David has a practice broadly based, so far as the commercial world is concerned, in the Chancery Division. This includes company and business association disputes with (usually) fairly complex contractual or equitable considerations. Often involved are allegations of breach of fiduciary duty and trust, and the tracing and recovery of assets.
The use of interim injunctions in all of their guises features regularly, as well as other interim steps leading to a trial. As a trial advocate, David is a confident, and if it calls for it, combative operator who is known for his thorough preparation. He is however someone who always puts the client first, and if this means negotiation and settlement strategies, his experience as accredited mediator counts.
David has now been practising from Birmingham for 25 years, although his practice spans geographically from the North (he is part of the St Philips presence in Leeds) to the South and London for some trial and appeal court work. He was the first barrister in Birmingham with a computer on his desk (an attempt to prove he is up to date but giving too much indication of his age perhaps), and he was the first with a 100% Chancery and commercial practice. So much has changed and continues to change, David’s flexibility in approach has always kept him towards the forefront of developments. David’s guiding principle is whether value can be added at a particular stage of a case by the instruction of a barrister, rather than be hamstrung by the traditional light touch in the early stages, then heavy reliance as a trial appears.
In his spare time, David is a family man who also loves his skiing (Val d’Isere a favourite); and cycling (he still races and was a half blue at University); and occasionally, but not often, has time for less energetic pastimes.
Company and Partnership
David has a company practice mainly rooted in the contentious (but not exclusively); particularly with wide experience in Petitions and Derivative Actions. He has been instructed many times in relation to share sale (and other acquisition) disputes; warranty and indemnity claims and sometimes in more technical paper advices, on class rights, redemption, capital reductions and so forth. The nature and business of the companies’ concerns varies – from the oft seen incorporated partnership rooted in the West Midlands, through retail and trading businesses to more technical professional companies. Particularly in the contentious domain, the use of interim injunctions in all of their guises, and other interim applications, feature regularly. As a trial advocate, David is a confident, and if it calls for it, combative operator who is known for his thorough preparation. He is however someone who always puts the client first, and if this means negotiation and settlement strategies, his experience as an accredited mediator counts.
- Resisting the winding up of a land-owning company (with assets of £90 million)
- Advising on the various rights and obligations arising in a Share Option Scheme
- In the early stages of shareholder disputes in relation to care homes; and another one in respect of an engineering firm with misfeasance allegations
- Advised in share warranty claims, of more modest value, in respect of a West Midlands business
- A complex Opinion, fairly recently on redeemable preference shares
- Advising in the pursuit of the personal liability of directors following a disqualification order
- Advising in the resistance of a claim of more than £100,000 by an investor against his co-director shareholder, containing veiled allegations of fraud
- Two freezing injunctions, one worth in excess of £4million for a worldwide order including passport and movement restrictions (against a former global industrialist); the other a telecoms fraud
Contentious Wills, Trusts & Probate
David started his professional life with very good quality pupillages in Lincoln’s Inn, mixing between commercial Chancery and very specialised Traditional Chancery (including capital taxes). He has practised from Birmingham for 25 years and was the first barrister in Birmingham with a 100% Chancery practice (which has always included Chancery commercial and property). He has maintained within his practice: probate disputes, questions arising in the administration of estates, issues facing executors and administrators, Inheritance Act applications and claims for breach of trust and fiduciary duty. In an area where experience and wisdom combined with good common sense balanced with detailed legal knowledge count, David will fight hard when necessary; and negotiate when appropriate. David is also an accredited mediator.
- Most recently, the surge in contested estates has led David to work in a number of fairly bread and butter Inheritance Act claims; and also in difficult estate administration issues (in particular of note, in one estate of a deceased wealthy entrepreneur with, ironically, issues of abatement).
- Breach of trust cases, arising in numerous guises, with tracing and following, and constructive trust issues are probably prevalent in David’s recent practice.
