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4 King’s Bench Walk

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Chris Bryden
Chris Bryden
Barrister
4 King’s Bench Walk
Katherine Illsley
Katherine Illsley
4 King’s Bench Walk
Victoria Adams
Victoria Adams
Barrister
4 King’s Bench Walk
Contributions by 4 King’s Bench Walk Experts

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Privilege in financial remedy proceedings
Privilege in financial remedy proceedings
Practice notes

This Practice Note considers the different types of privilege that may arise in financial remedy proceedings, including legal professional privilege and litigation privilege. It also provides guidance on the circumstances in which privilege may be waived, considerations as to disclosure to third parties, without prejudice communications and procedural issues.

Public children—interaction between criminal and care proceedings
Public children—interaction between criminal and care proceedings
Practice notes

This Practice Note sets out the general approach to public children care proceedings where there are concurrent or imminent criminal proceedings, including the requirements of the Family Procedure Rules 2010 (FPR 2010) and case management issues, together with the protocol on the disclosure of information between family and criminal agencies and jurisdictions (the 2024 protocol) (which replaced the 2013 protocol and good practice model on disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings), as to the disclosure of evidence from criminal proceedings into the family proceedings and vice versa. It also includes guidance on post-conviction disclosure from, for example, HM Prison and Probation Service (HMPPS).

Party A is conducting settlement negotiations with Party B and Party C separately in relation to a professional negligence matter. Party B is the allegedly negligent professional and Party C is being asked to rectify the document negligently prepared by Party B. Does Party A have to inform Party B or Party C if a settlement agreement is concluded with the other party? Is the position different if proceedings have already been commenced?
Party A is conducting settlement negotiations with Party B and Party C separately in relation to a professional negligence matter. Party B is the allegedly negligent professional and Party C is being asked to rectify the document negligently prepared by Party B. Does Party A have to inform Party B or Party C if a settlement agreement is concluded with the other party? Is the position different if proceedings have already been commenced?
Q&As

Party A obtained advice from an accountant eight years ago. The accountant did not explain the tax implications of putting a property in trust. Party A has just found this out when they sold the property and had to pay a large sum in tax. Given the time that has passed since having been given the advice, is Party A still able to claim, and, if so, what cause of action could they take? The accountant did not make a negligent misstatement, he was simply silent on the tax matter. Could it also be a Consumer Act claim?
Party A obtained advice from an accountant eight years ago. The accountant did not explain the tax implications of putting a property in trust. Party A has just found this out when they sold the property and had to pay a large sum in tax. Given the time that has passed since having been given the advice, is Party A still able to claim, and, if so, what cause of action could they take? The accountant did not make a negligent misstatement, he was simply silent on the tax matter. Could it also be a Consumer Act claim?
Q&As

Party A owns a plot of land, and the adjoining plot of land is owned by party B. An individual who is not connected to party A nor authorised on party A's behalf, enters on to party B's land and commits a trespass. Party B then wants to bring a claim of trespass against party A. Is A responsible for any act of trespass committed on the adjoining landowner's land?
Party A owns a plot of land, and the adjoining plot of land is owned by party B. An individual who is not connected to party A nor authorised on party A's behalf, enters on to party B's land and commits a trespass. Party B then wants to bring a claim of trespass against party A. Is A responsible for any act of trespass committed on the adjoining landowner's land?
Q&As

Pending the outcome of proceedings under the Trusts of Land and Appointment of Trustees Act 1996 and Schedule 1 to the Children Act 1989, would a party who is resident in the property which is the subject of the proceedings, but is not a legal owner of that property, need to apply for an occupation order?
Pending the outcome of proceedings under the Trusts of Land and Appointment of Trustees Act 1996 and Schedule 1 to the Children Act 1989, would a party who is resident in the property which is the subject of the proceedings, but is not a legal owner of that property, need to apply for an occupation order?
Q&As

Possession proceedings have been issued under a section 8 notice. The landlord had delivered the section 8 notice, but no certificate of service for the section 8 notice was attached to the particulars of claim. Is it sufficient if a certificate of service for the section 8 notice is enclosed with the landlord's witness statement?
Possession proceedings have been issued under a section 8 notice. The landlord had delivered the section 8 notice, but no certificate of service for the section 8 notice was attached to the particulars of claim. Is it sufficient if a certificate of service for the section 8 notice is enclosed with the landlord's witness statement?
Q&As

