a contingency fee which entitles the solicitor to a reward over and above his ordinary profit costs if he wins should be condemned as tending to corrupt the administration of justice. There is no reason to suppose that Lord Denning MR in Trendtex Trading Corpn v Credit Suisse[1980] QB 629 or any of the members of the court in Wallersteiner v Moir (No 2)[1975] QB 373 had in mind a contingency fee which entitles the solicitor to no more than his ordinary profit costs if he wins. These are subject to taxation and their only vice is that they are more than he will receive if he loses. Such a fee cannot sensibly be described as a ‘division of the spoils’. The solicitor cannot obtain more than he would without the arrangement and risks obtaining less’” ‘It is understandable that a contingency fee which entitles the solicitor to a reward over and above his ordinary profit costs if he wins should be condemned as tending to corrupt the administration of justice. There is no reason to suppose that Lord Denning MR in Trendtex Trading Corpn v Credit Suisse[1980] QB 629 or any of the members of the court in Wallersteiner v Moir (No 2)[1975] QB 373 had in mind a contingency fee which entitles the solicitor to no more than his ordinary profit costs if he wins. These are subject to taxation and their only vice is that they are more than he will receive if he loses. Such a fee cannot sensibly be described as a ‘division of the spoils’. The solicitor cannot obtain more than he would without the arrangement and risks obtaining less’”
“Thirdly, I remind myself that not only is it permissible for legal representative to require clients to give security for unpaid fees, but such practices are commonplace. I can see nothing inherently wrong—and certainly nothing ‘wanton’ or ‘officious’—with solicitors having a degree of control over a client’s affairs in this regard. The Claimant’s claim was in respect of an estate, and I can fully understand why in those circumstances (where life- changing amounts of money may be involved) the solicitors demanded a greater degree control over matters than, for example, they would have asked for had they been representing a client in a modest personal injury claim. The way they have achieved this may have been excessive and possibly even objectionable, but on the facts of this case, I am unable to say that they went so far as to offend against public policy.”
“To my mind, a division of the spoils means something other than a solicitor merely taking steps to ensure recovery of his or her fees and disbursements.”
“a solicitor could not make an arrangement of any kind with his client during the litigation he was conducting so as to give him any advantage in respect of the result of the litigation”
“The objection to its validity is founded on the decision in Simpson v Lamb. It is said that, inasmuch as at the time the deed came into operation the relation of solicitor and client had been established between the plaintiff the assignee and Marks the assignor, the principle of that case applies – that the purchase of the subject-matter of a suit by an attorney having the conduct of the suit is void, as against the policy of the law. The learned judge who tried this case was of the opinion that the principle was sound, but he pointed out the distinction which prevents it from applying to the present case. That distinction is that here, when the deed was made, the relation between the parties to it was not that of solicitor and client.”
“19-154 Assignment of causes of action between solicitor and client The assignment of a cause of action to the ex-solicitor of a client would also be champertous. In Farrar and Candey Limited v Miller proceedings had been commenced …” 19-165 Assignment of rights to solicitors. A solicitor cannot lawfully purchase anything in litigation of which he has had the management, nor can he purchase the fruits of such litigation before judgment, but an assignment of an action to a solicitor preceding his employment as such is good unless it would have been unenforceable as between strangers.”
“A solicitor may lawfully take from his client a security upon property which is the subject matter of an action for advances already incurred in the action, and he may take security from his client for his costs to be ascertained by taxation or otherwise.”
“no attorney can take any thing for his own benefit from his client pending the suit, save his demand; and I add that, as a guardian cannot take any thing from his ward pending the guardianship, or at the close of it, or at any period until his influence has ceased to exist, the obligation upon an attorney to refrain from taking an extraordinary benefit is at least as strong. … It is not denied in any case that, if the relation has completely ceased, if the influence can be rationally supposed also to cease, a client may be generous to his Attorney or Counsel, as to any other person; but it must go so far.”
“Where the court's intervention is sought by a former client, however, the position is entirely different. The court's jurisdiction cannot be based on any conflict of interest, real or perceived, for there is none. The fiduciary relationship which subsists between solicitor and client comes to an end with the termination of the retainer. Thereafter the solicitor has no obligation to defend and advance the interests of his former client. The only duty to the former client which survives the termination of the client relationship is a continuing duty to preserve the confidentiality of information imparted during its subsistence.”
“The validity of the First Assignment must be considered in the context of the law of champerty as explained in Farrar v Miller. It is undoubtedly an agreement by which the solicitor first claimant has endeavoured to acquire the cause of action of its client the second claimant. That it was entered into before proceedings were issued or a letter before action was sent cannot be material to whether it falls foul of the law of champerty. It falls on the lawyer side of the hard distinction referred to by Marcus Smith J in Farrar v Miller and the genuine commercial interest test has no relevance.”
“I have observed, that this case appears to me to be regarded in two points of views; the transaction liable to objections of two kinds: first, as bringing forward the consideration of the effect of a bargain between an attorney and his client, for the benefit of the attorney, before, pending, and after, suit; and not only for his benefit, but connected with the very article and subject in contest in a suit, in which he was about to be engaged.”