The mainstay of David’s practice is property and property development, nearly always of a litigious nature. He regularly acts for property developers and housebuilders of varying sizes, often involving disputes over contracts for the sale, development and funding of property purchase and land acquisition. Such contracts can be simply for the sale and purchase of land or conditional contracts, options or other arrangements. He has for some time had a particular speciality in overage and clawback (and disputes arising therefrom). In addition, the disputes in which David has acted include issues relating to mortgages and other financial charges, land charges, and title queries and the omnipresent boundary problems. As and when the property market picks up, experience dictates that David’s instructions will turn to the avoidance of hindrances to development and associated litigation (with such topic headings of restrictive covenants, easements (rights of way, rights to light, service media, legal and equitable easements, registrations and claims for interference), towns and village greens and commons. He is particularly well versed in restrictive covenants, their enforceability and construction, applications for discharge and modification in the Lands Tribunal. In addition David has acted in compensation claims under the various statutes (although his practice falls short of planning and public law). One of his first claims of this nature concerned compensation for disruption caused by the extension of the M40 motorway onto the M42 and damage that was done to the amenity and prospect of a particularly beautiful and valuable house. Staple disputes featuring include claims for the possession of land, adverse possession; beneficial interest disputes – constructive and resulting trusts, proprietary estoppel; and common law nuisance and trespass. David’s practice has traditionally been vented in the High Court Chancery Division, various County Courts as well as the Court of Appeal. More recently, many appearances have started before the Land Adjudicator. David is enthusiastic about alternative dispute resolution. He is an accredited mediator; has taken part in early neutral evaluation (and would be more than prepared to work as an ‘evaluator’) and he has given several binding opinions as expert on points such as the construction of documents (for example, rent review clauses) which have resolved matters.
- Extricating (through litigation) clients from a lease under a break clause where the continuing rental and other claims would be in excess of £1 million
- Resisting a winding up (by obtaining an injunction) for a property portfolio owning client (£90 million of assets) where the underlying dispute was over the quarter’s payment of rent just before a break took effect
- Advice on whether a joint tenancy has been severed (by course of conduct)
- A boundary dispute and right of way dispute (two disputes for one loyal client) in the North West
- Advising on a construction of a will which would determine whether a piece of land belonged to one family member or another
- A couple of cases for well known estate agents and property professionals, seeking commission on central London properties sold for in excess of £10 million
- Obtaining an injunction and steering a settlement of a dispute for a local ennobled Landowner
- Countless cases advising on boundaries, easements and restrictive covenants
- Involved in several recent determinations within the ever enlarging jurisdiction of the Land Adjudicator
Company and Partnership
Sharma v Farlam Limited  EWHC 1622 (Ch) Claim for breach of trust, recovery of shares and benefits therefrom
Clark v Cutland  EWCA Civ 810;  1 W.L.R. 783;  4 All E.R. 733;  B.C.C. 27;  2 B.C.L.C. 393;  O.P.L.R. 343;  Pens. L.R. 179;  W.T.L.R. 629;  W.T.L.R. 1413; (2003) 147 S.J.L.B. 781; Minority protection, misappropriation (breach of fiduciary duty) recovery of assets, tracing, pension funds and set off. An important case in the area, particularly of remedies for minority protection.
Secretary of State for Trade and Industry v. Banister  2 BCLC 271 – director’s disqualification
Contentious Wills, Trusts & Probate
David has an extensive number of reported cases, although not that many in the area of Wills, Trusts and Probate. Re White deceased, Barker v. Gribble  Ch 1,  3 AllER1 is one of the leading cases on the alteration of wills.
Quirkco Investments Ltd v Aspray Transport Ltd  EWHC 3060(ch);  L&TR 19 Break clauses
Wilkinson v Farmer  EWCA 1148 (Civ);  NPC 105 Interpretation, rights of way
Wright v Wright  EWHC 1808 (Ch)  1 FLR 387; Property ownership and breach of trustee obligations
Gilbert (Woods Farm Christmas Trees) v British Waterways Board  EWHC 3094 (TCC) Losses for trespass to land, including future losses, and loss of profits
Hughes v Riley  EWCA (Civ) 1129;  EnvLR 12;  P&CR 29 Breach of restrictive covenant, nuisance
Severn Trent Water v Barnes  EWCA Civ 570;  2 E.G.L.R. 95;  26 E.G. 194;  R.V.R. 181; (2004) 148 S.J.L.B. 693;  N.P.C. 76 ‘Negotiating damages’, damages in lieu of an injunction for alleged trespass by the building of a water main
Inglewood Investments v Baker (2002) EWCA Civ 1733 – adverse possession
Di Luca v Juraise Springs  2 EGLR 125 – option agreements
R v Trent RHA ex parte Westerman (1996) 72 P. & C.R. 448 the Crichel Down Rules
Bannocks v Secretary of State for Transport  2 EGLR 157 – Compensation for Compulsory Purchase
Covent Garden Group Limited v. Naiva (1995) 27 HLR 295 – leasehold enfranchisement
Snell &Prideaux Limited v. Dutton Mirrors Limited(CA)  1 EGLR 259 – easements
Re Fisher and Gimson (Builders) Limited’s Application(1993) 65 P&CR 312 – restrictive covenants
Hammond v. Allen  1 AllER 307 – agricultural holdings