Pre 9 March 1999 was there any provision or Practice with similar effect to section 102B of the Finance Act 1986? Does section 102B (or also any earlier equivalent) apply where the 'donee' is 'the trustees' of a qualifying interest in possession trust and the life tenant occupies the land together with the donor?
Pre 9 March 1999 was there any provision or Practice with similar effect to section 102B of the Finance Act 1986? Does section 102B (or also any earlier equivalent) apply where the 'donee' is 'the trustees' of a qualifying interest in possession trust and the life tenant occupies the land together with the donor?
Q&As

Prior to the exchange of contracts, a developer agreed in correspondence marked ‘subject to contract’ to clear rubble and erect a fence. This term, along with several other terms relating to snagging issues (including tiling etc) were not expressly referred to in the contract. Do all terms have to be included in the contract for sale, where eg the developer has failed to clear rubble and erect fence, or is it possible to bring an action against the developer on the basis that this was a collateral contract?
Prior to the exchange of contracts, a developer agreed in correspondence marked ‘subject to contract’ to clear rubble and erect a fence. This term, along with several other terms relating to snagging issues (including tiling etc) were not expressly referred to in the contract. Do all terms have to be included in the contract for sale, where eg the developer has failed to clear rubble and erect fence, or is it possible to bring an action against the developer on the basis that this was a collateral contract?
Q&As

Public law children proceedings have been issued where the mother herself is a looked after child and the father of the child who is the subject of the proceedings had abused a position of trust. Where the local authority seeks permission to not serve the father with the proceedings, how exceptional must the circumstances be for the court to dispense with service on the father?
Public law children proceedings have been issued where the mother herself is a looked after child and the father of the child who is the subject of the proceedings had abused a position of trust. Where the local authority seeks permission to not serve the father with the proceedings, how exceptional must the circumstances be for the court to dispense with service on the father?
Q&As

Pursuant to an agreement for lease, a landlord is constructing a building for the tenant and has provided collateral warranties to it from the professional team. The landlord is now intending to mortgage the freehold simultaneously with completion of the lease at practical completion. Does the landlord need to procure new collateral warranties in favour of the bank as presumably the tenant wouldn’t permit assignment of those in its favour? Also, there is a novation agreement attached to the consultant’s letter of appointment (allowing for novation to the contractor)—how will this sit with the lender?
Pursuant to an agreement for lease, a landlord is constructing a building for the tenant and has provided collateral warranties to it from the professional team. The landlord is now intending to mortgage the freehold simultaneously with completion of the lease at practical completion. Does the landlord need to procure new collateral warranties in favour of the bank as presumably the tenant wouldn’t permit assignment of those in its favour? Also, there is a novation agreement attached to the consultant’s letter of appointment (allowing for novation to the contractor)—how will this sit with the lender?
Q&As

Pursuant to CPR 40.6 and PD 40B paragraph 3.3, is it a requirement to file an application notice (N244) with consent orders?
Pursuant to CPR 40.6 and PD 40B paragraph 3.3, is it a requirement to file an application notice (N244) with consent orders?
Q&As

Pursuant to William Hill v Willen Key (1964) 108 Sol Jo 482, unless there is express agreement, rent payable in advance cannot be apportioned on a surrender. However, in the absence of such express agreement, could the tenant be saved by Standard Commercial Property Condition 9.3.1, and be entitled to repayment of sums paid in advance in respect of the period post-completion of the surrender?
Pursuant to William Hill v Willen Key (1964) 108 Sol Jo 482, unless there is express agreement, rent payable in advance cannot be apportioned on a surrender. However, in the absence of such express agreement, could the tenant be saved by Standard Commercial Property Condition 9.3.1, and be entitled to repayment of sums paid in advance in respect of the period post-completion of the surrender?
Q&As

Recent changes to the CPR in force as of 20 September 2020 mean that, generally, no permission is required from the High Court in relation to writs of possession in relation to land. One exception is CPR 83.13 (3) which states that where a writ of possession is sought against a trespasser, no writ of possession can be issued after the expiry of three months from the date of the relevant order without the permission of the court. Where such a writ of possession is sought, and the proceedings are transferred up from the County Court, can Form N293A (Combined certificate of judgment and request for writ of control or writ of possession) be used for the purpose of seeking permission?
Recent changes to the CPR in force as of 20 September 2020 mean that, generally, no permission is required from the High Court in relation to writs of possession in relation to land. One exception is CPR 83.13 (3) which states that where a writ of possession is sought against a trespasser, no writ of possession can be issued after the expiry of three months from the date of the relevant order without the permission of the court. Where such a writ of possession is sought, and the proceedings are transferred up from the County Court, can Form N293A (Combined certificate of judgment and request for writ of control or writ of possession) be used for the purpose of seeking permission?
Q&As

Other Work
Question of the week: A deceased individual owned agricultural land in their sole name, which was used for sheep and cattle farming as a sole trader. The deceased was also a partner in a partnership with their spouse, which operated a poultry farming business. The business did not own any land, but its assets included a poultry house situated on part of the agricultural land. The majority of the land was used for the deceased’s sole trader sheep and cattle farming business. There was no formal agreement for the use of the land by the poultry house. Can agricultural property relief be claimed on all the land (including the land with the poultry house) and business property relief on the partnership (including the poultry house)?
Question of the week: A deceased individual owned agricultural land in their sole name, which was used for sheep and cattle farming as a sole trader. The deceased was also a partner in a partnership with their spouse, which operated a poultry farming business. The business did not own any land, but its assets included a poultry house situated on part of the agricultural land. The majority of the land was used for the deceased’s sole trader sheep and cattle farming business. There was no formal agreement for the use of the land by the poultry house. Can agricultural property relief be claimed on all the land (including the land with the poultry house) and business property relief on the partnership (including the poultry house)?

This Q&A considers whether agricultural property relief and/or business property relief from inheritance tax applies to land, including a poultry house, which is occupied for sheep and cattle farming by a sole trader who owns the land and occupied by a partnership whose business is poultry farming, in which that land owner is a partner.

Question of the week: Can an attorney renounce the right to apply for probate on behalf of the donor where the donor is physically unable to sign the PA15 renunciation form but still has mental capacity? The attorney is appointed as executor with the donor in the Will, can the attorney still sign the renunciation on the donor’s behalf given he is the remaining executor?
Question of the week: Can an attorney renounce the right to apply for probate on behalf of the donor where the donor is physically unable to sign the PA15 renunciation form but still has mental capacity? The attorney is appointed as executor with the donor in the Will, can the attorney still sign the renunciation on the donor’s behalf given he is the remaining executor?

This Q&A considers whether the attorney of a donor can renounce probate on the donor's behalf in a situation where both are appointed as the executors in the Will.

Question of the week: Can an executor make a deduction from a residuary beneficiary’s share in respect of loss that the residuary beneficiary has caused to the estate without an order of the court?
Question of the week: Can an executor make a deduction from a residuary beneficiary’s share in respect of loss that the residuary beneficiary has caused to the estate without an order of the court?

This Q&A considers the ability to make a deduction or set off against a legacy for loss caused to the estate by the legatee.

Question of the week: Where executors are on notice of a potential challenge to the deceased's Will and/or claim under the Inheritance (Provision for Family and Dependants) Act 1975 based on initial correspondence but not meaningfully pursued beyond that stage, would a successful application for a 'put up or shut up'/Cobden-Ramsay order afford protection against both actions?
Question of the week: Where executors are on notice of a potential challenge to the deceased's Will and/or claim under the Inheritance (Provision for Family and Dependants) Act 1975 based on initial correspondence but not meaningfully pursued beyond that stage, would a successful application for a 'put up or shut up'/Cobden-Ramsay order afford protection against both actions?

This Q&A provides guidance on the protection afforded to personal representatives when they are on notice of a potential claim against the estate but want to distribute as the claim is not being actively pursued.

Question of the week: Where two of three executors have a grant with power reserved for the third, and the third is in occupation of an estate property after their right to occupy has been terminated, can the two executors bring possession proceedings against the third?
Question of the week: Where two of three executors have a grant with power reserved for the third, and the third is in occupation of an estate property after their right to occupy has been terminated, can the two executors bring possession proceedings against the third?

This Q&A considers whether possession proceedings can be brought by executors who have a grant of probate against a third executor who has power reserved and who remains in occupation of a residential property held in the deceased’s estate following termination of their right to occupy.

Question of the week: Would the execution of mirror Wills by a married couple, which each contain a nil rate band discretionary trust on first death, be sufficient to show a common intention to sever a joint tenancy of land?
Question of the week: Would the execution of mirror Wills by a married couple, which each contain a nil rate band discretionary trust on first death, be sufficient to show a common intention to sever a joint tenancy of land?

This Q&A considers whether mirror Wills could constitute a common intention to sever a joint tenancy of land.

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